Court name
High Court
Case number
CA 2 of 2005
Title

S v Kasanga (CA 2 of 2005) [2005] NAHC 46 (02 December 2005);

Media neutral citation
[2005] NAHC 46























CASE NUMBER: CA 2/2005





SUMMARY











NILTON KASANGA v THE STATE










HEATHCOTE
A J



















Constitutional law – Criminal
procedure – Does an unrepresented accused have a
right to be informed that he can remain silent, even in circumstances
where he wants to plead guilty to a charge? This question can also
be rephrased as follows: An unrepresented accused undoubtedly has
the right to be informed that he can remain silent in circumstances
where he pleads not guilty. Does the unrepresented accused forfeit
that constitutional right when he mistakenly indicates the he wants
to plead guilty, but after having been questioned in terms of section
112(1)(b) of the Act, a plea of not guilty is recorded. In such
circumstances an accused obviously does not understand the elements
of the crime with which he is charged. In fact if an accused is
properly informed, he will not mistakenly plead guilty. Should the
rights of an accused who is properly informed, be different from the
one who is ill informed?






In S v
Shikongo and Another 1999 NR 375 (SC)
the Namibian Supreme Court
held that there is no duty on a presiding judicial officer to explain
to an accused that he has the right to remain silent unless and until
he pleads not guilty






In terms of
Article 81 of the Constitution the court is obliged to follow what
was decided in the Shikongo matter even where the court does
not agree with the ratio of the Shikongo case





Nevertheless,
pointed out that the Supreme Court was not referred to a number of
relevant authorities. Had that been done, the Supreme Court might
have come to a different conclusion






The starting
point in determining the fairness of a trial as envisaged in Article
12, should always be whether or not the accused is informed. Without
an accused being properly informed, one cannot even begin to
speculate whether or not rights have been exercised or indeed waived.
In casu, the appellant wanted to plead guilty. He was
obviously ill informed, and did not know the elements of the crime of
murder. Had he been properly informed, a plea of not guilty would
have been recorded (i.e. exactly the same plea the magistrate was
compelled to record in terms of section 113 of the Act). Then,
according to the Shikongo judgement, he would have been
entitled to be informed that he had the right to remain silent.
Thus, the admission made by him that he indeed stabbed the deceased
with a knife, would not have been on record if he was fully informed.
Had he further been informed that he was entitled to expect the
State to prove its case beyond a reasonable doubt while he remains
silent, he may have done so. If he was legally represented, he would
most probably have conducted his case on that basis. Why should an
uninformed accused be in a worse position than an informed one? It
cannot be accepted that such is the spirit of Article 12 of the
Namibian Constitution






Appeal nevertheless succeeding
because the appellant not properly informed about his right to legal
representation as What would the appellant have
understood under the phrase “constitutional right to be defended
by a lawyer of his choice and means”
? The case was a serious
one. It concerned a charge of murder. Inevitably, the magistrate
must have known that if the accused was found guilty, he will face a
sentence of long-term imprisonment. The explanation to the accused
about his rights to obtain legal representation was totally
insufficient. It was also misleading. No indication whatsoever was
recorded in the District Court that the appellant was entitled to
apply for legal representation with the Legal Aid Board. He was not
informed how to go about in exercising his rights. Such irregularity
vitiated the proceedings














































































CASE NUMBER: CA 2/2005


IN
THE HIGH COURT OF NAMIBIA







In the matter between:






NILTON
KASANGA APPELLANT







and






THE
STATE RESPONDENT











CORAM: Heathcote A J



HEARD ON: 27 July 2005



DELIVERED ON: 2
December 2005



_____________________________________________________________________



JUDGEMENT



HEATHCOTE A J:
The appellant was charged with murder in the
Regional Court. It was alleged that he unlawfully and intentionally
killed one Jacob Anton by stabbing him with a knife on 4 December
1999.







At his first appearance in the
Regional Court, it was recorded that the appellant confirmed that his
rights to legal representation and Legal Aid were explained to him in
the District Court and that he wanted to conduct his own case.
However, the record of proceedings in the District Court reflects the
following:







“Accused
informed that they have a constitutional right to be defended by a
lawyer of his own choice and means.”







No reference to Legal Aid was
made. The magistrate before whom the appellant appeared the first
time in the District Court was not the same magistrate who presided
in the Regional Court. Thus, at best for the State, the appellant
was only informed in the District Court that he has a constitutional
right to be defended by a lawyer of his own choice and means.







After the aforementioned
explanation to the appellant the appellant pleaded guilty to the
charges in the District Court. The following is then recorded:







Q: Did you
understand the charge against you?







A: Yes I did.







Q: Were you
influenced to plead guilty to the charge?







A: I wasn’t
influenced by someone, I did that out of my own free will.







Q: Were you at
Kafuro village on the 4th December 99 in the district of
Rundu?







A: Yes I was
there.







Q: You pleaded
guilty what did you do wrong?







A: I killed the
deceased person by stabbing him with a knife.







Q: What is the
name of the person you killed?







A: His name is
Jacob Anton.







Q: Can you
describe how you killed him or the deceased?







A: On the day
in question I was sent by our commander in Angola to cross into
Namibia to come buy food. When I came in Namibia I found accd 2 and
his friend, the deceased. Accd 2 started to tell me that this friend
of mine is a criminal and is also a Unita member, he was referring to
the deceased. I then told the deceased to accompany us to our
commander in Angola. I then forced him to go and he entirely
refused, I then stabbed him with a knife in the chest with a bayonet.
I stabbed him on the left side of the chest. After stabbing him the
deceased runaway eastward. I didn’t see where deceased fell down.
Me and my friend accd 2 went back to Angola.







Q: Did you know
that by stabbing him with a knife on the chest you would cause his
death and that you were committing an offence for which you could be
punished if caught?







A: I don’t
know that.







Q: Why did you
kill him?







A: I killed him
because he refused to go with me in Angola.”






The
proceedings were then stopped and on 24 April 2001 transferred to the
Regional Court. When the matter was called in the Regional Court,
the appellant again pleaded guilty. It is
necessary to quote the whole of the proceedings as to what was said
in the Regional Court when the appellant pleaded guilty.







COURT: How
do you plead, guilty or not guilty?



ACCUSED: Yes
I’m guilty, because I killed somebody.



PLEADS GUILTY



COURT: Now
the Court will put questions to you in terms of Section 112(2) of
the, 112 (1)(b) of the Criminal Procedure Act. You must carefully
listen to these questions because the Court must find out whether you
admit all the allegations mentioned in the charge, as well as the
elements of the offence of murder. Understood? Mr (intervention)



MR
HIPONDOKA:
Kambina, try to interpret please, not write,
interpret, not write.



INTERPRETER: No,
yes, I’m interpreting.



COURT: Okay,
does he understand? Yes, what do you say? Mr (intervention)



ACCUSED: Yes,
I do understand, Your Honour.



COURT: Thank
you, thank you. Mr Kasanga were you in any way influenced or forced
to plead guilty to this charge of murder?



ACCUSED: No,
Your Honour, myself.



COURT: On
the 4th of December of 1999 were you at Kakuro Village?



