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[1990] ZASCA 24
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S v Mabaso and Another (60/89) [1990] ZASCA 24; 1990 (3) SA 185 (AD); (26 March 1990)
SIHLE MABASO
1
st
Appellant
NHLANHA MABASO
2nd
Appellant
and
THE STATE
Respondent
Case No 60/89 - mp
IN THE SUPREME COURT OF SOUTH
AFRICA APPELLATE DIVISION
In the matter between:
SIHLE MABASO
1
st
Appellant
NHLANHA MABASO
2nd
Appellant
and
THE STATE
Respondent
CORAM:
HOEXTER, SMAL8ERGER,
MILNE, EKSTEEN, JJA et NICHOLAS, AJA
HEARD:
9 November 1989
DELIVERED:
26 March 1990
JUDGMENT
HOEXTER, JA ......
2
HOEXTER, JA
This is a criminal appeal pursuant
to a special entry. In the Witwatersrand Local Division a Court
consisting of VERMOOTEN, AJ and
two assessors convicted each of the
two appellants of (a) attempted robbery with aggravating
circumstances; (b) unlawful possession
of a firearm; and (c) unlawful
possession of ammunition. In respect of the above convictions each
appellant was respectively sentenced
to (a) fifteen years
imprisonment; (b) twelve months imprisonment; and (c) six months
imprisonment. In addition the first appellant
was convicted of the
murder of one Quirino Anastacio Andrade ("Andrade"). In
respect of the last-mentioned convictibn no
extenuating circumstances
were found and the first appellant was sentenced to death. Upon an
application by defending counsel in
terms of sec 317 of the Criminal
3
Procedure Act, 51 of 1977 ("the
Criminal Code") the learned Judge caused a special entry to be
made on the record of the
proceedings. On the ground of the alleged
irregularity or illegality therein set forth the two appellants
appeal to this Court against
their convictions and sentences
aforesaid.
The main events which led up to
the trial in the Court below were the following. In King George
Street in central Johannesburg there
was a business known as the
Montenegro Meat Market ("the butchery"). On the evening of
26 June 1987, and while the butchery
was open, it was entered by four
men ("the intruders") two of whom were armed with loaded
pistols. Inside the building
Andrade and one Manuel de Jesus Lopes
Cunha ("Cunha") were busy counting money. Shots were fired
from both pistols and
both Andrade and Cunha sustained fatal gunshot
wounds. Andrade was killed outright. Cunha died very shortly
4
afterwards. Immediately after the
shooting the intruders fled from the butchery; but they left behind
them, lying on the floor of
the butchery, spent cartridges which had
been ejected from the pistols during the shooting. The policemen
investigating the shooting
took possession of these cartridges.
Some ten days after the shooting,
on 6 July 1987, the first appellant was arrested by the South African
Police. In the very early
hours of 7 July 1987 the first appellant
directed Lieut. de Waal, of the Brixton Murder and Robbery Unit, -and
other policemen, to
a house in Soweto. There the first appellant
pointed out the second appellant and one Zodwa Ngcamu ("accused
no 3"). The
police arrested the second appellant and accused no
3. The first appellant then directed the party of policemen to Dube
Hostel where
he pointed out one Bafanyana Mbuyisa ("accused no
4"). The police arrested accused no 4. A little later, but still
in the
small hours of 7 July 1987,
5
the second appellant took Lieut.
de Waal back to the house at which he had been arrested. Lieut. de
Waal was the investigating officer
in the case and he testified for
the State at the trial in the Court below. At the said house, so
testified Lieut. de Waal, the second
appellant told one Amos to take
Lieut. de Waal to a house across the road. Upon his arrival at the
latter place, so Lieut. de Waal
told the trial Court, a Mrs Paulina
Nkosi handed to him a locked cash-box. De Waal then returned to the
house at which the second
appellant had been arrested, and on the
ground in front of the back door he picked up a key. De Waal
discovered that the key fitted
the lock of the cash-box. Having
unlocked the cash-box de Waal found that it contained, inter alia,
three firearms. The cash-box
was handed in at the trial as exh 1.
Still in the early hours of 7 July 1987 the second appellant directed
Lieut. de Waal to an address
in Soweto where the second appellant
pointed
6
out one
Sipho Dhlamini ("Dhlamini"), who was also arrested. On the
following day (8 July 1987), and in terms of sec 119
of the Act, five
men appeared in the Johannesburg Magistrate's Court before an
additional magistrate, Mr P J Bredenkamp ("the
magistrate").
The five men were the first and second appellants, the third and
fourth accused, and Dhlamini. Subsequently the
Attorney-General
declined to prosecute Dhlamini; and at the trial in the Court below
Dhlamini was called as a witness for the prosecution.
Both in the
Magistrate's Court and at the trial the first and second appellants
were the first and second accused respectively, and
accused no 3 and
accused no 4 were the third and fourth accused respectively. After
the matter had been called it was postponed to
9 July 1987 when the
prosecutor put three charges to the accused and the magistrate
required each accused to plead thereto.
7
In terms of sec 119 of the Act the
prosecutor put
the following three charges to the
accused
"Count 1
: Attempted
Robbery with Aggravating Circumstances.
THAT Accused Nos 1 - 5 as per J15
(hereinafter called the Accused) are guilty of the crime of
-attempted robbery with aggravating
circumstances as intended in
section 1(1)(b) of Act 51 of 1977. IN THAT, upon or about 26 June
1987 and at or near Montenegro Meat
Market, King George Street in the
district of Johannesburg the
accused did unlawfully assault
MANUEL DE JESUS LOPES CUNHA and QUIRINA ANASTACIO ANDRADE, white .
males by threatening and shooting
them with firearms and attempted
to
take by f orce and violence f rom
their possession cash, the amount which is to the State unknown,
their property or in their lawful
possession, aggravating
circum-stances being present IN THAT the accused wielded dangerous
weapons, to wit, firearms.
Count 2
: Murder
The said accused are guilty of the
crime of MURDER IN THAT upon or about 26 June 1987 and at or near
8
Montenegro Meat Market, King
George Street in the district of Johannesburg the said accused did
unlawfully and intentionally kill
MANUEL DE JESUS LOPES CUNHA who was
in life an adult white male by shooting him with a firearm.
Count 3
: Murder ......
The said accused are guilty of the
crime of MURDER IN THAT upon or about 26 June 1987 and at or near
Montenegro Meat Market, King
George Street in the district of
Johannes-burg the said accused did unlawfully and intentionally kill
QUIRINA ANASTACIO ANDRADE who
was in life an adult white male by
shooting him with a firearm."
On 9 July and in response to the
aforesaid charges the two
appellants pleaded as follows. The
second appellant
pleaded not guilty on all three
counts. The first
appellant pleaded guilty on count
1 (attempted robbery with
aggravating circumstances); guilty
on count 2 (murder of
Cunha); and not guilty on count 3
(murder of Andrade).
Sec 121(1) of the Act provides
that where an
9
accused under sec 119 pleads
guilty to the offence charged,
the presiding magistrate shall
question him in terms of the
provisions of paragraph (b) of sec
112(1). The latter
provisions enjoin the questioning
of an accused -
"....with reference to the
alleged facts of the case in order to ascertain whether he admits the
allegations in the charge to
which he has pleaded guilty".
Sec 121(2)(b) provides that if the
magistrate is not
satisfied that the accused admits
the allegations statéd in
the charge -
".... he shall record in what
respect he is not so satisfied and enter a plea of not guilty and
deal with the matter in terms
of section 122(1) : Provided 'that an
allegation with reference to which the magistrate is so satisfied and
which has been recorded
as an admission, shall stand at the trial of
the accused as proof of such allegation."
The pleas of the appellants having
been recorded, the
magistrate explained to the first
appellant that he would
be questioned -
10
"....in order to determine
whether you in fact agree with all the allegations concerning these
counts on which you pleaded guilty."
and the magistrate asked the first
appellant whether he had
understood the explanation. The
first appellant replied
in the affirmative. The magistrate
asked the first
appellant whether he was pleading
guilty on count 1 of his
own free will and the first
appellant replied that he was.
The magistrate asked the first
appellant whether he
admitted that on 26 June 1987 he
had visited "the
Montenegro Meat Market, King
George Street, Johannesburg".
From the answer given it appeared
that the first appellant
was unaware of the name of the
butchery visited by him.
To this the first appellant
added:-
"Your
Worship, the problem is,
I
do
not know the name it is obviously this one."
In response to further questions
the first appellant stated
that "All of us" went to
the butchery; and he explained
that "all of us"
comprised -
11
".... myself, that is with
the other three accused. Accused 2, 3 and 4. And accused 5 was the
driver of the motor vehicle."
The magistrate asked the first
appellant why he had gone to
the butchery. The answer was -
"The reason, a black man who
is employed at the butchery, who informed us that there is money.
That is why we went there your
worship."
The magistrate asked the first
appellant what had then
happened. The first appellant
answered that they had
entered the premises and demanded
money. One of the
people in the butchery argued with
them, and he (the first
appellant)
fired two shots. He did so, he said, because
a
Portuguese man in the butchery
wanted to stab him with a
knife. He did not know the name of
the Portuguese man.
The first appellant said that it
had been his intention to
remove cash from the butchery but
that in fact no money was
taken. After firing the shots he
ran out of the butchery.
The magistrate asked the first
appellant whether in firing
12
the shots he had aimed at any
particular person. The
answer was:-
"Your
Worship,
I
pointed
the fire-arm in the direction of a Portuguese man
I
am referring to.
I
do not know if he was hit or shot as such
Your Worship."
Having questioned the first
appellant in terms of sec
112(2)(b) the magistrate was not
satisfied that he admitted
all the ailegations in the charge
and accordingly the
magistrate entered a plea of not
guilty on count 1. In
respect of count 1 the magistrate
recorded the following
formal admissions:-
"In the first place that on
the 26 June 1987, accused 1 visited an unknown butchery in
Johannesburg. In the second place that
the accused had a fire-arm in
his possession. In the third place that the fire-arm can be regarded
as a dangerous weapon. In the
fourth place that accused visited the
said butchery with the intention to steal money, from that butchery.
In the fifth place that
accused 1 threatened people inside the
butchery with this fire-arm. That he fired certain shots while aiming
at a certain person."
13
The same procedure was followed in
respect of count 2.
Having questioned the first
appellant in terms of sec
112(1)(b) the magistrate was not
satisfied that he admitted
all the allegations in the charge,
and accordingly the.
magistrate entered a plea of not
guilty cm count 2. In
respect of count 2 the magistrate
recorded the following
formal admissions:-
"In the first place that
accused 1 visited a certain unknown butchery in the district of
Johannesburg on the 26 June 1987. In
the second place that accused 1
fired two shots with a firearm at this, the said shots (sic). In the
third place when firing these
two shots, accused 1 aimed at a certain
person. And that, in the fourth place that the said person was a
White male."
Thereafter the proceedings before
the magistrate were
adjourned until the following day,
when the magistrate had
to deal with the first appellant
in relation to the
latter's plea of not guilty on
count
3. Sec 122(1)
of the
Act provides that where an accused
under sec 119 pleads not
14
guilty to the offence charged, the
court shall act in terms
of sec 115; and that when sec 115
has been complied with,
the magistrate shall stop the
proceedings and adjourn the
case pending the decision of the
attorney-general. The
first two subsections of sec 115
read as follows:-
"115 (1) Where an accused at
a summary trial pleads not guilty to the offence charged, the
presiding judge, regional magistrate
or magistrate, as the case may
be, may ask him whether he wishes to make a statement indicating the
basis of his defence.
(2) (a) Where the accused does not
make a
statement under subsection (1) or
does so and it is not clear f rom the statement to what extent he
denies or admits the issues raised
by the plea, the court may
question the accused in order to establish which allegations in the
charge are in dispute (b) The court
may in its discretion put any
question to the accused in order to clarify any matter raised under
subsection (1) or this subsection,
and shall enquire from
15
the accused whether an allegation
which is not placed in issue by the plea of not guilty, may be
recorded as an admission by the accused
of that allegation, and if
the accused so consents, such admission shall be recorded and shall
be deemed to be an admission under
section 220."
In response to a guestion by the
magistrate the first
appellant replied that he was
prepared to disclose the
basis of his defence on count 3.
The record reflects the
following exchange between the
first appellant and the
magistrate:-
"ACCUSED
1
: Your Worship,
I
only fired shots
and
I
only killed one
person. The other person,
I
do
not know Your Worship.
COURT
: Anything else to
add?
ACCUSED 1
: That is all
Your Worship.
COURT
: You say you only
killed one person. What do you mean by that?
ACCUSED 1
:
I
only fired
shots in the direction
of one person Your
Worship."
With the consent of the first
appellant the magistrate
proceeded to record the following
three admissions in
16
terms of sec 220 of the Act : (1)
that on 26 June 1987 the first appellant visited an unknown butchery
in Johannesburg; (2) that at
the sald butchery he fired two shots at
a person; and (3) that the person fired at was a White male.
The magistrate then dealt with the
pleas of the second appellant. The second appellant's introductory
remarks suggested that, although
on the previous day he had pleaded
not guilty on count 1, he now wished to plead guilty on that count.
Thereupon the magistrate explained
to the second appellant that he
was under no compulsion whatsoever, to alter his plea; and the
magistrate required the prosecutor
again to put all three counts to
the second appellant. What then happened in relation to counts 1 and
2 is reflected thus in the
record:-
17
COURT
: Accused 2, do you
understand the
first count?
ACCUSED 2
:
I
do Your
Worship.
COURT
: What is your plea to the first
count?
ACCUSED
2 PLEADS GUILTY PROSECUTOR PUTS COUNT 2 TO ACCUSED 2
COURT
: Do you understand the second count?
ACCUSED
2
:
I
do
Your Worship.
COURT
: What do you plead to it?
ACCUSED 2
PLEADS GUILTY."
In the light of what the second
appellant said in response
to count 3 when it was put to him,
the magistrate entered a
plea of not guilty. In respect of
counts 1 and 2 the
magistrate then questioned the
second appellant in order to
ascertain whether he admitted the
allegations in the
charges to which he had pleaded
guilty. In response to
the magistrate's questions the
second appellant said that
on 26 June 1987 he was at a
butchery in Johannesburg whose
name he did not know. He was armed
with a firearm. He
went to the butchery because an
employee of the butchery
had told them that there was money
there. At the butchery
18
all four accused demanded money.
Someone closed the doors of the butchery. The second appellant
threatened the people working in the
butchery and shots were fired.
The second appellant himself fired one shot but without aiming at
anyone in particular. The second
appellant said that he did not know
whether the shot fired by him struck anybody. The second appellant
admitted that he visited the
butchery with the intention to steal
money by force, violence and threats; but in fact he took no money.
Having questioned the second
appellant in terms of sec 112(1)(b) the magistrate was not satisfied
that the second appellant admitted
all the allegations in the charge
on count 1; and accordingly the magistrate entered a plea of not
guilty on count 1. The magistrate
recorded certain formal admissions
made by the second appellant in respect of count 1. The same
procedure was followed in respect
of
19
count 2. Having questioned the
second appellant in terms of sec 112(1)(b) the magistrate was not
satisfied that the second appellant
admitted all the allegations in
the charge, and accordingly the magistrate entered a plea of not
guilty on count 2. The magistrate
also recorded certain formal
admissions made by the second appellant in respect of count 2. At the
invitation of the magistrate the
second appellant disclosed his
defence on count 3. The gist of it was that the second appellant had
fired only one shot in the butchery.
Having dealt with the pleas of the
two appellants the magistrate proceeded to deal in turn with the
respective pleas of accused nos
3 and 4 and Dhlamini. As far as
accused nos 3 and 4 are concerned, and for the sake of completeness,
brief mention may be made of
the following. Accused no 3 pleaded
guilty on counts 1 and 2 only. Accused no 4 pleaded guilty on count 1
only.
20
Having questioned accused no 3 the
magistrate entered pleas of not guilty on both counts 1 and 2; but he
recorded as formal admissions
against accused no 3 that on 26 June
1987 accused no 3 had gone to the butchery armed with a knife and
with intention to steal by
violence. Having questioned accused no 4
the magistrate entered a plea of not guilty on count 1; but he
recorded as formal admissions
against accused no 4 that on 26 June
1987 accused no 4 had gone to the butchery armed with a knife and
with the intention of stealing
by violence. After he had dealt with
the pleas of each of the five accused the magistrate in terms of sec
122(1) stopped the case
against the five accused pending the decision
of the attorney-general. However, before adjourning the proceedings
the magistrate
inquired of each of the five accused in turn whether
he desired the services of pro deo counsel if the matter should
proceed to trial.
Both the
21
first and the second appellants
informed the magistrate that they would arrange for their own defence
counsel.
The trial in the Court below took
place at the end of September 1988. There were four accused : the two
appellants and accused nos
3 and 4. There were in the indictment not
only the three charges (two counts of murder and one count of
attempted robbery with aggravating
circumstances) to which the
accused had pleaded during the sec 119 proceedings in the
magistrate's court, but in addition there were
charges of one count
of unlawful possession of firearms and one count of unlawful
possession of ammunition. Each accused pleaded
not guilty on all
counts. At the trial each of the four accused was separately
represented by pro deo counsel. At the conclusion
of the State case
each accused testified in his
22
own defence.
For purposes of the appeal only a
brief recapitulation of the salient parts of the evidence is
necessary. The four accused hailed
originally from Kranskop in Natal.
The two appellants are brothers. One of the State witnesses was
Dhlamini, the erstwhile accused
No 5 in the sec 119 proceedings.
Dhlamini conducted a taxi service in Soweto. His evidence was to the
following effect. At about
6 pm on 26 June 1987 the second appellant
and accused no 3 came to his home and sought transport to the city.
Dhlamini required and
was paid a fare of R20. They proceeded in his
taxi to a house where the first appellant and accused no 4 were
picked up; and then
they travelled on to Johannesburg. At the request
of the accused Dhlamini dropped his passengers off in the city on the
corner of
Plein and Wanderers Streets. This is a
23
spot not
far distant from the butchery. According to Dhlamini it was then
dusk.
The only
eye-witness to the shooting in the butchery called by the State was a
fifteen year-old girl, Nelia Andrade. She was the daughter
of Andrade
and the niece of Cunha. On the evening of 26 June 1987 she was in the
butchery helping her father and her uncleto count
the takings. Due to
the shock suffered by her at the time Miss Andrade's recollection of
the events in question was, quite understandably,
somewhat
fragmentary and disjointed. At about 8 pm, and at a time when there
were a number of Black male persons in the butchery,
she saw one of
them approach Cunha. The person in question produced a firearm and he
pressed Cunha against a door in the butchery.
A shot then went off.
According to Miss Andrade her father then tried to arm himself with
an iron rod, but before he could manage
to do anything he fell to the
floor. Miss Andrade then
24
ran out of the butchery and
started to scream. She was unable to say how many shots were fired
inside the butchery, and she was unable
to identify any of the
persons who had come into the butchery.
At the time of the shootings two
members of the South African Police Force, constables Giliomee and
Stapelberg, were on a foot patrol
in the vicinity of the butchery.
They heard the screams of Miss Andrade; and Giliomee saw four Black
men run out of and away from
the butchery. Giliomee ran after the
fleeing men but was unable to overtake them. Meanwhile Stapelberg had
entered the butchery in
which he found a distraught Miss Andrade and
two men who had been shot. Stapelberg summoned an ambulance and the
Brixton Murder and
Robbery Unit. A little later Major Eager and other
members of the Brixton unit arrived at the butchery. Major Eager
testified to
the fact that a police sergeant placed the spent
cartridges
25
left lying
at the scene of the crime into envelopes which were identified and
sealed and then removed by Major Eager. On the following
day the
sealed envelopes were handed by Major Eager to Lieut. de Waal.
Mention
has already "been made of the cash-box (exh 1) discovered by
Lieut. de Waal. At the trial exh 1 was identified by the
State
witness Mrs Paulina Nkosi as an article which on a particular night
had been entrusted to her safekeeping by the second appellant.
Mrs
Nkosi said that the appellants lived near her, and that she knew both
of them. She put exh 1 under her bed. In the early hours
of the very
next morning the police arrived at her house in the company of a man
called Amos. Mrs Nkosi knew Amos as a person who
lodged with the
appellants. In response to a question by the police Mrs Nkosi removed
exh 1 from under her bed and handed it over
to the police.
One of the
members of the Brixton Murder and
26
Robbery Unit who accompanied
Lieut. de Waal to Soweto in the early hours of 7 July 1987 was
Warrant-Officer W A Steyn. W/0 Steyn was
called as a State witness.
After , the first appellant had pointed out the second appellant, so
testified W/0 Steyn, he searched
the second appellant and in the
latter's trouser pocket he found a keyholder to which a key was
attached. W/0 Steyn threw this key,
which he identified as exh 2, to
the ground. In his evidence Lieut. de Waal identified exh 2 as the
key which he picked up in the
circumstances already mentioned, and
with which he had unlocked exh 1. Lieut. de Waal further testified
that the three firearms found
by him in exh 1 were respectively: (A)
an Astra 9 mm automatic pistol whose magazine contained seven
cartridges; (b) a Beretta 6,35
mm automatic pistol whose magazine
contained five cartridges; and (c) a Baby Browning automatic pistol
with an empty magazine. On
14 July 1987 Lieut. de Waal delivered the
27
three firearms found in exh 1 and
the spent cartridges collected on 26 June 1987 at the scene of the
crime to a ballistician at the
Police Forensic Laboratories. There
the cartridges and the firearms were examined and ballistic tests
were performed on the firearms.
The report incorporating the
ballistician's findings is contained in an affidavit (exh "F")
which was produced at the trial
in terms of sec 212 of the Act. The
contents of exh "F" establish that of the spent cartridges
in question, two had been
fired from the Astra 9 mm automatic pistol
and three had been fired from the Beretta 6,35mm automatic pistol.
Lieut. de Waal testified at a
comparatively early stage of the trial. From suggestions made to him
during cross-examination it became
apparent that in due course each
accused in turn would testify that while in the custody of the police
he had been the victim of
assaults
28
and a system of torture by the
police; and that he had been induced by police violence and police
threats to make those damaging admissions
which are reflected in the
record of the proceedings before the magistrate.
In order to forestall the line of
defence thus foreshadowed counsel for the State called no less than
twelve of the thirteen members
of the South African Police who had
been involved in the arrests of the accused and their subsequent
custody. Each of these police
witnesses denied that he had taken part
in any assault upon or torturing of any of the accused; or that he
had witnessed any such
thing. The thirteenth policeman concerned was
not readily available as a witness for the reason that at the time of
the trial he
was in prison awaiting execution. In addition to the
twelve policemen the State called the magistrate and a Miss Mninga
who had been
the interpreter during the proceedings before the
magistrate.
29
The sec
119 proceedings were electronically recorded. The transcription is a
lengthy document running to some 36 pages. It ref lects
no complaint
by any accused of an assault or any other impropriety by the police.
During his evidence-in-chief the magistrate said
that if any of the
accused had voiced any complaint alleging an assault upon him such
would have been reflected in the transcribed
record. The magistrate
went on to explain that in the case of any complaint (of whatsoever
nature) by an accused in such proceedings
it was his practice not
merely to note the complaint but also to go into the matter. During
cross-examination it was put to the magistrate
on behalf of the first
appellant that the latter had in fact raised the matter of assault,
and that thereupon the magistrate had
silenced him. This the
magistrate denied. Counsel for the second appellant asked
30
the magistrate at what stage of
such proceedings it was
customary to inform an accused
person of his rights to
legal representation. To this the
magistrate replied:-
"Die huidige prosedure is,
edele, dat by die eerste verskyning reeds vir 'n beskuldigde
meegedeel word dat hy die reg op regsverteenwoordiging
het en dat hy
so spoedig moontlik moet reëlings tref sou hy
regsverteenwoordiging verkies."
In the instant case the magistrate
did not so inform the
accused at their first appearance
before him on 8 July
1987. Indeed, as the transcript
shows, the matter of
legal representation was not
broached by the magistrate
until the proceedings were stopped
in terms of sec 122(1);
and then in relation to
representation at a future possible
trial. The magistrate went on to
explain that an
instruction to magistrates to
inform accused persons of
their right to legal
representation at the time of their
first appearance had been issued
only later. It appears
31
that the
instruction was issued pursuant to the reporting of the decision in
S
v Radebe, S v Mbonani
("the
Radebe
case")
1988(1) SA 191(T).
Miss
Mninga told the trial Court that at the time of the appearance of the
accused before the magistrate she had been an interpreter
in the
Magistrate's Court for five years. Counsel for the first appellant
put to Miss Mninga that during the proceedings before the
magistrate
the first appellant in fact complained that he had been assaulted.
The witness replied that if the f irst appellant had
so complained
she would have communicated the complaint to the magistrate.
When the
first appellant came to testify he told the trial Court that he knew
nothing whatever of the shooting at the butchery on
26 June 1987. He
denied that he knew Dhlamini, and he said that Dhlamini was lying. He
said that upon his arrest he was taken by
the police to
32
Brixton where he was told to
undress. Thereafter he was
bound hand and foot to a chair. He
was then subjected to
electric shocks and a bag was
placed over his head which
prevented him from breathing. He
was told that he had
done something wrong at a
butchery. His denials were
brushed aside and finally he was
driven to make a false
confessiion. He admitted that
after his arrest he had
pointed out his fellow-accused,
but he explained his
conduct in so doing by saying that
the police had
instructed him to take them to any
of his friends
any of his friends would do. In
regard to what he had
said to the magistrate the first
appellant testified:-
"Ek het skuldig gepleit want
ek was gesê om dit te sê."
This instruction, so said the
first appellant, had been
given to him by a number of
policemen including Lieut. de
Waal himself. The first appellant
further told the trial
Court that when he began to tell
the magistrate of the
33
assault
perpetrated upon him at Brixton the magistrate silenced him by
saying:-
"...dit
is nie vrae wat ek hom moet vra nie."
The second
appellant's defence was also a complete denial of the State case
against him. He told the trial Court that Dhlamini was
unknown to him
and that he had first set eyes on Dhlamini at Brixton after his
arrest. Upon his arrival at Brixton he was tortured
by the police.
The police told him that he had committed robbery at a butchery. When
he denied this he was bound to a chair and told
that the truth would
be extracted from him. A bag was placed over his head. He was beaten
on the back and he was subjected to electric
shocks. When he was on
the verge of collapsing the bag was removed, and he was told to
confess. At that juncture -
"...het
ek erken wat hulle my gesê het." He was then taken to the
house in Soweto where he had
34
earlier
been arrested. There he was told to produce the firearms -
"...wat
jy gebruik by die stamgevegte." According to the second
appellant he explained to the police that he himself had
none, but
that he knew of someone who did in fact have firearms. The police
told him to point out this person, and he indicated Amos.
The police
went off with Amos, and when they returned with Amos they had with
them a container which he thought was exh 1. While
he admitted that
Mrs Paulina Nkosi was known to him the second appellant denied that
he had ever entrusted exh 1 to her care. The
second appellant
likewise denied that W/0 Steyn had found the key, exh 2, on his
person. In regard to the proceedings before the
magistrate the second
appellant testified that the police had forced him to plead guilty.
In their
testimony before the trial Court accused
35
nos 3 and 4 likewise denied all
knowledge of the shooting
at the butchery on 26 June 1987.
Each claimed to have
been assaulted and tortured by the
police. Each testified
that the statements made by him at
the proceedings before
the magistrate were prompted by
the police.
The State witnesses favourably
impressed the
trial Court. Of them the trial
Judge observed in his
judgment:-
"Hulle het flink en sonder
aarseling geantwoord. Kruisondervraging het nie aan hulle
geloofwaardigheid afgedoen nie."
The first
appellant, on the other hand, was found to be
a
singularly
u
nsatisfactory witness. He was disbelieved by
the trial Court and his version
was rejected as false.
The trial Court described the
second appellant as a
mendacious witness who trimmed his
sails to the wind. His
version was also rejected out of
hand. The trial Court
was also unfavourably impressed
with the testimony given by
36
accused nos 3 and 4; and their
versions were likewise rejected as being untrue.
The convictions and sentences of
the appellants in the Court below have already been detailed. It
should here be mentioned that accused
nos 3 and 4 were dealt with as
follows by the trial Court. On the count of attempted robbery with
aggravating circumstances each
was convicted of attempted robbery
without aggravating circumstances; and each was sentenced to five
years imprisonment. On the four
other counts both accused no 3 and
accused no 4 were acquitted and discharged.
In the instant case the
attorney-general decided that the four accused should be arraigned in
a superior court. Having been advised
thereof the magistrate in.
terms of sec 122(3) (b) of the Act committed the four accused for a
summary trial before the Supreme Court.
In such a case, where an
accused under sec 119 has pleaded not
37
guilty to the offence charged, sec
122(4) provides that:-
"The record of the
proceedings in the magistrate's court shall, upon proof thereof in
the court in which the accused is arraigned
for summary trial, be
received as part of the record of that court against the accused, and
any admission by the accused shall stand
at the trial of the accused
as proof of such admission."
In the Court a quo the record of
the proceedings in the
magistrate's court was proved and
received as part of the
record of the
trial Court. For the sake of brevity
I
refer to the record of the
proceedings in the magistrate's
court as "the sec 119
record." It is not a matter f or
surprise that in the Court
a
quo
the sec 119 record played
a crucial role both in the
cross-examination of the accused
and, to the extent to which each
of the four accused was
found guilty in respect of some of
the counts, also in the
trial Court's reasons for the
convictions. On the other
hand there was before the trial
Court an impressive body of
evidence against the accused quite
exterior to the sec 119
record and so much of the
cross-examination of the accused
38
as was based thereon. The evidence
adduced at the trial has already been reviewed. In my view the trial
Court properly accepted the
testimony of witnesses such as Const
Giliomee, Lieut. de Waal, W/0 Steyn, Mrs Nkosi and Mr Dhlamini. To
the testimony of such witnesses
must be added the damning ballistic
evidence. The latter was never challenged, let alone controverted.
The picture which then emerges
is this. On the night of the shooting
and shortly before it, a taxi conveyed four men from Soweto to a
place in Johannesburg close
by the butchery. The taxi-driver
identified the four men as the four accused. Immediately after the
shooting at the butchery four
Black men were seen fleeing from it.
When some ten days after the shooting the first appellant was
arrested, he led the police to
three other men. These were his
fellow-accused. Two f irearms were used in the shooting at the
butchery. Ten days later those
39
firearms were found in a locked
cash-box which shortly
before the second appellant had
entrusted to the care of
Mrs Nkosi. A key which fitted the
lock in the cash-box was
found in the possession of the
second appellant. The
second appellant it was who led
the police to the taxi-
driver who identified the four
accused as his passengers.
At the conclusion of the trial the
trial Judge
noted upon the record the
following special entry:-
"Op aansoek van die vier
beskuldigdes maak ek ingevolge artikel 317 van Wet 51 van 1977 'n
spesiale aantekening op die oorkonde
met die volgende bewoording:
'Die verhoorregter het
verkeerdelik beslis dat die pleitverrigtinge voor die landdros,
bewysstuk B, nie tersyde gestel moes geword
het nie'. Vir daardie
doel word verlof aan die vier beskuldigdes toegestaan om te appelleer
na die Appelafdeling."
All four accused noted an appeal
to this Court.
The appeals by accused nos 3 and 4
were formally withdrawn
on 31 October 1988.
40
In this Court the first appellant
was represented pro deo by
Mr van Wyk
and the second appellant
pro deo by
Miss Fouche.
Substantially the same arguments were
advanced on behalf of both appellants. The main contention raised was
based on the fact that
the magistrate had failed to inform the
appellants of their right to legal representation during the sec 119
proceedings. The argument
was that because the accused were
unrepresehted lay persons the magistrate had a judicial duty, at the
outset of the sec 119 proceedings,
to explain to them their right to
legal representation. It was said that the non-observance of his duty
represented a gross irregularity
vitiating the entire plea
proceedings before the magistrate, with the consequence that the
trial Court had erred in failing to "set
aside" the plea
41
proceedings before the magistrate.
Shorn of the damaging admissions by the appellants reflected in the
sec 119 record, so the argument
proceeded, the evidential material
before the trial Court was insufficient to sustain the convictions of
the appellants. Then it
was urged that after the magistrate had
entered pleas of not guilty and thereupon proceeded to deal with the
appellants under the
provisions of secs 122(1) and 115, he committed
a further irregularity by failing to explain to the appellants: (1)
that they were
not obliged to answer questions; (2) what the legal
effect of formal admissions by them would be; and (3) that there was
in fact
no obligation upon them to make any admissions. Lastly it was
argued that the magistrate had acted irregularly by questioning the
appellants in an oppressive and unfair fashion. It is convenient to
dispose at once of this last argument. In my opinion it has no
merit.
An examination of the sec 119
42
record reveals,
so
I
consider,
that the magistrate discharged his duties conscientiously and that he
questioned the appellants fairly and
dispassionately.
As a prelude to
the prosecution of an accused in the Supreme Court the Criminal Code
prescribes certain proceedings in the magistrate's
court to which
reference may be made
as "the
pre-trial procedure". Chapter 19 of the Act (which embraces secs
119, 120, 121 and 122)
provides for the
taking of a plea in the magistrate's court
on
a charge justiciable in a superior court. The pre-trial procedure is
initiated by the lodging of a charge-sheet with the clerk
of the
court (sec 120). Sec 119 provides that when an accused appears in the
magistrate's court and the alleged offence may be tried
by a superior
court the prosecutor may, on the instructions of the
attorney-general, put the charge to the
accused, whereupon,
subject to secs 77 and
85 -
43
" the accused shall be
required by the
magistrate to plead thereto
forthwith."
Where an accused under sec 119
pleads guilty to the offence
charged sec 121(1) provides that
the magistrate -
".... shall question him in
terms of the provisions of paragraph (b) of section 112(1)."
Sec 112 falls under Chapter 17 of
the Act which prescribes
the procedure governing a plea of
guilty by an accused at a
summary trial. Sec 112(1)(b)
enjoins the magistrate,
inter alia, to -
"....question the accused
with reference to the
alleged facts of the case in order to
ascertain
whether he admits the allegations in the charge
to
which he has pleaded guilty "
I
revert
to Chapter 19 of the Act. If after questioning
the accused the magistrate is
satisfied that the accused
admits the allegations in the
charge sec 121(2)(a) provides
that the magistrate shall stop the
proceedings; and,
in terms of sec 121(3), adjourn
the proceedings
pending the decision of the
attorney-general. If the
44
magistrate is not satisfied that
the accused admits
the
allegations in the charge, sec
121(2)(b) enjoins
the
magistrate to record in what
respect he is not
so
satisfied, and to enter a plea of
not guilty.
Sec
121 (2)(b) further bids the
magistrate to deal with
the
accused in terms of sec 122(1):
"Provided that an allegation
with reference to which the magistrate is so satisfied and which has
been recorded as an admission,
shall stand at the trial of the
accused as proof of such allegation."
Sec 122(1) provides that where an
accused under sec 119
pleads not guilty the court shall
act in terms of sec 115;
and that when section 115 has been
complied with, the
magistrate shall stop the
proceedings and adjourn the case
pending the decision of the
attorney-general. Sec 115
falls under Chapter 18 of the Act
which prescribes the
procedure governing a plea of not
guilty at a summary
45
trial. The provisions of the first
two subsections of sec
115 have been quoted earlier in
the judgment. For the
sake of
convenience
I
quote
here sec
115
in
full:-
"(1) Where an accused at a
summary trial pleads not guilty to the offence charged, the presiding
judge, regional magistrate or
magistrate, as the case may be, may ask
him whether he wishes to make a statement indicating the basis of his
defence.
(2) (a) Where the accused does not
make a, statement under subsection (1) or does so and it is not clear
f rom the statement to what
extent he denies or admits the issues
raised by the plea,
the court may question the accused
in
order to establish which
allegations in the charge are in dispute.
(b) The court may in its
discretion put any guestion to the accused in order to clarify any
matter raised under subsection (1) or
this subsection, and shall
enquire from the accused whether an allegation which is not placed in
issue by the plea of not guilty,
may be recorded as an admission by
the accused of that allegation, and if the accused so consents, such
admission shall be recorded
and shall be deemed to be an
46
admission under section 220.
13) Where the legal adviser of an
accused on behalf of the accused replies, whether in writing or
orally, to any question by the court
under this section, the accused
shall be required by the court to declare whether he confirms such
reply or not."
The purpose of the pre-trial
procedure, the rights of an accused thereunder, and the status and
evidential cogency of admissions made
by an accused in the course
thereof have been considered in a number of decisions by this Court.
See
S v Seleke en h Ander
1980(3) SA 745 (A);
S v Sesetse
en h Ander
1981(3) SA 353 (A);
S v Daniels en h Ander
1983(3) SA 275(A);
S v Nkosi en h Ander
1984(3) SA 345(A).In
the last-mentioned judgment this Court stressed the significant
difference between the respective situations
of (1) an accused who,
having pleaded
47
not guilty in sec 119 proceedings,
is questioned as to the basis of his defence under sec 115 and (2) an
accused who, having pleaded
guilty under sec 119, is questioned in
terms of paragraph (b) of sec 112(1). It was held that in the latter
situation it is unnecessary
for a magistrate to advise the accused of
his right to remain silent. The reason is that by his plea of guilty
the accused has admitted
the whole of the State's case. Any warning
to the accused at that stage, so it was held, would be contrary to
the spirit of sec 119
read with secs 121(1) and 112(1)(b); and it
would be calculated to thwart its object.
At this juncture something must be
said of the duty of a judicial officer presiding at criminal
proceedings to explain to an unrepresented
accused his right to legal
representation. Our common law recognises as fundamental the right of
the individual to legal advice
48
and to legal representation. The
history of the right at
common law to legal representation
was referred to in S v
Wessels and Another
1966(4)
SA 89(C). See also the fuller
discussion in S Selikowitz's
article
Defence by Counsel in
Criminal Proceedings under
South African Law
1965/1966
Acta
Juridica
53. Statutory
recognition of the right was
contained in sec 65 of a
Proclamation issued by Lord
Charles Somerset on 2 September
1819 (see
S v Wessels
(
supra)
at 92C), and it was
again recognised in sec 218 of
the Criminal Procedure and
Evidence Act, 31 of 1917, which
provided that:-
"Every person charged with an
offence is entitled to make his defence at his trial and to have the
witnesses ' examined or cross-examined
by his counsel, if his trial
is before a superior Court, or by his counsel (if any) or his
attorney or law agent, if the trial is
before an inferior court."
Sec 73 of the Criminal Code
provides:-
"73 (1) An'. accused who is
arrested,
whether with or without warrant,
shall, subject to
49
any law relating to the management
of prisons, be entitled to the assistance of his legal adviser as
from the time of his arrest.
(2) An accused shall be entitled
to be represented by his legal adviser at criminal proceedings, if
such legal adviser is not in terms
of any law prohibited from
appearing at the proceedings in guestion.
The Criminal Code of 1917
contained no provision
corresponding to sec 73(1) of the
present Criminal Code.
The right is, however, a basic and
fundamental one. See
Mandela v Minister of Prisons
1983(1)
938(A) at 957 D/G. Sec 73(1) entails that an arrested person should
have access to his legal adviser and the opportunity
of consulting
with him privately and confidentially. The right has been cut down on
occasion in legislation othsr than the Criminal
Code, but the general
principle is clear
50
and well-established.
Subsec (2) of sec 73 corresponds
to sec 218 of the 1917 Criminal Procedure Act, with the difference
that whereas sec 218 provided
for representation of a person charged
with an offence only "at his trial", sec 73(2) entitles him
to representation "at
criminal proceedings." In terms of
sec 1 of the Criminal Code "criminal proceedings" includes
a preparatory examination
under Chapter 20, but the expression is not
otherwise defined. Broadly speaking,the expression would include not
only criminal trials
but any proceedings in a criminal case,
including preliminary and incidental hearings such as applications
for bail and remands.
It is not open to question that proceedings
under Chapter 19 of the Criminal Code are "criminal proceedings"
within the
meaning of sec 73.
Plainly sec 119 proceedings are
pre-trial
51
proceedings in a criminal case. In
terms of sec 120 "the proceedings" (i e the proceedings
referred to in sec 119) "shall
be commenced by the lodging of a
charge sheet with the clerk of the court in question."
The right of an accused to be
represented at such proceedings is recognised by sec 122(1), which
requires the magistrate, where the
accused pleads not guilty, to act
in terms of sec 115, which in turn refers (in subsec (3)) to a legal
adviser.
It is clear,
therefore, that in the present case each of the four accused had a
right to be represented by his legal adviser at the
sec
119
proceedings. However, none of them exercised that right. In
S
v Baloyi
1978(3)
SA
290(T) at 293, MARGO, J observed, in a passage which was
approved
by this Court in
Volschenk v S A
Geneeskundige en
Tandheelkundige
Raad
1985(3) SA 124(A) at 140
I,
that where
an
accused does not seek legal representation and where no
52
irregularity occurs by which he is
deprived of it, there is
no principle of law or practice
which vitiates the
proceedings. That is the general
rule, but there is a
gloss upon it : a judicial officer
presiding at criminal
proceedings hás a duty to
inform an unrepresented accused
of his right to legal
representation, and his failure to do
so may lead a court of appeal to
conclude that there has
been a failure of justice and that
the conviction should be
set aside.
While the existence of the right
to legal
representation has always received
wide recognition in
South Africa, it has been
correctly pointed out that until
the recent past -
"The content given to this
right by the courts,
however, has been largely negative. It has
been
expressed as a right not to be deprived of
legal
representation rather than a right to demand
legal
representation (
S v Wessels
1966(4) SA 89
(C);
S v
Blooms
1966(4) SA 417(C);
S v Ngula
1974(1) SA 801 (E);
S v Mkize
1978(3) SA 1065
(T);
S v Baloyi
1978(3) SA
290 (T)
53
The courts have not insisted that
judicial
officers inform unrepresented accused of their
right
to representation or ask them whether they
wished to be
represented. Neither has there
been any obligation on judicial
officers to ask
unrepresented indigent accused whether they
wish
to apply for legal aid and, if so, to explain to
them how
to go about it "
(The right to counsel : recent
developments in South
Africa,
Evadne Grant, SACJ
(1989) 2 at 48/9).
Judicial
recognition of the positive content of
the
right to legal representation was given by the decision
of
the Transvaal Full Bench in the
Radebe
case (
supra).
The
judgment of the Court was delivered by GOLDSTONE,
J.
The learned Judge pointed out (at 194 G/H) that for many years our
Courts have insisted that unrepresented accused
be
told of their rights and, insofar as may be practicable,
should
be assisted by the presiding judicial officer. Having cited examples
of this salutary practice GOLDSTONE, J referred (at 195B)
to:-
" a general duty on the art
of judicial
54
officers to ensure that
unrepresented persons fully understand their rights and the
recognition that in the absence of such understanding
a fair and just
trial may not take place."
Later in his judgment (at 196 F/I)
GOLDSTONE, J went on to
say:-
"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 onlybe 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
55
suggested legal 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."
With these
observations
I
entirely
agree.
Since the
Radebe
case the
plight of the indigent. unrepresented accused has come under close
scrutiny in a number of decisions in Provincial Divisions
dealing
with reviews or appeals from convictions in the magistrate's court.
See, for example,
S v Khanyile and Another
1988(3) SA 795(N);
S v Rudman; S v Johnson; S v Xaso
;
Xaso v van Wyk NO
1989(3) SA 368(E);
S v Davids
;
S v Dladla
1989(4) SA
172(N);
S v Mthwana
1989(4) SA 361(N). The last-mentioned four
decisions, which are far from being harmonious, focus mainly on the
problem whether in
addition to explaining to an unrepresented accused
his legal right to representation it is further incumbent upon a
magistrate to
take steps towards securing such
56
representation for an indigent
accused. This is not an issue which arises in the present appeal and
it is unnecessary to venture any
opinion as to the correctness of any
of the sharply divergent views expressed in the said decisions.
In the sec 119 proceedings in the
present case the accused were not told before they were called upon
to plead that they had a right
to legal representation. The first
reference made by the magistrate to legal representation was just
before he adjourned the proceedings
pending the decision of the
attorney-general : he asked the accused whether they desired the
services of pro deo counsel if the matter
should proceed to trial.
Both of the appellants replied that they themselves would arrange for
counsel. (In fairness to the magistrate
it should be mentioned that
prior to the
Radebe
case there was no reported decision which
laid down specifically that a
57
judicial officer was under a duty
to inform an unrepresented accused that he had a right to legal
representation; and the
Radebe
case was reported months after
the sec 119 proceedings had been concluded. It follows therefore that
no blame is imputable to the
magistrate.)
Where a general duty rests upon a
judicial officer to inform an unrepresented accused that he has a
right to be legally represented
the failure to discharge that duty
does not inevitably involve the commission of an irregularity in the
judicial proceedings involved.
Whether or not an irregularity has
been committed will always hinge upon the peculiar facts of the case;
and it need hardly be said
that much depends upon the extent of the
accused's own knowledge of his rights.
S v Lwane
1966(2) SA
433(A) dealt with the duty of a judicial officer to explain to a
witness
his privilege in relation to self-
58
incrimination. Bearing in mind
that distinction the fol-
lowing observations of OGILVIE
THOMPSON, JA (at 440 G/H)
are nevertheless pertinent also to
the duty of a judicial
officer to inform an unrepresented
accused of his right to
representation. Having stressed
that the practice of
warning a witness against
self-incrimination was a well-
estabished one, the learned Judge
of Appeal expressed the
view that the duty so resting upon
a judicial officer was
not -
" an absolute duty in the
sense that its
non-observance will always and
inevitably render the witnesses' incriminating statement inadmissible
against him in subsequent proceedings.
For example, a trained lawyer
giving evidence could hardly legitimately complain that he had
received no caution, even though a conscientious
judicial officer
might nevertheless elect to administer a caution even to such a
witness."
It seems to me that in the instant
case the
magistrate's failure to inform the
appellants of their
right to representation before
they pleaded would amount to
an irregularity only if the
appellants were shown to have
59
been ignorant
of that right.
I
doubt
whether the evidence in the present case supports a finding that the
appellants were in fact so ignorant. Indeed, the fact that
at the
close of the proceedings in the magistrate's court the appellants
informed the magistrate that they did not require pro deo
defence and
that they would arrange for their own counsel, may to some extent
point the other way. However that may be,
I
shall assume for purposes of the appeal
that before they pleaded at the sec
119
proceedings both appellants were unaware of their right to
representation at such proceedings; and that, in consequence, the
magistrate's
failure to inform them thereof represented an
irregularity in those proceedings.
The question then is : What was
the effect of this irregularity? Did it result in a failure of
justice in the trial? That is the contention
made on behalf of the
appellants. The terms of the special entry made on
60
the trial
record have already been noted. The special entry complains that the
trial Judge erred in failing to set aside the sec
119
proceedings. As formulated the special entry is,
I
think, misconceived. It rests on two wrong
assumptions.
The first is the assumption that
the judicial officer who presides at the trial to which the sec 119
pro-ceedings were a prelude,
is competent to set those procee-dings
aside. No such power is given to him by the Criminal Code and in my
view he has no inherent
power to do so. He does not sit as a court of
review. (It may be noted, moreover, that the trial will not
necessarily be held in
a superior court : it may, depending on the
directions of the attorney-general, be in a magistrate's or a
regional court). Secs 121(5)(aA)
and 122(4) direct peremptorily that
upon proof the record of the sec 119 proceedings shall form part of
the record. The judicial
officer who
61
presides at the trial is not
competent to thwart that direction.
The second
wrong assumption, so it seems to me, is that the magistrate's
omission to inform the accused of his right of representation
has the
consequence that the . proceedings are "vitiated", in the
sense
ó
f
being rendered invalid or ineffectual.
I
do
not think that the word "vitiated" is an apt one. In the
Radebe
case GOLDSTONE, J pointed out that such an omission
may
result in an unfair trial and a consequent failure of justice,but he
was careful to guard himself from being taken to suggest that
the
absence of legal representation
per se
would necessarily result in an irregularity or an unfair trial; and
he emphasised that each case depended upon its own facts and
peculiar
circumstances.
The real issue which arises in the
present appeal
does not,
I
think, relate to the validity of the sec
119
proceedings. It concerns the use
to which the record of
62
those proceedings may be put in
the adjudication of an ensuing trial. The real and substantial
question for decision may be stated
thus: Whether by reason of the
magistrate's irregular omission to inform the accused of their right
to legal representation the trial
Court committed an irregularity in
permitting cross-examination of the accused with reference to the sec
119 record and in relying
upon such record as part of the proof of
the guilt of the accused.
The sec 119 record contaihs
evidentiary material relevant to the guilt of the accused. It
consists of two pleas of guilty oh two of
the counts; admissions made
by the accused in the course of answering questions by the magistrate
in terms of sec 121(1) read with
sec 112(1)(b) of the Criminal Code;
and informal admissions made by the accused in the course of the
magistrate's inquiry in terms
of sec 122(1) read with sec 115.
Standing on a different
63
footing are the formal admissions
which the accused agreed could be recorded in terms of sec 115(2)(b).
By a plea of guilty, an accused
incriminates himself fully; he acknowledges that he committed or
participated in the commission of
the offence; and he admits all the
essential allegations in the charge. (See
S v Nkosi
(
supra)
at 353.) The object of questioning in terms of sec 121(1) read with
sec 112(1)(b) is not further incrimination but to test the accused's
plea of guilty in order to ascertain whether he understands the
elements of the offence and whether he does in truth admit all the
allegations in the charge. The object of the questioning is to
prevent the entering erroneously of a plea of guilty.
Where the magistrate, after such
questioning, is not satisfied that the accused admits the allegations
in the charge, he is required
in terms of sec 121(2)(b) to enter a
plea of not guilty, and to proceed in pursuance of
64
sec 122(1) to act in terms of sec
115. Nevertheless, the fact that the accused has pleaded guilty, and
his answers in response to
the magistrate's questions, remain on the
record and constitute evidentiary material.
An accused who
pleads not guilty may make statements in the course of the procedure
laid down by sec 115 : he may make a statement
indicating the basis
of his defence; he may say what allegations in the charge he admits
or denies, and answer questions the object
of
which
is to ascertain what allegations in the charge are in issue; and he
may agree that any allegation not placed in
issue
ma
ý
be
recorded as an admission, which is then deemed
to
be an admission under sec 220. See generally on sec 115
S
v Seleke en 'n Ander
(
supra
)
at 753-754, which emphasises that the section does not contemplate
any form of cross-examination. On the contrary, it envisages
an
attempt to establish what allegations are really in
65
dispute, with guestions aimed at
clarification, if necessary. And even though the accused does not
agree to any admission made by
him being recorded as an admission, it
stands as part of the evidentiary material contained in the record.
See
S v Sesetse en h Ander
(
supra)
.
From what has already been said it
appears that the object of the sec 119 procedure is partly to
identify the cases where the accused
acknowledges his guilt (which
may render a trial unnecessary) and partly (in cases where the
accused pleads not guilty) to ascertain
and clarify the issues
actually in dispute.
The general rule is that all
relevant evidence is admissible unless it is hit by a specific rule
of the Law of Evidence. The contents
of the sec 119 record in the
present case are not inadmissible by reason of any of the rules
relating to confessions and admissions.
Although it was argued that
the evidence contained in the sec 119
66
record was inadmissible because
the magistrate questioned the accused in an oppressive and unfair
manner, that argument has already
been rejected.
I
have
had the advantage of reading the judgment prepared by my Brother
MILNE. He concludes that since the magistrate committed an
irregularity
by not informing the appellants before they pleaded of
their right to representation, their pleas of guilty in the sec 119
proceedings
were inadmissible at their trial.
I
respectfully disagree with that conclusion.
In my opinion no issue of
admissibility here arises. In argument before us it was urged that if
the magistrate had informed the appellants
of their right to
representation, and if as a result thereof the appellants had taken
legal advice before pleading they might well
have pleaded not guilty
in the sec 119 proceedings. That is no doubt a possibility. It is
also perfectly true that had
67
the sec 119
proceedings taken such a course the appellants at their subsequent
trial would have enjoyed the tactical advantage of
not being haunted
by their earlier pleas of guilty. But
I
have great difficulty in understanding why
such a state of affairs should render inadmissible their
pleas
of guilty during the sec
119
proceedings.
In considering
the admissibility of those pleas it may be useful,
I
think, to compare the privilege of a
witness
to
decline to answer incriminating guestions with the rights of an
accused
when he is required by law to' plead to a criminal charge. The
privilege of a witness against self-incrimination is based upon the
maxim of our law nemo tenetur se ipsum accusare.
Lwane's
case (
supra)
affirms
the important principle that, in the interests of fairness to a
witness, he should be informed in advance that he enjoys this
privilege. At 439 F/G of the judgment
in
Lwane'
s
case OGILVIE THOMPSON, JA remarked:-
68
"Having regard to the
composition of our population, the vast majority of those who enter
the witness-box are persons who are
likely to be wholly ignorant of
the rights conferred by sec 234 of the Code. In the main, even wholly
uneducated persons recognise
the duty to testify if subpoenaed, but
it is highly improbable that any save a very small percentage of such
persons are aware that
they are entitled to decline to answer
incriminating questions."
The
ratio
of
Lwane's
case is that an unsophisticated lay
witness will probably be unaware
of his privilege; and
that fairness reguires that he
should be made aware of it
before he incriminates himself.
Entirely different
considerations
apply, so
I
consider,
in relation to an
accused called
upon to plea in sec
119
proceedings.
In regard to the privilege against
self-
incrimination the position of an
accused of necessity
differs from that of a witness.
The roots of the
privilege lie in strong public
aversion in England to the
inquisitorial methods of the
Courts of the Star Chamber.
69
Under its
procedure those who were charged with an offence were interrogated on
oath. Dislike
of this procedure (see Cross
on
Evidence
5th ed (1979) at 275/6) -
" contributed to the rule
that the
accused could not testify in a
criminal case, and the idea that no one could be obliged to
jeopardise his life or his liberty by answering
questions on oath
came to be applied to all witnesses in all proceedings in the course
of the seventeenth century."
The reason for the rule that the
accused could not testify
at his own criminal trial was that
no one should be obliged
to give himself away.
In England the accused was made a
competent witness for the defence at every stage of the proceedings
by the Criminal Evidence Act
1898. In the Cape Colony the accused was
made a competent witness by the Administration of Justice Act which
was repealed by the
1917 Criminal Code. Statutory developments
thereafter are described
70
thus by Hoffman & Zeffertt,
The SA Law of Evidence,
4th ed
(at 35/6):-
"When the accused was made
competent to give evidence in his own defence, it was obvious that he
could not be treated simply
as another witness. For one thing, if he
could claim the ordinary witness's privilege against
self-incrimination he would be immune
from any form of
cross-examination. On the other hand, if he could be cross-examined
to credit like other witnesses, the prosecution
would be able to
elicit incidents of past misconduct which they would not have been
allowed to prove in chief. In the Cape Colony
the accused was made a
competent witness by the Administration of Justice Act 1886. The
Statute dealt with the first point by providing
that if the accused
gave
evidence he would not claim any
privilege against
self-incrimination but it did
nothing about the
second
In England the accused was made a
competent
witness by the Criminal Evidence Act 1898.
Section
1(e) of this statute dealt with the
privilege against
self-incrimination in the same
way as the Cape Act, but s l(f)
gave the accused
a limited privilege against cross-examination
to
credit. With minor alterations s l(f) was
incorporated in
the Transvaal and Orange River
Colony Evidence Proclamation of
1902, and was
extended to all provinces in 1917. It is now s
197
of the
Criminal Procedure Act 1977
"
71
The privilege against
self-incrimination is now dealt with in South Africa by sec 203 of
the Criminal Code. It reads:-
No witness in criminal proceedings
shall, except as provided by this Act or any other law, be compelled
to answer any question which
he would not on the thirtieth day of
May, 1961, have been compelled to answer by reason that the answer
may expose him to a criminal
charge."
Privilege against
cross-examination of an accused affecting
his credit is dealt within sec 197
of the Criminal Code.
Subject to four qualifications
listed therein - which are
not relevant for present purposes
- sec 197 reads as
follows:-
"An accused who gives
evidence at criminal proceedings shall not be asked or required to
answer any question tending to show
that he has committed or has been
convicted of any offence
other than the offence with which he is
charged,
or that he is of bad character, unless -
(a) (b) (c) (d) "
(Emphasis added)
72
Under cross-examination an accused
is obliged to answer questions. From the provisions of sec 197 it is
self-evident that an accused
cannot during his cross-examination
claim the privilege in respect of the very offence with which he is
charged. See Hoffmann &
Zeffertt,
op cit
, at p 36 footnote
48.
Under sec 119 an accused is
obliged to plead forthwith. But here too his response relates
exclusively to the very offence with which
he is charged; and
logically there is no room whatever for the privilege against
self-incrimination. Any attempt to import it at
this stage of the
proceedings would represent a complete stultification of the
requirement to plead. There is a further and compelling
consideration
which must not be overlooked. At the very heart of the privilege
against self-incrimination lies the notion of testimonial
compulsion.
In
Rex v Camane
1925 AD 570
INNES, CJ
73
remarked at 575:-
"Now it is an established
principle of our law that no one can be compelled to give
incriminating evidence against himself. He
cannot be forced to do
that either before the trial, or during the trial."
In the case of an accused called
upon to plead under sec
119, however, the essential
attribute of testimonial
compulsion is entirely lacking. At
that stage of the
proceedings the accused has simply
to exercise a choice
between two alternatives. He may,
through a plea of
guilty, choose the course of
inculpation; but he may just
as well elect, by pleading not
guilty, to exculpate
himself. His choice is entirely
uncoerced and unfettered.
The fact that the accused is
obliged to plead does not mean
that he is compelled or forced to
plead guilty. His
choice between a plea of guilty
and a plea of not guilty is
an untrammelled one.
The scenario conjured up by
counsel for the
74
appellants in
argument (the possibility that if the appellants had had legal advice
this might have induced the appellants to plead
not guilty at the sec
119 proceedings) raises the question not so much of the right of an
accused to legal representation in criminal
proceedings (which is
dealt with in sec 73(2) of the Criminal Code), as his right to
consult his lawyer (which is dealt with in sec
73(1)). The latter
right is not specific to
criminal
proceedings
: it arises immediately
upon
arrest.
There is much to be said for the view that a person should be
informed of this right immediately upon arrest, and perhaps this is
a
matter which might enjoy the attention of the Legislature. But to the
best of my knowledge it has never been suggested that a failure
so to
inform an accused may render inadmissible
an admission made
by an accused to the
police; or a pointing out by him; or a confession made by him to a
magistrate.
I
do
not think
75
that there is
any relevant distinction to be drawn between those cases and sec 119
proceedings. Also analogous,
I
think,
are cases where there has been non-compliance with the Judges' Rules,
in particular the rules that the police should not question
suspects
without cautioning them that they are not obliged to answer; and that
the police should not question suspects in custody
at all. Such
practices were conceived by the judges to be unfair, and the rules
were devised, partly at any rate, to give suspects
greater protection
than that which they enjoyed under the common law. It is trite,
however, that a failure to obey the
rules
is not
per se
sufficient to cause a statement made by
the
accused to be inadmissible, although it is a circumstance to be taken
into account by the court in considering whether the statement
was
made freely and
voluntarily. See
Rex
v Holtzhausen
1947(1) SA 567(A).
In sec 119 the Legislature has
enjoined that the
76
accused shall be required by the
magistrate "to plead to (the charge) forthwith." The
magistrate's observance of that injunction
without informing the
accused of his right to consult a lawyer does not, in my opinion,
have the result that the admission of the
sec 119 record at the
subsequent trial will operate unfairly against the accused. It cannot
be rightly said that it is unjust or
inequitable that an accused's
statement at sec 119 proceedings should be admitted against him at
his trial merely because he was
not informed of his right to legal
representation. The link between the failure to inform and his plea
of guilty is entirely speculative
and remote. Remotae causae non
spectantur. Moreoever, there is no unfairness in admitting a man's
statements, not otherwise inadmissible
against him. When he is called
upon to plead, the facts alleged in the charge are peculiarly within
his own knowledge, and if his
election to plead guilty results
77
in the loss of the tactical
advantage which a denial might have brought him that is not an
unfairness which the law can recognise.
So much for the first limb of the
argument based on the special entry. The further argument (based on
the magistrate's failure to
explain to the appellants their rights
when they were dealt with under sec 122(1) and sec 155) may be dealt
with very shortly. The
questions put to the appellants under sec 115
broke no new ground and related to matters already raised at the time
of the plea.
The magistrate's omission did not render the
incriminating statements by the appellants inadmissible at the trial.
Although the admissions
made before the magistrate could not be
treated as sec 220 admissions, they nevertheless ranked as part of
the evidentiary matter
before the trial Court. See
S v Sesetse
(
supra)
;
S v Daniels en 'n Ander
(
supra)
at 300
P. Consequently there was no unfairness to
78
the
appellants in this connection. At the trial it was
open to
the appellants to try to show that the statements
in
question were untrue. They did so try.
In my
opinion the irregularities during the sec
119
proceedings of which the appellants complain did not
have any
effect on the admissibility at the trial of the
record of
the proceedings. The appeal on the special
entry
falls to be dismissed.
G G
HOEXTER, JA
Case No 60/89 /wlb
IN THE SUPREME
COURT
OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
SIHLE MABASO
First
Appellant
NHLANHA MABASO
Second
Appellant
and
THE STATE
Respondent
CORAM: HOEXTER,
SMALBERGER, MILN
É
,
EKSTEEN
JJA
et NICHOLAS AJA
DATE OF HEARING: 9 November 1989
DELIVERED:
26
March 1990
JUDGMENT
MILNE JA/
-1-
MILNE JA:
I
have
had the privilege of reading the judgment prepared by my Brother
Hoexter but
I
am
with respect constrained to differ from his conclusion.
I
agree
that the special entry, as formulated by the trial court, was
misconceived because the judicial of f icer who presides at the
trial
to which the sec 119 proceedings were a prelude, is not competent to
"set aside". those proceedings.
I
do not think it is necessary for the
decision of this appeal to decide whether the magistrate's
failure
to inform the appellants of their right to be legally
represented
"vitiated" the s
119
proceedings. Subject to that qualification, however,
I
agree that the real and
substantial
question for decision in this appeal is correctly
stated
as follows:
-2-
"Whether by reason of the
magistrate's irregular omission to inform the accused of their right
to legal representation the trial
court committed an irregularity in
permitting cross-examination of the accused with reference to the sec
119 record and in relying
upon such record of part of the proof of
the guilt of the accused."
The appellants were, in my
judgment, not rightly convicted because the sec 119 record was
improperly allowed in by the trial court
and this constituted a fatal
irregularity. It is correct that secs 121(5)(a) and 122(4) provide
that the sec 119 record "shall
be received as part of the
record". They also provide for admissions made in such
proceedings to stand (subject to a proviso
in the case of sec
121(5)(a)). These sections must, however, be taken to refer to such
part of the record as is admissible in law.
It cannot, for example,
be supposed that if in the course of questioning the magistrate
elicited admissions from the accused of their
previous convictions
the
-3-
provisions of
sec 122(4) would render such admissions admissible - and proven -
against the accused. The question remains therefore
whether the
failure to inform the appellants of their rights renders the sec 119
record inadmissible. Had the appellants been aware
of their rights or
if they would not have exercised their rights even if they had known
of them the omission would not have rendered
the record of the sec
119
proceedings
inadmissible.
I
think,
however, that it is reasonably clear that they were
not aware of their right to be
legally represented at the
sec 119 proceedings. Doubts were
at one time expressed as
to whether counsel could play a
useful role at such proceedings so the right to be represented there
could hardly be said to be common
knowledge. The fact that at the end
of those proceedings the appellants, in answer to the magistrate's
question as to whether they
would require
pro deo
counsel
at
the trial
, said that they would arrange for
-4-
their own counsel is not an
indication that they' were só aware: if anything, it suggests
that they were not. If they wanted
to be represented by their own
counsel and knew
that counsel
could represent them at the sec
119
proceedings
then one wonders why they were
not so represented or, at the
very least,
why they did not seek an opportunity to be so represented. The fact
that some six weeks after the termination of the sec
119
proceedings the second appellant was represented b
ý
counsel in a bail application takes the matter no further except to
emphasize the likelihood that
they would
have sought legal representation earlier had
they
been aware of their right to do so. In any
event, the evidence makes it clear that neither of the appellants was
aware of his right
to apply for Legal Aid. My Brother
Hoexter in his
judgment approves of the passage in S
v
Radebe
,
S v Mbonani
,
1988(1) SA 191 (T) at 196H-I to the effect that the accused should be
informed in appropriate
-5-
cases that he
is entitled to apply to the Legal Aid Board for assistance.
I
agree. It is clear, therefore, that the
appellants were not properly advised of their rights and that they
were not aware of such
rights.
The appellants
had the right to remain silent when questioned by the magistrate in
terms of sec 115.
S v Daniels en 'n
Ander
1983(3) SA 275 (A) at 299F-H.
They also had the right to remain silent when questioned by the
magistrate in terms of sec 112(1)(b).
S
v Nkosi en 'n Ander
1984(3) SA 345 (A).
In that case this Court held that
a
magistrate who questions such an accused is not obliged to warn him
of his right to remain silent but it is clearly implied that
he has
such a right and
I
do
not understand this to be questioned. It must also be assumed that
the appellants were not aware of this right. There is nothing
in the
record to the contrary. It may well be that
-6-
had the appellants been apprised
of their rights and been
represented they would have
adhered throughout the
preliminary proceedings to a plea
of not guilty in respect
of all the charges and not made
any admissions. This must
necessarily remain in the realm of
speculation but similar
considerations did not prevent
this Court from holding in Sl
v Lwane
1966(2) SA 433 (A)
at 442A-D that the failure of the
magistrate to warn a witness at a
preparatory examination
that he was not obliged to answer
incriminatingquestions
rendered the witness's statements
at the preparatory
examination inadmissible when he
subsequently became an
accused. See also
S v Shabanqu
1976(3) SA 555 (A) at 558F,
where Jansen JA said
"The case against the
appellant on the merits certainly appears to be formidable and to
have fully justified the conviction.
But, on the other hand, it is
impossible to say what effect a properly conducted defence could have
had on the ultimate result ".
A similar notion is expressed in a
decision of the US
-7-
Supreme Court in
Hamilton v
Alabama
368 US 52.
In that case
the petitioner was arraigned
without counsel in Alabama for
a capital offence to which he
pleaded not guilty and
subsequently he was convicted and
sentenced to death. His
conviction was reversed by the
Supreme Court, it being held
at p 55
"when one pleads to a capital
charge without benefit of counsel, we do not stop to determine
whether prejudice resulted ... In
this case ... the degree of
prejudice can never be known. Only the presence of counsel could have
enabled this accused to know all
the defences available to him and to
plead intelligently."
(I
shall,
at a later stage, deal with the question of
whether decisions of the US
Supreme Court are of assistance
in determining the issue which
arises in this appeal.)
I
cannot,
with respect, agree that there is any difference in principle between
the witness who is not warned of his right not to answer
incriminating questions
-8-
and the accused who is not advised
of his right to legal representation. True, the choice between a plea
of guilty and a plea of not
guilty is an untrammelled one, but in the
case of an unlettered and unsophisticated layman the choice is a
totally uninformed one.
While the standard of literacy in the
Republic is no doubt increasing, a great many people who come before
the courts are illiterate
and unsophisticated. The vast majority have
no knowledge of legal procedure. This is recognised by the
legislature.
The primary object of questioning
an accused person who has
pleaded guilty at sec 119
proceedings is to protect him from
the consequences of an incorrect
plea of guilty. It can, and frequently does happen, that an
unrepresented accused pleads guilty when,
on his version, he should
have pleaded not guilty. It is a matter of daily occurrence. It
happened in this very case. Having questioned
the first appellant,
the magistrate was not satisfied that he had
-9-
admitted all
the allegations in the charge and accordingly entered a plea of not
guilty on count one. The same happened in respect
of count two. It
also happened with regard to the second appellant. In the majority of
cases where the accused is unrepresented he
is asked to plead and
pleads through the medium of an interpreter. The interpreter reads
the charge to the accused and then asks
him "Do you admit or
deny it?". Quite frequently the accused says
"I
admit it" when all that he intends to
admit is one stark central fact: for example, that he struck the
deceased on the head with
a stick. Whether he was justified in so
doing, or whether that caused the death of the
deceased,
or what his intention was in so doing, are matters
that,
in all probability, do not even enter his head. The charge may
involve a number of complex legal notions which are not only
quite
outside the experience of the accused, they are quite beyond his
comprehension. Perhaps one might
-10-
illustrate the
complexity of the questions which may arise with regard to plea when
one considers the difficulty of
establishing
whether or not a statement of an accused person
amounts
to a confession. It has been held that what is meant by a confession
is an uneguivocal acknowledgement of guilt "the
equivalent of a plea of guilty before a Court of
law."
Rex v Becker
1929 AD 167
at 171. Highly trained lawyers and judges not
infreguently differ as to whether what was said amounts to a plea of
guilty. When he
pleads, an untrained person who is possibly
illiterate is being asked to do the opposite process - to decide
whether on his version
of the facts, he is guilty. Let us take what
might be thought to be a simple case namely a charge of murder. Does
the accused know
that there are certain absolute defences? Does he
know that the State has to prove an intent to kill? Does he know what
an intent
to kill means? Does he know anything of the doctrine of
common purpose or,
-11-
more importantly from the point of
view of his plea, its
limitations? To remove the enquiry
to another plane, does
he know that he is entitled to
take the attitude that the
State must prove its case and that
if it fails to do so, he
is entitled to the benefit of the
doubt? Does he know that
in order to put the State to the
proof he should plead not
guilty? Does he know that he can
tender a plea of guilty to
a lesser offence? There may also
be situations where it is
clearly in the interests of the
accused to plead not guilty
but to make certain admissions. A
great deal may depend on
the precise way in which these
admissions are worded. All
these matters are neatly summed up
in the words guoted above
from
Hamilton v Alabama
"Only the presence of counsel
could have enabled this accused to know all the defences available to
him and to
plead intelligently
" (my underlining)
- or, as it was put in
Powell v
Alabama
287 US 45
(1932) at
69
-12-
"He [the accused who is here
assumed to be the intelligent and educated layman] requires the
guiding hand of counsel at every
step in the proceedings against
him."
