IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case No: 411/98

In the matter between:

KUTETE HLANTLALALA
First Appellant
NOPOJANA MHLABA

Second Appellant
SIBAYA HLANTLALALA

Third Appellant

and

N Y DYANTYI NO
First Respondent
THE ATTORNEY GENERAL, TRANSKEI
Second Respondent

CORAM :

Mahomed CJ,  Van Heerden DCJ, Olivier JA, Madlanga
and  Mpati AJJA

HEARD :

26 August 1999

DELIVERED :

28 September 1999

Criminal Procedure - Trial - The accused - Legal representation of - Accused
unrepresented - Entitlement to be informed of right to apply for legal aid.
JUDGMENT

MPATI AJA

MPATI AJA :
[1] The question for determination in this appeal is whether an irregularity
occurred in the appellants' criminal trial by reason of an alleged failure by the
magistrate to inform and explain to them their legal rights and, if so, what effect
such irregularity had on the outcome of the trial.
[2] The three appellants were convicted in the magistrate's court at Cofimvaba,
in the erstwhile Transkei, of theft (a contravention of s 132 of the Transkei Penal
Code, Act 9 of 1983) and each sentenced to undergo a period of imprisonment of
four months.  Subsequent to their trial they instituted review proceedings in the
court a quo, inter alia, for an order setting aside the criminal proceedings on
grounds of certain alleged irregularities.   The court a quo declined to grant the
order sought for the setting aside of the criminal proceedings, but granted leave to
the appellants to appeal to this Court against such refusal.
[3] The alleged grounds of irregularity relied upon and as can be extracted from

the appellants' founding affidavit are the failure by the Magistrate to inform the
appellants of or to explain to them:
1.
their right to legal representation, including their entitlement to apply to the Legal
Aid Board, or other institutions, for legal assistance prior to the commencement
of the proceedings;
2.
their right to access to the contents of the police docket;
3.
their right to request further particulars to the charge;
4.
the nature and effect of pleading to the charge and the right to remain silent;
5.
the meaning of the offence with which they were charged;
6.
the purpose of cross-examination of witnesses during the trial and the
consequences of their failure to do so;
7.
their right to call witnesses;
8.
their right to address the court after close of the defence case.
[4] It was contended on behalf of the appellants that these omissions by the magistrate
constituted gross irregularities in the proceedings at common law;  alternatively that this Court,
in developing the common law in terms of the Constitution, should hold that the alleged failures

constitute gross irregularities.  In the further alternative it was contended that the alleged
irregularities constituted a direct violation of the  appellants' constitutionally guaranteed right to
a fair trial.   In each case the irregularities were such as to vitiate the proceedings, so it was
contended.
[5] Although a number of alleged grounds of irregularity have been raised, I propose to deal
first with what I consider to be the main complaint, as per counsel's submissions, viz. the
magistrate's alleged failure to inform the appellants of their right to legal representation and, if
necessary, to deal with the other grounds thereafter. The appellants alleged in their founding
affidavit that the magistrate failed to inform them of their right to apply for legal aid, or to be
supplied with legal representation at State expense where substantial injustice would otherwise
result.  The magistrate's response to these allegations was that the appellants' trial was fair "as all
(their) rights were explained to them".  She also stated that the appellants "did not need a legal
representative as they said they have got no money" and that they "never indicated that they
needed a state attorney other than that they have got no money to pay for a lawyer".  The latter
part was in response to the appellants' allegation that in view of the seriousness of the charge
preferred against them they should have been informed of their fundamental rights and should

have been afforded legal representation at State expense.  It seems clear to me from the
magistrate's responses that the appellants were indeed not informed of their basic rights.
[6] In my view, this matter can be disposed of on common law grounds.  In this respect a
clear distinction should be drawn between the right of an accused to be informed of his
entitlement to legal representation, more particularly the right to apply to the Legal Aid Board
for assistance, and to be afforded an opportunity to seek such representation, and the right to
obtain legal assistance at State expense.  The common law acknowledges the former and the
Constitution the latter.  Indeed, this distinction has received statutory recognition (see
amendment to section 3 of the Legal Aid Act 22 of 1969, introduced by section 1(a) of the Legal
Aid Amendment Act 20 of 1996).  What has been violated in the present case  is the first-
mentioned right.  In S v Rudman and Another;  S v Mthwana 1992 (1) SA 343 (A) Nicholas AJA,
having listed the rules formulated and implemented by our Courts and which have been evolved
for the assistance of undefended accused, said (at 382C-H):
"Another rule, not included in this list, was laid down in S v Radebe;  S v
Mbonani 1988 (1) SA 194 (T) by Goldstone, J, Van der Merwe J concurring.
The learned Judge referred at 194H-195D to a number of cases which he said 'are
but examples of a general duty on the part of judicial officers to ensure that
unrepresented accused fully understand their rights and the recognition that in the
absence of such understanding a fair and just trial may not take place'.  He said

