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[1991] ZASCA 124
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Poovalingham v Rajbansi (111/90) [1991] ZASCA 124; 1992 (1) SA 283 (AD); [1992] 1 All SA 230 (A) (26 September 1991)

Case No 18/90
IN THE SUPREME COURT OF SOUTH
AFRICA APPELLATE DIVISION.
In the matter between:
CHARLES BRIAN RUDMAN
First
Appellant
RICARDO JOHNSON
Second
Appellant
and
THE STATE
Respondent
CORAM:
CORBETT, CJ, VAN
HEERDEN, E M GROSSKOPF, EKSTEEN, JJA et NICHOLAS, AJA
HEARD:
22 August 1991
DELIVERED:
27 September
1991
Case No 658/89
IN THE SUPREME COURT OF SOUTH
AFRICA APPELLATE DIVISION
In the matter between:
PAULOS MTHWANA
Appellant
and
THE STATE
Respondent
CORAM:
CORBETT, CJ, VAN
HEERDEN, E M GROSSKOPF, EKSTEEN, JJA et NICHOLAS, AJA
HEARD:
22 August 1991
DELIVERED:
27 September 1991
JUDGMENT
NICHOLAS, AJA
2
NICHOLAS,
AJA
These
three matters, which have their main ground of appeal in common, were
heard together.
The first
appeal is that of Charles Rudman, who was convicted in the Port
Elizabeth Magistrates Court of housebreaking with intent
to steal and
theft and then referred for sentence to the Regional Court, where he
was declared an habitual criminal. The second appeal
is that of
Ricardo Johnson, who was convicted in the Port Elizabeth Magistrates
Court of assault with intent to do grievous bodily
harm and sentenced
to imprisonment for six months. The hearing of their appeals to the
Eastern Cape Division was consolidated, together
with that of an
appeal and review proceedings by one Wilson Xaso. Rudman's appeal
against his conviction was upheld to the extent
that the verdict was
altered to one of guilty of theft, but his appeal against the
sentence was dismissed, as was
3
Johnson's appeal against
conviction and sentence. The judgment (
per
COOPER J, JENNET
and JANSEN JJ concurring) is reported: S v Rudman; S v Johnson; S v
Xaso; Xaso v van Wyk NO and Another; 1989(3)
SA 368 (ECD). The case
will be referred to as S v Rudman.
The third'appeal is that of Paulus Mthwana, who was convicted in the
Durban Magistrates Court of
housebreaking with intent to steal and
sentenced to imprisonment for two years. His appeal to the Natal
Provincial Division was dismissed
(per HOWARD JP, with BOOYSEN and
COMBRINK JJ concurring.) The judgment is reported: S v Mthwana
1989(4) SA 361 (N).
The main guestion argued in this
Court is one of procedure: whether an indigent accused person - that
is, one who does not have the
means to pay for his own defence is
entitled to be provided at his trial with legal representation, if
necessary at the expense of
the State. No such rule had ever been
recognized in South Af rica
4
until it was proclaimed by DIDCOTT
J, with FRIEDMAN J concurring, in a review case - S v Khanyile and
Another
1988 (3) SA 795
(N), which will be referred to as S v
Khanyile. In S v Rudman the Eastern Cape Division disagreed with S v
Khanyile. In Nakani v
Attorney-General, Ciskei & Another, 1989(3)
SA 655 (CkGD) HEATH J, with whom LIEBENBERG AJ concurred, also
disagreed. In S v
Davids; S v Dladla
1989 (4) SA 172
(N) (which will
be referred to as S v Davids) DIDCOTT J (with BRISTOWE J concurring
in a separate judgment) stood his ground, saying
(at 184 G-H) that
having considered the criticisms levelled at the Khanyile decision by
COOPER J in S v Rudman, and in the arguments
in the cases before him,
he found himself far from feeling persuaded that it was
jurisprudentially unsound. NIENABER J filed a dissenting
judgment. In
S v Mthwana, again, HOWARD JP did not agree with the Khanyile
decision, but agreed with the dissenting
5
judgment of NIENABER J in S v
Davids.
In S v Khanyile DIDCOTT J based
his judgment on
what he perceived to be a
fundamental principle of the
South African law of criminal
procedure, namely, that the
trial should be fair. He was to
say later in S v Davids
at 178 C - E:
"An irregularity is no
esoteric idea, but one encompassing every flaw in the way a criminal
trial is run which renders it truly
unfair. Ogilvie Thompson, JA
summed it all up when, dealing in S v Alexander and Others
1965 (2)
SA 796
(A) with the subject, he said (at 809 C-D): 'The basic concept
is that the accused must be fairly tried.' Much the same was heard
recently from Milne JA, whose judgment in S v Tyebela
1989 (2) SA 22
(A) contained this sentence (at 29 G-H): 'It is a fundamental
principle of our law, and indeed of any civilised society, that an
accused person is entitled to a fair trial'"
(The dicta in S v Alexander and S
v Tyebela will be
quoted again later in this
judgment, but in their contextual setting). The standard of fairness
appears from sippets taken from passages
in judgments and
6
articles quoted by DIDCOTT J: "..a
concept.... encompassing
notions of
basic fairness and justice", "comprising common and
fundamental ideas of fairness and right", "in accordance
with the universal sense of justice", "the
ideas
underlying the rule of law and the concept of justice
which
are the bases of all civilised systems of criminal administratioh",
and the standards "fundamental and essential to
a fair trial".
On this basis and with the support of copious quotations, mostly from
judgments delivered in the United States
Supreme Court, DIDCOTT J
said ultimately that he would have been
prepared on grounds
of principle and policy
to formulate a coherent general rule. This rule, as
I
have extracted it from p 810 of the
Khanyile judgment, is this. Every person
accused of a crime
has the right, whether
or not he himself is able to get a lawyer, to be def ended by one. It
is "fundamental and essentiai to
a fair trial" that he
should be allowed to
7
exercise that right, and if he
desires and cannot himself
afford legal representation, he
should be provided with
it. A denial of the right makes
the trial per se unfair
and any conviction which follows
will inevitably be upset.
The learned judge recognized,
however, that such a rule
would not be feasible, and so he
adopted a compromise,
laying out guidelines for
determining the cases in which
legal representation was most
clamant - those in which the
trial of an unrepresented accused
would be "palpably and
grossly unfair". (see pp 815
- 816). He explained the
rationale of the compromise in S v
Davids at 184G to 185A:
"A compromise was deemed
necessary, one reached between the principle that the representation
of accused persons was vital to
the fairness of all trials in which
it was wanted, or all of any conseguence at least, and the stark
reality that our current resources
could never cope with the load
they would have to bear if the principle were put into immediate and
universal practice. The result
may be regretted by those who think
that the decision should somehow have gone the whole hog... All that
matters at present is this.
A compromise imposed on the operation of
the
8
principle by the hard facts of
contemporary life meant that, for the time being some of its energy
was unusable and had to remain
in storage. But neither the principle
itself nor its jurisprudential foundation suffered any damage in the
process."
Underlying the
compromise solution (to which
I
shall
return
later), the postulate remains that
under our law a person
accused is entitled, at any rate
in serious cases, to legal
representation at his trial, even
though he is unable
himself to get a lawyer. That
postulate is the primary
issue in this appeal.
Counsel for the appellants
submitted that the decisions in S v Khanyile and S v Davids were
correct and
that the judgments to the contrary
should be overruled. Taking their cue from S v Khanyile, they
submitted the following as a correct
formulation of the guestion to
be decided by this court:
"1.1 Whether the accused
persons who
9
faced serious charges;
because of indigency or
ignorance of their rights did not
obtain legal representation; and
1.1.3 as a result were required
to
defend themselves in person;
can be said to have had a fair
trial;
and if not
1.2 Whether in the circumstances
of each of the cases, it can be said that a failure of justice
resulted from the unfairness of the
proceedings."
