The Gauteng Local Division of the High Court in Johannesburg ordered an immediate release of the applicant, after the applicant made an application seeking an order, inter alia, reviewing the trial proceedings and setting aside his conviction and sentencing. The High Court said that the application was brought in terms of s 22 of the Superior Courts Act 10 of 2013. A section, which provides that the proceedings of a magistrate’s court may be brought under review before the superior court on the grounds of gross irregularity in the proceedings (s 22(1)(c)) and the admission of inadmissible evidence or rejection of admissible evidence (s 22(1)(d)).
The High Court said that on 10 October 2022 the applicant was tried before the district magistrate sitting at Alexandra, Johannesburg, under case B656/2022, on a charge of assault with intent to do grievous bodily harm. It was alleged that the applicant unlawfully and intentionally assaulted RK on or about 12 July 2022, at or near Marlboro, Johannesburg by hitting her head with his head and by hitting her with open hands all over the body.
The High Court pointed out that the applicant pleaded not guilty to the charges and did not make a plea explanation. The applicant was represented by a candidate attorney, Mr X, in the employ of the Alexandra branch of Legal Aid South Africa. The applicant was convicted as charged and sentenced to imprisonment for three years without the option of a fine. He was declared unfit to possess a firearm in terms of s 103(1) of the Firearms Control Act 60 of 2000. On the same day the applicant was committed to serve his sentence, and, as at the time of the hearing of this application, he was still in detention.
The High Court said that the applicant relied on s 304(4) of the Criminal Procedure Act 51 of 1977, which provides that if it is brought to the notice of a superior court having jurisdiction that the proceedings in which a magistrate’s court imposed a sentence which is not subject to review in the ordinary course, were not in accordance with justice such superior court shall have the power of review of such proceedings set out in s 304. The High Court pointed out that it was argued on behalf of the applicant that the incompetent representation of the third respondent’s candidate attorney, Mr X, who conducted the defence of the applicant, was such that the applicant was dispossessed of a fair trial. That there was failure of justice resulting in the trial being void ab initio. The High Court further stated that, it was also submitted that the second respondent, the magistrate presiding at the trial, should have intervened to protect the applicant from a potential miscarriage of justice.
The High Court said that the first responded opposed the application on the grounds that the second respondent did not preside over the trial in an improper manner in any respect. The High Court pointed out that the applicant did not raise the incompetence of his representative till after the case, and he did not object during the trial to the services rendered to him or terminate the mandate of Mr X. The applicant had a fair trial. The High Court said that had arranged with the Legal Aid Board in Alexandra, however, no consultation for the purpose of the trial was held with him or his witnesses before the day of the trial by any legal representative or paralegal employee or any other member of the third respondent, despite the efforts of both the applicant and Mr X to do so.
The High Court said that the applicant and his father and Mr X met at court on the day of trail, 10 October 2022. They all agreed that a postponement should be sought to consult properly for the trial. Mr X in his explanatory affidavit stated that he sought a postponement of the matter as he did not have time to consult with the applicant. The court refused to grant the application ‘to [him] and the state’ but stood the matter down so that Mr X could consult. The High Court said that the dispute regarding whether an application for postponement was made in court by Mr X can be resolved on the papers. The High Court pointed out that there was record or mention of such as application in the transcribed record of the proceedings in the case on 10 October 2022, from which circumstances the High Court concluded that Mr X was incorrect.
The High Court said that in a consultation held at court the applicant told Mr X that he was not guilty of the offence charged and he told him his version of the incident which led to the case. Mr X stated that he ‘got [the applicant’s] version as the matter was an assault case and he could gather the necessary facts to enable him to proceed’. The High Court stated that the state had one witness, the complainant, and the matter was not complicated. The High Court added that there was no other witness to the alleged assault. That Mr X was aware that the applicants’ parents met with the applicant and the complainant after the alleged assault for a mediation session.
The High Court said that whether or not the complainant had visible injuries, as she testified she did, and what she said or did not say about the incident afterwards to the applicant’s witnesses, were material aspects of the case as the applicant disputed that he assaulted her as she alleged and that she had visible injuries as a result. The High Court pointed out that no proper consultation on these matters was held by Mr X and consequently none of this part of the applicant’s case was put to the complainant in cross-examination. Nor were any of the witnesses called except for the father of the applicant, whose evidence was cut short by the second respondent who was of the view that the father could not testify on any part of his version which had not been put to the complainant.
