REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO.: A607/10

In the matter between 

and

Coram:	M I SAMELA, J 
Judgment by:	SAMELA, J
Adv for Plaintiff:		Adv IB Maartens -	021 424 4692
Attorney:	Instructed by Legal Aid

Ended 04/06/2012
Date of Judgment:	4 JUNE 2012

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO.: A607/10
In the matter between

versus

JUDGMENT DELIVERED ON 4 JUNE 2012

SAMELA, J

[1] This is an appeal against the decision of the Magistrate at the Cape Town Regional Court. The Appellant challenged the decision of the court a quo on the basis that his constitutional right to legal representation was violated, resulting in his trial being unfair.

[6] He unsuccessfully applied for leave to appeal in the court a quo against his conviction and sentence. The Appellant petitioned the Judge President, and was granted leave to appeal.

aan te stel of aansoek te doen vir regshulp. Verstaan u dit?

"Saak gereed vir verhoor.
Verhoor datum gereel maar Mnr Arnold deel hof mee dat besk 2 sy mandaat beendig het.
Besek 2 deel die hof nee dat hy homself wil verdedig. Die hof het horn meegedeel dat die aanklag teen horn erntig is en indien hy skuldig bevind word, baie lang gevangenisstraf op horn rus. Hy deel hof nee dat hy is bewus daarvan maar verkies on sy eie verdediging te behartig. Mnr Arnod verskoon".

On the same day a postea appearance was entered at 14h45 which read as follows:

prokureur gebruik maak nie. Ek gaan h prokureur van my keuse aanstel. Ek het nou nadere besonderherde van Staatsaanklaer ontvang. Versoek uitstel so dat my familie nodige reelings kan tref".

The matter was postponed to 6" February 2003 for the Appellant's legal representative.

[15] In this matter a relevant part of the Constitution is section 35 (3) of The Constitution (Act 108 of 1996) which provides inter alia:

"Every accused person has a right to a fair trial, which includes the right -

(b) to have adequate time and facilities to prepare a defence; 
(d) to have their trial begin and conclude without unreasonable delay;
(f) to choose, and be represented by, a legal practitioner, and to be informed of his rights promptly; and
(g) to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of his rights promptly.
The above indicates that the accused right to legal representation is fundamental and jealously protected by courts.

215 i-j is apposite, where the learned judge said:
"The Constitution has two provisions which are relevant to the argument: the right to choose a legal representative and to be represented by that person (S 35 (3) (f), and the right to have a legal representative assigned by the State and at State expense if substantial injustice would otherwise result (S 35 (3) 
(g). Although the right to choose a legal representative is a fundamental right and one to be zealously protected by the courts, it is not an absolute right and is subject to reasonable limitations".

It is important to mention that in this matter the Appellant had been doing the ducking and diving, keeping the court guessing his next move in his next appearance, and also whether he would opt to have or not to have the legal representative.

"— the point should not be overlooked that it is by no means only the accused who has a legitimate interest in a criminal trial commencing and concluding reasonably expeditiously.   Since time immemorial it has been an established principle that the public interest is served by bringing litigation to finality. And, of course, quite apart from the general public, there are individuals with a very special interest in seeing the end of a criminal case. Conscientious judicial officers, prosecutors and investigating officers are therefore always mindful of the interest of witnesses, especially complaints, in bringing a case to finality."
The above confirms the principle that accused rights in a criminal trial are not more important than other parties, for example complainant/s and witness/es.

[18] The next question is whether substantial injustice would have occurred if the Appellant was not legally represented.

"much better placed than we are by and large to appraise, usually in advance, its ramifications and their complexity or simplicity, the accused person's aptitude or ineptitude to fend for himself or herself in a matter of those dimensions, how grave the consequences of a conviction may look, and any other factor that needs to be evaluated in the determination of the likelihood or unlikelihood that, if the trial were to proceed without a lawyer for the defence, the result would be 'substantial injustice".

[19] In this matter, despite the fact that the Appellant was a difficult person, the Magistrate nonetheless showed tolerance and patience. The Magistrate assisted the Appellant with his case throughout in the trial especially in cross examination, the fact that was also conceded by Mr Maartens. I am of the view that looking at this matter wholestically, there was no substantial injustice that occurred despite the Appellant having no legal representative.

[20] It is my considered view that the Appellant was not prejudiced by not having a legal representative. Taking into account his conduct in court, in that the Appellant initially informed the court that he would conduct his own defence. He on several occasions changed his stance and would tell the court that he wanted a legal representative and would also tell the court that he did not want it. It is not always a fatal irregularity where an accused does not get a legal representation the trial does not become unfair. Each case is treated according to its circumstances. It is my view, that undoubtedly, the Appellant abused his constitutional rights to legal representation. Clearly, he tested the Magistrate's patience by such an uncalled for behaviour. Nevertheless, the Magistrate had shown utmost tolerance.

[22] Considering the totality of the evidence presented by the Complainant and the Appellant, the Magistrate correctly accepted Mrs van Reineveld's evidence, though a single witness, that it was competent and satisfactory in all material respects. The Magistrate correctly applied the cautionary rule that allows a conviction on the evidence of a single, competent witness (see section 208 of Act 51 of 1977, as amended). The Appellant's version was correctly rejected by the Magistrate. This was justified in the light of the improbabilities, that the Appellant was in an emergency situation and needed Mrs van Reineveld's car to get away from the scene. It is difficult to visualise

[24] Looking at all the above, I am of the view that the Appellant was correctly convicted by the court a quo. It is also important to record that the Magistrate made some significant credibility findings in favour of Mrs van Reineveld. Mrs van Reineveld's version was consistent, reliable and there was no reason to criticise this finding.

[25] The Appellant, on the other hand, was a poor witness. I am of the view that the Magistrate correctly preferred the evidence of Mrs van Reineveld. The appeal has no merit in respect of the conviction. The Appellant misused his constitutional rights to legal representation deliberately. This should not be allowed in our courts.

[27]   I would propose the following order:

The appeal is dismissed. The conviction and sentence are confirmed.

Samela, J

I agree and it is so ordered

Traverso, DJP