Mzimazisi Khumalo v The State

The applicant, aged 22 years, was convicted on his own plea of guilt by the magistrate sitting at Kezi of assault as defined in section 89 of the Criminal Law Codification and Reform Act. He was sentenced to 12 months imprisonment. The facts of the assault were that on the morning of 2 January 2018, the applicant went to the complainant's homestead and assaulted the complainant in his bedroom hut while he slept. He assaulted the complainant with a knobkerrie on the ribs and with a knife on the palms, thigh and right leg. The complainant sustained stab wounds on the right palm, right thigh and right leg according to the medical report. The applicant applied for review of the proceedings on the basis that the magistrate failed to comply with section 163A of the Criminal Procedure and Evidence Act by not explaining his rights to legal representation. He also applied for bail pending the review.

• Whether the magistrate's failure to comply with section 163A of the Criminal Procedure and Evidence Act (failure to explain rights to legal representation) constituted a misdirection
• Whether there were prospects of success on review
• Whether bail pending review should be granted

Bail pending review was granted to the applicant on the terms and conditions as annexed to the draft order.

Failure by a magistrate to comply with section 163A of the Criminal Procedure and Evidence Act by not explaining the right to legal representation to an accused person constitutes a misdirection that can form the basis for setting aside proceedings on review. The right to legal representation is constitutional (deriving from the 2013 Constitution) and statutory, and the duty to explain it is peremptory. Where there is a conceded misdirection that constitutes recognized grounds for review with prospects of success, bail pending review should be granted as it would be unfair and prejudicial to require the applicant to serve the sentence while the review is pending.

The court made reference to the evolution from the old "Lancaster House Constitution" to the new 2013 constitutional dispensation, noting that the right to legal representation is now more firmly entrenched. The court also observed that where a review court finds misdirection, it has wide discretion as to remedies, including setting aside proceedings and ordering a trial de novo. The court noted that had the applicant been afforded legal representation, a lawyer could have assessed the facts to present a defence or, if pleading guilty, could have submitted more meaningfully on sentence to potentially achieve a different outcome.

This case reinforces the importance of compliance with section 163A of the Criminal Procedure and Evidence Act, which requires magistrates to explain the right to legal representation to accused persons. It demonstrates that this right, now entrenched in the 2013 Constitution and aligned legislation, is peremptory and that failure to comply constitutes a misdirection that can form the basis for setting aside proceedings on review. The case also establishes the principle that where there is a conceded misdirection with recognized prospects of success on review, it would be unfair to require an accused person to serve their sentence pending the review application.