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[2018] ZAWCHC 105
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Kruse v S (A100/2018) [2018] ZAWCHC 105; [2019] 4 All SA 287 (WCC) (27 August 2018)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE NO: A 100/2018
In
the matter between:
RAYMOND
KRUSE
Appellant
and
THE
STATE
Respondent
Coram
Ndita J et Davis AJ
Heard:
4 May 2018
JUDGMENT DELIVERED ON
27 AUGUST 2018
DAVIS
AJ:
1.
This appeal highlights the need for
judicial sensitivity and vigilance in criminal proceedings involving
an accused with impaired
hearing and speech, as well as the duty of
judicial officers to treat all persons who come before court with due
respect for their
dignity.
2.
Section
35(3) of the Constitution
[1]
guarantees every accused person the right to a fair trial, which
includes the right to be present when being tried,
[2]
the right to adduce and challenge evidence,
[3]
the right to be tried in a language which the accused person
understands or, if that is not practicable, to have the proceedings
interpreted in that language,
[4]
and the right to have required information given to an accused in a
language that the accused understands.
[5]
3.
A
fair trial requires that the accused be able to understand the
proceedings at all times.
[6]
Even before the advent of the Constitution, our courts, dealing with
s 6(2) of the Magistrates’ Court Act 32 of 1944,
[7]
held that there was a duty on the presiding officer to consider
whether an accused person is sufficiently conversant with the
language in which evidence is given and, if necessary, to employ the
services of a competent interpreter to assist the accused.
[8]
The failure to do so amounted to a serious irregularity justifying
the setting aside of a conviction.
[9]
4.
The Constitution affords wider protection
than s 6(2), since s 35(3)(k) entitles an accused person to have the
entire proceedings
interpreted into a language in which he or she
understands as opposed to the evidence only, while s 35(4) ensures
that all information
required to be given to accused is imparted in a
language which he or she understands. These constitutional
entitlements are founded
on the recognition that
effective
communication is imperative for a fair trial
.
Indeed many of the rights guaranteed in s 35(3) depend on effective
communication by and with the accused. For example:
4.1.
The
right to be present when being tried implies an ability to hear and
understand the import of the evidence and the nature of
the
proceedings,
[10]
for as Lord
Reading CJ long ago explained:
“
The
reason why the accused should be present at the trial is that he may
hear the case being made against him and have the opportunity,
having
heard it, of answering it. The presence of the accused means not
merely that he must be physically in attendance, but also
that he
must be capable of understanding the nature of the proceedings.”
[11]
4.2.
The
right to adduce and challenge evidence depends on the accused’s
ability to hear and understand the testimony of witnesses
and to make
him or herself properly understood when instructing counsel and
giving evidence.
[12]
5.
In
short, it is widely accepted that the ability of an accused person to
understand and be understood are fundamental requirements
for a fair
trial.
[13]
6.
The right to a fair trial poses particular
challenges where a court is dealing with an accused whose hearing
and/or speech is impaired,
for there is a grave danger that the
accused will be excluded from meaningful participation in the trial.
It must be borne in mind
that:
‘
In
an uninterpreted trial, a deaf defendant’s right to be heard in
his own defense is significantly impaired, i.e., identification
by
the deaf defendant of factual misstatements is highly improbable and
the opportunity for effective confrontation is correspondingly
diminished. Furthermore, participation in defensive strategy through
communication with counsel during the trial phase is critically
impaired. In effect, deaf defendants are functionally excluded from
uninterpreted trials.’
[14]
7.
The presiding officer must therefore
satisfy him or herself
on proper grounds
that the accused is able to hear and understand the proceedings at
all times and to make him or herself understood. The presiding
officer should not simply accept the word of a legal representative
in this regard, for an accused’s legal representative
may be
operating under a misapprehension as to the efficacy and accuracy of
his or her attempts to communicate with the accused.
Nor should the
presiding officer be content with his or her own assessment of the
situation.
8.
Where there is any inkling that an accused
may have hearing and/or speech difficulties, an expert assessment
should be undertaken
into the extent of the accused’s
impairment and, depending on the results of that assessment, an
appropriately qualified
interpreter must be employed to assist the
deaf and/or mute accused in order to ensure that he or she is able to
participate fully
in the trial. The nature of the skills and
qualifications required of the interpreter will vary from case to
case. A one-size-fits-all
approach cannot be taken for all deaf/mute
accused.