INTERPRETER: I
beg your pardon My Honour, is it Kakuro or Kakoro.



COURT: It
reads Kakuro, K-A-K-U-R-O.



INTERPRETER: Kakuro?



COURT: Kakuro.



ACCUSED: I
don’t know this place, Your Honour.



COURT: Okay.
Now where you, or let me rather ask you this, did you on that
particular day meet with Jacob Anton, the deceased?



ACCUSED: We
were not together, Your Honour, but we just met.



COURT: Where
did you meet?



ACCUSED: I
won’t recall the place but it’s after Koringrusa, the other side,
it’s where we met, Your Worship.



COURT: So
was it near Kakuro Village?



ACCUSED: I
don’t know the name of the place, but because I’m new in this
area, but I think that’s the place where we met with him



COURT: You
think what?



INTERPRETER: He’s
actually new in Namibia.



COURT: Ja?



INTERPRETER: Ja,
he doesn’t know the names of the places.



COURT: Hmm?



ACCUSED: So
I think that the place (intervention)



COURT: Is
Kukuro Village?



ACCUSED: Yes
Your Honour.



COURT: Now,
what happened between you and the deceased, Jacob Anton, that gave
rise to you standing before Court today? Did you do anything to him
or did he do anything to you or what happened?



PLEA-EXPLANATION



BY
ACCUSED:
Because I stabbed him with a knife, Your Honour.



COURT: Where
did you get the knife from which you used to stab him?



ACCUSED: It
was mine, Your Honour.



COURT: What
type of knife was it?



ACCUSED: It
was a bayonet, Your Honour.



COURT: How
many times did you stab him?



ACCUSED: Just
one time, Your Honour.



COURT: On
which part of his body?



ACCUSED: At
the left hand at the upper (intervention)



COURT: Where?



ACCUSED: Side.



COURT: Just
show, can you just indicate to the Court? On the left, just, he’s
pointing on the shoulder blade, just below the left shoulder blade.
Was he injured?



ACCUSED: When
I stabbed him, he ran away



COURT: Do
you know when he passed away, when he died?



ACCUSED: I
was not aware Your Honour, but I was informed when I was in jail.



COURT: That
he had died or what?



ACCUSED: Yes,
Your Honour, that he died.



COURT: now
why did you stab him with a bayonet?



ACCUSED: It
was actually not my intention to stab him with a bayonet. So I was
informed by a friend that he was a member of UNITA and then I tried
to convince him so that I can take him to our commando, but since he
was refusing and planning to run away from us and then I decided to
stab him with the bayonet.



COURT: So
if I understand you correctly, you though that he was a member of
UNITA and you requested him to accompany you to your commander and
when he refused to do that and tried to run away, you stabbed him?



ACCUSED: Actually
he was informed that he is a member of UNITA.



COURT: Who
was informed?



ACCUSED: The
Accused.



COURT: Yes,
you were informed that the deceased was a member of UNITA?



ACCUSED: Yes,
Your Honour.



COURT: And
you wanted to take him to your commander?



ACCUSED: Yes,
Your Honour.



COURT: And
he then tried to run away and you stabbed him?



ACCUSED: That’s
right, Your Honour.



COURT: Are
you a member of the forces?



ACCUSED: Yes,
Your Honour, I’m a member of the FAR.



COURT: Of
what?



ACCUSED: The
FAR, it’s an Angolan Army.



COURT: Angolan
Army?



ACCUSED: Yes,
Your Honour.



COURT: But
why was it necessary to stab him?



ACCUSED: No,
if he could not refuse, I couldn’t stab him with the knife, but
since he refused, I stabbed him with the knife, Your Honour.



COURT: Could
you not have done anything else to get him to your commander, if that
was your aim?



ACCUSED: I
was not having any forms of taking him to the, to our commanders, so
(intervention)



COURT: Sorry?



ACCUSED: I
was not having any plans or forms to take him to our commander.



COURT: Hmm?



ACCUSED: So
I have to stab him with the knife, that was the only means.



COURT: Were
you alone or was there anyone else to help you?



ACCUSED: Yes,
Your Honour, I was alone, my friends went by that time.



COURT: But
why did you stab him in his, on that place on his body, just below
the shoulder blade, next to his neck? Why didn’t … why did you
stab him there?



ACCUSED: As
you know, Your Honour, when you are holding a knife with your right
hand, when you stab someone, it will end up on his left side.



COURT: Did
you realize that he, or let me rather ask you this, did you intend
killing him?



ACCUSED: No,
it was not my intention of killing him, Your Honour, but I was just
thinking of injuring him.



COURT: Then
why didn’t you stab him on the leg?



ACCUSED: I
was just fearing him so that he can abide to my laws.



COURT: Did
you realize that he could be seriously injured or even killed if you
stab him on the part of his body?



ACCUSED: Yes,
I was thinking of injuring him, but no killing him, Your Honour.



COURT: You
didn’t think that he could die because of this injury?



ACCUSED: No,
Your Honour, I was not thinking that.



COURT: Do
you know what caused his death?



ACCUSED: Yes,
I know, Your Honour.



COURT: What,
what was it? Mr Interpreter, ask him what was it?



ACCUSED: Because
I stabbed him with a knife, Your Honour.



COURT: How
do you know that?



ACCUSED: I
was informed in jail by the police.



COURT: So
you were told that, you didn’t, you don’t know that from your own
knowledge?



ACCUSED: Yes,
Your Honour.



COURT: Thank
you. In terms of Section 113 of the Criminal Procedure Act, a plea
of not guilty is entered. Mr Kasangas you must remember that all
allegations which were made up to this stage which are not in
dispute, will stand as proof of such allegations during the trial.
Yes.







It is important to note at this
stage that:








  1. the learned magistrate in the
    Regional Court states in his additional reasons, which were filed
    after the appeal was noted, that he did not know, and could not have
    known at the time he questioned the appellant in terms of section
    112(1)(b) of the Criminal Procedure Act, Act 51 of 1977 (“the
    Act”), that the appellant already pleaded guilty in the District
    Court, or in which manner the appellant was informed about his
    rights to legal representation in the District Court;









  1. neither the Regional Court
    magistrate, nor the District Court magistrate informed the appellant
    that he had the right to remain silent before he pleaded guilty, or
    at least before he was questioned in terms of section 112(1)(b)
    after he pleaded guilty. There is furthermore no indication
    whatsoever that the Regional Court magistrate or the District Court
    magistrate informed the appellant how to go about in order to apply
    for Legal Aid;









  1. it was only after the Regional
    Court magistrate recorded a plea of not guilty in terms of section
    113 of the Act, that the appellant was informed that the admission
    made by him during the section 112(1)(b) questioning process will
    stand as proof during the trial.








