S v Halgryn (409/2001) [2002] ZASCA 59; [2002] 4 All SA 157 (SCA) (30 May 2002)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2002
>>
[2002] ZASCA 59
|

|

S v Halgryn (409/2001) [2002] ZASCA 59; [2002] 4 All SA 157 (SCA); 2002 (2) SACR 211 (SCA) (30 May 2002)

Reportable
Case No 409/2001
In
the matter between:
CARL CHRISTO HALGRYN
Appellant
and
THE STATE Respondent
Coram: HARMS, BRAND JJA and HEHER AJA
Heard: 15 MAY 2002
Delivered: 30 MAY 2002
Subject: Criminal law – right to a fair trial – right to own
counsel.
JUDGMENT
HARMS JA/
HARMS JA:
[1] The appellant was found guilty on a count of murder
and two of attempted murder, and in effect sentenced to twenty years’
imprisonment.
He applied after some lapse of time for leave to
appeal against both conviction and sentence but the trial Judge,
Stegmann J, refused
the application on the ground of a lack of
prospects of success. The matter rests there since no subsequent
application for leave
to appeal was made to this Court.
[2] The appellant also applied for leave to lead further
evidence
(s 316(3)
of the
Criminal Procedure Act 51 of 1977
). The
further evidence consisted of a number of statements made by state
witnesses and on which they had been cross-examined but
which were
not handed in as exhibits. Although at the time of the application
the statements were not produced, counsel for the
appellant informed
the Court below what they contained. Stegmann J analysed the
statements and considered what effect they could
have had on the
Court’s judgment; he concluded that it had not been shown that the
new evidence could reasonably lead to a different
verdict. The
application was consequently turned down and the appellant likewise
took no further steps to pursue that avenue.
[3] The
third application to the Court below was one for special entries
under
s 317
of the Act. The section provides that if an accused
thinks that any of the proceedings in connection with or during the
trial are
irregular or not according to law, the accused may apply
for a special entry to be made on the record stating in what respect
the
proceedings are alleged to be irregular or not according to law.
The court must make the special entry unless it is of the opinion
that the application is not made bona fide; or that it is frivolous
or absurd; or that the granting of the application would be an
abuse
of the process of the court. If the entry is made, the accused has a
right of appeal to this Court. Stegmann J concluded
that he was
bound to make the special entries because it could not be said that
the application was not made bona fide or that it
was frivolous or
absurd or that the granting of the application would have been an
abuse of the process of the court.
Cf S v Xaba
1983 (3) SA
717
(A) 733D.
[4] Before us we had yet a further application. It
firstly asked for condonation for the late filing of the notice of
appeal. This
we granted when the appeal was called. It then asked
for addition to the appeal record of what is referred to as the
‘Applicant’s
Application for Leave to Appeal’. It is a strange
document, signed by an advocate, Mr C. The introductory part
contains the different
applications referred to earlier but the bulk
of the document consists of argument and unsworn factual allegations
by Mr C. Since
this document was before Stegmann J, we admitted it
as part of the record on the understanding that the factual
allegations therein
are not evidence.
[5] The first special entry raises the question whether
the trial Court failed to afford the appellant a fair opportunity to
instruct
counsel fully on his defence. These are the facts. The
indictment was served on 30 July 1998 on the appellant (who was on
bail),
setting the trial date for 1 March 1999. On the appointed
date counsel, Mr M, instructed by an attorney, appeared and
apparently
informed the Court that the appellant had not taken steps
to organise his defence in good time. Mr M applied for a
postponement
of the trial. That was refused and Mr M withdrew. The
case stood down to the next morning, March 2, when Mr S (an attorney)
appeared.
He requested a postponement for a week in order to enable
the appellant to brief counsel, Mr F, who was not immediately
available.
Although Stegmann J pointed out to Mr S that the version
conveyed by him differed from that told to the Court the previous day
by
Mr M and that there was nothing on oath justifying a postponement,
Mr S did not attempt to rectify matters but indicated that if
the
postponement were not granted he, too, would be obliged to withdraw.