9.
This case is a stark reminder of the
challenges facing deaf persons in accessing justice in our courts.
The presiding officer failed
to have due regard to the special needs
of the accused, who was deaf and mute, despite having been alerted at
the outset to the
fact that he could not hear and speak properly. The
magistrate did not adjourn the proceedings and refer the accused for
assessment
by an audiologist in order to determine the extent of his
hearing and speech impairment. Instead she pressed on with the trial
and devised her own uninformed method for conducting the proceedings.
For reasons which will become clear, that method was not adequate
to
ensure the accused’s effective participation in his trial and
therefore did not pass muster.
10.
The accused, who was legally represented
throughout the proceedings, was tried in the Wynberg Regional Court
on a charge of murder,
it being alleged that on 23 June 2014 and at
Eastridge, Mitchell’s Plaint, he unlawfully and intentionally
shot and killed
one Nashief Davids (“the deceased”). The
accused’s defense was that he was acting in self-defense. He
was convicted
of murder on 5 May 2017 and subsequently sentenced to
15 years of imprisonment, of which 5 years were conditionally
suspended for
a period of 5 years.
11.
At the time when he was tried, the accused
was 62 years old. When he first appeared at court the magistrate was
informed that he
was deaf and would require assistance from a sign
language interpreter (“SLI”). A SLI was duly sourced, but
when the
trial was set to commence the accused, through the SLI,
informed the magistrate that he did not understand sign language well
and
could not follow the SLI. Indeed the magistrate himself observed
that the SLI and the accused could not understand each other.
12.
The
accused communicated to the court in writing that he was not born
deaf and dumb, but started experiencing hearing loss at around
Grade
5 and gradually lost his hearing and speech abilities. He had never
had any formal training in sign language, but he had
passed Grade 5
at school and could read and write. One gathers from the probation
officer’s report
[15]
that the accused’s hearing loss was caused by a shooting
accident, and that he lost his hearing completely in Grade 7. He
was
then sent to the De La Bat School for the deaf in Worcester, but only
spent 6 months there. It is recorded in the magistrate’s
notes
that the accused pertinently requested an interpreter by the name of
Anthony Salie from the De La Bat School in Worcester,
but no regard
was paid to this request.
13.
Instead, because the magistrate satisfied
herself that the accused could read and write, and because she was
told by the accused’s
counsel that he had been able to
communicate with the accused by means of written communication and
with the assistance of his
daughter, she directed that the trial
proceed and that communication with the accused be done in writing.
14.
The method employed for the presentation of
the State’s case was that the interpreter wrote down in
Afrikaans the questions
put to and the answers given by the State
witnesses, who testified in English. The interpreter was not
required to interpret
from English into Afrikaans for the benefit of
the magistrate, prosecutor and defense counsel, since they were all
English speaking,
but was required to write down in Afrikaans what
was asked and answered for the benefit of the accused. As each State
witness finished
testifying in chief, the interpreter’s notes
were shown to the accused and his counsel before cross-examination in
order
to afford the accused and his counsel an opportunity to verify
that the proceedings had been correctly recorded and to prepare for
cross-examination.
15.
There
are several difficulties with this procedure, the most obvious being
that the interpretation was sub-standard since it was
not continuous,
precise, competent and contemporaneous.
[16]
In this regard:
15.1.
First, the interpreter was required to
simultaneously translate and record
what was being said. That is irregular. There is no provision in the
Magistrates’ Court Act or the Criminal Procedure Act
which
sanctions the recording of evidence by an interpreter as opposed to
an official court stenographer. Furthermore, simultaneous
written
recordal and translation is a difficult task which carries a high
risk that parts of the evidence will be missed, or the
subtleties of
communication lost. One sees from the transcript that the interpreter
frequently complained that she could not keep
up, and a comparison of
the interpreter’s notes with the record of the court
proceedings reveals that the interpreter’s
note was a summary
rather than an accurate verbatim transcript of the testimony. Thus
the accused was deprived of the benefits
of full and precise
interpretation.
15.2.