Mr Chaskalson, leading counsel for
the appellants,
allowed in argument that 1.2 is
tautologous. That is
correct. In their ordinary popular
meaning which is
appropriate to the present
discussion, the words "fairness"
and "justice" and, it
may be added, "eguity", are synonyms,
as are their respective adjectival
forms. The Concise
Oxford Dictionary gives: fair -
just, equitable;
justice - just conduct; fairness;
just
acting or done in accordance with
what is morally right
10
or proper; equity - 1. fairness;
equitable - fair,
just. The
concession apart,
I
do
not think that counsel's
formulation of the question is a
correct one. The first
enquiry must be whether on the
facts stated in item 1.1 ,
there was an irregularity at the
respective trials. If
there was not, cadit quaestio. If
there was an
irregularity, a question would
then arise under the
proviso to ss(3) of
s309
of the
Criminal Procedure Act,
1977
, which deals with the powers
of a provincial or local
division of the Supreme Court in
appeals from lower
courts. The proviso reads:-
"Provided that,
notwithstanding that the provincial or local division is of the
opinion that any point raised might be decided
in favour of the
appellant, no conviction or sentence shall be reversed or altered by
reason of any irregularity or defect in the
record or proceedings,
unless it appears to such division that a failure of justice has in
fact resulted from such irreguiarity or
defect."
In
s322(1)
of the Act, which is
concerned with the powers
11
of the court hearing an appeal
from a provincial or local
division, there is a similar
proviso, and there were
similar provisos in the relevant
sections of the Criminal
Procedure and Evidence Act, 1917
as amended and the
Criminal Procedure Act, 1955.
Until the amendment of the
1917 Act by Act 37 of 1948, an
appeal to the Appellate
Division from a provincial or
local division lay only on
a special entry made under s370 or
a question of law
reserved under s372. No appeal lay
on the facts except
upon a question of law reserved
alleging that there was no
evidence upon which the trial
court could have reached the
challenged conclusion. Sections
370(1) and 371(1)
provided:
"370 (1) If any accused
person, who has been tried upon any indictment in a superior court,
thinks that any of the proceedings
in connection with or during his
trial before that court are irregular or not according to law, he
may, either during his trial or
after his conviction, apply to that
court to direct a special entry to be made on the record showing the
nature of the
12
proceedings alleged to be
irregular or illegal and such a special entry shall, upon such
application, be made."
"371 (1) If such a special
entry is made on the record as is hereinbefore provided, the person
convicted may appeal to the court
of appeal against his conviction on
the ground of the irregularity or illegality of the proceedings as
státed in such special
entry:"
In Rex v Thielke
1918 AD 373
INNES
CJ said at 376 that:-
"...having
regard to the wording of the clause, and to the general principles of
South African practice,
I
am
of opinion that the matters with which sec. 370 was intended to deal
were irregularities or illegalities of procedure. The law
requires
that trials shall be initiated and conducted with certain formalities
and in accordance with certain rules and principles
of procedure. And
any irregular or illegal departure from these would be covered by sec
370."
SOLOMON JA said at 382 that in s
370:-
" the Legislature had in view
purely matters
of procedure, and intended to
provide a remedy against any departure from the rules of law and
practice regulating the procedure in
criminal trials. Such a
departure would constitute 'an irregularity or illegality of the
proceedings' within the meaning of sec.
371, the former
13
expression referring more
particularly to the established practice of the Courts, the latter to
the rules which have been expressly
laid down on the subject of
procedure in criminal cases."
(See also Rex v Nafte
1929 AD 333
at 340.) In The State v
Mofokeng, 1962(3) SA 551 (A),
WILLIAMSON JA was concerned
with s.364 of the 1955 Criminal
Procedure Act which, he
said, was almost identical with
s.370 of the 1917 Act.
After guoting from Rex v Thielke
(see the dictum by INNES
CJ above) he said at 557 G-H that
s.364 of the 1955 Act,
like its predecessor,
"....must be read as
conferring a right to apply for a special entry only in relation to
any irregular or illegal departure from
those formalities, rules and
principles or procedure in accordance with which the law requires a
criminal trial to be initiated or
conducted."
In S v Alexander and Others (1)
1965(2) SA 796(A), OGILVIE
THOMPSON JA said at 809 C-D:-
"....what requires to be
emphasized is that, to fall within the ambit of sec 364(1) of the
Code (or of its predecessor, sec 370(1)
of Act 31 of 1917) the
irregularity complained of must relate
14
to
'proceedings' (or 'procedure') in connection with (or during) the
trial itself. The basic
concept is that the
accused must be fairly
tried.
Before
an irregularity within the meaning of sec 364 of the Code can be said
to have occurred, that which is complained of must be
associated
with
the trial in a degree imperilling that basic
concept.
As was said by WILLIAMSON JA in S v Mofokeng, 1962(3) SA 551 (AD) at
p 557, the section is confined to 'any irregular or
illegal departure
from those formalities, rules and principles or procedure in
accordance with which
the law requires a
criminal trial to be initiated
or
conducted.'"
Similarly, BOTHA JA said in S v
Xaba 1983(3) SA 717 (A) at
728 D-E:-
"Generally speaking, an
irregularity or illegality in the proceedings at a criminal trial (sc
within the ambit of
s.317
of the
Criminal Procedure Act, 1977
) occurs
whenever there is a departure from those formalities, rules and
principles of procedure with which the law requires such
a trial to
be initiated or conducted (see R v Thielke
1918 AD 373
at 376; S v
Mofokeng
1962 (3) SA 551
(A) at 557G). The basic concept underlying
S
317
(1) is that an accused must be fairly tried (see S v Alexander
and Others (1)
1965 (2) SA 796
(A) at 809 C-D; and cf S v Mushimba en
Andere
1977 (2) SA 829
(A) at 844 H)."
15
S v Tyebela
1989 (2) SA 22(A)
was
a case in which general
leave to appeal had been granted.
One of the grounds was
summarized by MILNE JA as
follows:-
"(b) the trial judge had
descended into the arena and had so conducted himself that, in
effect, the appellant had not had a fair
trial."
MILNE JA said at 29G-H:
"It is a fundamental
principle of our law and, indeed, of any civilised society that an
accused person is entitled to a fair
trial. , S v Alexander and
Others (1)
1965 (2) SA 796
(A) at 809 C-D; S v Mushimba en Andere
1977 (2) SA 829
(A) at 842B and 844H. This necessarily presupposes
that the judicial officer who tries him is fair and unbiased and
conducts the
trial in accordance with those rules and principles or
the procedure which the law reguires."
Although these cases (apart from
Tyebela's case) were concerned with appeals on special entries to the
Appellate Division, the dicta
are equally apposite to criminal
appeals from lower courts to the Supreme Court in cases where it is
contended that there were irregularities
16
of procedure in connection with
the trial.
The dicta in S v Alexander and S v
Tyebela which were quoted by DIDCOTT J in S v Davids at 178 C-E do
not, when viewed in their contextual
setting, afford any support for
the learned judge's basic premise that the touchstone in a procedural
appeal is whether the trial
was unfair. OGILVIE THOMPSON JA made it
clear in S v Alexander that s.364(1) of the 1977 Act, like s.370(1)
of the 1917 Act, is confined
to irregularities or illegalities of
procedure; and in S v Tyebela MILNE JA said that the entitlement to a
fair trial presupposes
that it be conducted in accordance with the
rules and principles in the procedure which the law requires. The
court of appeal does
not enquire whether the trial was fair in
accordance with "notions of basic fairness and justice",
or with "the ideas
underlying the concept of justice
which are the basis of all
civilised systems of criminal
17
administration." The enquiry
is whether there has been an irregularity or illcgality, that is, a
departure from the formalities,
rules and principles of procedure
according to which our law requires a criminal trial to be initiated
or conducted. It is true that
those formalities, rules and principles
have been designed to ensure a fair trial, but DIDCOTT J was in error
when he said that an
irregularity encompassed every flaw in the way a
criminal trial is run which renders it truly unfair.