The first State witness,
Hausiku, testified that he knew the deceased, but when he was asked
whether he could see the person holding the deceased (apparently
immediately prior to the deceased was stabbed) he stated that he
could not identify the person holding the deceased as “it was a
bit far”
. According to this witness three people approached
the deceased (and I assume while another person held the deceased at
that stage). The three persons, all of them MPL(A) soldiers then
surrounded the deceased as well as the person holding the deceased.
According to the witness all four men (surrounding the deceased) had
knives with them. The witness then stated:







Yes, and
then? --- Your Honour, as I say that they were armed, from a distance
I could see that they are using the knives like as pointing at him
with knifes, but later on when they left, because they left him and
then they went to a nearby cuca shop. After they left, he was
standing there, looking at them and then the same time turned, and
the time when he turned, I could see blood coming out.”







By the time Hausiku finished
his evidence in chief, he did not implicate the appellant at all. He
did not even mention that the appellant was part of the group of four
men who held and surrounded the deceased, let alone that the
appellant stabbed the deceased.







Before the appellant was
allowed to cross-examine Hausiku, the magistrate informed him as
follows:







COURT:
You now have the opportunity to cross-examine this Witness and all
other Witnesses to be called by the State by putting questions to
them. You may put questions to them on those aspects of their
evidence that you do not agree with and put to them what your version
is so that they can answer thereto. If during the course of their
evidence, they omitted to mention any facts which you feel are
important, then you should also put questions to them about that so
that they can answer thereto. You may also put questions to the
Witnesses generally in order to show that they should not be believed
or that they are mistaken or unreliable as to the events they testify
about. Should you fail to put questions on certain issues then the
Court may infer that you are in agreement with what was said, so it
is important to dispute everything with which you disagree. Do you
understand these rights?



ACCUSED: Yes,
I do, Your Honour.”







The second question asked by
the accused was this:







And these
other three (3) friends which he said, they were just passing, so
they were not present when I stabbed the deceased. --- What I saw,
they were present, they were standing there.”







The second State witness,
Neramba, did not take the State’s case any further. He started off
by saying that he did not recognize the accused, although, according
to him, he did witness the incident. He also described an incident
similar to what the first State witness described, i.e. that someone
stabbed the deceased and that the deceased fell down after moving
away from the place where he was stabbed. However, he could not and
did not identify the stabber.







After the second State witness
stepped down the Prosecutor said:







Your
Worship, after consideration of this matter, I ought to have called
another State Witness, a Police Officer, but in the meantime, Your
Worship, with the permission of the Court, I intend to submit two
documents, the post mortem which was already discussed with the
Accused or its context
and the ending thereof as well as the
proceeding in the Magistrate Court, Your Worship. As it please the
Court.”







The State called no further
witnesses but the Prosecutor did hand in the record of the section
119 proceedings (which recorded what happened in the District Court
when the appellant endeavoured to plead guilty to the charge), as
well as the medical report. It is important to quote from the record
to understand in which context the appellant’s consent was obtained
for these documents to be handed in.







MR
HIPONDOKA:
To remind the Accused, Your Worship.



COURT: Thank
you. Mr Kasanga, as you have heard, the Prosecutor now intends
handing in a post mortem report without calling the doctor, and
according to him, you have studied this document. Is that correct?



ACCUSED: Yes,
Your Honour, I do understand.



COURT: He
intends handing it in without calling the doctor. Do you have any
objection to that or do you insist on the doctor being called because
you’re under no obligation to agree to the document being handed
in, but if you so wish, then it can be done by agreement?



ACCUSED: Yes,
Your Honour.



COURT: Yes
what?



INTERPRETER: He
do understand, I mean the contents of the post mortem.



COURT: Okay.



ACCUSED: Yes,
but no obligation about that.



COURT: No,
and do you have no objection to it being handed in without the doctor
being called?



ACCUSED: Yes,
Your Honour.”







The Prosecutor then handed up
the medical report and quoted from it. Amongst others, it was stated
that the deceased died as a result of a knife wound.







As a result of the so-called
agreement reached with the appellant, he could not question the
doctor about the report.







As far as the record of the
section 119 proceedings is concerned the following needs to be
quoted:







MR
HIPONDOKA:
As it please the Court, Your Worship.



COURT: And
that was also, was that also made available to the Accused or not,
because if (intervention)



MR
HIPONDOKA:
Not, Your Worship.



COURT: If
not then you must just interpret it, just read that then. It can be
interpreted to him please.



MR
HIPONDOKA:
As it please the Court. Your Worship, this is the
proceeding in the District Court held at Rundu on the 25th
of January 2000, where Accused tendered a plea of guilty to a charge
or murder which was put to him on the said date. Can you speak loud
please, Mr Interpreter? Now the Accused was informed of his
constitutional right to defend, to be defended by a lawyer of his
choice or the means and he then preferred to conduct his own defence

during the criminal investigation. The charge was put to the Accused
in terms of Section 119 of the Criminal Procedure Act, Act 51 of 1977
and the Accused pleads as follows; (intervention)



INTERPRETER: I
beg your pardon, 119 Article?



MR
HIPONDOKA:
And when Accused pleaded guilty and when questions was
put to him in terms of Section 112(1)(b) of the Criminal Court, the
Accused replied to the question as follows; he was asked “Did you
understand the charge against you, him” and he said, “Yes”, he
did. He was asked by the Presiding Officer whether he was influenced
to plead guilty to the charge and his answer was, “I wasn’t
influenced by someone, I did that out of my own free will”. On the
question whether you, he were at Kavolo Village on the 4 December 99
in the district of Rundu, the Accused answered, “Yes, I was there”.
The Accused was then asked why did he plea not guilty, what did he
wrong, and his answer “I killed the deceased persons by stabbing
him with a knife”.”







Only after the section 119
proceedings were read into the record the magistrate stated:







Mr Kasanga
you have heard the part of the record which was read out by the
Prosecutor as being part of the Section 119 Proceedings held on the
25th day of January here of the year 2000. Do you have
any objection to this being handed in, in other words, are you in
agreement that what was written down and in the certified copy of the
case record, that it was recorded correctly?”







and further:







Now I may
just point out to you that the Criminal Procedure Act provides that
where a certified copy of the Section 119 Proceedings is handed in as
part of the evidence in the Court, which tries the Accused, then it
is prima facie proof of what was said, in other words, if you dispute
the document, you must prove on a balance of probabilities, that what
is recorded in this document, is not what you said. So the onus is
on you to prove that you didn’t mention the name and that you did
not say that you returned to Angola as was recorded in the Section
119 proceedings. Do you understand this? So you must just kept that
in mind. Yes, Mr Hipondoka?”







After the section 119
proceedings were received in evidence the State closed its case. The
appellant decided not to testify.







The accused was then convicted
of murder and eventually sentenced to 18 years imprisonment. That
occurred on 26 April 2001.







On 27 May 2004, the appellant
filed an affidavit in support of an application for condonation for
the late filing of his appeal as well as a document titled
application for leave to appeal. This document is intended to be a
notice of appeal and I shall regard it as such.







In his application for
condonation the appellant states that:








  1. he did file two notices of
    appeal against his conviction and sentence within the required 14
    days period;









  1. he then waited for three years
    for the appeal to be set down;









  1. when he heard nothing from the
    Clerk of the Magistrate’s Court, he sent the new notice of appeal
    to the Registrar;









  1. it is difficult, while in
    prison, to ensure that the notice of appeal is indeed filed;









  1. it is also difficult, while is
    prison, to make enquiries. The only assistance is the prison
    authorities, who may not always be that helpful;









  1. he is a layman.