During his argument it transpired that the appellant did
not have the
means to obtain legal representation. The Court refused the
application for postponement, requested Mr S and the prosecutor
to
assist the appellant in obtaining legal aid from the Legal Aid Board
as a matter of urgency and stood the matter down to later
in the day,
provisionally until 14:00.
[6] The Legal Aid Board instructed an advocate, Mr H, to
appear on the appellant’s behalf. The record does not reflect when
the
Court reconvened but if regard is had to the fact that the first
adjournment after the trial had begun was at 11:15 the next day,
March 3, it has to follow that the trial did not begin during the
previous afternoon. This is confirmed by the appellant’s original
application for leave to appeal, in the form of a letter of 19 March
1999 under his hand, in which he stated that the trial began
on the
morning following the direction to obtain legal aid.
[7] The special entry is, however, based upon an
affidavit of 17 September 1999 by the appellant in support of his
applications to
lead further evidence and for the special entries.
There he stated that Mr H arrived at court at 14:50 on 2 March, that
the trial
commenced without any consultation, and that the first
occasion he had to consult with Mr H was after the first adjournment.
That
statement is palpably false. When Mr H appeared for the first
time, he informed the Court that the accused is bilingual but prefers
the case to continue in English. He told the Court that the accused
relied on self-defence; he settled the formal admissions and
obtained
the accused’s signature thereto and his cross-examination of the
first witness indicates that he had obtained instructions
from the
accused. All this happened before the first adjournment.
[8] Stegmann J was called upon some two years after the
event to make the special entry. He, unfortunately, did not record
the facts
with reference to his bench book (the record of the
proceedings was not available at the time) and accepted at face value
the allegations
in the affidavit. We, on the other hand, have before
us a certified copy of the proceedings. There is no application to
correct
it and there is no good reason to doubt its correctness; on
the contrary, appellant’s present counsel, Mr Miller, accepted its
correctness. The appeal has consequently to be decided disregarding
the unacceptable parts of the appellant’s affidavit.
[9] It
is well to be have regard to the exact terms of the special entry:
whether, once Mr H was briefed by the Legal Aid Board to
defend the
appellant, the Court failed to afford the appellant a fair
opportunity to instruct counsel fully on his defence. The
right to a
fair trial includes the right to have adequate time to prepare a
defence (s 35(3)(b) of the Constitution). What amounts
to adequate
time is a factual question, depends upon all the circumstances and
cannot be answered
in abstracto
. Assuming that Mr H had met
the appellant for the first time at about 3 pm, did Mr H have
sufficient time to prepare for the trial?
Mr H, the person in the
best position to judge, apparently thought that he had. He never
asked for the case to stand down. He
never requested more time. He
had a fairly simple case: the only issue was whether the appellant
had acted in self-defence. He
knew what the appellant’s version
was and he never once put to a witness something in conflict
therewith. He had read the statements
of the state witnesses and
(subject to what is stated later) was able to cross-examine them.
Contrary to what the appellant also
said in his affidavit, Mr H did
consult further with him and even applied for the recall of a witness
on the instructions of the
appellant. In the course of the
cross-examination he applied for and was granted the opportunity to
take further instructions.
[10] One has to agree with Mr Miller, who, in response
to a question from the Bench, submitted that the nature of the case
was such
that a few hours of preparation would have been sufficient.
This is especially so since the appellant had no witnesses and had
all
the material relative to the prosecution and his defence
available. But, says counsel, the Court below, by not granting the
postponements
sought, deprived the appellant of the right to be
represented by a legal practitioner of his choice.