The High Court said that Mr X conceded in his affidavit that the failure to consult prior to the trial date ‘contributed to poor preparation on the hearing date of the matter as by then [he] did not know the version of the applicant’. The High Court pointed out that the entire trial was completed on the same day, in one hour and 42 minutes, from 1:17 pm to 2:59 pm. The High Court added that after conviction, sentencing proceedings immediately commenced. There was no adjournment for preparation on sentence.
The High Court looked at the competence of legal representation conduct of the defence in the trial. The High Court pointed out that this aspect of the complainant’s evidence was important because the applicant’s version of the physical interaction between them that morning was quite different. Further, as stated above, his witness could not support him on the question of her injuries and the fact that she did not complain of an assault by him. The High Court said that there was no argument by Mr X during his address on the merits or on the complainant as a single witness whose evidence was not properly corroborated. The High Court added that the gravity of the assault alleged by the complainant was also not dealt with in the argument. The High Court, further, stated that the prosecution did not produce the necessary certificate, signed by the author of the J88 medical report and did not call the doctor to testify.
The High Court said that the father of the applicant testified that he saw the complainant on the day in question in the afternoon and she told him that she feared an assault by the applicant, not that he had already assaulted her. The High Court pointed out that during his evidence in chief the second responded twice queried if this aspect of the defence case had been put to the complainant. The High Court said that the prosecutor submitted that they had not, and Mr X closed his examination. The High Court said that Mr X should have submitted that the failure to put an accused’s version or an accused witness’s version to a state witness is not fatal. It does not make the evidence by the accused or witness inadmissible; only the weight of the evidence may be affected. The High Court referred to Mkhize and Others v S (SCA) (unreported case no 390/18, 1-4-2019) (Mathopo JA (Majiedt and Swain JJA concurring)). The High Court said that the applicant’s father should have been allowed to elaborate on what he heard or did not hear from the complainant.
The High Court pointed out that after close of evidence, when the prosecutor was arguing, she applied to read the complainant’s victim impact statement into record. The High Court added that this application was granted by the second respondent. The High Court said that the statement not only detailed serious physical abuse by the applicant of the complainant in the past but accused him of theft of her belongings and her impoverishment. The High Court added that it dealt with the crime charged as well. It was received as an exhibit although the applicant had not yet been convicted.
The High Court pointed out that the second responded did not invite Mr X to indicate the attitude of the defence to the admission of the statement and as the applicant had not yet been convicted there should have been an objection to the statement at the conviction stage. The High Court said at the sentencing stage as well the statement could not be admitted if the complainant did not confirm the allegations therein in evidence, which she did not. The High Court pointed out that the finding by the second respondent indicated that she had already accepted the impact statement before the sentencing stage, irrespective of the defence stance on it and irrespective of its admissibility or otherwise. The High Court added that there can be no doubt that she was influenced by the statement to impose maximum sentence of her penal jurisdiction and make an example of the applicant. The High Court said this was a gross misdirection, which is sufficient to vitiate the sentence.
The High Court pointed out that the Constitution guarantees every accused person the right to a fair trial in s 35(3) of the Constitution. This includes the right to legal representation, and this means the right to competent representation or representation of quality and nature that ensures that the trial is fair. The High Court added that an accused has, in principle, the right to proper, effective, or competent defence. The High Court said that in the instant case Mr X in his explanatory affidavit states that he is a candidate legal practitioner ‘who does not possess the adequate experience’. Furthermore, that Mr X did not possess adequate experience to conduct an effective defence in this case is borne out by the record of the trail before the second respondent.
The High Court said the address by Mr X on the merits was brief. Stating that the applicant’s evidence was that he did not assault the complainant, that he did not inflict injuries on her, that he did not know how they came about, and that the applicant was ‘just a normal guy’ who was not in a financial position to care for his family but his frustrations never made him abuse his wife in any way. The High Court added that on taking instruction at the request of the second respondent he advised the court that his client was remorseful but that he did not accept that he committed ‘those actions’.
The High Court said that the applicant has established that the conduct of the defence at his trial was not competent or effective or proper. The High Court added that the cumulative effect of this circumstance taken together with the other features of the trial discussed in this judgment is that the applicant did not have a fair trial. The High Court granted an order to aside the trial proceedings and the conviction and sentence.
Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
This article was first published in De Rebus in 2024 (April) DR 34.
