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[2003] ZACC 12
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Thebus and Another v S (CCT36/02) [2003] ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC); 2003 (2) SACR 319 (CC) (28 August 2003)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 36/02
ABDURAGHMAN THEBUS First Appellant
MOEGAMAT ADAMS Second
Appellant
versus
THE STATE Respondent
Heard on : 20 February 2003
Decided on : 28 August 2003
JUDGMENT
MOSENEKE J:
[1]
This
is an appeal against the judgment and orders of the Supreme Court of Appeal (the
SCA) handed down on 30 August 2002, confirming
the convictions of both
appellants in the Cape High Court on 14 September 2000 on one count of murder
and two counts of attempted
murder.
Factual
background
[2]
On 14 November 1998, a group
of protesting residents in Ocean View, Cape Town, gathered and approached the
houses of several reputed
drug dealers in the area, including the house of one
Grant Cronje. They allegedly caused damage to the property of Cronje before
moving on. The protestors drove through the area in a motorcade of about five
to six vehicles. As the motorcade approached a road
intersection Cronje opened
fire on the group. In response, some members of the group alighted from their
vehicles and returned fire.
In the resulting crossfire, a seven-year old girl,
Crystal Abrahams, was fatally shot and two others, Riaan van Rooyen and Lester
September, were
wounded.
[1]
[3]
Thereafter, the two
appellants were arrested on suspicion of having been part of the group involved
in the shooting incident. After
the arrest of the first appellant, Sergeant
McDonald of the South African Police Services warned him that he was not obliged
to make
any statement and that if he did it may be used in evidence against him.
In this regard Sergeant McDonald testified as
follows:
“Tydens die onderhoudsverklaring . . . toe ek hom nou gewaarsku het van sy
regte. Toe vra ek hom of hy vir my ’n verduideliking
wil gee, toe
sê hy ja. Hy het toe vir my sy weergawe gegee. Ek het dit, soos hy praat
het ek dit genotuleer, maar hy wou
nie hê dat, ek moes dit in ’n
verklaringvorm sit nie. Dit wou hy nie gehad het
nie.”
[2]
The
first appellant readily admitted that after his arrest he was informed of the
charges of which he was suspected and warned that
he need not make a statement.
He, nonetheless, made an oral statement before Sergeant McDonald. In this
regard, his evidence is
as follows:
“Ja. So met ander woorde mnr McDonald het vir u gesê daar is
getuies wat sê u was betrokke, maar u het geweet
dat u eintlik by u tweede
vrou was daardie tyd. --- Ja.
Het u dit vir mnr McDonald gesê? --- Ek het gesê die familie was in
Hanover Park gewees. Maar ek het nie gesê
waar ek was nie.
Enige rede daarvoor? --- Nee, ek het nie rede gehad nie.
So met ander woorde u het vir mnr McDonald gesê die familie was in Hanover
Park, maar u het niks sê van uself nie. ---
Van myself nie.
En u sê daar was geen spesifieke rede daarvoor. ---
Nee.”
[3]
[4]
Thereafter, the first
appellant refused to make a written statement to the police. Nearly two years
passed before the appellants
were brought to trial. Neither of the appellants
disclosed his alibi defence until the trial before the High
Court.
[5]
At the trial, the State led
evidence placing both appellants in the vicinity of the shooting. A witness for
the State, Gregory Edward
Kiel (“Kiel”), testified that he had seen
the first appellant standing near a vehicle holding a pick-handle, while the
second appellant was retrieving spent cartridges discharged from the firearms of
other members of the group. He also testified that
the second appellant held a
firearm but that he had not seen him shooting. Mitchell
AJ found Kiel to
be an impressive and forthright witness, whose evidence concerning the first
appellant was beyond reproach.
[6]
The first appellant
testified in support of his alibi defence and called two witnesses. Both
witnesses testified that on the date
and at the time of the shooting, the first
appellant was at a place other than the scene of the shooting. The trial court
rejected
this alibi defence. It concluded that both appellants had been part of
the protesting group and were present at the scene of the
shooting. Applying
what is commonly referred to as the doctrine of common purpose, Mitchell AJ
found both appellants guilty of one
count of murder and two counts of attempted
murder.
[7]
The trial court sentenced
each of the two appellants to eight years imprisonment, suspended for a period
of five years on certain
conditions. Both appellants were granted leave to
appeal against their conviction and the State leave to appeal against the
sentences.
[8]
In May 2002, the SCA heard
both appeals. The majority of the SCA (per Lewis AJA and Olivier JA concurring)
dismissed the appeal against
the convictions and upheld the appeal of the State
against the sentences. The SCA ordered that each of the sentences imposed by
the High Court be replaced by a sentence of 15 years imprisonment. In a
separate judgement, Navsa JA concurred in some respects
with and dissented in
others from the majority judgment.
[9]
Thereafter, the appellants
made an application in terms of Rule 20 for special leave to appeal to this
Court against the judgment
and order of the SCA. This Court granted leave to
appeal and issued directions calling for argument on two constitutional issues.

Firstly, in the case of both appellants, whether the SCA failed to comply with
its duty in terms of section 39(2)
[4]
of the Constitution to develop and apply the common law doctrine of common
purpose so as to bring it in line with the constitutional
rights to
dignity,
[5]
freedom and security of
the person
[6]
and the right to be
presumed innocent.
[7]
Secondly,
whether the SCA erred in drawing a negative inference from the first
appellant’s failure to disclose an alibi defence
prior to trial, in
violation of his right to silence as contained in the
Constitution.
[8]
The
High Court
[10]
The trial court was
persuaded that the State had made out a proper case to warrant a conviction of
both appellants based on the common
law doctrine of common purpose as laid down
in
S v Mgedezi and Others
.
[9]
In that regard the trial court held that:
“. . . the events of that afternoon took place in a sequence which
commenced with the gathering at the Raven’s home.
The evidence shows that
some of those persons were armed and that there was no apparent attempt to
conceal this from others in the
group. The intent was to confront and
intimidate persons alleged to be drug dealers. In these circumstances it can
hardly be said
that any member of the group did not appreciate the possibility
that violence could erupt and persons could be killed by the use
of the
group’s armaments. By participating in the further activities of the
group, each member signified his acceptance of
that possibility. Such
possibility became a reality when the shooting took place. There is no doubt .
. . that the shots which
killed Crystal and wounded Riaan and Mr September came
from . . . the group of which [the first appellant] and [the second appellant]
were part.”
Later in the judgment the trial court
observed that:
“They were present on the scene; they were aware that the shooting was
taking place; they were throughout making common cause
with the group, including
the gunman, and they acted in association with him – [the first appellant]
by standing guard and
[the second appellant] by collecting the cartridge cases .
. . they had the requisite intention, albeit by way of dolus eventualis,
to
commit murder . . .”
[11]
The first appellant denied
having been present at the scene of the shooting. In support of his alibi
defence, the first appellant
testified that at approximately 13h00 on the day of
the shooting he travelled by taxi from Ocean View to Fish Hoek train station.

The purpose of the trip was to visit his second wife, Ms Faranaaz Jacobs, in
Parkwood Estate. In the taxi, the first appellant
met with a fellow resident of
Ocean View, Ms Brenda Van Rooy. He and Ms Van Rooy took the 15h10 train to
Wynberg. On arrival in
Wynberg, the first appellant went to the local mosque
where he led the afternoon prayers. On his version, the first appellant spent
the rest of the afternoon and evening with his second wife. He returned to
Ocean View only on the following day. In their evidence,
Ms Van Rooy and Ms
Jacobs corroborated the version offered by the first
appellant.
[12]
Mitchell AJ rejected as
untrustworthy the alibi evidence put up by the first appellant and his two
witnesses. The trial court took
into account that both witnesses had claimed
that they had not discussed their evidence with each other or with anybody else;
that
Ms Van Rooy was informed one month and Ms Jacobs, one week before the trial
that they had to testify about events which had occurred
nearly two years
earlier and that these witnesses remembered with remarkable detail and accuracy
the occurrences of the day in question.
Mitchell
AJ concluded that the
close correlation between the evidence of the two witnesses and of the first
appellant had cast doubt on its
credibility.
[13]
The trial court found that
the evidence of the state witness, Kiel, placing the first appellant on the
scene of the shooting was satisfactory
and adequate to secure a conviction
against first appellant. It rejected the first appellant’s claim that he
chose to disclose
his alibi defence only during his trial and not at any time
after his arrest. The trial court reasoned that the first appellant
was a man
of considerable stature within the Ocean View community. He was the assistant
Imam at the local mosque. He was arrested
one month after the shooting incident
and spent nearly a week in custody before he was granted bail. According to his
second wife,
the community had known of his arrest and that it concerned the
shooting incident in which a young child had been killed. To the
first
appellant and his second wife these unfounded accusations should have amounted
to an obvious error. The trial court rejected
the alibi as false and in doing
so it took into account, amongst other factors, the unlikelihood that the first
appellant would have
preferred to remain silent rather than gainsay the
“false accusations”. The trial court took the view that, before the
trial, the first appellant could easily have dispelled the baseless accusations
against him by disclosing his whereabouts to the
police on the day of the
shooting. Moreover, worshippers at the Wynberg mosque, present on the afternoon
in question, would have
had no conceivable difficulty in confirming that the
appellant had led the afternoon prayers.
The
Supreme Court of Appeal
[14]
Lewis
AJA, writing
on behalf of the majority of the SCA, held that the reliability of Kiel’s
identification of the first appellant
had to be weighed carefully against his
alibi and the testimony of the two witnesses who supported his
alibi.
[10]
The SCA, as did the
trial court, held that the close correlation and the detailed precision of the
evidence of the alibi witnesses,
taken together with the evidence of the first
appellant, attracted justified suspicion. The SCA found that the version put up
by
the first appellant and his two witnesses had been “concocted”
and “carefully rehearsed”. The SCA reminded
itself that such
suspicion was not enough to dismiss the version as false beyond reasonable
doubt. Following the reminder, Lewis
AJA remarked
that:
“What is more telling . . . is that the version was raised only at the
trial, some two years after the incident.”
As a result,
the majority concluded that:
“The only inference that can be drawn from [the first appellant’s]
failure to advise the police, and from the other witnesses’
failure to do
so, is that the alibi had no truth in it at all.”
[15]
The SCA held that the trial
court had properly rejected the alibi defence of the first appellant and that
the appeal against his conviction
had no merit. The majority of the SCA
confirmed the convictions without reference to the basis of the conviction being
common purpose.
In his minority judgment, Navsa JA upheld the finding of the
trial court that the requirements of common purpose had been met.
Navsa JA
found that on the facts the members of the vigilante group who were at the scene
were party to a common purpose that rendered
them liable for the murder of the
child and the attempted murder of two other persons. It was on this basis that
Navsa JA confirmed
the second appellant’s conviction of murder and
attempted murder. In this regard Navsa JA
states:
“By coming to Ocean View armed and behaving in the manner described
earlier in this judgment members of the vigilante group
were demonstrating that
they were intent on confrontation and violence. By stopping and standing in the
middle of a populated area,
firearms blazing away wild-west style, members of
the group placed themselves and others in the community in danger. It is clear
that members of the vigilante group acted in concert as they went about their
business in Ocean View. No member of the group, whether
in motor vehicles or in
the street, dissociated himself from violent actions perpetrated by others in
the group.”