Nothing which
I
have said should be regarded as being in
any way depreciatory of the vital importance of a fair trial in South
African practice. Our
common law is informed by a broad equitable
spirit, and in administering the law and in the exercise of its
functions the Court pays
due reqard to considerations of equity in
the broad general sense of the word. (Cf the remarks of
KOTZe
J in Hassan Khan v Immigration Officer
1915
CPD 655
18
at 661, and in the judgment a quo
set out in the report of
Bothwell v Union Govemment
(Minister of Lands)
1917 AD 262
at 269). In Bank of Lisbon and
South Africa Ltd v De
Ornelas and Another 1988(3) SA
580(A), JOUBERT JA said at
606A:
"Roman Dutch law is itself
inherently an equitable legal system. In administering the law the
Dutch Courts paid due regard to
considerations of equity but only
when equity was not inconsistent with the principles of law. Equity
could not override a clear
rule of law."
One of the cases which the learned
judge of appeal cited
in support of this dictum was Kent
v Transvaalsche Bank
1907 TS 765
, where INNES CJ said
at 774:
"The Court has again and
again had occasion to point out that it does not administer a system
of equity, as distinct from a system
of law. Using the word "equity"
in its broad sense, we are always desirous to administer equity; but
we can only do so
in accordance with the principles of the
Roman-Dutch law. If we cannot do so in accordance with those
principles, we cannot do so
at all."
In dealing with a case submitted
for aukomatic
19
review, FEETHAM JP said in Rex v
Mbamali & Xaba
1938 NPD 2
at 9:-
"....justice does not mean
some standard of equity existing in the mind of the Court independent
of the actual provisions of
the law; we have to administer 'justice'
in accordance with the law; we have no choice."
It was said in Rex v Rose
1937 AD
467
at 476-7:
"Now the term justice is not
limited in meaning to the notion of retribution for the wrongdoer; it
also connotes that the wrongdoer
should be fairly tried in accordance
with the principles of the law."
And in terms of s.10(2)(a) of the
Supreme Court Act,
1959 a person appointed as a judge
is required before
commencing to exercise the
functions of his office to take
an oath or make an affirmation
that :-
"I
will in my capacity as a judge of the
Supreme Court of South Africa
administer justice to all persons alike without fear, favour or
20
prejudice, and, as the
circumstances of any particular case may require, in accordance with
the law and customs of the Republic of
South Africa..." (My
emphasis).
When the question concerns the law
as it should
be ideally (de lege ferenda),
notions of basic fairness
and justice, of common and
fundamental ideas of fairness and right, are of course a prime
consideration. But where, as now, the enquiry
concerns the law as it
is (de lege lata) this is not so.
I
turn
then to the question whether there is any
rule
or principle in the South African law of criminal procedure which
entitles a person accused to be afforded
legal
representation in cases whcre he is himself unable to
obtain
it by reason of his indigence.
For over 130 years there has been
in operation in South Africa a system, apparently unique, by which
every conviction and sentence
by an inferior court which falls within
the categories determined by legislation from time
21
to time, has been subject to
review by a judge of the Supreme Court. This system has been of vital
importance in the administration
of justice in a country in which
many accused persons are either wholly or partially illiterate and
the great majority of them are
undefended. Cf. an article entitled
"On the System of Automatic Review and the Punishment of Crime"
in
(1962) 79 SALJ 267.
The first reference which the authors of that
article were able to find was that contained in Cape Act No 20 of
1856, which dealt
with the court of resident magistrates. It provided
in sections 47 and 48 that in the cases there mentioned the
magistrate was required
to send the record by the next available post
to the Registrar of the Supreme Court. The proceedings were then laid
before a judge
and if he found them to be in accordance "with
real and substantial justice," he issued a certificate to that
effect, thereby
confirming the proceedings. If, however, ha decided
that
22
he could not issue the
certificate, he would refer the
matter to the Supreme Court which
might then quash or
amend the proceedings. These
provisions were adopted in
due course by the other South
African colonies. In the
Transvaal and Orange Free State
the earliest reported cases
were in 1903 and in Natal in 1918.
Similar provisions
are contained in
S.304
of the
Criminal Procedure Act,
1977
, which provides that the
certificate to be endorsed
by the judge is that "the
proceedings are in accordance
with justice." If the judge
does not so certify, then the
matter is ccnsidered by a full
court.
During the long period in which
the system has
been in
operation, it was never suggested before S
V
Khynile that accused persons, who
were themselves unable
to obtain legal representation,
were entitled to be
provided with it, or that a
criminal trial conducted
without such representation was
irregular or illegal. The silence of numerous judges over many
generations is
23
eloquent
testimony that there has never been
such a
rule.
(cf. NIENABER
J's judgment in S v Davids, where he said -
199E-G - that "a
point so conspicuous, emerging from one
of the fundamentals of
fairness, if good, could
never have
been
overlooked by generations of Judges dealing with a
multitude of
cases, duplicating the very situation
described in S v Khanyile
")
In support of their submission
that there is no such rule, counsel for the State relied on two
decisions of this court, namely, R
v Mati and Others (1960(1) SA
304(A) and S v Chaane en Andere 1978(2) SA 891 (A).
In R v Mati, SCHREINER JA said at
306H - 307A:
"There is no rule of law that
a person who is being tried for an offence that may, if he is
convicted, result in a death sentence
must, unless he objects, be
defended by counsel. But it is a well established and most salutary
practice that whenever there is a
risk that the death sentence may be
imposed, either where that
24
sentence is compulsory unless
other factors are present, as in the case of murder, or where the
death sentence is permissible by law
and the circumstances make its
imposition a reasonable possibility, the State should provide defence
by counsel if the accused has
not made his own arrangements in that
behalf. It is disguieting to think that under our system of
procedure, of which we are in general
justly proud, it is possible
for an accused to be convicted by a Judge sitting alone and be
sentenced to death after a trial in which
by reason of his poverty he
has had to conduct his own defence,"
In S v Chaane en Andere 1978(2) SA
891(A), RABIE
JA dealt at 896 with a submission
based on the fact that
an appellant had not, up to the
stage when he was convicted
on a charge of murder, had a legal
representative. It was
argued that the trial. judge had
refused to appoint a pro
deo advocate to act on his behalf,
that this refusal was
irregular, and that all the
proceedings should, so far as
this appellant was concerned, be
set aside. The learned
judge of appeal said (at 896 H -
897 C):
"Wat eersgenoemde betoog
betref, d w s dat al die verrigtinge tersyde gestel moet word, het
mnr De
25
Vos hom beroep op art 73 van Wet
51 van 1977, waarvan sub-arts (1) en (2) soos volg lui:
'(1)'n Beskuldigde wat in hegtenis
geneem is, hetsy met of sonder lasbrief, is, behoudens enige
wetsbepalings betreffende die bestuur
van gevangenisse, vanaf sy
inheg-tenisneming geregtig op die bystand van sy regsadviseur.
(2) 'n Beskuldigde is geregtig om
by strafregtelike verrigtinge deur sy regsadviseur verteen-woordig te
word, indien bedoelde regsadviseur
nie in-gevolge 'n wet verbied word
om by die betrokke verrigtinge te verskyn nie.'
Daar is aangevoer dat daardie
sub-artikel so vertolk moet word dat dit vir 'n Hof verpligtend is om
vir 'n beskuldigde 'n pro deo
advokaat aan te stel wanneer die
doodvonnis regtens moontlik is en dat 'n versuim om dit te doen die
verrigtinge onreëlmatig
maak. Art 73 is egter nie vir so 'n
vertolking vatbaar nie. Dit bepaal dat 'n beskuldigde, in die gevalle
wat daarin genoem word,
geregtig is op die bystand van "sy"
regsadviseur, maar dit sê nie dat die Staat of die Hof verplig
is om vir hom
'n regsadviseur aan te stel nie. Die advokaat se betoog
is dus onhoudbaar. Dit is, soos goed bekend, baie jare
26
reeds die praktyk dat die Staat
vir 'n behoeftige beskuldigde 'n pro deo advokaat aanstel wanneer
daar 'n gevaar bestaan dat die doodvonnis
by skuldigbevinding opgelê
kan word, maar dit is nie 'n regsreël nie (vgl R v Mati and
Others (supra) te 306H), en die
versuim om 'n advokaat aan te stel
het dus nie op sigself die gevolg dat of die verhoor en
skuidigbevinding, of die oplegging van
die doodvonnis, onreëlmatig
is nie."
As
I
read the judgment in R v Mati, it does not
provide express support for counsel's submission. SCHREINER J said,
it is true, that the
situation there under discussion was not covered
by a rule of law. But it was covered by a well-established and most
salutary practice.
It is, however, implicit in the judgment that the
practice is confined to potentially capital cases and does not apply
generally.
Similarly, the judgment in S v
Chaane is inconsistent with the existence of any practice that, apart
from capital cases, the State
appoints counsel to act
27
on behalf of an accused.
In S v Baloyi 1978(3) SA 290(T)
MARGO J said at
293 F-G after referring to a
number of cases,
"These
cases all deal with the right of an accused to legal representation
where he wishes it. However, where he does not seek
it, and where no
irregularity occurs by which he is deprived of it, there is no
principle or rule of practice of which
I
am
aware which vitiates the proceedings.
Although he went on to say (293 in
fin - 294A):
"There are cases where,
because of the gravity of the charge or the complexity of the matter,
the accused ought, in the interests
of justice to be represented,
even though he cannot afford it. In such cases, if a pro deo defence
is not provided, it would be the
duty of the Court to refer the
matter to one of the legal aid bodies or to invoke the assistance of
one or other of the professional
bodies to appoint a legal adviser to
act without remuneration."
I
do
not understand this as gualifying in any way the first
sentence above quoted. That
sentence was approved by this
court in Volschenk v President, SA
Geneeskundige en
28
Tandheelkundige Raad 1985(3) SA
124(A) at 140I, and in
S v Mabaso and Another 1990(3) SA
185 (A) ab 202 F-G and
it must be regarded as correctly
stating our law.
DIDCOTT J said in S v Davids at
179 B - D that
the result of S v Khanyile
"....was not the fashioning
of a brand new right, but the elaboration and development of one well
embedded in our law, the right
to a fair trial or to narrow that down
to the component of it which interests us now, the right to be
represented on trial."
For the reasons
given above,
I
disagree.
The law is
clear: no such
right has ever been recognized either by statute or in the practice
of the courts. The Khanyile
rule was a new
departure, which could not claim legitimacy
by
reference to the "right to a fair trial" which, as
I
have pointed out above, is not the test of
an irregularity
or illegality.
Mr Chaskalson urged that this
court should itself adopt the Khanyile rule. Our law, he said,
29
has now reached a stage in its
development where it is necessary for accused persons to be provided
with legal representation when
the interests of justice require it.
Affirmation of the Khanyile rule would be a cautious move forward to
bring our criminal procedure
closer to the standards of fairness
observed in countries of Europe, North America, and the Commonwealth,
and "would enable
the courts to work out incrementally; on the
facts of each case, when absence of legal representation has resulted
in a failure of
justice." It would enable the courts to develop
the law, consistently with available resources, and over a period of
time permit
them to follow a path similar to that taken by the United
States Supreme Court, in its progression from the rule in Betts v
Brady
(1941) 316 US 455
via Gideon v Wainwright
[1963] USSC 42
;
(1963) 372 US 335
to
Argersinger v Hamlin
[1972] USSC 139
;
(1972) 407 US 25.
Counsel for the State objected
that judicis est
30
jus dicere sed
non dare. The maxim is now not a prescriptive formula but a counsel
of caution. Judges do make law. (See Chapter 1
X,
entitled "Judicial Law-Making",
in Hahlo & Kahn, The South African Legal System and its
Background.) "Our judges
have always stressed the self-evident
truth that a legal system, like any human institution, cannot stand
still." (Hahlo and
Kahn, The Union of South Africa: the
Development of its Laws and Constitution, p 46. See pp 46 - 47 where
the learned authors refer
inter alia to Henderson v Hanekom and
Another
(1903) 20 SC 513
in which DE VILLIERS CJ said at 519 that
"there must, in the ordinary ccurse, be a progressive
development of the law keeping
pace with modern requirements.")
In the field of procedure, judicial creativity is less inhibited than
it is in the field of
substantive law. WILLIAMSON J observed in Lenz
Township Co (Pty) Ltd v Munnick and Others 1959(4) SA 567 (T) at
31
574A that the
South African Supreme Court undoubtedly has inherent power in civil
cases to regulate procedural matters. That the same
is true in
criminal cases is evidenced by the observation of SOLOMON JA in Rex v
Thielke
1918 AD 373
at 382 that in s370 of the Criminal Procedure and
Evidence Act, 1917, the expression "irregularity" refers
more particularly
to the established practice of the courts, and the
expression "illegality" to the rules which have been
expressly laid
down (quaere, by statute) on the subject of procedure
in criminal cases. The Supreme Court's power to regulate procedure in
criminal
cases is exemplified by the numerous reported cases which
formulate and implement the rules which have been evolved for the
assistance
of undefended accused persons and to reduce the risk of an
unfair trial. In S v Rudman COOPER J set out (at 377E to 379A) a
number
of these rules. In the following quotation from his judgment
I
have omitted
32
the numerous cases cited by the
learned judge in support:-
"Before the accused is called
upon to plead the presiding judicial officer is obliged to examine
the charge-sheet, ascertain
whether the essential elements of the
alleged offence(s) have been averred with reasonable clarity and
certainty and then give the
accused an adeguate and readily
intelligible exposition of the charge(s) against him. Unless the
charge-sheet contains an appropriate
reference to it and the factual
basis for bringing it into operation, the accused shouid be informed
by the presiding judicial officer
or the prosecutor of the operation
of any presumption he may have to rehut, and the prosecutor should
inform the court and the accused
of the content of the evidence he
intends to lead. Again, where it is competent for a court to convict
an accused of an offence other
than the one alleged in the
charge-sheet a judicial officer may be obliged to inform an
undefended accused of the competent verdict
- eg where an undefended
accused is charged with theft or with housebreaking with intent to
steal and theft the presiding judicial
officer should explain to the
accused the competent verdicts, viz that he may be convicted of
contravening s36 or s37 of Act 62 of
1955 or of contravening s1 of
Act 50 of 1956 unless the contravention is an alternative charge or
the prosecutor indicates that the
State's case is restricted to the
33
offence(s) alleged in the
charge-sheet.
At all stages of a criminal trial
the presiding judicial officer acts as the guide of the undefended
accused. The judicial officer
is obliged to inform the accused of his
basic procedural rights - the right to cross-examine, the right to
testify, the right to
call witnesses, the right to address the court
both on the merits and in respect of sentence - and in comprehensible
language to
explain to him the purpose and significance of his
rights.
During the State case a presiding
judicial officer is at times obliged to assist a fioundering
undefended accused in his defence.
Where an undefended accused
experiences difficulty in cross-examination the presiding judicial
officer is required to assist him
in (a) formulating his question,
(b) clarifying the issues and (c) properly putting his defence to the
State witnesses.
Where, through ignorance or
incompetence, an undefended accused fails to cross-examine a State
witness on a material issue, the presiding
judicial officer should
question - not cross-examine - the witness on the issue so as to
reduce the risk of a possible failure of
justice.
If, at the close of the State
case, an undefended accused ic not discharged, the presiding judicial
officer is obliged to inform him
cf his rights and in clear and
uneguivocal terms explain the
34
courses open to him. The judicial
officer is obliged to inform the undefended accused in clear and
simple language of any presumption
the prosecutor is relying on, the
implications thereof and the manner in which it can be rebutted.
The judicial officer should assist
an undefended accused whenever he needs assistance in the
presentation of his case and should protect
him from being
cross-examined unfairly."
Another rule, not included in this
list, was laid down
in S v Radebe; S v Mbonani 1988(1)
SA 191(T) by GOLDSTONE
J, VAN DER MERWE J concurring. The
learned judge referred
at 194H - 195D to a number of
cases which, he said, "are
but examples of a general duty on
the part of judicial
officers to ensure that
unrepresented accused fully
understand their rights and the
recognition that in the
absence of such understanding a
fair and just trial may not
take place". He said (at 196
F-I):-
"If there
is a duty upon judicial officers to inform unrepresented accused of
their legal
rights, then
I
can conceive of no reason why the
right
to legal representation should not be one
35
of them.
Especially where the charge is a serious one which may merit a
sentence which could be materially prejudicial to the accused,
such
an accused should be informed of the seriousness of the charge and of
the possible consequences of a conviction. Again, depending
upon the
complexity of the charge, or of the
legal
rules relating thereto, and the seriousness
thereof,
an accused should not only be told of this right but he should be
encouraged to exercise it. He should be given a reasonable
time
within which to do so. He should also be
informed
in appropriate cases that he is entitled
to
apply to the Legal Aid Board for assistance.
A
failure on the part of a judicial officer to do
this,
having regard to the circumstances of a
particular
case, may result in an. unfair trial in
which
there may well be a complete failure of justice.
I
should make it clear that
I
am not suggesting that the absence of legal
representation per se or the absence of the
suggested
advice to an accused person per se will
necessarily
result in such an irregularity or an unfair trial and the failure of
justice. Each case will depend upon its own facts
and peculiar
circumstances."
S v Radebe has been followed in
most provinces, and in the
case of S v Mabaso and Another
1990(3) SA 185(A) at 203 D-
G HOEXTER JA expressed his entire
agreement with the
passage just quoted.
36
The maxim judicis est jus dicere
sed non dare is
not therefore,
an obstacle to the adoption of the Khanyile rule. Nor do
I
think that a bar is constituted by the fact
that in terms of the law as it is, no irregularity is committed when
legal representation
is not provided for an indigent accused. To keep
paca with changed circumstances" and new insights and
perceptions, changes
in procedural rules may become necessary.
GOLDSTONE J referred in S v Radebe at 192H to the
"evolutionary
process of broadening and extending the right
to
legal representation." Since 1959, when R v Mati was decided,
there have been growing awareness and sympathy for the plight
of the
undefended accused person. In 1969 the Legal Aid Act 22 of 1969 was
enacted. Before the Act
a number of private
and partially State-funded legal aid
bureaux
had tried but failed to provide legal aid on a consistent and
permanent basis. A national Legal Aid
37
Scheme was established by the
Department of Justice in 1962, but it failed, partly because all
legal services were to be provided
on a voluntary basis. It was only
with the Act that State-funded iegal aid was placed on a statutory
footing. (N. C. Steytler's The
Undefended Accused (1988) p.16.) From
an inauspicious start in the financial year 1972-1973, the legal aid
system has grown steadily,
if not spectacularly. In that year 465
applications for iegal aid in criminal proceedings were received and
251 were referred to
attorneys. These figures rose to 5898
applications and 3071 referrals in the year ending 31 March 1984.
(Steytler, op cit pp 17-18).
In the year 1 April 1988 - 31 March
1989, 13529 applications were received, of which 9669 were referred
to attorneys; and in the
year 1 April 1989 - 31 March 1990, 11667
applications were granted in criminal cases. (Reports of the Legal
Aid Board for the respective
38
financial years.) The fifth and
final report of thm
Commission of Enquiry into the
Structure and Functioning of
the Courts (known as "the
Hoexter Commission"), had some
pertinent conclusions;
"Any state
that prides itseif on a democratic way
of
life should not regard legal representation of
parties
before its courts as pure luxury or a fortuitous benefaction of the
Government, but as an
é
ssential
service. Indispensable to the
achievement
of the democratic ideal in any modern
state
is access to its courts for all its
inhabitants
.... For any person who has to appear
in
court without counsel, whether as an accused in a criminal trial or
as a litigant in a civil
action, the
excellence of his country's judicial
system
is small comfort and any claim by the State that the courts are open
to all has a
hollow ring. Modern
administration of justice is intrinsically complex, and the best
guarantee of
proper adjudication of a case
lies in proper legal representation of the parties concerned"
Vol
I,
Part
II,
p.175, para 6.4.1.)
"There should be set as a
goal the provision uf legal representation to accused persons of
limited means through a comprehensive
legal aid scheme available to
the accusud in all serious cases in all courts (and not merely in
Supreme Court trials involving capital
offences.") (Ibid, p.197,
para 7.13(a))
GOLDSTONE J said in S v Radebe at
196 D - F:-
39
"The desirability, if not the
necessity, of iegal representation, especially where persons stand to
lose their liberty, has become
ever more widely appreciated in South
Africa in more recent years. Concern has been voiced by spokesmen of
the Government and of
the organised profession, both attorneys and
advocates. The Legal Aid Board has broadened the categories of
criminal offences and
the situations in which it will make provision
for legal representation in criminal cases. The Legal Resources
Centres which have
been operating fcr some years now in the larger
cities have also on occasion provided such assistance, as have law
clinics which
are operated by most, if not all, law schools in South
African universities. Private practitioners, too, on occasion have
answered
calls on behalf of impecunious persons accused of criminal
conduct. Thus the availability of legal representation for
impecunious
accused has considerabiy broadened."
The formulation of the rule in S v
Radebe was itself the
result of the evolutionary
process. DIDCOTT J said in S v
Khanyile (at 799 C-D) that writers
in law journals and the
like had often pleaded for a firm
rule along those lines.
(Reference may be made in this
regard to an article by
40
Evadne Grant at p.50 in fin of
1989(2) SA Journal of Criminal Justice, - referred to hereinafter as
the
Journal.) The learned judge said
that his
recollection of records read on
appeal and review is that,
while some magistrates made a
point of telling accused
persons that they were entitled to
legal representation if
they could get it and offering
them the opportunity to
obtain it if they wanted one, the
practice was far from
universal. According to p.5 of the
Legal Aid Board Report
for 1981-2, the Department of
Justice had agreed in 1982,
after representations by the Legal
Aid Board,
"..,to request prosecutors
and possibly also magistrates to inform undefended accused appearing
on charges of an involved nature
of the Board's services, and to give
them an opportunity to acquire such services should they wish to do
so."
It is not clear, however, that the
proposal was ever
adopted to any great extent (see
the article by Professor
McQuoid-Mason in the Journal at
p.58). Perhaps the most
41
influential of all the writings on
the necessity for legal
representation for the needy is S
v Khanyile itself. If
one accepts the premise on which
the judgment is based,
its trenchant and persuasive
appeal for the provision of
legal assistance to undefended
persons is irresistible.
DIDCOTT J said of it in S v Davids
at 174 D-E:
"A good deal of the
(Khanyile) judgment was cast as and amounted to a judicial plea
addressed to all for whose attention it was
meant, to the legal
profession, the Department of Justice, the Treasury, Parliament and
the taxpayer. It was a plea for a vast enlargement
of the legal
services made available as a public duty to people who were
criminally charged but too poor to pay for them, in the
funds
supplied for the services and consequently in their facilities and
personnel, so that a comprehensive scheme might evolve catering
for
every prosecution of moment that was brought against a pauper and
answering the call of justice for the offer each time of a
lawyer's
help."
To such a plea most people
concerned with the proper
administration of justice in South
Africa would say amen.
I
do
not think, therefore, that this court would
42
be precluded by the present state
of the law on the point from adopting the Khanyile rule.
It does not follow, however, that
the rule is such that it ought to be affirmed by this court, and it
is necessary to examine it more
closely.
DIDCOTT J said of S v Khanyile at
813E) that "The only solution to the problem (sc. of providing
legal representation to those
who need it) is, of course, a huge
enlargement of our legal aid scheme, enabling it to cater adeguately
for every criminal trial
where help may be necessary". This
would require in the first place "an immense increase in the
funds of the scheme."
In the second place, any major expansion
of the scheme would require "lawyers galore".
The learned judge showed himself
to ue neither dismayed nor intimidated by the cost aspect. While
recognizing that the taxpayer would
have to bear the burden
43
of the increase, and understanding
his reluctance to
shoulde- it, DIDCOTT J trusted
even so that "his sense of
public duty will rise to the
occasion, overcoming all
resistance", and that he will
appreciate the bitterness and
anti-social feelings of a man, his
family, his friends
and others in his circle, prompted
by a belief that he
has not had a fair trial. (See S v
Khanyile at 813 E -
I).
In regard to the second problem,
that of legal
manpower, DIDCOTT J said that the
country has far too few
lawyers to cope with all the cases
in which representation
should ideally be provided.
"Were this Court to insist in
the meantime on a lawyer for the defence in every trial of any
consequence, the requirement could
not be met. And, were it to rule
that no such trial might lawfully proceed without one, criminal wcrk
in
Natal would be thrown into chaos,
"
(at 814B-C).
The situation, he said (at 814 H),
44
" precludes us from
proclaiming a coherent
ruie and compels us to dictinguish
invidiously between instances of unfairness, finding some more
egregious and others less,"
A line had therefore to be drawn,
separating the trials vitiated by a lack of legal representation and
those that are not. As a start,
DIDCOTT J excluded the ieast serious
cases (those so petty that the average person involved in them who
was able to afford a lawyer
would in ail probability not seek one)
and the most serious cases, including such cases as murder and
treason, tried in the Supreme
Court, in which pro deo counsel were
assigned to those wanting legal represehtation (at 814-815). He then
asked, with reference to
the "dense mass" of trials lying
between the two extremes, how one identifies those in which "the
call for representation
is the most demanding and the lack of it the
most debilitating." He said (at 815) that there were three
facets to be considered:
45
The inherent simplicity or
complexity of the cases, both on the law and on the facts.
"The personal equipment
of
the
individual standing trial
how
mature, sophisticated,
intelligent
and
articulate he looks and sounds,
in
short what impression he gives
of
his
general ability to
fend for himself in
a case with those dimensions."
(c) The gravity of the case,
having regard
to the nature of the offence charged,
and the
possible consequences to the
accused of a conviction - the
possible
sentence and the other adverse
consequences which
might follow upon a
conviction. Imprisonment is certainly
a
serious consequence, but "a heavy
fine may comprise a penalty
more
crippling to some than a brief spell in
gaol is to
others...."
Having enquired into these
matters, the judicial officer trying the case should ask himself
whether their cumulative effect is such
that the accused would be
placed "at a disadvantage palpable and gross, that the trial
wculd be palpably and grossly unfair,
were it to go ahead without a
46
lawyer for the defence" (at
8168). If the judicial
officer should give an affirmative
answer to that question,
" he should refer the case at
once to those
administering the legal aid scheme
or to one or another of the various associations of lawyers that are
willing and keen nowadays
to ofter assistance pro bono. He should
decline to proceed with the trial, furthermore, until representation
is procured through
some such agency" (At 816 C-D).
And if the trial ends in a
conviction, and the matter comes
to be considered by the Supreme
Court on appeal or
automatic review, the three facebs
will be looked at
afresh, but the question will then
be whether in the
judgment of the court of appeal
the trial was indeed
palpably and grossly unfair. If
that is its conclusiun, it
should set aside the verdict
without hesitation.
In regard to a stoppage of the
tzial by the
judicial officer, DIDCOTT J had
earlier in his judgment in
S v Khanyile quoted from a
Canadian judgment in the course
of which SEATON J said:
47
"If a
trial judge concluded that he could not
conduct
a fair trial without defence counsel, and
his
request for counsel were refused, he
might
be
obliged
to stop the proceedings until the difficulties had been overcome. Our
law would not require him to continue a trial that could
not
be conducted properly." (at 801 G-I)
In S v Davids (at 190 D-G) DIDCOTT
J said that the Khanyile
judgment did not mean or
contemplate that if
representation were not obtained,
the judicial officer
must refuse to hear the trial.
"What (S v Kanyile)
envisaged, all that it envisaged the only time it alluded to the
stoppage of a trial (at 816 C-D), was a
halt in such until
representation had been obtained, if necessary after reference to and
in collaboration with those lawyers who
showed an interest in pro
bono work. That this would indeed be managed was taken quite for
granted."
If, however, the prosecuter should
resolutely proceed with
the prosecution when the accused
was unrepresented,
"(The) judicial oficer will
have no option in that situation but to go ahead with the trial and
complete it. He cannot indefinitely
postpone it or adjourn its
hearing. He cannot leave it in
48
in the air,
together with everyone involved in it. Nor has he any power or
discretion to decline forever to deal with and determine
it. Sooner
or later he must dispose of it instead. Yet his doing so may prove
not to be the end of the matter. Should a conviction
ensue, the case
may travel further. It may come to this Court on appeal or, if a
magistrate tried it, on review. And, if it is not
reviewable
automatically, the magistrate can always send it here on special
review. Indeed, he ought to do that whenever he doubts
the
fundamental fairness of the trial. This Court, with the full picture
before it, will then decide the issue for itself" (At
190 F -
II).
In considering whether the rule
should be adopted by this court, two questions arise; one of
principle, the other of feasibility.
As to the question of principle,
that part of the rule which has just been referred to would be
coercive, if not with intention, then
at any rate in effect. Its
adoption would constitute notice to the Government that if legal aid
on the required scale is not provided,
the prospect will have to be
faced of numerous criminal trials
49
being delayed and many convictions
being upset on apoeal because of the failure to provide the accused
person with legal representation.
The Supreme Court has no power to
issue a mandamus on the Government to provide legal aid, and it
should not adopt a rule the tendency
of which would be to oblige the
Government to do so.
The second question is whether the
Khanyile rule would work in practice. If it is not feasible, any
attempt to implement it would
jeopardize the whole administration of
criminal justice in South Africa.
Counsel for the appellants
contended that if the State wishes to put a person on trial, it has
an obligation to ensure that he is
given a fair trial: it cannot by
its own omission force the courts into a situation in which they are
reguired to conduct unfair
trials.
This is fallacious. The conclusion
does not
50
follow from the premise. What an
accused person is entitled to is a trial initiated and conducted in
accordance with those formalities,
rules and principles of procedure
which the law requires . He is not entitled to a trial which is fair
when tested against abstract
noticns of fairness and justice.
Counsel submitted further that
there is no reason to believe that the State is not in a position to
mobilize sufficient resources
to meet the demands of the Khanyile
rule.
DIDCOTT J said
in S v Khanyile at (813I) that in pressing the claims made on the
public purse by the acute demand for legal aid, he
did not lose sight
of the
fact that "the raising of money
is by and large no business
of the Courts."
I
do not
understand the qualification "by and large". The sanction
of Parliament is needed for the
imposition
of taxation and the authorization of
51
expenditure, though it is true
that bills authorizing these are dominated by the will of the
Government and in particular by the views
of the Treasury. In this
the courts of law have no role to play, save to recommend. In any
event, whether or not the State is in
a position to provide the funds
to meet tne demands of the Khanyile rule, is beside the point. The
priority of calls for legal aid,
as against calls for social welfare,
housing, education and health facilities, and so on, is a matter for
the Government, not the
courts.