In his notice of appeal against
conviction the appellant states:







The learned
magistrate erred in not explaining the applicant his legal rights to
legal representation.







The learned
magistrate erred in not assisting the unrepresented accused to obtain
legal representation through the Directorate of Legal Aid, since the
applicant was facing a serious count of murder.







The learned
magistrate erred in admitting the medical report as evidence …







The learned
magistrate failed to apply section 186-187 of the Criminal Procedure
Act, 51 of 1977. Seeing in the light the applicant was
unrepresented, this failure of the court had prejudiced the applicant
not to have a fair trial.







The learned
magistrate erred in not finding that the State witnesses couldn’t
tell the court who stabbed the deceased.







The learned
magistrate gave further reasons after he received the notice of
appeal.”







With regard to the ground of
appeal that the appellant was not properly informed about his right
to legal representation the magistrate stated that:







With the
first appearance in the Regional Court in Rundu on 17/10/2000 the
appellant (& co-accused) confirmed that their rights to legal
representation and Legal Aid were explained to them in the District
Court and that they elected to conduct their own defence.







The court
therefore, had no reason to again explain the accused’s rights to
legal representation and Legal Aid to him.







At that stage
the Court did not have before it the certified copy of the Court
proceedings held in the District Court on 25/01/2000 as this was only
handed in at a later stage of the trial.







As regards the
explaining of the Appellant’s rights, the following appears on p.1
of the record:







“Accused
informed that they have a constitutional right to be defended by a
lawyer of his own choice and means. Accused prefers to conduct their
own defence.” (sic)







Although the
Appellant now states that he was not informed of his right to Legal
Aid, he did confirm to this Court on 17/10/01 that it was
explained to him.”







With regard to the appellant’s
ground of appeal that the State witnesses did not and could not tell
the court who stabbed the deceased, the magistrate stated:







During the
Sec 112(1)(b) questioning by Magistrate Mukasa as well as myself, the
Appellant admitted having stabbed the deceased person.”







Having summarized the facts of
the matter it appears to me that, in essence, three issues have to be
determined. They are:








  1. should condonation for the
    late filing of the applicant’s appeal be granted;









  1. if condonation is granted,
    should the appeal succeed on any one or more of the following
    grounds:










    1. whether or not the trial
      magistrate had to inform the appellant that he had the right to
      remain silent before he pleaded guilty;











    1. whether the applicant was
      properly and adequately informed of his right to legal
      representation;











    1. did the magistrate correctly
      allow the medical report and the record of the section 119
      proceedings as admissible evidence?










  1. if any one or more of the
    issues mentioned in paragraph 2 above are determined in favour of
    the appellant, did such irregularity vitiate the proceedings to such
    an extent that the appellant did not have a fair trial as envisaged
    in Article 12 of the Namibian Constitution?








I shall first deal with the
issue of condonation.







The State did not file any
opposing affidavit. The allegations made by the appellant must
accordingly be accepted. Nevertheless, Ms Herunga who appeared for
the State, submitted that the appellant failed to provide a
satisfactory explanation for the inadequate delay, and therefore it
can be concluded that the application is not bona fide. She
also submitted that the appellant’s prospects of success are so
weak that condonation should be refused. While I agree that the
reasons given by the appellant to explain the delay can be
criticized, there is nothing before me to gainsay what the appellant
alleges to have happened. According to him he did file his notice of
appeal timeously and he was awaiting the allocation for a trial date.
If that is accepted there would not even be a need for an
application for condonation. While the appellant’s apparent
patience in waiting to be informed about a trial date can also be
criticized, I am nevertheless of the view that he has reasonable
prospects of success on the merits of his appeal. I am prepared to
exercise my discretion in his favour. Condonation for the late
filing of the appellant’s appeal is granted.







Does an unrepresented accused
have a right to be informed that he can remain silent, even in
circumstances where he wants to plead guilty to a charge? This
question can also be rephrased as follows: An unrepresented accused
undoubtedly has the right to be informed that he can remain silent in
circumstances where he pleads not guilty. Does the unrepresented
accused forfeit that constitutional right when he mistakenly
indicates the he wants to plead guilty, but after having been
questioned in terms of section 112(1)(b) of the Act, a plea of not
guilty is recorded. In such circumstances an accused obviously does
not understand the elements of the crime with which he is charged.
In fact if an accused is properly informed, he will not mistakenly
plead guilty. Should the rights of an accused who is properly
informed, be different from the one who is ill informed?







Ms Herunga referred me to S
v Shikongo and Others 1999 NR 375 (SC)
where Strydom C J stated
the following at 385B-386A:







Returning to
the present appeal it seems to me that the duty of the Court to
inform an accused of his right to remain silent only arises once an
accused has pleaded not guilty. Only after an accused has pleaded
would the Court know what explanations and warnings should be given.
In S v Mabaso and Another 1990 (3) SA 185 (A) the following was
stated by Hoexter JA for the majority of the Court at 201C - E:







'The purpose
of the pre-trial procedure, the rights of an accused thereunder, and
the status and evidential cogency of admissions made by an accused in
the course thereof have been considered in a number of decisions by
this Court. See S v Seleke en 'n Ander 1980 (3) SA 745 (A); S v
Sesetse en 'n Ander 1981 (3) SA 353 (A); S v Daniëls en 'n Ander
1983 (3) SA 275 (A); S v Nkosi en 'n Ander 1984 (3) SA 345 (A). In
the last-mentioned judgment this Court stressed the significant
difference between the respective situations of (1) an accused who,
having pleaded not guilty in s 119 proceedings, is questioned as to
the basis of his defence under s 115 and (2) an accused who, having
pleaded guilty under s 119, is questioned in terms of para (b) of s
112(1). It was held that in the latter situation it is unnecessary
for a magistrate to advise the accused of his right to remain silent.
The reason is that by his plea of guilty the accused has admitted the
whole of the State's case. Any warning to the accused at that stage,
so it was held, would be contrary to the spirit of s 119 read with ss
121(1) and 112(1)(b); and it would be calculated to thwart its
object.'







Where, as in
this case, the respondents together with their pleas of not guilty
spontaneously admitted a fact which was put in issue by the plea of
not guilty, namely the fact whether they have had sexual intercourse
with the complainant, I can also think of no reason why such
admissions should be ignored. I know of no rule of evidence which
would make such evidence inadmissible, except if it were made under
compulsion but that was never even suggested. As was stated in the
Mabaso case supra at 206F, the general rule is that all relevant
evidence is admissible unless it is prohibited by a specific rule of
the law of evidence.







For the reasons
set out above I respectfully agree with what was stated in the
Sesetse case supra, and the other cases referred to above and from
this it follows that the Court a quo was wrong to summarily disregard
the informal admissions made by the respondents when they pleaded at
the s 119 proceedings. The magistrate was only obliged to give the
necessary explanation and warning after it became clear what the
respondents were going to plead. They pre-empted this by making the
admissions together with their pleas.