[16]
The majority judgment
accepted the findings of Navsa
JA on common purpose. Navsa JA parted
ways with the majority by holding that Kiel’s identification of the first
appellant on
the scene of the shooting was not sufficient to found his
conviction. Olivier JA and Lewis AJA accepted the testimony of Kiel as
a
reliable and compelling identification of the first appellant as a participant
in the crimes of murder and attempted murder. They
placed reliance on the fact
that the first appellant and Kiel had known each other since their childhood and
that Kiel had called
him by his nickname. In contrast, Navsa JA reasoned that
Kiel was a single witness and that his testimony was not “satisfactory
in
all material respects”. Moreover, Kiel’s identification of two
other accused, whom he had claimed were at the scene
of the shooting, had been
discarded by the trial court as open to doubt and erroneous. But these accused
were not known to Kiel.
The trial court accepted that Kiel had made an honest
but mistaken identification. In the case of the first appellant, however,
there
was no room for such a mistake as Kiel and the first appellant had known each
other since they were children. Thus Kiel’s
identification of the first
appellant carried considerable weight. Navsa
JA, as did the majority
judgment, held that the alibi defence of the first appellant was fabricated.
However, the learned judge reasoned
that the rejection of the first
appellant’s alibi as fabricated did not redeem Kiel’s testimony.
Navsa
JA concluded that the appeal of the first appellant against his
conviction should succeed as there was a reasonable possibility that
he had not
been present at the scene of the shooting.
Issues
[17]
Two substantive
constitutional issues fall to be decided in this appeal. The first issue is
whether, in regard to both appellants,
the SCA failed to develop the common law
doctrine of common purpose in conformity with the Constitution, as required by
section 39(2)
and thereby failed to give effect to their rights to
dignity,
[11]
freedom of the
person
[12]
and a fair
trial,
[13]
which includes the right
to be presumed innocent.
[14]
The
second issue is whether the negative inference drawn from the first
appellant’s failure to disclose his alibi defence
before trial has
infringed his right to
silence.
[15]
Common
Purpose
[18]
The doctrine of common
purpose
[16]
is a set of rules of the
common law that regulates the attribution of criminal liability to a person who
undertakes jointly with
another person or persons the commission of a crime.
Burchell and Milton
[17]
define the
doctrine of common purpose in the following
terms:
“Where two or more people agree to commit a crime or actively associate in
a joint unlawful enterprise, each will be responsible
for specific criminal
conduct committed by one of their number which falls within their common design.
Liability arises from their
‘common purpose’ to commit the
crime.”
Snyman
[18]
points
out that “the essence of the doctrine is that if two or more people,
having a common purpose to commit a crime, act
together in order to achieve that
purpose, the conduct of each of them in the execution of that purpose is imputed
to the others.”
These requirements are often couched in terms which
relate to consequence crimes such as
murder.
[19]
[19]
The liability requirements
of a joint criminal enterprise fall into two
categories.
[20]
The first arises
where there is a prior agreement, express or implied, to commit a common
offence. In the second category, no such
prior agreement exists or is proved.
The liability arises from an active association and participation in a common
criminal design
with the requisite blameworthy state of
mind.
[21]
In the present matter,
the evidence does not prove any such prior
pact.
[20]
The trial court found that
the first appellant was a party to an unlawful common enterprise during which
the child was murdered.
In convicting the accused the court relied on the
decision of
S v Mgedezi
in which it was held that for the doctrine to be
invoked:
[22]
“[i]n the first place, he must have been present at the scene where the
violence was being committed. Secondly, he must have
been aware of the assault
on the inmates of room 12. Thirdly, he must have intended to make common cause
with those who were actually
perpetrating the assault. Fourthly, he must have
manifested his sharing of a common purpose with the perpetrators of the assault
by himself performing some act of association with the conduct of the others.
Fifthly, he must have had the requisite mens rea;
so, in respect of the killing
of the deceased, he must have intended them to be killed, or he must have
foreseen the possibility
of their being killed and performed his own act of
association with recklessness as to whether or not death was to
ensue.”
The appellants contended that the principles
enunciated in
S v Mgedezi
should have been developed in accordance with
the requirements of section 39(2) of the Constitution, and if this had been
done, they
would have been entitled to be acquitted.
[21]
The rules which make up the
doctrine of common purpose deal with a number of different situations in which
an accused person might
be held liable for a crime committed in the course of a
common enterprise. Since
S v Mgedezi,
the application of these rules
have been refined and developed by various decisions of the
SCA.
[23]
In the present case it is
not necessary to consider all of these developments. We are concerned here with
a case in which the accused
were present at the scene of the crime. What needs
to be decided is whether the principles applicable to such a case, as stated
in
S v Mgedezi
and developed by the SCA in later cases, calls for further
development. It is neither necessary nor desirable to consider other
situations. This judgment therefore deals only with the existing law in so far
as it is relevant to the facts of the present
case.
[22]
After
S v Mgedezi
there remains no doubt that where the prosecution relies on common purpose as a
basis for criminal liability in a consequence crime
such as murder, a causal
connection between the conduct of each participant in the crime and the unlawful
consequence caused by one
or more in the group, is not a
requirement.
[24]
Rules of criminal
liability similar or comparable to common purpose are found in many common law
jurisdictions, including
England,
[25]
Canada,
[26]
Australia,
[27]
Scotland
[28]
and the
USA.
[29]
In all these legal
systems, a causal nexus is not a pre-requisite for criminal liability. In civil
legal systems, such as France
and Germany there appear to be no rules, which, in
substance, approximate our rule of common
purpose.
[30]
Did
the SCA fail to develop the doctrine of common purpose in accordance with
Section 39(2) of the Constitution?
[23]
The main thrust of the
appellants’ contention is that the pre-constitutional requirements of
common purpose unjustifiably limit
the appellants’ rights to dignity,
freedom and security of the person and a fair trial including the right to be
presumed innocent.
However, the appellants stopped short of asserting that the
doctrine of common purpose is unconstitutional in its entirety. They
submitted
that the High Court and the SCA erred in failing to develop, apply and elucidate
the following requirements that:
“(a) there must be a causal connection between the actions of the
appellants and the crime for which they were convicted;
(b) the appellants must have actively associated themselves with the unlawful
conduct of those who actually committed the crime;
and
(c) the appellants must have had the subjective foresight that others in the
group would commit the crimes.”
[24]
Since the advent of
constitutional democracy, all law must conform to the command of the supreme
law, the Constitution, from which
all law derives its legitimacy, force and
validity.
[31]
Thus, any law which
precedes the coming into force of the Constitution remains binding and valid
only to the extent of its constitutional
consistency.
[32]
The Bill of Rights
enshrines fundamental rights which are to be enjoyed by all people in our
country. Subject to the limitations
envisaged in section 36, the state must
respect, protect, promote and fulfil the rights in the Bill of
Rights.
[33]
The protected rights
therein apply to all law and bind all organs of state including the
judiciary.
[34]
[25]
It is in this context that
courts are enjoined to apply and, if necessary, to develop the common law in
order to give effect to a
protected right, provided that any limitation is in
accordance with section 36.
[35]
Section 39(2) makes it plain that when a court embarks upon a course of
developing the common law it is obliged to “promote
the spirit, purport
and objects of the Bill of
Rights”.
[36]
In the
Pharmaceutical
Manufacturers
[37]
case,
Chaskalson P observes that:
“The common law supplements the provisions of the written Constitution but
derives its force from it. It must be developed
to fulfil the purposes of the
Constitution and the legal order that it proclaims – thus, the command
that law be developed
and interpreted by the courts to promote the
‘spirit, purport and objects of the Bill of Rights’. This ensures
that
the common law will evolve within the framework of the Constitution
consistently with the basic norms of the legal order that it
establishes. There
is, however, only one system of law and within that system the Constitution is
the supreme law with which all
other law must
comply.”
[38]
[26]
The appellants have urged
this Court to develop the common law doctrine of common purpose beyond the
existing precedent. In
Carmichele
[39]
this Court
decided that, faced with such a task, a court is obliged to undertake a two
stage enquiry. The first enquiry is whether,
given the objectives of section
39(2) of the Constitution, the existing common law should be developed beyond
existing precedent.
If it leads to a negative answer, that would be the end of
the enquiry. If it leads to a positive answer, the next enquiry would
be how
the development should occur and whether this Court or the SCA should embark on
that exercise.
[27]
Section 39(2) requires that
“when” every court develops the common law it must promote the
spirit, purport and objects
of the Bill of Rights. This section does not
specify what triggers the need to develop the common law or in which
circumstances
the development of the common law is justified. In
Carmichele
[40]
this Court
recognised that there are notionally different ways to develop the common law
under section 39(2), all of which might
be consistent with these provisions. It
was also held that the Constitution embodies an “objective normative value
system”
and that the influence of the fundamental constitutional values on
the common law is authorised by section 39(2). It is within the
matrix of this
objective normative value system that the common law must be
developed.
[41]
Thus under section
39(2), concepts which are reflective of, or premised upon, a given value system
“might well have to be
replaced, or supplemented and enriched by the
appropriate norms of the objective value system embodied in the
Constitution”.
[42]
[28]
It seems to me that the
need to develop the common law under section 39(2) could arise in at least two
instances. The first would
be when a rule of the common law is inconsistent
with a constitutional provision. Repugnancy of this kind would compel an
adaptation
of the common law to resolve the
inconsistency.
[43]
The second
possibility arises even when a rule of the common law is not inconsistent with a
specific constitutional provision but
may fall short of its spirit, purport and
objects. Then, the common law must be adapted so that it grows in harmony with
the “objective
normative value system” found in the
Constitution.
[44]
[29]
When there is a
constitutional challenge to legislation the test for its constitutional validity
is in two parts. Kriegler J, in
In Re S v
Walters
[45]
delineates the
process thus:
a) “First, there is the threshold enquiry aimed at determining whether or
not the enactment in question constitutes a limitation
on one or other
guaranteed right. This entails examining (a) the content and scope of the
relevant protected right(s) and (b) the
meaning and effect of the impugned
enactment to see whether there is any limitation of (a) by (b). Subsections (1)
and (2) of s39
of the Constitution give guidance as to the interpretation of
both the rights and the enactment, essentially requiring them to be
interpreted
so as to promote the value system of an open and democratic society based on
human dignity, equality and freedom. If
upon such analysis no limitation is
found, that is the end of the matter. The constitutional challenge is dismissed
there and then.
b) If there is indeed a limitation, however, the second stage ensues. This is
ordinarily called the limitations exercise. In essence
this requires a
weighing-up of the nature and importance of the right(s) that are limited
together with the extent of the limitation
as against the importance and purpose
of the limiting enactment. Section 36(1) of the Constitution spells out these
factors that
have to be put into the scales in making a proportional evaluation
of all the counterpoised rights and interests
involved.”
[46]
(footnotes
omitted)
[30]
Thus, if the impugned
legislation indeed limits a guaranteed right, the next question is whether the
limitation is reasonable and
justifiable, regard being had to the considerations
stipulated in section 36. If the impugned legislation does not satisfy the
justification
standard and a remedial option, through reading in, notional or
actual severance is not
competent,
[47]
it must be declared
unconstitutional and invalid. In that event the responsibility and power to
address the consequences of the
declaration of invalidity resides, not with the
courts, but pre-eminently with the legislative
authority.
[48]
[31]
A different approach is
required when a court deals with a constitutional challenge to a rule of the
common law. The common law is
its law. Superior courts are protectors and
expounders of the common law. The superior courts have always had an inherent
power
to refashion and develop the common law in order to reflect the changing
social, moral and economic make-up of
society.