[11] Assuming
that this argument may be advanced in spite of the terms of the
stated case, it does not have the necessary factual
substrate. The
Constitution has two provisions which are relevant to the argument:
the right to choose a legal representative and
to be represented by
that person (s 35(3)(f)), and the right to have a legal
representative assigned by the state and at state expense
if
substantial injustice would otherwise result (s 35(3)(g)). Although
the right to choose a legal representative is a fundamental
right and
one to be zealously protected by the courts, it is not an absolute
right and is subject to reasonable limitations (
R v Speid
(1983) 7 CRR 39
at 41). It presupposes that the accused can make the
necessary financial or other arrangements for engaging the services
of the
chosen lawyer and, furthermore, that the lawyer is readily
available to perform the mandate, having due regard to the court’s
organization
and the prompt despatch of the business of the court.
An accused cannot, through the choice of any particular counsel,
ignore all
other considerations (
D’Anos v Heylon Court (Pty) Ltd
1950 (1) SA 324
(C) 335
in fine
,
1950 (2) SA 40
(C),
Lombard
en ‘n Ander v Esterhuizen en ‘n Ander
1993 (2) SACR 566
(W)
571i-572b), and the convenience of counsel is not overriding (
cf
Centirugo AG v Firestone (SA) Ltd
1969 (3) SA 318
(T)).
[12] In
this case the appellant’s right to choose counsel was of little
practical value: he did not have the means to employ counsel
and was
unable to make any alternative arrangements during the ten months at
his disposal since service of the indictment. In this
regard
R v
McCallen
(1999) 59 CRR 189
is distinguishable. The Court was not
informed that he would within reason be able to obtain the necessary
funds to brief the person
of his choice. Under the circumstances the
Court, properly, insisted that the appellant receive legal aid. If a
legal representative
is assigned by the state, the accused has little
choice. The accused cannot demand that the state assign to him
counsel of his choice.
That does not mean that he may not object to
a particular representative, but the grounds upon which it can take
place are severely
limited. Conflict of interest is one and
incompetence may be one, but one has to act on the assumption that a
duly admitted lawyer
is competent. In this case the appellant did
not object to the appointment of Mr H and it does not appear that he
had any grounds
for doing so; on the contrary, after conviction he
even instructed Mr H to note an appeal on his behalf. It follows
that the reliance
on the right to a specific counsel is misplaced.
[13] The second special entry raises the question
whether Mr H failed to conduct the appellant’s defence properly.
In this regard
four grounds are relied upon.
[14] The
constitutional right to counsel must be real and not illusory and an
accused has, in principle, the right to a proper, effective
or
competent defence.
Cf S v Majola
1982 (1) SA 125
(A) 133D-E.
Whether a defence was so incompetent that it made the trial unfair is
once again a factual question that does not depend
upon the degree of
ex post facto
dissatisfaction of the litigant. Convicted
persons are seldom satisfied with the performance of their defence
counsel. The assessment
must be objective, usually, if not
invariably, without the benefit of hindsight.
Cf S v Louw
[1990] ZASCA 43
;
1990 (3) SA 116
(A) 125D-E. The court must place itself in the shoes
of defence counsel, bearing in mind that the prime responsibility in
conducting
the case is that of counsel who has to make decisions,
often with little time to reflect (
cf
R v Matonsi
1958
(2) SA 450
(A) 456C as explained by
S v Louw supra
).
1
The failure to take certain basic steps, such as failing to consult,
stands on a different footing from the failure to cross-examine
effectively or the decision to call or not to call a particular
witness. It is relatively easy to determine whether the right to
counsel was rendered nugatory in the former type of case but in the
latter instance, where counsel’s discretion is involved, the
scope
for complaint is limited. As the US Supreme Court noted in
Strickland v Washington
[1984] USSC 146
;
466 US 668
at 689:
‘Judicial scrutiny of counsel’s
performance must be highly deferential. It is all too tempting for a
defendant to second-guess
counsel’s assistance after conviction or
adverse sentence, and it is all too easy for a court, examining
counsel’s defense after
it has been unsuccessful, to conclude that
a particular act or omission of counsel was unreasonable.’