The third point
referred to by me above, and which must be considered, was answered
during the discussion of the second point above, ie that admissions
which are unfavourable to an accused and not confirmed in terms of s
115(2)(b) are regarded as informal admissions and form part of the
evidential material which must be considered together with all the
other evidence. See further in this regard S v Mjoli and Another 1981
(3) SA 1233 (A) at 1238D - E; S v Daniëls en 'n Ander 1983 (3)
SA 275 (A) at 300E - F; S v Mabaso and Another (supra at 209I); S v
Shivute 1991 (1) SACR 656 (Nm) A at 659e and S v Cloete 1994 (1)
SACR 420 (A) at 424d - g.”







It is clear that the ratio
decedendi
of S v Shikongo lies in the finding of the
Supreme Court that there is no duty on any court to inform an accused
of his right to remain silent unless and until such time the accused
pleads not guilty to the charges. Thus, where an accused pleads
guilty, and even in circumstances where it appears at a later stage
that he had mistakenly pleaded guilty, the admissions made by him
remain to be treated as proof against him by virtue of the provisions
of section 113 of the Act, which provides that:







If the court
at any stage of the proceedings under section 112 and before sentence
is passed is in doubt whether the accused is in law guilty of the
offence to which he has pleaded guilty or is satisfied that the
accused does not admit an allegation in the charge or that the
accused has incorrectly admitted any such allegation or that the
accused has a valid defence to the charge, the court shall record a
plea of not guilty and require the prosecutor to proceed with the
prosecution: Provided that any allegation, other than an allegation
referred to above, admitted by the accused up to the stage at which
the court records a plea of not guilty, shall stand as proof in any
court of such allegation.”







Article 81 of the Namibian
Constitution provides that:







A decision
of the Supreme Court shall be binding on all other Courts of Namibia
and all persons in Namibia unless it is reversed by the Supreme Court
itself, or is contradicted by an Act of Parliament lawfully enacted.”







Article 81 of the Namibian
Constitution compels me to follow the Shikongo ratio.
I have no discretion whether or not to apply the rule as laid down by
Strydom C J. I shall indeed apply it. However, with due respect to
the learned judges of the Supreme Court, I wish to point out that
counsel for the State and the defense, appear not to have referred
the learned judges to a number of relevant decisions during argument.
Had that been done, the decision may have been different. As there
is always a possibility that the ratio decedendi of the
Supreme Court “may be reversed by the Supreme Court itself”,
I wish to say the following:








  1. the Namibian Supreme Court
    followed the case of S v Mabaso and Another 1990 (3) SA 185 (A).
    The reasoning by Hoexter J A in the Mabaso matter had it
    that any warning to an accused (i.e. that he can remain silent) at a
    stage where the accused wants to plead guilty, would be contrary to
    the spirit of section 119 read with section 121(1) and 112(1)(b) of
    the Act, and it would be calculated to thwart its object;









  1. I have a great difficulty to
    determine the spirit of the provisions of section 119 read with
    section 121 and 112(1)(b) of the Act. If the spirit of those
    provisions allow an uninformed accused to be deprived of his right
    to remain silent merely because he is uninformed, I have great
    doubts whether such spirit will pass Constitutional scrutiny;









  1. in my view, the starting point
    in determining the fairness of a trial as envisaged in Article 12,
    should always be whether or not the accused is informed. Without an
    accused being properly informed, one cannot even begin to speculate
    whether or not rights have been exercised or indeed waived. In
    casu
    , the appellant wanted to plead guilty. He was obviously
    ill informed, and did not know the elements of the crime of murder.
    Had he been properly informed, a plea of not guilty would have been
    recorded (i.e. exactly the same plea the magistrate was compelled to
    record in terms of section 113 of the Act). Then, according to the
    Shikongo judgement, he would have been entitled to be
    informed that he had the right to remain silent. Thus, the
    admission made by him that he indeed stabbed the deceased with a
    knife, would not have been on record. Had he further been informed
    that he was entitled to expect the State to prove its case beyond a
    reasonable doubt while he remains silent, he may have done so. If
    he was legally represented, he would most probably have conducted
    his case on that basis. Why should an uninformed accused be in a
    worse position than an informed one? I do not accept that such is
    the spirit of Article 12 of the Namibian Constitution;









  1. when Strydom C J decided the
    Shikongo matter, he was not referred to S v Damons and
    Another 1997 (2) SACR 218 (W)
    . In S v Damons, the
    accuseds’ legal representatives objected when the State sought to
    introduce evidence by endeavouring to hand in the record of the
    proceedings which took place before a magistrate in terms of section
    119 of the Act. The objection was twofold:










    1. that the accused were not
      properly informed of their rights to legal representation at the
      time they pleaded guilty; and











    1. that the accused were not
      informed that they were entitled to remain silent before they
      pleaded guilty;










  1. Nugent J rejected the first
    objection on a factual basis, holding that the accused persons were
    indeed properly informed about their right to legal representation.
    He accordingly held that it was not necessary to decide the legal
    issue as to whether a failure to inform an accused of his right to
    legal representation, can have the effect that the section 119
    proceedings will not be admitted at a subsequent criminal trial;









  1. Nugent J also rejected the
    second ground of objection, inter alia, on the following
    grounds:








    1. although
      section 109 of the Act states that a plea of not guilty should be
      entered if an accused refuses to plead, it does not create a right
      not to plead;










    1. section
      25(3)(c) of the South African Interim Constitution (guaranteeing a
      fair trial) did not have the effect that the magistrate can decide
      whether or not to compel an accused to plead, as a magistrate must
      assume that the Act conforms with the interim constitution, and act
      accordingly (see: Podlas v Cohen and Bryden NNO and Others 1994
      (4) SA 662 (T)
      at 672G-J);









    1. he
      relied on the dictum of Hoexter J A in S v Mabaso
      supra at 208E-I where the following was stated:








Under
cross-examination an accused is obliged to answer questions. From the
provisions of s 197 it is self-evident that an accused cannot during
his cross-examination claim the privilege in respect of the very
offence with which he is charged. See Hoffmann & Zeffertt (op cit
at 36 footnote 48).





Under s 119 an
accused is obliged to plead forthwith. But here too his response
relates exclusively to the very offence with which he is charged;
and, logically, there is no room whatever for the privilege against
self-incrimination. Any attempt to import it at this stage of the
proceedings would represent a complete stultification of the
requirement to plead. There is a further and compelling consideration
which must not be overlooked. At the very heart of the privilege
against self-incrimination lies the notion of testimonial compulsion.
In R v Camane and Others 1925 AD 570 Innes CJ remarked at 575:






'Now it is an
established principle of our law that no one can be compelled to give
incriminating evidence against himself. He cannot be forced to do
that either before the trial, or during the trial.'







In the case of
an accused called upon to plead under s 119, however, the essential
attribute of testimonial compulsion is entirely lacking. At that
stage of the proceedings the accused has simply to exercise a choice
between two alternatives. He may, through a plea of guilty, choose
the course of inculpation; but he may just as well elect, by pleading
not guilty, to exculpate himself. His choice is entirely uncoerced
and unfettered. The fact that the accused is obliged to plead does
not mean that he is compelled or forced to plead guilty. His choice
between a plea of guilty and a plea of not guilty is an untrammelled
one.