Second, because the accused was only
afforded the opportunity to read the interpreter’s notes at the
end of each witness’s
testimony in chief, he was deprived of
the benefit of
contemporaneous
interpretation
, which requires that
interpretation of dialogue be conveyed to the accused immediately
once the person has spoken. The lapse of
time between the giving of
the testimony and the accused’s access to the contents likely
diminished his ability to detect
errors and instruct his counsel to
raise issues in cross-examination.
15.3.
Thirdly, the record shows that the accused
was not always afforded a proper and timeous opportunity to consider
what had been said.
For instance, when witness Fatima Davids
testified, her cross-examination ensued immediately without an
adjournment to afford the
accused an opportunity to consider her
evidence and instruct counsel accordingly. And when the court asked
questions of State witnesses
after the conclusion of
cross-examination, there was no adjournment to allow the accused to
be informed of the court’s questions.
This meant that he was
practically excluded from important parts of the trial.
16.
When the defense case was presented, it
appears that the interpreter wrote down questions for the accused to
read. The court transcript
shows that the accused answered orally and
that the audio equipment was able to record his answers despite his
speech impediment.
The magistrate instructed the accused that he
could answer by speaking, but that he must also write all his answers
down. That
is a tall order for anyone, let alone someone who suffers
from hearing and speech difficulties. Instead of facilitating the
accused’s
communication, the magistrate made it more onerous
for him. Included with the record are notes in summary form of the
questions
put to the accused and his answers, but those appear to be
the notes produced by the interpreter, in which case the accused’s
written notes, which should form part of the record, are missing.
17.
The record gives rise to grave doubts about
the efficacy of the accused’s understanding and communication.
His answers were
frequently not directly pertinent to the question
asked, he resorted to hand gestures at times, and there were
differences between
his evidence and the version which his counsel
had put to the State witnesses. It is all too easy to put this down
to mendacity
on the part of the accused – as the magistrate
appears to have done – when these factors may well be ascribed
to poor
comprehension and communication skills on the part of the
accused. His ability to adduce and challenge evidence was undoubtedly
hampered by his disability and he would have benefited greatly from
the assistance of the special interpreter who he recommended
and
requested – a request which the magistrate inexplicably
ignored.
18.
Not
only did the magistrate ignore the accused’s request for a
particular interpreter, but she also refused to permit the
accused’s
son to testify on his behalf because she decided, in her wisdom, that
his son would have nothing relevant to say
because he did not witness
the events in question. That, however, was not her call to make. The
accused’s counsel had indicated
earlier that he intended to
call members of the accused’s family to testify regarding how
the accused communicated. That
evidence could have been helpful in
understanding the accused’s interaction with the deceased,
[17]
and it would have been relevant to counter the magistrate’s
clear scepticism about the accused’s disability –
an
aspect which is dealt with below. The magistrate’s refusal to
allow the accused’s son to testify was a clear misdirection
which violated the accused’s right to adduce evidence.
19.
The procedure adopted by the magistrate was
not sufficient to ensure that the accused was able to participate
effectively in his
trial. It is clear from the record that the
accused struggled to hear and to follow the proceedings. During the
presentation of
the State’s case he was effectively excluded
for large portions of the trial since as he was not given a
contemporaneous
interpretation of the dialogue. At times he was
simply ignored, for instance on two occasions when the State made
applications,
one for leave to amend the indictment and another to
introduce the hearsay evidence of a written statement made by a
deceased witness.
On both occasions the accused’s counsel
blithely consented to the applications without asking the accused for
instructions.
The magistrate did not ask whether the accused had been
informed of his rights in these regards, and whether he agreed with
the
stance taken by his counsel. This was a particularly egregious
admission in the case of the damaging hearsay evidence which was
evidently admitted without the accused’s informed consent.
20.
In essence, the accused did not have full
and proper access to what was being said in court, and his own voice
was stifled due to
the lack of an appropriately skilled interpreter
and the magistrate’s refusal to allow his son to testify. He
was reduced
to a passive and powerless spectator at his own trial,
which rolled on like a juggernaut, trampling his constitutional
rights in
the process.
21.