(at 196F-I):
'If  there is a duty upon judicial officers to inform unrepresented
accused of their legal rights, then I can conceive of no reason why the right
to legal representation should not be one of them.  Especially where the
charge is a serious one which may merit a sentence which could be
materially prejudicial to the accused, such an accused should be informed
of the seriousness of the charge and of the possible consequences of a
conviction.  Again, depending upon the complexity of the charge, or of the
legal rules relating thereto, and the seriousness thereof, an accused should
not only be told of this right but he should be encouraged to exercise it.  He
should be given a reasonable time within which to do so.  He should also be
informed in appropriate cases that he is entitled to apply to the Legal Aid
Board for assistance.  A failure on the part of a judicial officer to do this,
having regard to the circumstances of a particular case, may result in an
unfair trial in which there may well be a complete failure of justice.  I
should make it  clear that I am not suggesting that the absence of legal
representation per se or the absence of the suggested advice to an accused
person per se will necessarily result in such an irregularity or an unfair trial
and the failure of justice.  Each case will depend upon its own facts and
peculiar circumstances.'
S v Radebe has been followed in most Provinces and, in the case of S
v Mabaso and Another 1990 (3) SA 185 (A) at 203D-G, Hoexter JA
expressed his entire agreement with the passage just quoted."

[7] That an irregularity occurred in the present case is manifest, having regard to
the statement of the law by Nicholas AJA as quoted above.
[8] The crucial question to be answered is what legal effect such irregularity had

on the proceedings at the appellants' trial.  What needs to be stressed immediately
is that failure by a presiding judicial officer to inform an unrepresented accused of
his right to legal representation, if found to be an irregularity, does  not per se
result in an unfair trial necessitating the setting aside of the conviction on appeal.
(See S v Radebe 1988 (1) SA 194 (T) at 196I;  S v Mabaso and Another 1990 (3)
SA 185 (A) at 205D-E;  compare also S v Shikunga 1997 (2) SACR 470 (NmSC) at
483i).

[9] In the last-mentioned case, which was quoted with approval in S v Smile and
Another 1998 (1) SACR 688 (A) at 691f-i, it was said that the essential question to
be asked is whether the verdict has been tainted by such irregularity.  In S v
Rudman (at 391I) Nicholas AJA, having assumed that an irregularity had occurred
at the trial, held that it was for the appellant "to show that a failure of justice
resulted from the irregularity".  An irregularity could be said to result in a failure of
justice whenever there had been "actual and substantial prejudice  to the accused".

(See S v Ramalope 1995 (1) SACR 616 (A) at 621f-g and the cases there cited.)
Thus no failure of justice will result if there is no prejudice to an accused and, by
the same token, there will be no prejudice if the accused would in any event have
been convicted, irrespective of the irregularity.  (S v Davids;  S v Dladla 1989 (4)
SA 172 (N) at 193E.)  Transposing this test to the present matter, the question is
whether it can be said that the appellants would inevitably have been convicted had
the magistrate not committed the irregularity  (of omitting to inform them of their
basic rights).
[10] Nicholas AJA laid down in S v Rudman (at 391I), that the appellant (in that
case) could show that a failure of justice resulted (from the magistrate's failure to
inform the appellant of his right to apply for legal aid) by, for example, "submitting
to the Court of appeal and to the magistrate for his comments an affidavit setting
out that he was unaware of his rights, and that if he had been informed of them he
would have tried to secure  representation, at least through the Legal Aid Board".

