TRIAL WITHOUT LEGAL PRESENTATION

S v MAFIKA 2016 (1) SACR 623 (FB)

Trial — Accused — Legal representation of — Legal representative withdrawing at outset of trial and accused requesting legal representation since he did not understand charge — Magistrate proceeding with trial despite accused lacking such representation — Gross irregularity amounting to failure of justice — Proceedings set aside.

The accused was charged in the magistrates’ court with two counts of housebreaking with intent to steal and theft. At the outset of the trial he informed his legal representative that he was unaware of one of the charges against him and would not plead to that charge. A conflict arose between the parties leading to the withdrawal of the legal representative. The magistrate pressed ahead with the case and insisted that the charges be put to the accused. He refused to plead and requested that his trial be adjudicated by another presiding officer. The magistrate noted a plea of not guilty in respect of both charges and proceeded to act in terms of s 115 of the Criminal Procedure Act 51 of 1977 (CPA). The accused responded that there were aspects which he did not understand. Despite this the magistrate instructed the prosecutor to proceed with the state’s case. The accused was duly convicted on both counts despite further requests for legal assistance during the trial, and the matter was referred to the regional court for the imposition of sentence. The regional magistrate was of the opinion that the accused had not been given a fair trial and accordingly submitted the matter for special review in terms of s 304(4) of the CPA.

Held, that, despite the repeated requests from the accused for legal representation, the magistrate ignored the constitutional imperatives contained in s 35 of the Constitution and dispassionately informed him of his rights of cross-examination, well knowing that the failure of the accused to challenge the state case rested squarely on his refusal to allow the accused an opportunity to obtain such. Neither did he inform the accused of his right to apply for legal aid. Had the accused obtained the assistance of a legal representative, the outcome of the trial might well have been different. Such failure constituted a gross irregularity amounting to a failure of justice. The proceedings had to be set aside and the matter remitted to the magistrates’ court for trial de novo before another magistrate.

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