The scenario
conjured up by counsel for the appellants in argument (the
possibility that, if the appellants had had legal advice, this might
have induced the appellants to plead not guilty at the s 119
proceedings) raises the question, not so much of the right of an
accused to legal representation in criminal proceedings (which is
dealt with in s 73(2) of the Criminal Code), as his right to consult
his lawyer (which J is dealt with in s 73(1)).”







    1. referring
      to what Hoexter J A stated (as quoted above) Nugent J held that the
      decision between pleading guilty and not guilty was an entirely
      uncoerced one, as the choice between pleading guilty and not guilty
      is an untrammelled one;










    1. Nugent
      J also referred to S v Maseku 1996 (2) SACR 91 (W) in which
      case Borchers A J ruled section 119 proceedings to be inadmissible
      on the basis that the accused was not informed of his right to
      remain silent, and in circumstances where he mistakenly pleaded
      guilty but eventually a plea of not guilty was recorded. Borchers
      A J stated that:








“…even
before the enactment of the Constitution, it was settled law that an
accused who is questioned in terms of s 112(1)(b) of the Criminal
Procedure Act has the right to remain silent”






For coming to this conclusion,
Borchers A J relied on the dictum of Milne J A in S v
Mabaso
supra at 211C-D where the following is stated:






The
appellants had the right to remain silent when questioned by the
magistrate in terms of s 115. S v Daniels en 'n Ander 1983 (3) SA 275
(A) at 299F - H. They also had the right to remain silent when
questioned by the magistrate in terms of s 112(1)(b). S v Nkosi en 'n
Ander 1984 (3) SA 345 (A). In that case this Court held that a
magistrate who questions such an accused is not obliged to warn him
of his right to remain silent, but it is clearly implied that he has
such a right and I do not understand this to be questioned. It must
also be assumed that the appellants were not aware of this right”









    1. Nugent first quoted what
      Borchers A J said at 223I-224D, being:









'The
appellants had the right to remain silent when questioned by the
magistrate in terms of s 115. S v Daniels en 'n Ander 1983 (3) SA 275
(A) at 299F - H. They also had the right to remain silent when
questioned by the magistrate in terms of s 112(1)(b). S v Nkosi en 'n
Ander 1984 (3) SA 345 (A). In that case this Court held that a
magistrate who questions such an accused is not obliged to warn him
of his right to remain silent, but is clearly implied that he has
such a right and I do not understand this to be questioned.'”







and then dealt with Borchers A
J’s reasoning as follows:







The issue
which had arisen for decision in S v Mabaso was whether the accused
was entitled to be informed that he had a right to legal
representation before being called upon to plead in terms of s 119.
Whether he was entitled to remain silent was only incidental to that
issue, and the remarks by Milne JA in that regard were obiter.
Furthermore, his opinion represented that of the minority of the
Court. An obiter dictum in a minority judgment cannot be regarded as
having settled the law on a subject.







Furthermore, in
my respectful view, the decision in S v Nkosi does not 'clearly
imply' that an accused has a right to refrain from answering
questions put to him in terms of s 112(1)(b). In my view the most
that can be said is that the Court assumed that the accused had such
a right, without pertinently considering the question. I think it is
clear from the reasoning in that case that the Court was of the
opinion that for an accused person to refrain from replying to
questions would be contrary to the very purpose of s 119, read with s
121(1) and s 112(1)(b) (see 353B - I). If that is so, I see no reason
to assume that he has such a right at all. I would be most reluctant
to accept that the Appellate Division was of the opinion that an
accused has a right to remain silent, but should not be encouraged to
exercise it.”








    1. Nugent
      J then held that Borchers A J’s findings were clearly wrong, as
      an accused has no right from refraining from answering questions
      posed to him in terms of section 112(1)(b) once he has indicated
      that he wants to plead guilty to the charges;










    1. Nugent
      J further held that the right to remain silent is inherently
      incompatible with the plea of guilty, and then said at 225B-C:









By tendering
the plea, if it was correctly tendered, the accused has chosen to
incriminate himself on each and every element of the charge, and has
abandoned his right to silence in its entirety. If the plea was
incorrectly tendered his right to silence will survive only in those
respects in which he has not chosen to incriminate himself. This is
recognised by the Act, which requires the magistrate to warn him
before asking whether he wishes to disclose the basis of his defence
on those issues.”







Nevertheless, Nugent J went on
to agree with Milner J A’s dictum as stated in the minority
judgement in S v Mabaso supra at 216 where Milner J A
said the following:







In my
judgment, public policy requires that before a man condemn himself
out of his own mouth in preliminary court proceedings he should be
fully advised of his right to remain silent and as to whether it is
in his interests to do so. The proper person to advise him of this is
a legal adviser and public policy requires that he should be advised
of his rights in this regard as well.”








  1. while I have no difficulty
    with the reasoning of Nugent J, it can only be right in as far as an
    accused has been fully informed about his rights and the essential
    elements of the crime he wants to admit. The difficulty I have with
    this reasoning of Nugent J, in as far as an uninformed
    accused is concerned, is that Nugent J says that the right to remain
    silent only survives in respect of those issues which the accused
    has not chosen to incriminate himself. The answer to this,
    in my view, is that an uninformed accused does not choose in the
    proper sense of the word. Rather, his fate is determined by the
    luck of the draw. He might incriminate himself or not;









  1. I much prefer the reasoning of
    Borchers A J in S v Maseku supra. As already pointed out the
    accused in that case also pleaded guilty in the High Court. Once
    again, the accused was ill informed and did not succeed in having a
    plea of guilty recorded. Borchers A J held that, the right to
    remain silent during plea proceedings is also included in Article
    25(3) of the South African Interim Constitution. In my view, that
    right is also included in Article 12(1) of the Namibian
    Constitution. Borchers A J further went on to hold that that right
    was in any event in place, prior to the advent of the South African
    Interim Constitution. She relied on what Milne J stated in S v
    Nkosi en ‘n Ander 1984 (3) SA 345 (A)
    . On that basis,
    Borchers A J did not permit the section 119 proceedings to be handed
    up as part of the record;









  1. the Damons decision was
    also referred to in Director of Public Prosecutors, Natal v
    Magidela and Another 2000 (1) SACR 458 (A)
    . Mr Kangueehi, who
    appeared for the appellant, correctly pointed out that, albeit that
    it did not do so, the South African Appellate Division had
    opportunity to deal with the following pertinent legal questions:










    1. whether the respondents
      (accused) had the right to remain silent after they had pleaded
      guilty during the proceedings conducted in terms of section 119 of
      Act 51 of 1977;











    1. whether there was a duty to
      inform the respondents of such right after they had pleaded guilty;











    1. whether the Magistrate’s
      failure to do so necessarily rendered the record with its contents
      of the said proceedings inadmissible at the subsequent trial of the
      respondents;