In casu the appellants do not specifically state in their founding affidavit that had
they been informed of their right they would have exercised it by applying for legal
aid.  But it is apparent from other allegations made in the founding affidavit that
had they been so informed they probably would have exercised their right to apply
for legal aid.
[11] The appellants were charged with theft of green mealies and pumpkins with
an alleged estimated value of R7 320,00.  The version of the State was that the
appellants entered onto a field allegedly made available to the complainant by a
certain Chief Ngangomhlaba Matanzima and reaped the complainant's mealies and
pumpkins without his consent, thereby committing theft.   It appears from the
evidence that there was a dispute regarding ownership of the land on which the
mealies and pumpkins in issue were.  The evidence reveals that on the day of the
alleged theft the appellants and the complainant had attended a hearing at the
Regional Authorities Court, where the question of ownership of the said land,

which, according to the appellants, was owned by their late father, was to be
adjudicated upon.  It appears that the issue was not resolved on the day in question
and it was upon their return from the Regional Authorities Court that the appellants
were alleged to have committed the theft.
[12] In essence, then, the appellants have alleged that they were unable, in the
absence of legal representation, to establish their defence at the trial.  They claimed
that they were dispossessed of their land and alleged that "(a)t the heart of the
matter is the lawfulness of our dispossession of land upon which the alleged
offence occurred and the lawfulness of the alleged title of that land of one
Ngangomhlaba Matanzima, who, in turn, leased it to the complainant ...".  As I
have already mentioned, on the day in question the appellants had gone to the
Regional Authorities Court for resolution of the question of ownership of the land
on which the alleged theft occurred.   That at the trial the appellants claimed a right
to the land is borne out by  the fact that in his testimony the first appellant said the

following:
"I entered my own field and reaped",
and:
"I had a right to reap the mealies any time I wanted."
The following also appears from the record:
"Q
After that resolution (at the Regional Authorities Court) you
decided to go to the mealie field of the complainant.
A
Correct, but according to my rights."
[13] From the aforegoing it seems to me that the appellants were raising a
defence, though not eloquently articulated,  that they were  entitled to reap from the
land, as it was theirs, alternatively that they were bona fide of the view that they
were acting lawfully and thus not with the intention to steal.  In my view, a legal
representative would have properly formulated the appellants' defence and would
have cross-examined the state witnesses in accordance with such a defence.  A

reading of the record reveals that although the appellants cross-examined the
witnesses called by the state, such cross-examination was not at all pointed in any
direction.  This is not surprising as the first appellant is only semi-literate, having
progressed to standard 5 at school, while the second and third appellants are
completely illiterate.   They never put their defence to the witnesses and were never
advised to do so by the magistrate, who was  required to assist them in formulating
their questions, clarifying the issues and properly putting their defence to the state
witnesses.  (S v Rudman; S v Johnson;  S v Xaso;  Xaso v Van Wyk NO 1989 (3) SA
368 (E) at 378D-E and the cases there cited.)  Not surprisingly, their failure to put
their defence to witnesses counted against the appellants in the end.  The magistrate
says in her reasons for judgment:
"In their cross-examination they concerned themselves with things
that were not important, not directing their questions on the offence
charged.  Hence they were asked as to why didn't they deny or
challenge the evidence led in their response they said they have
forgotten or made a mistake."

This statement underlines the fatal effect of the irregularity committed by the
magistrate.
[14] The court a quo placed strong reliance on the absence of "administrative
machinery rendering free legal services" in the former Transkei and held that the
magistrate's failure to inform the appellants of their right to "free legal services"
bore no significance in that the appellants "would not have received such services
because they did not exist in the former Transkei".
[15] To my mind this is an irrelevant consideration.  South Africa became a
unitary State on 27 April 1994 and as from that date  full South African citizenship
was conferred also upon those who were, until then, citizens of so-called
independent or self-governing states.   The reasoning that the appellants would in
any event not have received "free legal services" because of the absence of
administrative machinery for that purpose is untenable and cannot be proffered as

an excuse to deny a section of the South African society, merely because they
happen to be in a particular area, of rights otherwise enjoyed by the rest of the
country.  Further, there is no evidence that, if approached, the Legal Aid Board
would not have appointed a legal representative for the appellants.
[16] In view of the conclusion I have reached regarding the fatal nature of the
irregularity committed by the magistrate, a consideration of the other irregularities
raised by the appellants becomes unnecessary.  It also becomes unnecessary to
consider counsel's arguments based on the Constitution.
[17] The appeal succeeds.  Paragraph 2 of the order of the court a quo is set aside
and in its stead is substituted the following:
"The applicants' convictions and sentences are set aside".

...................
L MPATI
ACTING JUDGE OF APPEAL
Concur:
Mahomed  CJ
Van Heerden DCJ

Olivier JA
Madlanga AJA