The violation of the accused’s right
to a fair trial could and should have been avoided by the simple
expedient of referring
the accused for an audiological examination in
order to ascertain the extent of his impairment and obtain expert
guidance on how
best to facilitate effective communication with and
by the accused. A good example was set in the case of
S
v Mbezi
2010 (2) SACR 169
(WCC) where
the magistrate adjourned the trial and sent the accused for an
audiogram as soon as it became apparent that he either
did not hear
or could not understand questions. That is what the magistrate should
have done in this case as soon as she was informed
of the accused’s
hearing difficulties.
22.
Judicial officers must be sensitive to the
fact that there is great diversity within the deaf population. One
cannot assume that
a SLI trained in South African Sign Language
(SASL) will make it possible for a deaf accused to understand the
proceedings, for
there are many forms of sign language other than
SASL and the accused may not be proficient in SASL, or indeed in any
form of sign
language. An individualized enquiry needs to take place
in order for the court to understand the particular needs of a deaf
accused
so as to ensure that he or she will be able to understand and
follow the court proceedings. In the same way that an expert
assessment
takes place when there is a question about an accused’s
mental competence to stand trial, where a court is dealing with a
hearing and/or speech impaired accused, an expert assessment should
be undertaken in order to ascertain the nature and extent of
the
accused’s impairment, the nature and extent of his or her
communication skills, how to maximize effective communication
with
the accused, and whether it will in fact be possible for the accused
properly to understand and participate in court proceedings.
23.
The constitution proclaims that everyone is
equal before the law and entitled to equal protection and benefit
from the law. Unfair
discrimination on grounds disability is not
countenanced. In the case of a hearing and/or speech impaired accused
a court must
be alive to the fact that special measures may be
necessary to respect, protect, promote and fulfil that accused’s
right
to a fair trial.
24.
It is unfortunately necessary to comment on
another aspect of the magistrate’s treatment of the accused in
this case. The
record shows that the magistrate formed the impression
that the accused was not being truthful about the extent of his
disabilities.
The magistrate took it upon herself to question a
number of the State witnesses about whether or not the accused could
hear and
speak. Not only was it wholly inappropriate to make the
accused’s disability an issue in the trial, but the magistrate
also
erred in taking into account the unreliable evidence of lay
persons instead of seeking expert opinion on the accused’s
condition.
25.
What made matters worse was that the
magistrate gave public vent to her scepticism about the accused’s
inability to communicate.
At the commencement of the trial, when the
accused’s counsel requested permission to approach the accused
for instructions,
the following unseemly exchange occurred:
‘
Court:
Yes. But what is funny, Mr Matseme is that you can communicate with
your client without writing …
Mr
Matseme: No, I open my mouth …
Court:
Ha-ha-ha …
Mr
Matseme: (Indistinct) I am going to do that also so that, Your
Worship because when we consulted if you are closer and you try
and
open your mouth wide, he can understand but the problem is now that
if you just speak as I am speaking now he will not understand.
Court:
Gmfh … This is interesting … Mr Matseme he wishes to
speak with you. …’
26.
The magistrate’s remarks display an
appalling insensitivity and prejudice regarding the accused’s
disability. She violated
his dignity with her callous laughter and
open incredulity. She failed to accord him the respect which every
person who appears
in a South African court is entitled to receive
from a judicial officer. Her conduct demonstrates the need for
ongoing social awareness
and sensitivity training to alert all
judicial officers to the challenges facing people with disabilities
when they appear in our
courts.
27.
Furthermore, the magistrate’s
undisguised scepticism about the accused’s disability evidences
a preconceived notion
that he was untruthful, which amounted to bias
on her part. Quite apart from the interpretation issues, the bias of
the presiding
officer rendered the accused’s trial unfair.
28.
It is therefore clear that there was a
miscarriage of justice on several grounds, namely the denial of the
accused’s right
to a properly qualified interpreter, the
refusal to allow his son to testify, and the negative bias of the
presiding officer. The
accused was not afforded a fair trial and his
murder conviction therefore cannot stand. If the State decides to
bring fresh charges
against the accused, the case must be tried
before a different magistrate, and regard must be had to the
guidelines set out in
this judgment.
29.
I would therefore make the following order:
1.
The appeal is upheld.
2.
The accused’s conviction and sentence
are set aside.
3.
A copy of this judgment is to be sent to
the Magistrates’ Commission with a view to raising awareness of
the need for social
awareness and sensitivity training in relation to
persons with disabilities.
_____________________
D M DAVIS AJ
I
agree and it is so ordered.
_____________________
T NDITA J
[1]
Constitution
of the Republic of South Africa, 1996.
[2]
Section
35(3)(e).
[3]
Section
35(3)(i).
[4]
Section
35(3)(k).
[5]
Section
35(4).
[6]
See
S
v Ngubane
1995
(1) SACR 384
(T
)
;
S
v
Ndala
1996
(2) SACR 218
(C)
S
v Abrahams
1997
(2) SACR 47
(C);
S
v Manzini
2007
(2) SACR 107
(W).
[7]
Section
6(2) of Act 32 of 1944 reads as follows:
“
If,
in a criminal case, evidence is given in a language with which the
accused is not in the opinion of the court sufficiently
conversant,
a competent interpreter shall be called by the court in order to
translate such evidence into a language with which
the accused
professes or appears to the court to be sufficiently conversant,
irrespective of whether the language in which the
evidence is given,
is one of the official languages or of whether the representative of
the accused is conversant with the language
used in the evidence or
not.”
[8]
See
S
v Ndala (supra)
at
221 g, citing
Mackessack
and Others v Assistant Magistrate, Empangeni and Others
1963
(1) 892 (N) at 896 E - H;
Geidel
v Bosman N.O. and Another
1963
(4) SA 253
(T) at 256 F – 257 H;
Ohannesen
v Koen N.O. and Another
1964 (1) SA 663
(T) at 664 B – C;
S
v Mafu
1978
(1) SA 454 (C).
[9]
See
S
v Abrahams
1997
(2) SACR 47
(C) and the cases cited in footnote 8 above.
[10]
See
Pachcourie
v Additional Magistrate, Ladysmith and Another
1978
(3) SA 986
(N) at 991 B – H.
[11]
R
v Lee Kun
(1916)
1 KB 337
at 341, quoted with approval in
Pachcourie
v Additional Magistrate, Ladysmith and Another
(supra)
at 991 C – F and in
Mackessack
and Others v Assistant Magistrate, Empangeni and Others (supra)
at
895 G – H.
A similar view was
expressed in the case of
Terry v State
21 Ala. 100
, 102
(1925) where an Alabama Criminal Appeal Court, dealing with the
refusal of the court
a quo
to appoint an interpreter for a
deaf accused, held that mere physical confrontation of witnesses was
pointless if the accused
could not hear and understand the
testimony. It characterized the mere physical appearance of
the deaf accused without
an interpreter as “
useless,
bordering on the farcical.”
[12]
F
Cassim ‘
The
right to meaningful and informed participation in the criminal
process’
(2009)
(Thesis available online at UNISA Instutional Repository).
[13]
See
F Cassim
(supra)
;
Jeffery B. Wood ‘
Protecting
Deaf Suspects’ Right to Understand Criminal Proceedings’
75
J. Crim. L. & Criminology 166
(1984); Gregg F. Relyea
‘
Procedural
Due Process: A Deaf Defendant’s Right to be Heard Should
Encompass a Right to “Hear” Civil Trials
Through
Interpretation’
29
Cath. U.L. Rev 867 (1980) at 868;
R
v Lee Kun (supra)
;
Terry
v State
(supra)
;
Mothershead
v King
112 F.2d 1004
(8
th
Cir. 1940);
United
States ex rel. Negron v New York
[1970] USCA2 719
;
434 F.2d 386
(2
nd
Cir. 1970);
Attorney
General
of
Ontario
v.
Reale
,
[1975]
2
S.C.R.
624;
Société
des Acadiens du Nouveau-Brunswick Inc v Association of Parents for
Fairness in Education, District 50 Branch
[1986]
1 SCR 549
at 577 and 622.
[14]
Gregg
F. Relyea
(supra)
at
868. (Although the article deals with the right of the deaf to
interpreted civil trials, the remarks are equally apposite to
criminal proceedings.)
[15]
This
report naturally only became available at the sentencing stage and
the information contained therein was not known to the
magistrate at
the start of the trial.
[16]
See
S
v Ngubane
1995
(1) SACR 384 (T).
[17]
Since
the accused averred that he was acting in self-defense, evidence
about how he ordinarily communicated with his family might
have shed
light on how much he would likely have heard and understood of what
the deceased said to him.