  1. the Magidela case (i.e.
    the court a quo) referred to the decision of S v Nkosi en
    ‘n Ander
    supra in which case it was held that “it was not
    necessary to advise the accused of this right as, by their pleas of
    guilty, they had already admitted the State’s case: that the
    purpose of questioning the accused was not primarily directed to
    self-incrimination but to protecting them against the consequences
    of an unjustified plea of guilty; and that any warning to the
    accused at that stage would conflict with the spirit of ss 119,
    121(1) and 112(1)(b) and the scheme of the Act”
    . Magid J (in
    the court a quo) held that the reasoning in the Nkosi
    case was wrong, bearing in mind the impact of section 25(3)(c) of
    the then interim constitution of South Africa. Magid J, in the
    court a quo, decided that statements made in terms of s
    112(1)(b) of the Act by an unrepresented accused who had pleaded
    guilty in terms of s 119, were not admissible unless the accused was
    informed of his rights not to incriminate himself and … of the
    consequences which may flow from doing so
    , and then stated:








I am in
respectful agreement with the judgment of Borchers AJ in his
conclusion that the phrase ‘plea proceedings’ in section 25(3)(c)
of the interim Constitution cannot be interpreted only to mean the
proceedings which follow upon a plea of not guilty and not to include
the proceedings following upon a plea of guilty. I am therefore of
the opinion that the judgment of Borchers AJ in Maseko’s case was
correct and that my judgment in the case of Langa, to the extent that
it appears to refer to the failure to advise an accused of his right
to remain silent, is wrong. As it is common cause in this case
that the accused were not advised of their right to remain silent
during the plea proceedings, it seems to me that I must uphold the
point taken by counsel for the defence and rule that any admissions
which may have been made in the course of the section 119
proceedings, are inadmissible.








  1. on appeal, in the Migidela
    case, Melunsky A J A made no order as to the legal issues but did
    emphasize the following general principles:










    1. fairness would, in general,
      require that an accused person should be so informed of this right
      (to remain silent);











    1. the decision in S v Nkosi
      and the majority judgement in S v Mabaso may have to be
      revisited in the light of the constitutional advances which require
      criminal trials to be conducted according to the notions of basic
      fairness and justice;











    1. the interim constitution
      required a judicial officer, in general, to inform an unrepresented
      accused of the right to silence during plea proceedings;











    1. to inform an accused of the
      right to silence after he has pleaded may serve little purpose but
      there is no need to decide at what stage in the plea proceedings
      the accused should be so informed.









While I record my agreement
with the reasoning of Borchers A J and Melunsky A J A, I must uphold
the Namibian Constitution. The Shikongo decision is binding
upon me and for that reason I hold that the appellant’s appeal
cannot succeed on this ground.







I shall now deal with the
question whether or not the appellant was properly informed of his
rights to legal representation. As I have already indicated, what
was stated to the appellant in the District Court was the following:







Accused
informed that they have a constitutional right to be defended by a
lawyer of his own choice and means.”







I am not so sure what it means
if someone is informed that he has a constitutional right to be
defended by a lawyer “of his own choice and means”. What
I do know is that it is highly unlikely that the appellant would have
known what was conveyed to him.







Does this comply with the
provisions of Article 12 of the Namibian Constitution. In my view,
it does not.







In James Gadu v The State
2004 (1) NCLP 48
Manyarara A J, with whom Gibson J agreed, stated
the following:







This court
is indebted to the Chief, Lower Courts, for making available to it a
copy of the magistrate’s handbook prepared by JFF Verwey, Director
of the Justice Training Centre, and published in July 1994. The
Court would recommend the handbook for study by magistrates who may
be uncomfortable with their knowledge of criminal procedure. For the
benefit of those who may not have access to the handbook, it deals
with, inter alia, the issue under consideration at page 7 as follows:







Article
12(1)(e) of the Constitution specifically provides that accused
persons shall be afforded time to prepare for trial and shall be
entitled to be defended by a legal practitioner of their choice. In
S v T Kau and Others Nam. SC. SA 1/93 (now reported in 1995 NR 1)
Dumbutshena, AlA stated as follows on P. 7C







'In Namibia the
right to be defended by a lawyer or one's choice is a constitutional
right. When the trial Magistrate failed to inform the appellants of
this right he deprived them of their constitutional right. Because
the right is given to the people by the Constitution, it is the duty
of judicial officers to inform those that appear before them of their
right to representation. There, of course, will be exceptional
cases. A lawyer who appears before a judicial officer is expected to
know his right to legal representation. There are many such other
people, educated and knowledgeable who need not be informed If they
do not know, they must be informed."







In the present
case, it was vital for the magistrate to spell out the appellant's
right to legal representation for the reasons which will emerge in
the course of this judgment.







Article 12 of
the Constitution sets out the requirements of a fair trial and
sub-article (1)(e) provides as follows:







"All
persons shall be afforded adequate time and facilities for the
preparation and presentation of their defence, before the
commencement of and during their trial, and shall be entitled to be
defended by a legal practitioner of their choice"







It will be
observed, firstly, that the right to a fair trial covers the period
both before and during the course of the trial and, secondly, that
nowhere does the sub-article mention payment for the services of a
lawyer. That is dealt with by the Legal Aid Act 29 of 1990.







Miss
Schimming-Chase who prepared and filed written heads of argument and
argued the appeal set out the correct position in the heads she filed
as follows:







"The Act
(Legal Aid Act 29 of 1990) gives the Director of Legal Aid the
discretion to grant legal aid upon application and to determine the
contribution (to the cost thereof), if any, that an applicant would
have to make, depending on what is just and reasonable, having regard
to that person's means. "







That is to say,
there is a means test to determine whether an applicant can pay and,
if so, how much he should be called upon to pay. What the author of
the pro forma used by the magistrate in this case has attempted to do
is to summarise the relevant provisions of the Act, with disastrous
consequences. The magistrate said to the appellant







"In this
case (of legal aid) you may pay half or one third of this costs (sic)
and the other two thirds will be subsidized by the Government..."







That is a gross
misrepresentation of the provisions of the Legal Aid Act. It had the
effect of discouraging the appellant and other would-be applicants
from seeking legal aid, for the wrong reasons. This appellant was
functionally illiterate. He told the magistrate that he was a
refugee residing at the Osire refugee camp, that he was almost
totally dependent on the humanitarian aid he received from the United
Nations High Commission for Refugees and that he was unfamiliar with
Namibian law. These factors should have prompted the magistrate to
refer the appellant to the legal aid office without hesitation and to
adjourn the trial pending the outcome thereof.







There is merit
in the submission made by Miss Schimming-Chase as follows:







"It is
submitted that had the appellant been informed of the fact that it
may not be necessary (for him) to pay the costs of legal aid (as) the
decision lay with the director of legal aid... that the accused may
have elected to apply for legal aid.







However, this
did not happen. The result of this was that the appellant, who was a
foreigner and could not properly understand English, had to represent
himself, and was put in a position where he could not competently
conduct his own defence by the same court that was held to be
responsible for also protecting his rights."







It follows that
the appellant suffered a sufficiently material failure of justice to
warrant the setting aside of the proceedings.







In conclusion,
I refer to the recommendation made by Dumbutshena AJA in S v Kau,
supra, at 7C as follows:







"A
magistrate must therefore record on the record of the proceedings at
least as follows:



'The accused is
informed of his/her right to legal representation.'