Not everyone is a Clarence Darrow or F E Smith and not
every trial has to degenerate into an O J Simpson trial.
[15] Turning to the facts, one of the allegations that
the defence was improperly conducted is based on the fact that Mr H,
without
instructions from the accused, introduced a ‘defence’
based upon the theory that certain of the prosecution witnesses had
been
motivated by a racist prejudice against white men, something
which the appellant had never alleged to be a feature of his defence.
[16] The appellant, a white male, visited a tavern.
Some black males, including the deceased and the complainants, sat
outside drinking.
The appellant went outside and fired the shots
that gave rise to the different charges. His version was that the
blacks had attacked
him without any motive and that he shot in
self-defence. The State’s version was that he, without provocation
and after making
racist remarks, fired the shots. In the course of
their evidence the complainants explained why they sat outside –
they were not
allowed inside. The appellant suggested no motive for
the attack on him. If counsel, through cross-examination, would be
able to
establish a plausible motive, it could have strengthened the
probability of the appellant’s version of an unprovoked attack. Mr
H, understandably, probed the possibility of whether or not the
attack on the appellant was motivated by a resentment of the racial
discrimination perpetrated on the victims. This the witnesses
denied. Mr H, it is important to note, never suggested that this
theory was part of his instructions. The Court, in its judgment,
dealt with this motive and came to the conclusion that it can be
discounted. The Court, it is further important to note, did not make
an adverse finding against the appellant because of the line
of
cross-examination. It follows from this that there is no basis for
holding that probing this possibility is indicative of a failure
to
conduct the defence properly; it rather indicates that counsel under
difficult circumstances acted prudently and in the interests
of his
client.
[17] A further ground is that the Mr H did not
understand the statements of the prosecution witnesses; the reason
being that they
were in Afrikaans and Mr H, on his own admission, has
a limited knowledge of Afrikaans, how limited we do not know except
that he
requested the services of the court interpreter in
cross-examining. There is, however, no reason to assume that he was
unable to
understand the statements. According to the appellant’s
affidavit, he brought the alleged contradictions in the statements to
Mr H’s attention. The thrust of Mr Miller’s argument before us
is rather that Mr H failed to cross-examine the prosecution witnesses
fully or properly on the statements.
[18] That proposition is closely linked to the remaining
grounds, namely that Mr H failed to cross-examine the prosecution
witnesses
on the contents of their statements, that he failed to hand
the statements in as exhibits, and that he failed to point out the
contradictions
between the evidence of the witnesses and their
previous statements. They can all be dealt with as one.
[19] The first problem with this leg of the appellant’s
case is that it is incorrect to suggest that Mr H failed to
cross-examine
the witnesses on their statements. That he did. It
appears from the record that these contradictions were immaterial,
and the decision
not to pursue the cross-examination and not to prove
the statements seems eminently reasonable. The second problem is
that we do
not have the statements and are unable to determine
whether there were other material discrepancies that could have had
an effect
on the outcome of the trial. It is not sufficient for
counsel to state that there are discrepancies. If we nevertheless
approach
the matter as Stegmann J did by accepting counsel’s
version of the discrepancies, the position is that the learned Judge
assessed
the statements and came to the conclusion that the
disclosure of the discrepancies and the proof of the statements would
not have
made any difference to the outcome of the case. Mr Miller
did not suggest that Stegmann J erred in this assessment of the
possible
impact of the statements on the case. It is consequently
unnecessary to revisit the facts. Once his finding is unassailable,
it
has to follow that counsel’s decision not to cross-examine
further and not to prove the statements cannot be faulted.
[20] Having read and reread the record we are satisfied
that the appellant had a fair trial and that his complaints are
without substance.
The appeal is dismissed.
_________________
L T C HARMS
JUDGE OF APPEAL
AGREE:
BRAND JA
HEHER
AJA
1
These
citations predate the Constitution and are referred to on a
comparative basis only since they may require some qualification.