[49]
That power is now
constitutionally authorised
[50]
and
must be exercised within the prescripts and ethos of the
Constitution.
[32]
In a constitutional
challenge of the first type, referred to in paragraph 28, to a common law rule,
the court is again required to
do a threshold analysis, being whether the rule
limits an entrenched right. If the limitation is not reasonable and
justifiable,
the court itself is obliged to adapt, or develop the common law in
order to harmonise it with the constitutional
norm.
Causation
[33]
The appellants have
criticised the doctrine of common purpose principally on the ground that it does
not require a causal connection
between their actions and the crimes of which
they were convicted. During argument, the appellants correctly conceded that in
a
joint criminal activity, the action of an accused need not contribute to the
criminal result in the sense that but for it the result
would not have ensued.
What was urged on us is to develop the common law by requiring that the action
of the accused must be shown
to facilitate the offence on some level. Such
facilitation would occur when the act of the accused is a contributing element
to
the criminal result. This argument does not constitute a direct challenge to
the principles set out in
S v Mgedezi
.
[34]
In our law, ordinarily, in
a consequence crime, a causal nexus between the conduct of an accused and the
criminal consequence is a
prerequisite for criminal
liability.
[51]
The doctrine of
common purpose dispenses with the causation requirement. Provided the accused
actively associated with the conduct
of the perpetrators in the group that
caused the death and had the required intention in respect of the unlawful
consequence, the
accused would be guilty of the offence. The principal object
of the doctrine of common purpose is to criminalise collective criminal
conduct
and thus to satisfy the social “need to control crime committed in the
course of joint
enterprises”.
[52]
The
phenomenon of serious crimes committed by collective individuals, acting in
concert, remains a significant societal scourge.
In consequence crimes such as
murder, robbery, malicious damage to property and arson, it is often difficult
to prove that the act
of each person or of a particular person in the group
contributed causally to the criminal result. Such a causal prerequisite for
liability would render nugatory and ineffectual the object of the criminal norm
of common purpose and make prosecution of collaborative
criminal enterprises
intractable and ineffectual.
[35]
The appellants argue that
the doctrine of common purpose undermines the fundamental
dignity
[53]
of each person convicted
of the same crime with others because it de-individualises him or her. It
de-humanises people by treating
them “in a general manner as nameless,
faceless parts of a group”. On this contention, a crime like murder
carries a
stigma greater than a conviction on an alternative charge or competent
verdict such as public violence, conspiracy, incitement, attempt
and accomplice
liability. The appellants claim that the doctrine of common purpose violates
their right not to be deprived of freedom
arbitrarily,
[54]
because this mode
of criminal liability countenances the most tenuous link between individual
conduct and the resultant liability.
The appellants further argue that the
doctrine of common purpose violates the presumption of
innocence
[55]
by dispensing with or
lowering the threshold of proof for certain elements of a crime. That, the
appellants contend, is at odds
with the rule that the state must prove all the
elements of a crime beyond a reasonable doubt. In the last instance, the
appellants
submit that the violation of any of their constitutionally protected
rights is not justifiable as the primary rationale for the doctrine
of common
purpose is convenience of proof in favour of the
prosecution.
[56]
[36]
I am unable to agree that
the doctrine of common purpose trenches upon the rights to dignity and freedom.
It is fallacious to argue
that the prosecution and conviction of a person
de-humanises him or her and thus invades the claimed rights. The entire scheme
of
sections 35 and 12(1) of the Bill of Rights authorises and anticipates
prosecution, conviction and punishment of individuals provided
it occurs within
the context of a procedurally and substantively fair trial and a permissible
level of criminal culpability.
[57]
The essence of the complaint must be against the criminal norm in issue. The
doctrine of common purpose sets a standard of criminal
culpability. It defines
the minimum elements necessary for a conviction in a joint criminal enterprise.
The standard must be constitutionally
permissible. It may not unjustifiably
invade rights or principles of the Constitution. Put differently, the norm may
only “impose
a form of culpability sufficient to justify the deprivation
of freedom without giving rise to a constitutional
complaint”.
[58]
However, once
the culpability norm passes constitutional muster, an appropriate deprivation of
freedom is permissible.
[37]
The definitional elements
or “the minimum requirements necessary to constitute a meaningful
norm”
[59]
for a common law
crime are unique to that crime and are useful to distinguish and categorise
crimes. Common minimum requirements
of common law crimes are proof of unlawful
conduct, criminal capacity and fault, all of which must be present at the time
the crime
is committed. Notably, the requirement of causal nexus is not a
definitional element of every
crime.
[60]
[38]
Thus, under the common law,
the mere exclusion of causation as a requirement of liability is not fatal to
the criminal norm. There
are no pre-ordained characteristics of criminal
conduct, outcome or condition. Conduct constitutes a crime because the law
declares
it so. Some crimes have a common law and others a legislative origin.
In a constitutional democracy, such as ours, a duly authorised
legislative
authority may create a new, or repeal an existing, criminal proscription.
Ordinarily, making conduct criminal is intended
to protect a societal or public
interest by criminal sanction. It follows that criminal norms vary from society
to society and within
a society from time to time, relative to community
convictions of what is harmful and worthy of punishment in the context of its
social, economic, ethical, religious and political
influences.
[39]
In our constitutional
setting, any crime, whether common law or legislative in origin, must be
constitutionally compliant. It may
not unjustifiably limit any of the protected
rights or offend constitutional principles. Thus, the criminal norm may not
deprive
a person of his or her freedom arbitrarily or without just cause. The
‘just cause’ points to substantive protection
against being deprived
of freedom arbitrarily or without an adequate or acceptable reason and to the
procedural right to a fair trial.
The meaning of “just cause must be
grounded upon and [be] consonant with the values expressed in s1 of the
Constitution and
gathered from the provisions of the
Constitution”.
[61]
[40]
Common purpose does not
amount to an arbitrary deprivation of freedom. The doctrine is rationally
connected to the legitimate objective
of limiting and controlling joint criminal
enterprise.
[62]
It serves vital
purposes in our criminal justice system. Absent the rule of common purpose, all
but actual perpetrators of a crime
and their accomplices will be beyond the
reach of our criminal justice system, despite their unlawful and intentional
participation
in the commission of the crime. Such an outcome would not accord
with the considerable societal distaste for crimes by common design.
Group,
organised or collaborative misdeeds strike more harshly at the fabric of society
and the rights of victims than crimes perpetrated
by individuals. Effective
prosecution of crime is a legitimate, “pressing social
need”.
[63]
The need for
“a strong deterrent to violent
crime”
[64]
is well
acknowledged because “widespread violent crime is deeply destructive of
the fabric of our
society”
[65]
. There is a real
and pressing social concern about the high levels of
crime.
[66]
In practice, joint
criminal conduct often poses peculiar difficulties of proof of the result of the
conduct of each accused, a problem
which hardly arises in the case of an
individual accused person. Thus there is no objection to this norm of
culpability even though
it bypasses the requirement of
causation.
[41]
At a substantive level, the
conduct of the appellants, as found by the trial court, answers beyond a
reasonable doubt to the pre-requisites
of the criminal liability norm set by the
rule. Moreover, their complaint is not against the procedural fairness of their
trial
but against the substantive constitutional compatibility of the rule. It
may be added that a person who knowingly, and bearing the
requisite intention,
participates in the achievement of a criminal outcome cannot, upon conviction in
a fair trial, validly claim
that his or her rights to dignity and freedom have
been invaded.
Presumption of
Innocence
[42]
I now turn to the
appellants’ claim that their conviction under the doctrine of common
purpose denied them the right to be presumed
innocent. Section 35(3)(h) accords
to every accused person the right to a fair trial, which includes the right to
be presumed innocent.
In
S v Bhulwana; S v
Gwadiso,
[67]
O’Regan J
speaking for the Court, held that:
“[T]he presumption of innocence is an established principle of South
African law which places the burden of proof squarely
on the prosecution. The
entrenchment of the presumption of innocence in s 25 (3) (c) must be interpreted
in this context. It requires
that the prosecution bear the burden of proving
all the elements of a criminal charge. A presumption which relieves the
prosecution
of part of that burden could result in the conviction of an accused
person despite the existence of a reasonable doubt as to his
or her guilt. Such
a presumption is in breach of the presumption of innocence and therefore offends
s 25 (3)
(c).”
[68]
[43]
Of course, the doctrine of
common purpose does not relate to a reverse onus or presumption which relieves
the prosecution of any part
of the burden. The appellants argued that the
substantive effect of the doctrine of common purpose is to dispense with the
requirement
of a causal nexus between the conduct of the accused and the
criminal result. As found earlier, the doctrine of common purposes
sets a norm
that passes constitutional scrutiny. The doctrine neither places an onus upon
the accused, nor does it presume his or
her guilt. The state is required to
prove beyond a reasonable doubt all the elements of the crime charged under
common purpose.
In my view, when the doctrine of common purpose is properly
applied, there is no reasonable possibility that an accused person could
be
convicted despite the existence of a reasonable doubt as to his or her guilt.
In my view, the common purpose doctrine does not
trench the right to be presumed
innocent.
Active Association
[44]
Some text
writers
[69]
have raised two
principal criticisms against the doctrine of common purpose. The first is that,
in some cases, the requirement of
active association has been cast too widely or
misapplied. The second criticism is that there are less invasive forms of
criminal
liability short of convicting a participant in common purpose as a
principal. The appellants echoed these
complaints.
[45]
In my view, these
criticisms do not render unconstitutional the liability requirement of active
association. If anything, they bring
home the duty of every trial court, when
applying the doctrine of common purpose, to exercise the utmost circumspection
in evaluating
the evidence against each accused person. A collective approach
to determining the actual conduct or active association of an individual
accused
has many evidentiary pitfalls. The trial court must seek to determine, in
respect of each accused person, the location,
timing, sequence, duration,
frequency and nature of the conduct alleged to constitute sufficient
participation or active association
and its relationship, if any, to the
criminal result and to all other pre-requisites of guilt. Whether or not active
association
has been appropriately established will depend upon the factual
context of each case.
[46]
It was submitted that the
findings of the trial court and the SCA were, on the facts, wrong. The
appellants did not actively associate
themselves with the crimes for which they
were convicted. Both courts, it was argued, ought to have found that the
appellants took
no action to support the members of the group who actually fired
their weapons and that the first appellant was merely a bystander
and the second
appellant was not even present at the time of the fatal shooting. To the extent
that these submissions deal only
with the factual findings of the SCA, they have
no merit. Where there is no other constitutional issue involved, a challenge to
a decision of the SCA on the basis only that it is wrong on the facts is not a
constitutional
matter.
[70]
[47]
The appellants also
submitted that the SCA misapplied the liability requirement of active
association as formulated in
S v
Mgedezi
[71]
and applied in
subsequent case law.
[72]
On this
argument, both courts adopted too wide a concept of active association and
failed to satisfy themselves that the first appellant
was a party to the common
purpose prior to the infliction of the fatal shot. There is no merit in this
criticism. The trial court
and the SCA held that throughout the shooting both
appellants were present on the scene and made common cause with the group,
including
the gunman. The appellants also complained that the legal
requirements of active association were misapplied. The application of
a rule
by the SCA may constitute a constitutional matter if it is at variance with some
constitutional right or precept.
[73]
No such case has been made out. There is no constitutional ground in the
present case to justify interference by this Court with
the credibility findings
or application of the requirement of active association by the trial court or
the SCA.