Then record the
response of the accused, eg 'Accused states s/he is going to conduct
his/her own defence and does not wish to have legal representation'
or record whatever she has to say."







I would
respectfully go further than the learned Acting Judge of Appeal went
and suggest that in cases like the present case there should be a
verbatim record of what the magistrate said to the accused person
before him to enable the reviewing or appellate tribunal to ascertain
whether the accused was correctly informed of his rights.







A possible
method of ensuring that this result is achieved would be to adopt a
simple format by which the information is conveyed to the accused in
the following sequence:








  1. that he has
    the right to be defended by a lawyer (deliberately omitting at this
    initial stage the rather confusing phrase "of one's choice");









  1. that he has
    the right either to hire and pay a lawyer "of his choice"
    or, alternatively, to apply to the legal aid office for a lawyer to
    be provided by the state;









  1. that, if he
    chooses to apply for a legal aid lawyer, the clerk of court will
    assist him in completing the necessary forms; and









  1. that the legal
    aid office will consider his financial circumstances and, based on
    its finding, it will decide and inform him whether he will be
    required to make any contribution towards the cost of the legal aid
    lawyer to be provided to represent him.”








I am in full agreement with the
sentiments expressed and guidelines laid down by the learned judges
in the Gadu matter. It is evident from the record in this
case, that the appellant was illiterate. This is confirmed by the
learned magistrate’s own statement which appears on page 37 of the
record:







Yes Sir, you
probably do not understand when a case goes on trial. But take my
word for it, there was no need for these Witnesses to have been here
before. Do you have any other questions for the last time?







What would the appellant have
understood under the phrase “constitutional right to be defended
by a lawyer of his choice and means”
? The case was a serious
one. It concerned a charge of murder. Inevitably, the magistrate
must have known that if the accused was found guilty, he will face a
sentence of long-term imprisonment. The explanation to him about his
rights to obtain legal representation was totally insufficient. It
was also misleading. No indication whatsoever was recorded in the
District Court that the appellant was entitled to apply for legal
representation with the Legal Aid Board. He was not informed how to
go about in exercising his rights. In my view the irregularity
vitiated the proceedings.







Recently I stated in S v
Kautewa 2005 (6) NCLP 52 (HC)
, with which statement Damaseb J P
agreed:







The question
whether or not any irregularity vitiated the proceedings, is in most
cases a factual question, but it is a very difficult question to be
answered where that very irregularity caused the accused to be
without legal representation. The reason is obvious. If a lawyer
was present, there would have been (almost inevitably in all cases)
other facts to be taken into consideration as well. It is for this
reason that it was decided in S v Seheri en Andere 1964 (1) SA 29 (A)
at 36 that, in determining whether or not an irregularity occurred as
a result of a refusal of a postponement in order to allow an accused
time to obtain legal representation, the court of appeal is required
to ignore the evidence led in the trial court against the appellant,
for that evidence is not necessarily the evidence on which the State
could have relied had there been legal representation.







In S v Shabangu
1976 (3) SA 555 (A) at 558F-G Jansen J A stated:







The case
against the appellant on the merits certainly appears to be
formidable and to have fully justified the conviction. But, on the
other hand, it is impossible to say what effect a properly conducted
defence could have had on the ultimate result. In view of the
misdirection which materially influenced the court in exercising its
discretion, the principles applied in S. v Seheri en Andere, 1964 (1)
SA 29 (AD).) at p. 36, are fully operative. It was there held that
an accused unrepresented at a trial through his attorney's fault,
does not as a result forfeit his right to legal representation, and
that a refusal to grant a postponement to the accused to enable him
to be represented later amounted to a failure of justice …””







I also agree with what was
stated in S v Khanyile and Another 1988 (3) SA 795 (N) where
the following was stated:







The duty of
a presiding officer, faced by an unrepresented accused, does not end
when he has advised the accused of his rights, including the right to
legal representation. Where an accused has been charged in a matter
which is neither so serious that pro deo representation will be
automatically appointed to assist him, nor so trivial that, were the
accused able to afford legal representation, he would dispense with
it but lies somewhere between the two extremes, and the accused is
unrepresented, not because he has freely and deliberately chosen to
be unrepresented, but because he is too poor to pay for
representation, the presiding officer has a duty, prior to the
commencement of proceedings, to assess whether the lack of legal
representation will place the accused at so great a disadvantage that
the ensuing trial would be palpably and grossly unfair were it to
proceed without a lawyer for the defence. There are three aspects to
the enquiry which the presiding officer should conduct: (a) the
inherent simplicity or complexity of the case as far as both the law
and the facts go; (b) the personal resources of the accused, such as
how mature, sophisticated, intelligent and articulate he looks and
sounds, or what impression he gives of his general ability to fend
for himself in a case with those dimensions; and (c) the gravity of
the case and the possible consequences of a conviction. Imprisonment,
a crippling fine, the loss of employment or the means of earning a
livelihood are merely some of the matters which should be considered.







The presiding
officer should elicit all the information which has a bearing on all
three aspects of the enquiry and should then weigh the circumstances
thus established or otherwise apparent to him, together with any more
of which he learns that are particular and pertinent to the case in
hand. Should he conclude that their cumulative effect would be such
that a trial without representation for the accused would be grossly
unfair, he should refer the case at once to those administering the
legal aid scheme or to one of the associations of lawyers who are
willing to offer assistance pro bono and, what is more, he should
refuse to proceed with the trial until representation is procured
through some agency.”







It is not difficult to realize
the prejudice the appellant suffered in this case. Had he been
properly informed that he could obtain legal representation, and had
he done so, a lawyer understanding all the elements of the crime of
murder would have explained to the appellant that he was entitled to
plead not guilty. He could have remained silent. He could have and
probably would have put the State to the proof that he committed the
crime, and to prove so beyond reasonable doubt. Not a single State
witness implicated the accused. He implicated himself in
circumstances where he was ill informed. Although I have held that I
am bound to follow the decision of S v Shikongo supra, I must
emphasize that the learned Chief Justice, in coming to the conclusion
that the right to remain silent only arises after an accused
indicates that he wants to plead not guilty, the Shikongo
ratio was laid down in circumstances where the accused fully
understood their rights to legal representation, and indicated that
they were prepared to defend themselves. Moreover, the charge of
rape was explained to them and they indicated that they understood it
before they pleaded guilty. Those safeguards are not even remotely
applicable in casu.







In all the aforementioned
circumstances I am of the view that the accused did not have a fair
trial, and that his conviction and sentence should be set aside.











In all the aforementioned
circumstances I make the following order:








  1. The late filing of the
    appellant’s notice of appeal is condoned.









  1. The appellant’s appeal
    against conviction succeeds.









  1. The appellant’s conviction
    and sentence are set aside.




















…………………………………


HEATHCOTE,
A J











COUNSEL ON BEHALF OF THE
APPELLANT: Mr Kangueehi



INSTRUCTED BY:







COUNSEL ON BEHALF OF THE
RESPONDENT: Ms Herunga



INSTRUCTED BY: