Olwethu Pitso

2027205844

LAW FOUNDATIONS OF SOUTH AFRICA 1500

 FILAC

(a) FACTS

The criminal offence that led to the case took place at the University of
Nambiana in South Africa. The students were protesting for student
allowances, and this protest led to them vandalising the property of the
institution. Due to vandalization that took place both students were
charged with malicious damage to property. Both students appeared
before the Magistrate of West Solola Court.

During the court proceedings one of the students did not fully
understand English because he is from a Frech speaking country. This is
what happened during the trial, one student pleaded guilty while the
other one claimed that he was not even at the institution when the
vandalization took place. The magistrate sentenced both students 2
years in prison. Various lawyers were interested in representing the
students but the magistrate denied the students getting legal
representation.

The magistrate claims that he or she wanted to teach students a lesson

for wasting tax payers money. The President sent a letter to the
magistrate pleading with him to punish the students for what they did.
The prosecutor had signed an agreement with the students regarding
them getting a lesser sentence which is them paying a fine and that is
the reason why one of the students pleaded guilty. The magistrates
judgement contradicts the decision of the Supreme Court of Appeal.

(b)ISSUES

1. Was the judgement of the magistrate justified/ is it what the

students deserved pertaining their offence?
2. Was denying the students legal representation legal?
3. Is it allowed in South Africa for one to rely on foreign laws to
pass judgement and if so in what instances and to what extent?
 4. Is it allowed in South Africa that a person who does not
understand our language of instruction (English) to be
prosecuted without interpretation?
5. Whether the President’s interference compromised the
independence of the judiciary.

(c)RULE OF LAW

The Constitution is the Supreme law of our country so it is important to

take a look at it. 1Section 35 was not followed in this case since the
students were not allowed to get legal representation and a fair trial. It
was the duty of the magistrate to use the legislation in order to come
up with a fair judgement that would have promoted the law of South
Africa. The 2Criminal Procedure Act 51 of 1977 was established in order
to make provision for procedures and related matters in criminal
proceedings.

Under the CPA we will focus on Section 50 which focuses on the

procedure after arrest. Section 105 details that the accused should be
informed of their charge and they have a right to a fair trial. Section
112 deals with the accused’s plea of guilt and when a court may
convict on such a plea. Section 274-276 therefore focuses on the
sentencing proceedings.

Section 39 (1) informs South Africans on how and when should foreign
3

or international may be used by the judiciary. 4

Section 165 of the
Constitution is very important, because it will show that the President
had no business in trying to influence the magistrates decision on the
case. The history of South Africa brought us a new South Africa that
treasures equality and that is why we have to take a look at 5
Section 9
of the Constitution.
1
Constitution of the Republic of South Africa, 1996, Section 35.
2
Criminal Procedure Act 51 of 1977. Government Gazette, No. 5532, 6 May 1977.
3
Constitution of the Republic of South Africa, 1996, Section 39.
4
Introduction to Law and Legal Skills in South Africa, 2 nd ed, Tshepo Madlingozi and Tracy-
Lynn Field, Section 165, pg 289.
5
Constitution of the Republic of South Africa, 1996, Section 9.
 6
The Van Rooyen v S case reinforces that the judiciary is independent
so no one including the country’s executive should be involved in the
decision making of the judiciary. 7
S v Sikhipha case further proves that
the Constitution which is the supreme law of our country does not allow
people to be sentenced without the undergoing a fair trial. 8
S v Zuma
case is where it was stated very well that a fair trial is important during
criminal proceedings. It was also emphasized in 9
President of the
Republic of South Africa v SARFU that South Africa is using the
separation of power principle and that should be respected since it
makes the judiciary independent.

10
S v Matrose case and the 11
S v Mafu case are very similar and they
will both prove that depriving the French speaking student an
interpreter was unlawful.

(d) APPLICATION

1. Section 35 (3) of the Constitution stated that every accused person

has the right to a fair trial, which includes the right to be presumed
innocent, to remain silent and not to testify during the proceedings.
The students were denied legal representation and it was decided in
the case of S v Sikhipha that if the accused is not allowed legal
representation the trial is unfair. The role of a legal practitioner is to
provide legal counsel, prepare cases and represent clients in court, and
I believe the most important one is the provision of legal counsel so
that the accused may be prepared for trial. It is safe to say the
magistrate acted unlawfully by not allowing the students ti to go
through trial.

The case has two accused’s who had different pleas in front of the
magistrate. Section 35 (3) of the Constitution states that every

6
Van Rooyen v the State 2002(5) SA 246 (CC)
7
S v Sikhipha 2006 (2) SACR 439 (SCA)
8
S v Zuma and Others 1995 (2) SA 642 (CC)
9
President of the Republic of South Africav South African Rugby Football Union 1999 (4)
SA 147 (CC)
10
S v Matrose 1998 (1) SACR 469(W)
11
S v Mafu 1992 (2) SACR494(A)
accused person has the right to a fair trial, which includes the right to
be presumed innocent, to remain silent and not to testify during the
proceedings. Student number 1 did not plead guilty and this was
supposed to lead him to trial, but the magistrate sentenced him. Going
through trial will need thorough investigation which will lead to
evidence being found in order to help the judge decide if the accused is
guilty or not.

Student number 2 pleaded guilty and it is stated that this student is

from a French speaking country meaning he does not understand
English fully. In the case S v Mafu and S v Matrose I found that
interpreters are supposed to be there in cases whereby the accused
does not understand the language of instruction of our country. The
plea of the accused is invalid because he did not understand what he
was pleading guilty for. These two reasons make his plea invalid, one it
was not informed and secondly it unequivocal.

Both students were denied legal representation even though various

lawyers were interested in the case. Section 35 (3) (f) states that
everyone who is arrested for allegedly committing an offence has the
right to choose and to be represented by a legal practitioner and to be
informed of this right promptly. The students were deprived their right
in this case. In S v Sikhipha case it was stated that an accused should
not only be told about their right to have a lawyer but they should also
be convinced to make use of their right.

2. The magistrate stopped lawyers representing the students despite

having them show interest. Criminal Procedure Act 51 of 1977 requires
the accused to be informed of their rights to get representation. The
magistrate violated Section 35 (3) (f) by not allowing the students to
get legal representation. The magistrate did not only ignore what is
stated in the Constitution, but he also ignored case laws that prove that
a fair trial is of paramount importance in South African courts.

In S v Sikhipha case it was decided that when the accused has been
denied legal representation, the trial is therefore unconstitutional. This
also shows that the magistrate conducted an unconstitutional
behaviour in this case. In S v Zuma it was affirmed that no matter how
deep the offence is the accused has the right to go throught a fair trial.
What the magistrate did was therefore unconstitutional as it defied the
Constitution of South Africa.

3. It is important to note that Section 2 which is the Constitution is the

supreme law of South Africa, therefore any law that conflicts it is
invalid. The magistrate used the law of Malitina to replace the laws that
are already provided in South Africa. It has been said that foreign law
cannot be applied as binding authority, and it cannot replace the
authority provided by the Constitution of our country.

Section 165 states that judicial authority is vested in courts, which

must apply South African law impartially and independently. The
magistrate relying on Malitina law is unlawful because of Section 165.
Section 39 (1) (b) allows the use of international and foreign law but
this is for when the court wants to interpret the Bill of Rights. The
magistrate did not use Malitina law for guidance but he used it to pass
his judgement and that is unconstitutional.

S v Zuma is where it was emphasized that the Constitution is the

ultimate standard for fairness and justice in criminal proceedings. The
use of Malitina law was irrelevant since the Constitution provides us
with the Criminal Procedure Act. The magistrates decision went against
Section 2 and 165 of the Constitution making his ruling invalid.

4. Student number 2 is from a French speaking country and this means

he does not understand English, despite this language barrier being
there, the proceedings continued without interpretation. Section 35 (3)
(k) expresses that every accused person has the right to be tried in a
language that the person understands or, if it is not practicable to have
proceedings interpreted in that language. The student was unable to
enjoy the benefits of the right he has in South Africa. The unavailability
of an interpreter made the proceedings hard for the student and his
right has been violated.
Section 9 is very important, because it brings the understanding of
equality in South Africa. In this case equality was not implemented
because student number 1 was advantaged because he understood
English but student number 2’s situation was not taken into
consideration at all. It is therefore obvious that the magistrate violated
the rights of the student and violated Section 35 (3)(k) and Section 9 of
the Constitution. South Africa is known as a rainbow nation and this is
even recognised in Section 6 of the Constitution.

Taking a look at S v Mafu case the judge stated that a guilty plea is
invalid if the accused is not provided with the clarity he or she needs
based on the charge. The judges statement in the Mafu case therefore
makes the plea that was made by student number 2 invalid since he
did not understand what he was pleading guilty for. S v Matrose
supports Section 35(3)(k) because in this case the judge mentions that
it is unlawful when legal proceedings take place whereas the accused
does not know or understand the language that is used in the country
without providing the accused with an interpreter. In S v Zuma it was
stated that for a trial to be considered fair there should be a full
understanding of the case that is built against the accused.

[Link] Africa has a constitutional framework that separates powers,

and these powers are the three branches which are the legislative,
executive and the judicial. Section 165(2) states very well that courts
are independent and they only adhere to what is said by the
Constitution and they should do this without fear or favour. The letter
that was sent by the President to the magistrate might have influenced
the magistrates decision, stripping the judiciary off its independence.
The Presidents act was therefore him interfering with the judiciary
directly and that is unconstitutional.

Section 165(3) states that no person or organ of state may interfere

with the functioning of the courts. What the President did compromised
the independence of the judiciary and breached the separation of
powers. Both the President and the magistrate defied the provisions of
the Constitution and this should be addressed so that no one ever tries
to interfere with the proceedings of the judiciary.

The Van Rooyen case emphasized how important it is to have the

judiciary independent and to protect it from executive interference. It
was the duty of the President to withhold the laws of the country but he
did not do that rsther he breached them by writing a letter to the
magistrate concerning the case. The magistrate conducted an unlawful
act by not protecting the independence of the judiciary as that is his
duty. President of the Republic of South Africa v SARFU case also made
it known that the President should not interfere with the work of the
judiciary.

(e)CONCLUSION

The students were sentences 2 years in prison. The judgement was

invalid, as it broke certain laws and disobeyed the Constitution. Firstly
the students were not afforded a fair trial. One of the students pleaded
not guilty but the magistrate went ahead and passed his judgement
and the student’s pleas make the judgement invalid. Not providing an
interpreter for the French speaking student was unconstitutional.
Allowing the President to influence the magistrates decision making
was unlawful and unconstitutional. It is therefore obvious that the
students should not be imprisoned and the judgement should be
removed and the students should go through trial.
Bibliography

Books

Tshepo Madlingozi and Tracy-Lynn [Link] to Law and Legal

Skills in South Africa. 2nd edition.

Cases

Van Rooyen v the State

State v Sikhipha

S v Matrose

S v Mafu

S v Zuma