One of the obvious ways in which
counsel can guide and one
which is of vital relevance to
this case, is to advise him
of his right to remain silent. As
already mentioned, it has
been held in
Nkosi
's case
that where the accused pleads
guilty and is questioned by the
magistrate, the magistrate
is not obliged
to warn him of his right to remain silent.
I
have some difficulties with that
decision. The rationale of
the decision in
Nkosi
's
case is that the necessity of such
an explanation is obviated by the
fact that through his plêa
of guilty the accused has admitted
the whole of the State's
case and that any warning to the
accused would be contrary
to the spirit of sec 119 read with
secs 121(1) and 112(1)(b)
and would be calculated to thwart
its object. But the
object of questioning in terms of
these sections is to
prevent the entering erroneously
of a plea of guilty. As
-13-
Jansen JA put it in
Nkosi
's
case
supra
at 353H-I
"Die ondervraging sou juis
kon dien om 'n verkeerde pleit bloot te lê."
No doubt it is technically correct
to say that "by die pleit
van skuldig het die beskuldigde
reeds die Staat se hele saak
erken" but the very section
that the court was there
considering, fully recognised that
an accused person might
well plead guilty when that was 'n
onregverdigde pleit" and
provided for protection of the
accused against the
consequences of this. It seems to
me, with respect,
illogical to say that there is no
reason to protect the
accused against "further
self-incrimination" simply because
he has already incriminated
himself by pleading guilty, when
the section is, according to
Jansen JA, intended to protect
the accused against the
consequences of an incorrect plea of
guilty. If he is to be protected
by a plea of not guilty
being entered (as happened in this
case) then he is no
-14-
longer "ten
volle ge
ï
nkrimineer".
I
am,
furthermore, not
much impressed with the argument
that an explanation of his
right to remain silent might
result in the incorrectness of
the plea of
guilty not being exposed.
I
do
not think it
would be beyond the wit of man to
work out a formula which
would remove any such tendency.
For example, if the
magistrate were to add to the
explanation that the accused
was not obliged to answer such
questions, something to the
following effect:
"But my object in putting
these
questions to you is to
determine whether you really
do
intend to admit all the
allegations against you or
whether
you are possibly making
a
mistake."
Assuming,
however, as
I
must,
that the decision in
Nkosi
's
case is correct, then it is all
the more vital that the
accused should be aware of his
right to legal representation
at such proceedings. If he does
not know of his privilege
and the court is not obliged to
tell him then who else is to
-15-
tell him but a legal
representative?
In
White v Maryland
373 US
59
the facts were similar to those which arise in this case. The
petitioner, who had been arrested on a charge of murder, was taken
before a Maryland magistrate for a preliminary hearing and he pleaded
guilty without having the advice or assistance of counsel.
Counsel
was later appointed for him and he pleaded not guilty at his formal
"arraignment"; but the plea of guilty made
at the
preliminary hearing was introduced in evidence at his trial and he
was convicted and sentenced to death. The Supreme Court
rejected a
submission that under Maryland law there was no requirement nor any
practical possiblity to appoint counsel for a petitioner
at the
preliminary hearing, and, relying upon the remarks in
Hamilton v
Alabama
referred to above, reversed the conviction. This is an
appropriate stage to deal with the
-16-
question of whether American cases
dealing with the due
process clause of the Fourteenth
Amendment are, to any
extent, useful aids in considering
what constitutes a fair
trial in our law. In my view, they
are useful aids (and no
more than that) in considering
this quéstion. In a
nutshell, my reasons for saying so
are the following:The due
process clause of the Fourteenth
Amendment to the United
States Constitution stipulates
that
"[N]or shall any State
deprive any person of life, liberty or property without due process
of law."
"Due process" is no more
well-defined than a fair trial but
they embrace much the same field.
Due process is embodied
in the Fourteenth Amêndment
to the US Constitution and a
fair trial is a requirement of our
common law. What is
regarded as necessary to due
process is therefore of
assistance in deciding what is a
fair trial. The whole
question was fully and carefully
examined by Didcott J in
S v Khanyile & Another
1988(3) SA 795 (N) at 808F-810B and S
-17-
v Davids
;
S v Dladla
1989(4) SA 172 (N) at 182C-184G and
I
fully agree
with his comments in this regard.
I
would,
however, like to expand slightly
on a statement in
Khanyile
's case at 802E
that
"The Sixth Amendment concerns
proceedings in the Federal Courts." [This amendment expressly
provides,
inter alia
, that in all criminal proceedings the
accused is entitled to the assistance of "counsel"]
This statement is correct.
Barron
v Baltimore
[1833] USSC 15
;
7 Peters 243
(1833) held that the Sixth
Amendment does not bind the
States. About a hundred years
later the situation became
more complicated, however, because
of the intense judicial
debate as to whether the due
process clause of the
Fourteenth Amendment
"incorporated" the provisions of the
first eight Amendments to the US
Constitution. See ABRAHAM:
Freedom & the Court (4th ed)
pp 28-91 and GUNTHER: Cases and
Materials on Constitutional Law
(10th ed) pp 459-501. The
right to counsel in capital cases
was extended to the State
courts on the basis of a breach of
the due process clause of
-18-
the Fourteenth Amendment.
Eventually on 18 March 1963 it
was held in
Gideon v
Wainwright, Corrections Director
[1963] USSC 42
;
372 US
335
that even in a non-capital
case in a State court the
refusal to provide counsel
constituted a violation of the
due process clause. Problems of
"incorporation", need not
concern us and although
White v
Maryland
was decided some
six weeks after
Gideon
's
case, the court did not refer to it
but relied solely on what was said
in
Hamilton v Alabama
in
the passage set
out above. As Didcott J points out in
S
v
Davids supra
at 183I the
position is essentially the same in
our common law.
"Our courts also will not
enter into the merits, having held repeatedly that actual guilt can
never be determined from an examination
of evidence which might have
presented another picture had a lawyer run the defence."
For the sake of
clarity
I
should
perhaps add that
I
do
not regard the provisions of s 73(2) of Act No 51 of
-19-
1977 as being the equivalent to
the Sixth Amendment to the US Constitution. S 73(2) recognises the
right of an accused person "to
be represented by his legal
adviser at criminal proceedings" provided that his legal adviser
is not prohibited by any law from
appearing at those proceedings.
This section, however, postulates a representation procured by the
accused himself - and that, and
that alone, is what was decided in
S
v Chaane en Andere
1978(2) SA 891 (A) on the question of legal
representation. (See the reasoning of Rabie JA at p 897B).
Logically
speaking,
I
agree
that the right to consult a lawyer arises immediately upon arrest and
that there is much to be said for the view that a person
should be
informed of this right immed
ï
ately
upon arrest.
I
do
not
think that it is necessarily a matter
which would have to be
dealt with by the
legislature. It is correct that it has
-20-
never been
suggested so far as
I
know,
that in our law
"a failure so to inform an
accused may render inadmissible an admission made by an accused to
the police or a pointing out by
him; or a confession made by him to a
magistrate."
It is not without interest that in
Miranda v Arizona
[1966] USSC 130
;
384 US
436
(1966) at 471-3 it was held
that if a person in custody
is to be subjected to
interrogation he must, at the outset,
be clearly informed,
inter
alia
,
"that he
has the right to consult with a lawyer and to have
the
lawyer with him during interrogation ...[and]
also
that
if he is indigent a lawyer will be
appointed to represent
him."
The effect of a
failure to inform an accused of his right to
legal
representation (in which
I
would
include the obtaining
of legal advice) upon
the admissibility of admissions made by an accused to the police or a
pointing out by him or confession may
have to be considered in the
future.
For these
reasons
I
conclude
that the record of
-21-
the sec 119
proceedings was inadmissible. That record was vital to the State
case. Both the appellants testified and they denied most,
if not all,
of the evidence so cogently summarised by my Brother Hoexter as "The
picture which then emerges". It is impossible
to say whether the
evidence of the appellants would have been rejected had the record
been excluded. The rejection of their evidence
was crucial to their
conviction and it is therefore not possible to say
that,
on the evidence and findings of credibility unaffected
by
the irregularity, there is proof of guilt beyond reasonable doubt.
I
would accordingly uphold the appeals and
set aside the convictions and sentences in respect of both the
appellants.
I
have
come to the above conclusions reluctantly.
I
say reluctantly because
I
have a strong feeling that the appellants
were indeed guilty of the offences with which
-22-
they were charged. That is, of
course, not the test. The
test is whether they were rightly
convicted. As Holmes JA
said in
S v Lwane supra
cit
at 444C
"... the pragmatist may say
that the guilty should be punished and that if the accused has
previously confessed as a witness
it is in the interests of society
that he be convicted. The answer is that between the individual and
the day of judicial reckoning
there are interposed certain checks and
balances in the interests of a fair trial and the due administration
of justice."
In
S v Mushimba en Andere
1977(2) 829 (A) at 844H Rumpff CJ
dealt with the concept of justice
in this connection and
said the following
"Die 'geregtigheid' waarna
hier verwys word, is nie 'n begrip wat veronderstel dat die
beskuldigde noodwendig onskuldig is nie.
Geregtigheid wat geskied het
in hierdie sin is die resultaat van 'n bepaalde eienskap van
verrigtinge aandui. Die eienskap toon aan
dat aan vereistes wat
grondbeginsels van reg en regverdigheid aan die verrigtinge stel,
voldoen is."
He goes on to say that whether an
irregularity is of such a
nature will depend on the
circumstances of each case
"en sal altyd 'n oorweging
van publieke beleid vereis."
-23-
In my
judgment, public policy reguires that before a man condemn himself
out of his own mouth in preliminary court proceedings he
should be
fully advised pf his right to remain silent and as to whether it is
in his interests to do so. The proper person to advise
him of this is
a legal adviser and public policy requires that he should be advised
of his rights in this regard as well.
A J MILNE
Judge of Appeal
SMALBERGER
JA: Concurs