The guestion of feasibility can
conveniently be considered with reference to two phases: the present
and immediate future, and the
longer term.
In terms of the Khanyile rule, if
the case is one where legal representation is imperatively called
for, the presiding judicial officer
should "refer the case at
once to those administering the legal aid scheme or to one or
52
another of the various
associations of lawyers that are willing and keen nowadays to offer
assistance pro bono." The contribution
which those other than
the Legal Aid Board can make is miniscule in proportion to the
demands which will be made if the Khanyile
rule is implemented. That
contribution can, for present purposes, be left out of account.
While no figures are available to
the court, it is clear beyond peradventure that for the present and
in the short term at any rate,
the Legal Aid Board and its
representatives and agents would not be able to grant all or any
appreciable number of the spate of applications
for legal aid which
would result, however sympathetic they might be to applications
referred by judicial officers.
In terms of s. 9 (1) of the Legal
Aid Act, the funds of the Board consist of (a) moneys appropriated by
Parliament in order to enable
the Board to perform its
53
functions, and (b) moneys received
from any other source. In practice the funds appropriated by
Parliament have been the only source
of the Board's funds: despite
appeals by the Board, the private sector has made no contribution.
The funds available to the Board
have always been markedly
insufficient to supply even the present needs.
Professor McQuoid-Mason pointed
out in an article in the Journal (at p.62) that "at present"
the Legal Aid Board operates
under severe financial constraints, and
that only a small percentage of the legal aid budget is spent on
criminal cases. In a postscript
in The Undefended Accused (at 242)
Professor Steytler appreciates that, rebus sic stantibus, the Legal
Aid Board would not be able
to meet the demands which would be made
upon it and that other innovative measures would be called for. He
wrote:-
54
"The rule in Khanyile will,
no doubt, put , pressure on the courts, the legal profession and
State funding. The Legal Aid Board
faces a mammoth task of providing
assistance for all cases referred to it by the courts. This challenge
calls for innovative measures
to cope with limited financial and
manpower resources.
As has been argued , the
available
financial resources can be used
more productiveiy by the appointment cf public defenders and raising
money from other sources. To
alleviate the manpower shortage use
should be made of public defenders, the various associations of
practitioners who are willing
to assist, advocates doing their
pupillage and senior law students. What may seem difficult now, or
even impossible, may in a few
years be regarded as 'workable' and
essential ".
It is plain that the rule could
not be implemented
overnight, not only because of the
financial constraints on
the Legal Aid Board, but also
because of the intolerable
administrative strain and burden
which would be placed on
the Board's organisation and its
agents and representatives
by the flood of applications which
would ensue.
Furthermore, if the rule should be
implemented without the
necessary ground work being done
and the necessary infra-
55
structure created, the business of
the courts, both of district and regional magistrates, would be
dislocated and disorganised. There
would result consequences such as
those which DIDCOTT J perceived would result from the implementation
of a general rule that legal
representation should be made available
to all in need of it: the criminal work of the court would be thrown
into chaos, some prosecutions
being delayed inordinately until
lawyers became available and others being withdrawn.
And convictions and sentences
would be set aside on appeal or review in cases in which the judicial
officer, although recognizing
that the accused required legal
representation under the Khanyile rule, had no option but to engage
in what might turn out to be
an exercise in futility and go ahead
with the trial and ccmplete it notwithstanding the lack of such
representation, because he could
not "indefinitely postpone it
or adjourn ibs hearing,
56
or leave it in the air" and
he had no "power or discretion to decline forever to deal with
and determine it."
Such a consummation is not to be
contemplated.
I
turn
to the second phase - the feasibility of the Khanyile rule in the
long term.
The Khanyile rule has as its aim
the provision of iegal representation for those accused for whom the
need for it is most clamant.
Like the rules listed by COOPER J (see
above) its aim is the achieving of a fair trial. But it differs in an
important respect from
those rules. They relate solely to the
internal procedure of the court: they impose upon the judicial
officer duties which he must
perform inside the court-room. The
Khanyile rule, while also relating to the court's internal procedure,
has an extra dimension which
takes the matter beyond the court-room
into the field of politics in its meaning of the science dealing with
the form, organisation
and
57
administration of a state.
Politics, Bismarck observed in a frequently quoted aphorism, is the
art of the possible. If the court enters
the fieid of poiitics it
will generally have to be informed by evidence and guided by the
opinions of skilled persons.
What is required to answer the
question is a feasibility study, based on detailed and comprehensive
statistical and other information
and expert analysis and assessment
thereof. Presumably such a study would deal inter alia with the
following: (a) The number of cases
which would be involved if
the rule were to be implemented,
classified according to their nature and their geographical
distribution. b) The availability cf
lawyers to provide the services
required, taking into account the fact that not all lawyers do
criminal work.
58
(c) The solútion to the
problem which should be
adopted (i.e., the referral or the
public
defender system). (In his article,
in the
Journal, Professor McQuoid-Mason
wrote at pp
62-63:
"A cost-effective solution
for the
problem would be for the Legal Aid
Board to employ
public defenders. As
has been pointed out elsewhere, the
referral
system of legal aid is costly
probably about three times
as
expensive as a salaried lawyer scheme
... Salaried lawyers
can probably
handle about three times as many cases
as referral
lawyers for the same outlay
of funds. In addition salaried
lawyers
build up a reservoir of legal
expertise and specialisation in
the
problems handled by them. Public
defenders could operate
from the Legal
Aid Board offices or simiiar offices
under its
auspices in court
buildings ")
(d) The infrastructure necessary
for the operatioa of
the scheme of choice; and a programme for
59
establishing it. (e) The effects
of the implementation on the courts, including the increases in
personnel and court buildings and
other facilities which may be
necessary.
The estimated annual cost of the
scheme of choice.
The views of the Legal Aid Board
on its ability to operate the proposed scheme; the necessary
enlargement of its infra-structure;
the time and manpower it will
require to achieve this; and necessary amendments to the Legal Aid
Guide, including possibly the
means test.
Regard would also have to be paid
to the attitude of the Government and the Treasury: what priority
could be afforded to an expanded
legal aid system? What funds were
likely to be available? A change of heart would be
60
required. Professor Steytler is
not sanguine about the
prospect. He wrote (op cit p.22):
"Through the years,
Parliament has shown little concern for the position of the indigent
accused and has exhibited reluctance
to extend legal aid to all
accused persons. Concern for increased spending cm legal aid,
particularly in criminal matters, is not
a politically popular cause
and major increases in funding may not be forthcomming in the
foreseeable future."
Nothing in the nature of a
feasibility study was placed before us. The information on which
appellants' counsel based their submission
that the Khanyile rule
would work in practice, was partial, fragmentary and quite
insufficient to enable a reasoned assessmënt
to be made of its
feasibility.
For the above-mentioned reasons,
this court should not in my opinion adopt the rule formulated in S v
Khanyile.
61
I
turn
finally to a consideration of each of the
three
appeals.
S v Rudman
The facts are set out in the
judgment in S v Rudman 1989(3) SA 368 (ELD) at 385.
Counsel for the appellant did not
argue that the conviction should be disturbed.
In regard to sentence, the
appellant's record was
summarized by COOPER J (at 386
E-G) as follows:
"The appellant's 66 previous
crimes involving dishonesty were committed over a period of nearly 15
years. For these crimes he
was sentenced to varying terms of
imprisonment - the first completely, others partly suspended - and to
imprisonment for corrective
training in terms of s.334ter of Act 56
of 1955 and for the prevention of a crime in terms of s.334quat of
Act 56 of 1955. In 1982
when the appellant was sentenced to one
month's imprisonment on each of 50 (sic) counts of credit card fraud,
he was warned that
62
he was in danger of being declared
an habitual criminal On 27 January 1987 he was released
unconditionally from prison. Within four
months of his release the
appellant committed the
present crime. "
In passing sentence on 9 May 1988,
the regional magistrate told the accused that he had no doubt that
imprisonment was the only proper
sentence. It was clear from his list
of previous convictions that he was a person who habitually committed
crimes and that the community
needed to be protected against him. He
had already been warned that he couid be declared an habitual
criminal, but this warning had
had no effect. The magistrate was of
the opinion that a sentence as provided in s.286 of Act 51 of 1977
was the proper sentence.
The accused was then declared an habitual
criminal.
It was submitted on Rudman's
behalf that it did not appear from the record that the regional
magistrate told him, before sentence
was passed, that he had it in
63
mind to impose the indeterminate
sentence; and that the
failure to give him such a warning
constituted an
irregularity. The record was
electronically recorded and
there is no
reference to such a warning, so
I
shall
assume
that a warning was not given.
The statute makes no mention of
any warning, but
it was recognized in R v Edwards
1953(3) SA 168 (A); R v
Swarts 1953(4) SA 461 (A) that the
usual practice is not
to impose the indeterminate
sentence unless the accused has
previously been warned. There are
a number of cases in
which the effect of a failure to
give a previous warning
has been considered, but it is
unnecessary to refer to them
because a previous warning was
given in S v Rudman. It
appears from his form SAP 69 that
on 28 July 1982 he was
convicted on 56
counts of
fraud involving credit cards.
The sentence reads:-
"Op elk van die klagtes - 1
maand gevangenisstraf en beskuldigde word gewaarsku dat by 'n latere
64
skuldigbevinding hy in gevaar sal
verkeer om as h gewoontemisdadiger verklaar te word."
None of the cases suggest that an
undefended accused, having been previously warned should be told
again after the conviction that
the regional magistrate contemplates
passing the indeterminate sentence. But even if the omission to tell
him that is to be regarded
as an irregularity, it does not appear
that in Rudman's case a failure of justice resulted therefrom. It is
unlikely that he could
have forgotten the warning given in 1982,
especially since he had on 11 April 1988 admitted his previous
convictions at the hearing
before the district magistrate.
There is no merit in this appeal.
It is dismissed.
65
S v Richard Johnson
The facts are set out in the
judgment in S v Rudman at 386-387.
One of the grounds of appeal,
which was added by way of an amendment to the notice of appeal, was
based on the magistrate's failure
to inform the accused of his right
to legal representation and to apply for legal aid.
It does not appear from the record
that the
magistrate did so inform the
accused, but it is impiicit in
the magistrate's remarks in
dealing with the amended notice
of appeal that this information
was not given to him.
The magistrate said inter alia
"The
accused did not have a legal adviser. It is quite clear he knew he
had this right but could not afford an attorney and therefore
conducted
his own defence .....As far as
I
could establish
there
is no rule of law that the court must inform the accused that he is
entitled to secure assistance from the Legal Aid Board or
Legal
Resources Centre."
(Not surprisingly, the magistrate
was apparently unaware of
66
the judgment in S v Radebe. The
judgment was published
in the law reports in January
1988. The accused was
convicted on 6 July 1987).
Did the magistrate's failure to
inform the
accused in terms of S v Radebe
constitute an irregularity?
In S v Mabaso at 204 G, HOEXTER JA
said that it seemed to
him 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 been ignorant of that
right."
I
concurred
in the judgment of HOEXTER JA, but on
reflection
I
am not sure
that this dictum is entirely
correct.
I
am inclined to think that the better view
is
that a failure to inform an
accused of his right to
representation is an irregularity
unless it is apparent to
the magistrate, for good reason,
that the accused is
aware of his rights (e g from his
own statement or from the
67
circumstances - for instance, that
the accused is an attorney). Certainly it is the safer course always
to inform the accused of his
rights. But the difference between the
two views does not appear to be one of substance: whichever view be
adopted, the result would
be the same.
I
shall
assume that there was an irregularity at
Johnson's
trial. It was then for him, as appellant, to show that a failure of
justice resulted from the irregularity. He could have
done so, for
example, by
submitting to the court of
appeal and to the magistrate for
his
comments an affidavit setting out that he was unaware of his rights,
and that if he had been informed of them he
would
have tried to secure representation, at least through
the
Legal Aid Board. There was no such affidavit before the court of
appeal, and consequently it has not been shown that the irregularity
resulted in a failure of
68
justice.
The appeal is dismissed.
S v Mthwana
The facts are fully set out in the
judgment 1989(4) SA 361(N) at 362H to 364C.
On the evidence there was no doubt
that Mthwana was rightly convicted, and the appeal turned entirely on
the correctness or otherwise
of the Khanyile rule.
At p.365I HOWARD JP referred with
approval to
the statement by NIENABER J at the
beginning of his
judgment at p.193D of S v Davids:
"For criminal proceedings to
be vitiated and a conviction to be quashed there must first be an
irregularity. An irregularity
occurs whenever there is a departure
from those formalities, rules and principles of procedure with which
the law requires such a
trial to be initiated or conducted. (S v Xaba
1983(3) SA 717 (A) at 728D). An irregularity will thus be committed
69
if a rule of practice, procedure
or evidence, or a precept of natural justice recognised in our law,
is disregarded."
The learned judge-president
concluded his judgment (at
371I) by saying:-
"In this case the magistrate
committed no irregularity. The appellant was duly apprised of his
right to procure legal representation
and of his right to apply for
legal aid if he could not afford to pay for a lawyer. An application
for legal aid was made on his
behalf and he was afforded an adequate
opportunity to engage a lawyer (paid or unpaid) of his own."
The court a quo was clearly right.
The appeal is dismissed.
In the result all three of the
appeals are dismissed.
H C NICHOLAS AJA
VAN HEERDEN J )
E M GROSSKOPF J ) Concur
EKSTEEN J )
Case No 18/90
IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE DIVISION
)
In the matter between:
CHARLES BRIAN RUDMAN
First
Appellant
RICARDO JOHNSON
Second
Appellant
and
THE STATE
Respondent
CORAM
: CORBETT, CJ, VAN
HEERDEN, E M GROSSKOPF, EKSTEEN, JJA, et NICHOLAS, AJA.
HEARD
: 22 August 1991
DELIVERED
: 27 September
1991
Case No 658/89
IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE DIVISION
)
In the matter between:
PAULOS MTHWANA
Appellant
and
THE STATE
Respondent
CORAM
: CORBETT, CJ, VAN
HEERDEN, E M GROSSKOPF, EKSTEEN, JJA, et NICHOLAS, AJA.
HEARD
: 22 August 1991
DELIVERED
: 27 September
1991
JUDGMENT
/
1
JUDGMENT
CORBETT
CJ .
I
am
in full agreement with the judgment of my Brother Nicholas and
I
concur in the orders made in the three
appeals.
The ideal for which Didcott J (and
the Judges whb
agreed with him) strove in the
cases of
S v Khanyile and Another
1988 (3) SA 795
(N) and
S
v Davids; S v Dladla
1989 (4) SA 172
(N), viz the provision of
free legal representation to all indigent persons accused of serious
crime who desire such representation,
is unquestionably a most worthy
one. Indeed it is a sine qua non of a complete system of criminal
justice; and any system which lacks
it is flawed.
As Nicholas AJA has explained,
however, it is an
2
ideal which under present
circumstances.in South Africa is not capable of attainment. All the
same the ideal should never be lost
sight of and it should continue
to guide and stimulate all who are concerned with the improvement of
our criminal justice system.
Ultimately, as
my Brother's analysis shows, it depends on how much the State is able
and willing to provide for the funding of public
defender, legal aid
and such-like schemes and for the establishment of the additional
infrastructure required. The many clamant demands
on the public purse
are well-known. It becomes a question of deciding on priorities.
I
trust that those charged with such
decisions will not forget the undefended accused.
CORBETT, CJ VAN HEERDEN JA)
NICHOLAS AJA)