[48]
The argument on the
relative degree of the invasiveness of common purpose in comparison to other
forms of liability such as accomplice
liability and competent verdicts is, in
essence, a proportionality argument. It rests on the assumption that common
purpose invades
a constitutionally protected right to a degree disproportionate
to the need and objective of crime control. In the light of the
finding in this
judgment that the doctrine of common purpose does not limit any of the rights
asserted by the appellants, this contention
need not detain
us.
Subjective fault
[49]
The appellants contend that
the trial court and the SCA omitted to apply the existing requirement that the
state must prove that the
appellants had the subjective foresight that others in
the group would commit the crimes of which they were convicted. This complaint
rests on the assertion that the evidence does not even prove that they were
present and that neither court made any attempt to determine
the individual
intention of the two appellants. I can find no merit in any of these
submissions. This criticism of the factual
findings of the trial court and of
the SCA is not borne out by the record. Moreover, the appellants have not
advanced any need,
nor could I find any, to adapt or elucidate the existing
requirement of subjective fault. The common law precedent is, in this regard,
clear and consistent with the Constitution. It appears that, that was the
approach adopted by both the trial court and the SCA.
If the prosecution relies
on common purpose, it must prove beyond a reasonable doubt that each accused had
the requisite
mens rea
concerning the unlawful outcome at the time the
offence was committed. That means that he or she must have intended that
criminal
result or must have foreseen the possibility of the criminal result
ensuing and nonetheless actively associated himself or herself
reckless as to
whether the result was to
ensue.
[74]
[50]
Despite the evocative
history of the application of the doctrine of common purpose in political and
other group prosecutions, I am
of the view that the common law doctrine of
common purpose in murder as set out in
S v
Mgedezi
and cases
considered in this judgment,
[75]
does pass constitutional muster and does not, in the context of this case,
require to be developed as commanded by section
39(2).
Right to silence
[51]
In the present matter, the
first appellant disclosed his alibi defence for the first time at trial. He now
contends that the trial
court and the SCA drew an adverse inference from his
failure to disclose his alibi defence until his trial and that such an inference
constitutes an infringement of his right to silence as contained in section
35(1)(a)
[76]
of the
Constitution.
[52]
The central issue raised by
this appeal is whether an adverse inference may be drawn from a failure to
disclose an alibi prior to
trial. In this regard three questions arise, being
whether it is permissible to: (a) draw an adverse inference of guilt from the
pre-trial silence of an accused, (b) draw an inference on the credibility of the
accused from pre-trial silence and (c) cross examine
the accused on the failure
to disclose an alibi timeously, thus taking into account his or her
responses.
Scope and objects of the
right
[53]
The pre-trial right to
silence under section 35(1)(a) must be distinguished from the right to silence
during trial protected by section
35(3)(h). This Court has authoritatively
pronounced on constitutional claims premised on the right to silence during
trial.
[77]
From the various dicta
it appears that the objective of the right is to secure a fair trial. Thus,
though procedural, this protection
is an integral part of the substantive right
to a fair trial. The protection of pre-trial silence is buttressed by the
constitutional
requirement under section 35(1)(b) to inform an arrested person
promptly of the right to remain silent and the consequences of not
remaining
silent.
[54]
The rights to remain silent
before and during trial and to be presumed innocent are important interrelated
rights aimed ultimately
at protecting the fundamental freedom and dignity of an
accused person. This protection is important in an open and democratic society
which cherishes human dignity, freedom and
equality.
[55]
The protection of the right
to pre-trial silence seeks to oust any compulsion to speak. Thus, between
suspicion and indictment, the
guarantee of a right to silence effectively
conveys the absence of a legal obligation to speak. This “distaste of
self-incrimination,”
as Ackermann
J puts it, is a response to the
oppressive and often barbaric methods of the Star
Chamber
[78]
and indeed to our own
dim past of torture and intimidation during police custody. It is therefore
vital that an accused person is
protected from self incrimination during
detention and police interrogation which may readily lend itself to intimidation
and manipulation
of the
accused.
[79]
[56]
In
S v
Manamela
[80]
this Court
affirmed that:
“‘[T]he right to silence, like the presumption of innocence, is
firmly rooted in both our common law and statute,’
and ‘is
inextricably linked to the right against self-incrimination
and the
principle of non-compellability of an accused person as a witness at his or her
trial.’”
In
S v
Boesak
,
[81]
Langa DP, speaking
for the Court, pointed out that the right to remain silent has different
applications at different stages of a
criminal prosecution. On arrest a person
cannot be compelled to make any confession or admission that may be used against
her or
him; later at trial there is no obligation to testify. The fact that she
or he is not obliged to testify does not mean that no consequences
arise as a
result. If there is evidence that requires a response and if no response is
forthcoming, that is, if the accused chooses
to exercise her or his right to
remain silent in the face of such evidence, the Court may, in the circumstances,
be justified in
concluding that the evidence is sufficient, in the absence of an
explanation, to prove the guilt of the accused. This will of course
depend on
the quality of the evidence and the weight given to that evidence by the
Court.
[82]
In
Osman
[83]
Madala J held
that:
“. . . the fact that an accused has to make such an election is not a
breach of the right to silence. If the right to silence
were to be so
interpreted, it would destroy the fundamental nature of our adversarial system
of criminal justice.”
Inference of guilt
[57]
In our constitutional
setting, pre-trial silence of an accused person can never warrant the drawing of
an inference of guilt. This
rule is of common law origin. In
R v Mashelele
and Another,
[84]
Tindall JA,
relying on the English decision of
R v
Leckey
[85]
formulated the rule
thus:
“. . . if the silence of the accused could be used as tending to prove his
guilt, it is obvious that innocent persons might
be in great peril; for an
innocent person might well, either from excessive caution or for some other
reason, decline to say anything
when cautioned. And I may add that an accused
person is often advised by his legal advisers to reserve his defence at the
preparatory
examination. It would, also, in my opinion, have been a
misdirection to say that the silence of the accused was a factor which tended
to
show that their explanation at the trial was
concocted.”
[86]
[58]
It is well established that
it is impermissible for a court to draw any inference of guilt from the
pre-trial silence of an accused
person. Such an inference would undermine the
rights to remain silent and to be presumed
innocent.
[87]
Thus, an obligation
on an accused to break his or her silence or to disclose a defence before trial
would be invasive of the constitutional
right to silence. An inference of guilt
from silence is no more plausible than innocence. The majority of the US
Supreme Court
in
Doyle v Ohio
reminds us that “every post arrest
silence is insolubly
ambiguous”.
[88]
To hold
otherwise, the mandatory warning under section 35(1)(b) will become a trap
instead of a means for finding out the truth
in the interests of
justice.
[89]
Inference
of credibility and an alibi defence
[59]
A distinction may properly
be made between an inference of guilt from silence and a credibility finding
connected with the election
of an accused person to remain silent. In the
dissenting judgment in
Doyle v
Ohio
[90]
a comparable
distinction is drawn between the “permissibility of drawing an inference
on the credibility of the accused from
silence and the impermissibility of
drawing a direct inference of guilt”. In the latter, the presumption of
innocence is implicated.
In the former, a court would have regard to the
factual matrix within which the right to silence was
exercised.
[60]
An alibi defence has often
generated judicial debate on whether it is an exception to the right to silence.
In
R v
Cleghorn
[91]
the peculiarity of an alibi defence is explained as
follows:
“. . . ‘there is good reason to look at alibi evidence with care.
It is a defence entirely divorced from the main factual
issue surrounding the
corpus delicti
, as it rests upon extraneous facts, not arising from the
res gestae
. The essential facts of the alleged crime may well be to a
large extent incontrovertible, leaving but limited room for manoeuvre
whether
the defendant be innocent or guilty. Alibi evidence, by its very nature, takes
the focus right away from the area of the
main facts, and gives the defence a
fresh and untrammelled start. It is easy to prepare perjured evidence to
support it in
advance.’”
[92]
The
minority in this case held that the requirement to disclose an alibi was an
exception to the right to
silence.
[93]
[61]
More recently, the South
African Law Commission
[94]
has
recommended that legislation should be introduced to permit a court to draw an
inference from the pre- trial silence of an accused
person in certain
circumstances. The draft legislation proposes that a court should be authorised
to make an inference appropriate
to that case from the failure of an accused
person to disclose an alibi during or before plea proceedings. The approach to
disclosure
of an alibi defence in the proposed enactment is not dissimilar to
the one adopted by the majority in
Cleghorn.
[95]
[62]
Canadian courts treat a
failure to disclose an alibi timeously as being a factor which can properly be
taken into account in the evaluation
of the evidence as a
whole:
“[T]he consequence of a failure to disclose properly an alibi is that the
trier of fact
may
draw an adverse inference when weighing the alibi
evidence heard at
trial.”
[96]
[63]
That a failure to disclose
an alibi timeously has consequences in the evaluation of the evidence as a whole
is consistent with the
views expressed by Tindall JA in
R v
Mashelele.
[97]
After stating
that an adverse inference of guilt cannot be drawn from the failure to disclose
an alibi timeously, Tindall JA goes
on to say:
“But where the presiding Judge merely tells the jury that, as the accused
did not disclose his explanation or the
alibi
at the preparatory
examination, the prosecution has not had an opportunity of testing its truth and
that therefore it may fairly
be said that the defence relied on has not the same
weight or the same persuasive force as it would have had if it had been
disclosed
before and had not been met by evidence specially directed towards
destroying the particular defence, this does not constitute a
misdirection.”
[64]
As pointed out earlier, an
arrested person has the right to remain silent. This, indeed, is part of the
warning given to the person
including that if he or she chooses to say anything
it may be used in evidence against him or her. Drawing an inference on
credibility
in these circumstances has the effect of compelling the arrested
person to break his or her silence, contrary to the right to remain
silent
guaranteed by section 35(1)(a) of the Constitution. To this extent, drawing an
adverse inference on credibility limits the
right to remain
silent.
[65]
The rule of evidence that
the late disclosure of an alibi affects the weight to be placed on the evidence
supporting the alibi is
one which is well recognised in our common
law.
[98]
As such, it is a law of
general application. However, like all law, common law must be consistent with
the Constitution. Where
it limits any of the rights guaranteed in the
Constitution, such limitation must be justifiable under section 36(1). Whether
this
rule is justifiable in terms of section 36(1) is a question to which I now
turn.
[66]
I have already alluded to
the importance of the right to remain silent. What is also important is that
the accused receives no prior
warning that his or her failure to disclose an
alibi to the police might be used against him or her in evaluating the alibi
defence.
On the contrary, the accused is warned of his or her right to remain
silent and that anything that he or she says might be used
against him or her.
The absence of a warning that his or her constitutional right to remain silent
might be limited is a relevant
consideration in the justification analysis.
However what weighs heavily with me is the extent of the
limitation.
[67]
Firstly, the late
disclosure of an alibi is one of the factors to be taken into account in
evaluating the evidence of the alibi.
Standing alone it does not justify an
inference of guilt. Secondly, it is a factor which is only taken into
consideration in determining
the weight to be placed on the evidence of the
alibi. The absence of a prior warning is, in my view, a matter which goes to
the
weight to be placed upon the late disclosure of an alibi. Where a prior
warning that the late disclosure of an alibi may be taken
into consideration is
given, this may well justify greater weight being placed on the alibi than would
be the case where there was
no prior warning. In all the circumstances, and in
particular, having regard to the limited use to which the late disclosure of
the
alibi is put, I am satisfied that the rule is justifiable under section
36(1).
[68]
The failure to disclose an
alibi timeously is therefore not a neutral factor. It may have consequences and
can legitimately be taken
into account in evaluating the evidence as a whole.
In deciding what, if any, those consequences are, it is relevant to have regard
to the evidence of the accused, taken together with any explanation offered by
her or him for failing to disclose the alibi timeously
within the factual
context of the evidence as a
whole.
Cross-examination
[69]
An election to disclose
one’s defence only when one appears on trial is not only legitimate but
also protected by the Constitution.
However, a related issue is whether it is
permissible to cross-examine an accused on why she or he opted to remain silent
on an
alibi or indeed on any other defence. Such a line of enquiry is, in my
view, permissible. It is quite proper, and often necessary,
to probe, in
cross-examination, the preference to remain silent. This goes to credit and
would not unjustifiably limit the content
of the right to remain silent. It may
advance “the truth-finding function of the criminal
trial”
[99]
and test the
veracity of a belatedly disclosed or fabricated
defence.
[70]
However, there are limits
to such cross-examination. An explanation that the accused chose to remain
silent as of right may in a
particular context be an adequate answer. Thus such
cross-examination must be exercised always with due regard to fairness towards
both the accused and the prosecution and without unduly encroaching upon the
right to remain silent or limiting a proper enquiry
for the delayed disclosure
of a defence.
[71]
It seems to me that there
is no reason why this court should not have regard to the failure by the first
appellant to mention the
alibi when he responded to questions put to him by
Sergeant McDonald. Had this been a trial before a jury, there may have been a
level of concern about that line of cross-examination. Where a jury is
concerned it may be difficult for its members to evaluate
the nuances involved
in credibility findings, if matters which may be prejudicial but capable of
explanation are put before them.
Moreover a jury is not obliged to deliver an
open and reasoned judgment on its factual findings. But in a trial before a
judge,
in my view, it is quite permissible to ask questions on why the alibi was
not mentioned earlier and to take the response thereto
into reckoning when
evaluating the evidence as a whole. Ultimately it is a matter of what is fair
and just in the light of the requirements
of a fair
trial.
Submissions of the first
appellant
[72]
The foundational submission
of the first appellant is that the majority finding of the SCA rests entirely
and precariously on an inference
drawn from his silence regarding his alibi.
This assertion is not without merit. The majority judgment of the SCA appears
to have
been premised on the reasoning that the mere suspicion about the version
of the first appellant was not in itself enough; what justified
his guilt was
that “. . . the version was raised only at the trial, some two years after
the incident”. The learned
judges of appeal then concluded that the
appellant’s failure to advise the police justified an inference that
“the alibi
had no truth at all”. An inference of guilt from the
disclosure of an alibi defence only at trial unjustifiably limited the
appellant’s right to pre-trial silence. Such an approach has, in effect,
imputed guilt from pre-trial silence and thus trenched
his constitutional
guarantee to remain silent before his trial.
[73]
The resultant issue is
whether this impermissible approach adopted by the SCA adversely prejudiced or
undermined the substantive fairness
of the trial. The full record of
proceedings before the trial court and the SCA is before us. This Court has had
the benefit of
full argument and is consequently in no different position from
the trial court or the SCA to consider facts which are connected
or relevant to
the proper adjudication of a constitutional issue. Such evidence, in my view,
would itself be an issue connected
to a decision on a constitutional
matter.
[100]
Any further
remission of this already protracted case would not serve the interests of
justice. Moreover, both counsel were agreed
that the matter should be brought
to finality by this Court. It is thus competent and in the interests of justice
for this Court
to decide the
matter.
Conclusion
[74]
In my view, the
misdirection of the SCA would be relevant only if it would be an issue which
materially alters the outcome of the
trial
[101]
or compromises its
substantive fairness, to which the appellant is entitled under section 35(3) of
the Constitution. Put otherwise,
the applicable test is whether, “on the
evidence, unaffected by the defect or irregularity, there is proof of guilt
beyond
reasonable
doubt”.
[102]
If this Court
were to find that such proof has been established, it must follow that the
conviction must stand.
[75]
The credibility findings of
the trial court pose an insurmountable obstacle to the first appellant’s
case. The trial court
made it clear that the alibi evidence was not credible.
Both the trial court and the majority of the SCA correctly held that there
was
no reasonable possibility that Kiel’s identification could be mistaken.
The majority of the SCA held that Kiel’s
identification of the appellant
was beyond reproach and that his evidence was reliable and compelling. Both
courts, inclusive of
the minority judgment of Navsa JA, rejected the alibi
evidence as false.
[76]
After his arrest, the first
appellant was confronted by the police with the allegation that he had been
present at the scene of the
shooting. After having been warned of his rights he
was asked by the police, prior to his arrest, what he had to say about these
allegations. He chose to proffer an explanation, albeit a truncated one. His
response that the family was in Hanover Park is hardly
consistent with the alibi
subsequently asserted. The only explanation he could give was that he was
referring to his family and
not to himself. This disingenuous explanation for
the failure to disclose the alibi when confronted with the evidence against him
can legitimately be taken into account in the evaluation of the evidence.
Having regard to the fact that a late disclosure of an
alibi carries less weight
than one disclosed timeously, the cogency of Kiel’s evidence and the
unsatisfactory nature of the
first appellant’s evidence, the trial court
was entitled to reject the evidence of the alibi, and to convict the first
appellant.
[77]
The trial court properly
convicted the first appellant on a consideration of the totality of the
evidence. The appellant’s
explanation of why he chose to remain silent,
the lateness of the disclosure of his alibi defence, the unacceptable evidence
which
was tendered by two of his witnesses and the cogency of the evidence
tendered by Kiel taken together, entitled the trial court to
return a verdict of
guilt against the first appellant.
[78]
Such is the adversarial
nature of our criminal process. Once the prosecution had produced sufficient
evidence which established a
prima facie
case, the first appellant had no
duty to testify. However, once he had chosen to testify it was quite proper to
ask him questions
about his alibi defence including his explanation on his
election to remain silent. When his evidence was found not to be reasonably
possibly true, as did the trial court, he ran the risk of a conviction. Thus,
absent a credible version from the first appellant,
the version advanced by the
prosecution, if found credible, was likely to be accepted. In
S v
Dlamini
and
Others
,
[103]
Kriegler J
emphasised the importance of freedom of choice in a democracy. However, liberty
to make choices brings with it a corresponding
responsibility and “often
such choices are
hard”.
[104]
Order
The
appeals of the first and second appellant are
dismissed.
Chaskalson CJ and Madala J concur in the judgment of
Moseneke J.
GOLDSTONE J and O’REGAN J:
[79]
We agree with the order
made by Moseneke J, and with his reasons for rejecting the appellants’
arguments in relation to the
doctrine of common purpose. However, in our view,
the Supreme Court of Appeal, in drawing an adverse inference from the first
appellant’s
failure to disclose his alibi, breached his constitutional
right to silence. Given that a judgment of the Supreme Court of Appeal
is
binding on all courts other than this, we think it important that the correct
constitutional approach to the question of the drawing
of adverse inferences
from the silence of an accused be explored in this judgment even though, after
careful consideration of the
record, we consider that this breach makes no
difference to the outcome of the appeal. On a conspectus of all the
evidence,
[105]
but without drawing
any adverse inference from his failure to disclose his alibi prior to the trial,
we are satisfied that the first
appellant was proved to have been guilty beyond
a reasonable doubt of all three charges.
[80]
The right to silence is
entrenched in subsections 35(1)(a) and (b) and section 35(3)(h) of the
Constitution as follows:
“35(1) Everyone who is arrested for allegedly committing an offence has
the right—
(a) to remain silent;
(b) to be informed promptly –
(i)
of the right to remain silent; and
(ii) of the consequences of not remaining silent;
. . .
35(3) Every accused person has a right to a fair trial, which includes the right
–
. . .
(h) to be presumed innocent, to remain
silent, and not to testify during the proceedings”
It is important to note that subsections 35(1)(a) and (b)
entrench not only the right to silence, but also the right to be informed
of the
consequences of not remaining silent.
[81]
This Court has acknowledged
that the right to silence is firmly rooted in our common
law.
[106]
The precise scope of
the phrase, however, both in our law and that in other jurisdictions has
remained uncertain.
[107]
As Lord
Mustill noted in
R v Director of Serious Fraud Office, Ex parte
Smith,
[108]
the right
to silence is best understood not as denoting a single right, but a disparate
group of immunities. Lord Mustill identified
six: an immunity from being
compelled on pain of punishment to answer questions posed by anyone; an immunity
from being compelled
on pain of punishment to provide answers to questions when
the answers may be self-incriminatory; a specific immunity from being
compelled
to answer, on pain of punishment, questions put by police officers when under
suspicion of having committed an offence;
the specific immunity of those accused
from being compelled to give evidence in their trial; the specific immunity of
those arrested
from having questions put to them by police officers; and a
specific immunity possessed by accused persons from having adverse comment
made
on their failure to answer questions before trial or to give evidence at trial.
In addition, Lord Mustill noted that there
are different underlying reasons for
the different aspects or immunities contained within the right to
silence.
[109]
[82]
In each case in which a
court considers a constitutional challenge based on the right to silence, it
will need to consider which aspect
of the right to silence is in issue and
whether it falls within the right protected in our Constitution. We disagree
therefore with
Yacoob J (at para 104) when he says there is only one right to
silence, and that there is no difference between pre-trial silence
and trial
silence. In each case concerned with the right to silence,
a court
must identify the underlying purpose of the relevant aspect of the right to
silence and consider whether it has been infringed
in the case before it. In
this case, we are concerned with the last immunity described by Lord Mustill
 the specific immunity
of an accused from having an adverse inference
drawn from his or her silence. We must decide whether it is constitutionally
acceptable
to draw an adverse inference from the failure of an accused to
disclose an alibi to the police or to the court in the period before
the trial
commences in circumstances where the accused was advised of his right to remain
silent.
[83]
Various reasons are given
for the principle that adverse inferences should not be drawn from an accused
person’s silence. One
identified by Lord Mustill is the
following:
“. . . the instinct that it is contrary to fair play to put the accused in
a position where he is exposed to punishment whatever
he does. If he answers,
he may condemn himself out of his own mouth; if he refuses he may be punished
for his
refusal.”
[110]
In
our view, this does not provide a valid foundation for the principle under our
constitutional order. This Court has held that
an adversarial system of
criminal procedure necessarily forces hard choices on an accused, not by the
operation of an unfair rule
of law, but by the fundamental nature of the
adversarial process itself. This Court has held that such choices which flow
from the
character of the adversarial system do not constitute an infringement
of the right to silence.
[111]
Once the prosecution has produced evidence sufficient to establish a
prima
facie
case against the accused, the accused faces the choice of staying
silent, in which event he or she may be convicted, or seeking to
lead evidence
which may or may not be incriminatory. This hard choice faced by the accused is
the consequence not of an unfair rule
of law, but of the operation of the
adversarial system coupled with the absence of a valid defence. In an
adversarial system there
can be no immunity from facing such choices and having
to make such a choice cannot offend the right to silence as entrenched in
our
Constitution.
[84]
Another explanation
commonly given for the rule against adverse inferences is the principle that the
state bears the onus of proving
every element of an offence without the
assistance of the accused. It is clear from our Constitution that the
presumption of innocence
implies that an accused person may only be convicted if
it is established beyond a reasonable doubt that he or she is guilty of the
offence. That, in turn, requires the proof of each element of the offence.
However, our Constitution does not stipulate that only
the state’s
evidence may be used in determining whether the accused person has been proved
guilty. Indeed, our law has always
recognised that the question of whether the
accused has been proven guilty or not is one to be determined on a conspectus of
all
the admissible evidence, whatever its provenance. This principle, too,
cannot therefore found a valid objection to the drawing of
adverse
inferences.
[85]
A third reason given for
the rule against the drawing of adverse inferences is the importance of
protecting arrested persons from
improper questioning and procedures by the
police. Unfortunately, in the past people arrested were coerced by improper
police methods
to confess (not infrequently, falsely) to crimes. Such practices
need to be put firmly behind us. In our view, the need to reduce
unconstitutional policing practices is of such importance in the light of our
history, that the right to silence should protect an
accused person from having
an adverse inference drawn from pre-trial silence in the face of questioning
from the police. This concern
provides an important reason for not drawing
adverse inferences from the silence of an arrested person in the face of police
questioning.
It is of no relevance to the silence of an accused in
court.
[86]
A different but equally
cogent reason for the rule against the drawing of adverse inferences from the
silence of an arrested person
relates to the warning given to people when they
are arrested. Section 35(1)(b) requires the police to warn people when they are
arrested that they have the right to remain silent and of the consequences of
not remaining silent and thus a failure to give the
warning will infringe
section 35(1)(b). In our view, it is constitutionally impermissible to draw an
adverse inference from an arrested
person’s silence once he or she has
been informed of the right to remain silent. That warning, as currently
formulated, clearly
implies that the arrested person will not be penalised for
silence. For the person arrested to be told that he or she may remain
silent
without more, and for that very silence thereafter to be used to discredit the
person, in our view is unfair. We are not
persuaded therefore by Yacoob
J’s reliance on section 35(5) of the
Constitution.
[112]
Nor are we
persuaded that it can ever be fair to warn a person arrested and give him or her
the impression that there is a right
to remain silent without qualification,
and then to draw an adverse inference from that silence.
[87]
The adversarial process
imposes many hard choices upon the accused. This is inevitable and appropriate.
What is neither inevitable
nor appropriate, is that the accused should be
misinformed of the implications of the course of action he or she adopts. As
this
Court stated in
S v Dlamini; S v Dladla and Others; S v Joubert; S v
Schietekat
:
“Each and every one of those choices [relating to what the accused should
do in bail proceedings] can have decisive consequences
and therefore poses
difficult decisions. As was pointed out in
Osman’s
case
‘(t)he choice remains that of the accused. The important point is that
the choice cannot be forced upon him or her.’
It goes without saying that
an election cannot be a choice unless it is made with proper appreciation of
what it entails. It is
particularly important in this country to remember that
an uninformed choice is indeed no
choice.”
[113]
An
accused person needs to understand the consequences of remaining silent. If the
warning does not inform the accused that remaining
silent may have adverse
consequences for the accused, the right of silence as understood in our
Constitution will be breached.
[88]
Moreover, in many cases,
the fact of the warning itself will render the silence by the accused ambiguous.
It will not be clear whether
the accused remained silent because he or she is
relying on the right to remain silent, or for another reason, whether legitimate
or not. To the extent that the silence is ambiguous, of course, it will have
little value in the process of inferential reasoning,
especially where guilt
must be proved beyond a reasonable doubt.
[89]
In this case, the first
appellant was warned of his right to remain silent. Thereafter he made a brief
statement to the police stating
that at the time of the offence his family was
at Hanover Park, but when asked if he wished to have that statement reduced to
writing,
he demurred, as he was entitled to do. Thereafter he said nothing
prior to trial. In our view to use this silence against the first
appellant
either as confirmation of his guilt, as the majority judgment in the Supreme
Court of Appeal did, or to discredit him as
a witness, is unfair to him and
constitutes a breach of his right to silence and his right to a fair trial. We
do, however, consider
it acceptable to use the statement that he made to the
police after being warned concerning his family’s presence at Hanover
Park. Using such statement to evaluate his evidence does not constitute a
breach of his right to silence. Indeed the first appellant
was duly warned that
any statement he might make may be used against him in his trial.
[90]
One further point needs to
be made. It should be clear from what we have said, that we do not see that a
valid distinction can be
drawn in this context between adverse inferences going
to guilt, and adverse inferences going to credit. There is of course a
conceptual
difference between inferences going to credit and inferences going to
guilt. But in the context of an alibi, the practical effect
of the adverse
inference to be drawn for the purposes of credit, namely, that the alibi
evidence is not to be believed, will often
be no different to the effect of the
inference to be drawn with respect to
guilt,
[114]
namely that the late
tender of the alibi suggests that it is manufactured and that the accused is
guilty.
[115]
We disagree
therefore with the distinction drawn by Moseneke J between an adverse inference
to credit on the one hand and an adverse
inference to guilt. Whether an adverse
inference is drawn going to guilt or credit, in our view, the accused has been
treated unfairly
in the light of the warning
given.
[91]
Moseneke J comes to the
related conclusion that it is permissible for an accused person to be
cross-examined “on why she or
he opted to remain silent on an alibi or
indeed any other defence . .
.”.
[116]
We do not agree.
In the first place, we are of the opinion that no accused person should have to
account for the exercise of a
right entrenched in the Constitution. This is
especially so where that account may be used against the accused. Secondly, it
would
be unfair to allow such cross-examination in the light of the accused
person having been informed of the right to silence without
at the same time
being informed that she or he might be requested to account for the positive
exercise of the right at the trial.
We must emphasise that we are concerned
only with cross-examination relating to the pre-trial silence of the accused.
Nothing we
have said should be understood as precluding other lines of
cross-examination designed to test the veracity of the
alibi.
[92]
The foregoing should make
it plain that the constitutional position would be different were there to be a
law of general application
permitting the drawing of an adverse inference in
circumstances where the accused has been properly informed of the consequences
of a failure to raise an alibi timeously. No such rule presently exists at
common law in South Africa.
[117]
In our view, such a rule if properly tailored and, in particular, if accompanied
by an appropriate revision to the warning issued
to arrested persons would still
limit the right to silence, but would pass constitutional muster under section
36 of the Constitution.
[118]
In
this case, were the first appellant to have been duly warned that his failure to
disclose an alibi timeously could result in
an adverse inference being drawn,
the common law could have been developed to permit the drawing of an adverse
inference by the Supreme
Court of Appeal and such development would have been a
justifiable limitation of his right to silence and to a fair trial. It should
be noted that a rule requiring timeous disclosure of an alibi defence has
existed at common law in Canada for many years and according
to a majority of
the Supreme Court of Canada it “has been adapted to conform to Charter
norms.”
[119]
Limits on the
right to silence have also recently been adopted in the United
Kingdom.
[120]
The European Court
of Human Rights has also held that an adverse inference from silence is not
necessarily incompatible with article
6 of the European Convention on Human
Rights.
[121]
It appears that
rules of this nature are proposed by the SA Law Reform
Commission.
[122]
[93]
We conclude, however, that
the right to silence was breached in this case, because an adverse inference was
drawn from the failure
of the first appellant to disclose an alibi after being
informed of his right to remain silent. Nevertheless we are persuaded that
the
appeal of the first appellant should be dismissed for the record establishes his
guilt beyond a reasonable doubt without reliance
upon any adverse inference from
his silence. The High Court found Kiel’s evidence cogent and persuasive,
while rejecting that
of the two alibi witnesses as false. There is no basis for
rejecting these findings. Moreover, the first appellant, when initially
questioned by the police, said that his family had been at Hanover Park at the
time of the offence, which is inconsistent with the
alibi he subsequently
raised. At best for the accused, his statement that “the family was at
Hanover Park” is ambiguous
and evasive. It is not consistent with the
alibi tendered later to the effect the he was with his second wife at Parkwood
Estate
which is nowhere near Hanover Park. In the light of the rejection of the
evidence of the two defence witnesses and the prior inconsistent
statement made
by the first appellant, the alibi evidence does not in the context of all the
evidence in the case (particularly the
strong evidence of Kiel) raise a
reasonable doubt as to the innocence of the first
appellant.
Ackermann J and Mokgoro J
concur in the judgment of Goldstone J and O’Regan J.
YACOOB J:
[94]
I have read the judgment of
Moseneke J (the main judgment) and the concurring judgment of Goldstone J and
O’Regan J (the concurrence).
I agree with the conclusion in both
judgments that the appeal must fail. Like the concurrence I agree with the
reasoning and conclusion
in the main judgment concerned with common purpose. I
cannot however fully agree with the reasoning or conclusion in either judgment
on the right to silence. Hence this separate
concurrence.
[95]
In the process of arriving
at the conclusion that the alibi had to be rejected as a fabrication the
majority judgment of the Supreme
Court of Appeal (SCA) on the alibi defence
delivered by Lewis AJA relied on the first appellant’s failure to disclose
his alibi
to the police or to the prosecution. The first appellant contended
that this approach infringed his right to remain silent conferred
by section
35(1)(a) of the Constitution.
[123]
The main judgment and the concurrence hold, each on a different basis, that the
reasoning of the majority in the SCA did infringe
the first appellant’s
right to silence but conclude that the first appellant’s conviction was
nevertheless justified.
[96]
Briefly stated the
differences between the two judgments are these. The concurrence takes the view
that any cross-examination of
an accused person on the reasons for the failure
to disclose an alibi to the police before the trial, and any reliance on the
accused’s
silence in the process of judicial reasoning that results in the
rejection of that alibi is a breach of the right to silence. The
main judgment
holds that: (a) it is not an infringement of the right to silence to cross
examine an accused person concerning the
reason why an alibi was not disclosed
provided that the cross-examination is fair in the circumstances; (b) it is a
justifiable limitation
of the right to silence for a judicial officer to take
into account the responses thus obtained in conjunction with the failure to
disclose an alibi as factors in the process of making an inference as to the
credibility of the accused; (c) it is an infringement
of the right to silence to
infer the guilt of the accused from the failure to disclose an alibi and (d) the
majority in the SCA wrongly
did this.
[97]
This
judgment favours an approach that:
(a) The right to silence properly interpreted in its context has an impact on
the way in which a criminal trial should be conducted.
(b) The appropriate protection of the right does not require the
cross-examination of an accused person about the reasons for the
failure to
disclose an alibi to be absolutely protected. Nor does it prohibit a judicial
officer from drawing any legitimate inference
from the evidence revealed by the
cross-examination, the silence of the accused and all the relevant surrounding
circumstances.
(c) The over-arching and abiding obligation of a judicial officer in a criminal
trial is to ensure a fair trial within the meaning
of section 35(3).
(d) It is this obligation that governs the way in which a criminal trial is
conducted; dictates answers to complex questions concerning
the circumstances
and the extent to which cross-examination on the reasons for silence are
permissible; and settles whether any inference
may be drawn from the silence of
the accused and the facts and circumstances related to it as revealed in the
trial.
(e) The need to ensure a fair criminal trial is key to determining whether a
right has been infringed. The right is infringed only
if it is implicated in a
way that renders the trial unfair.
(f) Cross-examination of witnesses concerning the reason why an alibi was not
disclosed infringes the right to silence only if it
renders the trial
unfair.
(g) The responses thus obtained may be taken into account by a judicial officer
in conjunction with the failure to disclose an alibi
in the process of making an
inference provided that the way in which the inference is made and the drawing
of the inference itself
does not render the trial unfair.
(h) Drawing an inference as to guilt or credibility solely from the silence of
the accused would render a trial unfair.
(i) The inference drawn by the SCA was entirely fair.
The
scope of the constitutional right to silence
[98]
Textually, the section
35(1)(a) right to remain silent is conferred on everyone arrested for allegedly
committing an offence. Although
not expressly stated in the main judgment or
the concurrence, the findings of each rests on a proposition that is both
central and
fundamental to them. That foundation is built on a distinction
between the right to pre-trial silence and that right of the accused
during
trial. The right of a person to pre-trial silence (as distinct from the right
to silence during trial) is, properly interpreted,
so extensive in its reach
that it is breached if silence is used in cross-examination or in the process of
any inference by a judicial
officer against an accused at trial. In other words
the right places a constitutional duty upon a judicial officer charged with
the
responsibility of conducting a criminal trial in our constitutional setting not
to draw an inference (as to guilt alone according
to the main judgment or to all
inferences according to the concurrence) from that
silence.
[99]
The scope of the section
35(1)(a) right to silence and whether this right is in essence different from
the right to silence component
in section 35(3)(h) must be determined in its
context. Section 35 is headed “Arrested, detained and accused
persons”.
Each of the three subsections within it describes the rights of
a specified category of people. Subsection (1) confers certain
rights on
everyone arrested for committing an offence; subsection (2) on all people
detained including every sentenced prisoner;
and subsection (3) applies to a
limited category of people designated by the words “every
accused
person” (emphasis supplied).
[100]
The section 35(1)(a) right
to silence is contained within the first category. Subsection (1), to the
extent relevant, reads:
“(1) Everyone who is arrested for allegedly committing an offence has the
right–
(a) to remain silent;
(b) to be informed promptly –
(i) of the right to remain silent; and
(ii) of the consequences of not remaining
silent;
(c)
not to
be compelled to make any confession or admission that could be used in evidence
against that person;
(d) to be brought before a court as soon as reasonably possible, . .
.
(e) at the first court appearance after being arrested, to be charged or
to be informed of the reason for the detention to
continue, or to be
released; and
(f) to be released from detention if the interests of justice permit,
subject to reasonable conditions.”
[101]
Subsection (2) is
concerned with the rights of everyone who is detained including a sentenced
prisoner and, by definition, embraces
all people arrested for allegedly
committing an offence and detained. These rights include the right to be
informed promptly of
the reason for being
detained,
[124]
to a legal
practitioner,
[125]
to challenge
the lawfulness of the
detention,
[126]
to certain minimum
conditions of detention
[127]
and
visitation rights.
[128]
Neither
subsection (1) nor subsection (2) is concerned with the trial of an accused
person. The rights in subsection (2) however,
are available to all accused
persons in detention save, as will be pointed out later, where the relevant
right is repeated as the
right of an accused in subsection
(3).
[129]
[102]
The way in which the trial
is to be conducted is particularised in considerable and careful detail in
sections 35(3) and 35(5). That
detail is sufficiently relevant to the thrust of
this judgment for the subsections to be set out in full. Section 35(3)
provides:
(3) Every accused person has a right to a fair trial, which includes the
right-
(a) to be informed of the charge with sufficient detail to
answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary
court;
(d) to have their trial begin and conclude without unreasonable
delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal practitioner, and to be
informed of this right promptly;
(g) to have a legal practitioner assigned to the accused person by the
state and at state expense, if substantial injustice
would otherwise result,
and to be informed of this right promptly;
(h) to be presumed innocent, to remain silent, and not to testify during
the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person understands or, if
that is not practicable, to have the proceedings
interpreted in that
language;
(l) not to be convicted for an act or omission that was not an offence
under either national or international law at the time
it was committed or
omitted;
(m) not to be tried for an offence in respect of an act or omission for
which that person has previously been either acquitted
or convicted;
(n) to the benefit of the least severe of the prescribed punishments if
the prescribed punishment for the offence has been
changed between the time
that the offence was committed and the time of sentencing; and
(o) of appeal to, or review by, a higher
court.”
Section 35(5) provides:
“(5) Evidence obtained in a manner that violates any right in the Bill of
Rights must be excluded if the admission of that
evidence would render the trial
unfair or otherwise be detrimental to the administration of justice.”
[103]
The three subsections
intersect, complement each other and demonstrate a logical pattern when viewed
from the point of view of the
criminal justice process that might unfold in
relation to a person who is suspected of having committed an offence. The first
step
envisaged is the arrest of a person for allegedly having committed an
offence. That person is not yet an accused and the arrest
itself does not
render him a detainee entitled to the right set out in subsection (2). The
rights in subsection (1) and (2) will
be applicable to everyone who is arrested
and thereafter detained. Every person arrested for allegedly committing an
offence has
the right, at the first court appearance, to be charged, to be
informed of the reason for the detention to continue, or to be released.
If she
or he is released the process is at an end. Presumably the person may be
detained further and informed that the matter is
under further investigation.
In that event, the person concerned remains a detainee and is entitled to the
rights described in subsections
(1) and (2). It is only if the person is
charged that he or she becomes an accused and has the right to a fair trial in
terms of
subsection (3).
[104]
This aspect introduces the
link between subsections (1) and (3). Subsection (1) confers rights upon people
who are arrested for allegedly
committing an offence and who are subsequently
detained but only until they are charged and become accused persons. When they
do,
subsection (3) takes over and they become entitled to a fair trial and all
that that entails. But subsections (1) and (3) represent
a continuum. The
right to silence encapsulated in subsection (1)(a) applies for what might be
called a holding period until the
person arrested for the alleged commission of
an offence is charged. As soon as that period is over the person concerned
becomes
an accused and entitled “to be presumed innocent, to remain
silent, and not to testify during the
proceedings”.
[130]
The
section 35(3)(h) right to silence cannot be said, on a properly generous
construction, to be limited by the phrase “during
the proceedings”
which applies only to the phrase “to testify”. In the result, the
person arrested for allegedly
committing an offence who later becomes an accused
person as a result of having been charged enjoys a continuing right to silence
from the date of his arrest until the completion of judicial proceedings. The
distinction between the pre-trial right to silence
and the right to silence
during trial is inappropriate in our constitutional jurisprudence. The right to
silence is initially conferred
by section 35(1)(a) and thereafter by section
35(3)(h).
[105]
The right to silence is
conferred for the purpose of ensuring that people are protected from
self-incrimination in the process of
police interrogation. Once the accused is
charged, however, the reach of the right to silence must be determined in
relation to
the object of the grant of the right to silence. That objective is
to ensure a fair trial. It is in this context that we must decide
in what
circumstances the right to silence can properly be said to have been infringed
during a criminal trial. The right to silence
is not a self-standing right and
must be interpreted in the context of the constitutional demand that there be a
fair trial.
[106]
The accused is entitled to
a fair trial. It is the duty of every presiding officer to ensure that this
right is fulfilled. The proper
exercise of this duty carries a number of
implications. Two of these implications are particularly relevant for present
purposes.
The first is that all courts in the present constitutional era have a
duty to ensure substantive fairness instead of being limited
to mere procedural
fairness as were courts in the pre-constitutional regime. The second is that
all courts have a duty to give substance
to the notion of a fair trial.
Kentridge AJ elaborated these two implications of the fair trial right under the
interim constitution
as
follows:
[131]
“The right to a fair trial conferred by that provision is broader than the
list of specific rights set out in paragraphs (a)
to (j) of the sub-section. It
embraces a concept of substantive fairness which is not to be equated with what
might have passed
muster in our criminal courts before the Constitution came
into force. In
S v Rudman and Another; S v Mthwana
1992 (1) SA 343
(A),
the Appellate Division, while not decrying the importance of fairness in
criminal proceedings, held that the function of a Court
of criminal appeal in
South Africa was to enquire
‘whether there has been an irregularity or illegality, 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’.
A Court of appeal, it was said (at 377),
‘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 administration”.’
That was an authoritative statement of the law before 27th April 1994. Since
that date s 25(3) has required criminal trials to be
conducted in accordance
with just those ‘notions of basic fairness and justice’. It is now
for all courts hearing criminal
trials or criminal appeals to give content to
those notions.”
[107]
Another implication is
that all the separate rights in the section must be given meaning in the light
of a notion of a fair trial.
[132]
Although a principal and important consideration in relation to a fair trial is
that the trial must be fair in relation to the accused,
the concept of a fair
trial is not limited to ensuring fairness for the accused. It is much broader.
A court must also ensure that
the trial is fair overall, and in that process,
balance the interests of the accused with that of society at large and the
administration
of justice. As Kriegler J
said:
[133]
“In any democratic criminal justice system there is a tension between, on
the one hand, the public interest in bringing criminals
to book and, on the
other, the equally great public interest in ensuring that justice is manifestly
done to all, even those suspected
of conduct which would put them beyond the
pale. To be sure, a prominent feature of that tension is the universal and
unceasing
endeavour by international human rights bodies, enlightened
legislatures and courts to prevent or curtail excessive zeal by State
agencies
in the prevention, investigation or prosecution of crime. But none of that
means sympathy for crime and its perpetrators.
Nor does it mean a predilection
for technical niceties and ingenious legal stratagems.” [Footnotes
omitted]
[108]
The Constitution confirms
that the duty of a judicial officer to ensure a fair trial reaches beyond that
of ensuring that the rights
of the accused are not or have not been violated.
Section 35(5) confirms this. It does not direct that evidence obtained in
violation
of any right in the bill of rights must be excluded regardless. This
by definition includes evidence obtained in violation of the
rights of the
accused. The court has a discretion to admit such evidence if it is fair to do
so or if it is in the interests of
the administration of justice. As Kriegler J
said
[134]
:
“The general approach to evidence obtained under constitutionally doubtful
circumstances was outlined in
Key v Attorney-General, Cape of Good Hope
Provincial Division and Another
:
‘What the Constitution demands is that the accused be given a fair trial.
Ultimately, as was held in
Ferreira v Levin
, fairness is an issue which
has to be decided upon the facts of each case, and the trial Judge is the person
best placed to take
that decision. At times fairness might require that
evidence unconstitutionally obtained be excluded. But there will also be times
when fairness will require that evidence, albeit obtained unconstitutionally,
nevertheless be admitted.
If the evidence to which the applicant objects is tendered in criminal
proceedings against him, he will be entitled at that stage
to raise objections
to its admissibility. It will then be for the trial Judge to decide whether the
circumstances are such that
fairness requires the evidence to be
excluded.’
It would be as well to repeat that in such cases the flexible approach advocated
by Ackermann J in
Ferreira v Levin
and subsequently endorsed unanimously
by this Court in
Bernstein v Bester
, is to be adopted.
Although there are differences between the wording of the relevant protections
in the interim Constitution and the Constitution,
the differences are immaterial
with regard to the point now under discussion. The principle remains the same.
The question to be
asked in
Dlamini
and in
Schietekat
is therefore
still not whether, somehow or other, the right to silence was imperilled by the
accused having on advice elected to speak.
Under the Constitution the more
pervasive and important question is whether the admission of the resultant
evidentiary material
would impair the fairness of the trial. If it would, the
evidence ought generally to be excluded. If not, there is no basis for
excluding it. There is no warrant for creating a general rule which would
exclude cogent evidence against which no just objection
can be levelled. The
trial court must decide whether it is a valid objection, based on all the
peculiar circumstances of the particular
case, not according to a blanket rule
that would throw out good and fair evidence together with the bad.”
[footnotes omitted]
[109]
If the judicial officer is
entitled in the interests of a fair trial to admit evidence obtained from the
accused in contravention
of his right to silence as the above quotation from
Kriegler J makes plain, it is difficult to see how the same instrument would
forbid a judicial officer from either allowing cross-examination on the reasons
for the silence or taking into account the silence
of the accused and the
evidence related to that silence in the making of inferences where all this is
done in the effort to ensure
a fair trial. The over-arching role of a judicial
officer in a criminal trial is to ensure that the trial is fair. There is a
duty
on the judicial officer to respect, protect, promote and fulfil all
fundamental rights.
[135]
In the
exercise of the duty to ensure a fair trial, it would become necessary to
balance the rights of the accused, the rights of
the victim and society at
large. The right to silence of the accused could well become implicated in this
balancing exercise when
the judicial officer makes decisions concerning the
admissibility of evidence, the allowing of cross-examination, as well as the
drawing of inferences. Indeed inferences arising out of silence cannot
ordinarily be drawn unless there is evidence of the silence
of the accused and
evidence of the circumstances surrounding that silence. Any investigation
around the accused’s silence
cannot be said to infringe his right to
silence unless the trial is thereby rendered unfair. The same goes for all
decisions concerning
the admissibility of evidence as well as the use of silence
in the drawing of inferences. The fairness of the trial as an objective
is
fundamental and key. The right to silence can only be infringed if it is
implicated in a way that renders the trial unfair.
It is a contradiction in
terms to suggest that the right to silence has been infringed if it is
implicated in a way that does not
compromise the fairness of a trial but
enhances it.
[110]
The concurrence, without
attempting to give a meaning to section 35(1)(a) in its context, comes to the
conclusion that the right to
silence includes a prohibition on the judicial
officer from drawing any inferences from that silence on two bases. The first
is
that “the need to reduce unconstitutional policing practices is of such
importance in the light of our history, that the right
to silence should protect
an accused person from having an adverse inference drawn from pre-trial silence
in the face of questioning
from the police
questioning.”
[136]
The
objective of reducing unconstitutional police practices can better be managed
and achieved by a flexible approach in the context
of a fair trial than by a
blanket rule excluding all inferences regardless of the circumstances. All
courts must be sensitive to
this need in the process of determining whether or
not to allow cross-examination or to use silence as a factor in drawing an
inference.
The present case is in point. It cannot be suggested that drawing
an inference in this case against the first appellant would run
counter to the
stated objective. Courts must be sensitive to this need. In any event, the
silence of the first appellant cannot
fairly be described as “pre-trial
silence in the face of questioning from the
police”.
[111]
A second reason given
against the drawing of adverse inferences relates to the warning that is
constitutionally required to be given.
It will be remembered that the person
arrested must be informed of the right to remain silent and of the consequences
of not remaining
silent. Notably, the person need not be informed of the
consequences of remaining silent. I have considerable doubt whether information
as to the consequences of remaining silent achieves the best balance in the
information to be conveyed. To be sure, the present
constitutional position
encourages silence on the part of an arrested person. This may well be
justified on the basis that the greater
perceived evil is not that people under
arrest remain silent when they should not, but that they speak when they should
not. A complex
warning including the consequences of remaining silent might
tilt the balance in favour of getting that person to speak. This may
not be
acceptable. Be that as it may the issue here is one of fairness. It cannot be
said in the abstract that the warning contemplated
by the Constitution is
necessarily fairer than the more complex warning in which the person is informed
that silence itself might
have consequences. Fairness can never be determined
in a vacuum. The fair trial approach with appropriate contextual emphasis is
the only realistic and practical route to achieve the fair approach to the
silence of the accused desired by the concurrence. As
Madlanga
AJ
[137]
in a unanimous judgment of
this Court said:
“In determining what is fair, the context or prevailing circumstances are
of primary importance — there is no such thing
as fairness in a vacuum.
By ‘context’ I am referring to such prevailing facts and
circumstances as may have a bearing
on the content given to a constitutional
right. Examples of such facts and circumstances might be socio-economic,
political, financial,
as well as other resource-related considerations. In
Ferreira v Levin NO and
Others; Vryenhoek and Others v Powell NO and
Others
Ackermann J said:
“(I)t is salutary to bear in mind that the problem cannot be resolved in
the abstract but must be confronted in the context
of South African conditions
and resources — political, social, economic and human. . . . One
appreciates the danger of relativising
criminal justice, but it would also be
dangerous not to contextualise it.” [footnote
omitted]
It cannot be suggested that the more
limited warning required by the Constitution resulted in any unfairness to the
first appellant
in this case.
[112]
The main judgment relies
on the distinction between the weakening of an alibi tendered late on the basis
that the police would be
denied an opportunity of investigating it on the one
hand, and the alibi being reduced in weight on the basis that the accused did
not furnish it earlier on the
other.
[138]
Both the reasons for
assigning less weight to the alibi are so inter-related that the distinction
between them is over theoretical.
The same goes for the distinction between
inferences as to guilt and inferences as to credit fervently embraced by the
main judgment
in the effort to determine when the right to silence is infringed
and when not. It must be remembered that the
Mashelele
judgment
[139]
was delivered in an
effort to achieve fairness in relation to the drawing of an inference in the
pre-constitutional regime when the
courts perceived their objectives as being
the achievement of procedural fairness alone. Within this rather cramped
environment,
a degree of articulation and movement was thankfully facilitated by
these distinctions in those difficult days. Today the position
is different. As
has been pointed out, courts are required to ensure substantive fairness at
trials. Distinctions of the kind resorted
to, may be useful tools in the
process of determining what is fair. To rely upon them as rigid is not only
unnecessary but could
stand in the way of the achievement of substantive
fairness in the criminal trial.
[113]
I conclude therefore that
the right to silence is infringed only if it is implicated in a manner that
renders the trial unfair. The
following however may be stated in
general:
(a) It will be unfair and an infringement of the right to silence to draw an
inference as to the accused’s guilt or credibility
from the silence of the
accused alone.
(b) Whether it would be unfair in the sense of constituting an infringement of
the right to silence for the accused to be cross examined
about the reasons for
silence, or for the silence of the accused and the evidence revealed by the
cross-examination to be used in
the process of drawing of an inference depends
on the circumstances of each case.
(c) It is not necessarily unfair if, in the final analysis, the silence of the
accused in the prevailing circumstances results in
the scales being sufficiently
tipped against the accused. The silence of the accused might be of very little
weight in itself but
could conceivably fairly tip the scales against the accused
person in conjunction with all the other factors relied upon.
The majority judgment of the SCA
[114]
Moseneke J’s summary
of the approach adopted by Lewis AJA in the SCA is also appropriate and
sufficient for the purpose of this
concurrence.
[140]
I gratefully
reproduce it:
“Lewis
AJA, writing on behalf of the majority of the SCA, held that
the reliability of Kiel’s identification of the first appellant
had to be
weighed carefully against his alibi and the testimony of the two witnesses who
supported his alibi. The SCA, as did the
trial court, held that the close
correlation and the detailed precision of the evidence of the alibi witnesses,
taken together with
the evidence of the first appellant, attracted justified
suspicion. The SCA found that the version put up by the first appellant
and his
two witnesses had been ‘concocted’ and ‘carefully
rehearsed’. The SCA reminded itself that such
suspicion is not enough to
dismiss the version as false beyond reasonable doubt. Following the reminder,
Lewis
AJA remarked that:
‘What is more telling . . . is that the version was raised only at the
trial, some two years after the
incident.’
As a result, the majority judgment concluded:
‘The only inference that can be drawn from [the first appellant’s]
failure to advise the police, and from the other witnesses’
failure to do
so, is that the alibi had no truth in it at all.’ ” [footnote
omitted]
[115]
The main judgment
concludes
[141]
that the majority
judgment of the SCA justified the guilt of the first appellant on the basis of
the fact that the version was raised
only at the trial some two years after the
incident. The main judgment also concludes that the majority judgment justified
the inference
that the alibi had no truth on the appellant’s failure to
advise the police of the alibi. I do not agree that the inference
drawn by
Lewis AJA was one as to guilt. The fact that the version was raised only at the
trial some two years after the incident
was not used to justify the first
appellant’s guilt. Lewis AJA simply said that this factor was “more
telling”.
I do not agree that the last quotation from the main judgment
in the previous paragraph should be read as if it stands alone in
the judgment.
Lewis AJA had already found Kiel to be a good witness, held that the correlation
in the alibi version rendered it
suspicious and concluded that the
non-disclosure of silence was “more telling” before this sentence
had been written.
The inference referred to was quite obviously drawn from the
failure referred to in all the circumstances that had been discussed
before. In
all fairness, the sentence must be read in context. In any event, and even if
this sentence were to be interpreted in
isolation, the inference was not drawn
solely from the failure of the first appellant to advise the police but also
from the failure
of the other witnesses to do so. Nor was there any inference
as to guilt. The inference was as to credit to the effect that “the
alibi
had no truth in it at all”.
[116]
For the above reasons I
would propose that the appeal be
dismissed.
NGCOBO J:
[117]
I have read the three
draft judgments prepared by my colleagues. I agree with the order by Moseneke J
dismissing these appeals.
For the reasons advanced by Moseneke J, I also agree
that the doctrine of common purpose does not limit any of the rights asserted
by
the appellants. I therefore agree with his reasons for dismissing the second
appellant’s appeal. However, in my view,
the right to pre-trial silence
is not implicated in this case. Consequently, I find it unnecessary to reach
the question of whether
failing to disclose an alibi defence to the police can
ever attract an adverse inference.
[118]
After his arrest the first
appellant was warned by Sergeant McDonald that he was not obliged to make any
statement, but that anything
he said might be used against him. Thereafter
Sergeant McDonald informed the first appellant that there were witnesses who had
placed
him at the scene of the crime. The first appellant responded by saying
that the family was in Hanover Park. He declined to make
a written
statement.
[119]
At trial, however, the
first appellant testified that he was with his second wife at Parkwood Estate on
the date of the shooting.
He called witnesses in support of this version. As
this version of his whereabouts was different from the earlier statement to
Sergeant McDonald, the prosecutor cross-examined him on this apparent
inconsistency. The following transpired in the course of that
cross-examination:
“Ja. So met ander woorde mnr McDonald het nie vir u gesệ daar is
getuies wat sệ u was betrokke, maar u het geweet
dat u eintlik by u tweede
vrou was daardie tyd. ---Ja.
Het u dit vir mnr McDonald gesệ? ---Ek het gesệ die familie was in
Hanover Park gewees. Maar ek het nie gesệ waar
ek was nie.
Enige rede daarvoor? ---Nee, ek het nie rede gehad nie.
So met ander woorde u het vir mnr Mcdonald gesệ die familie was in Hanover
Park, maar u het niks sệ van uself nie.
En u sệ daar was geen spesifieke rede daarvoor. ---
Nee”.
[120]
The inquiry by Sergeant
McDonald was directed at establishing where the first appellant was at the time
of the commission of the crime.
It was not directed at establishing where the
first appellant’s family was. To respond to such an inquiry by telling
Sergeant
McDonald where the family was and not where the first appellant was,
would have been absurd indeed. The suggestion by the first
appellant during
cross-examination that in his response to Sergeant McDonald he only meant his
family excluding himself was a disingenuous
attempt to distance himself from the
statement that was inconsistent with his alibi.
[121]
On these facts the first
appellant’s right to pre-trial silence is not implicated. The first
appellant was warned of his right
to remain silent and of the consequences of
making any statement. In the course of questioning the first appellant,
Sergeant McDonald
told the first appellant that there were witnesses who had
placed him on the scene of the crime. He was asked what he had to say
to this
allegation. In the face of this allegation, the first appellant did not assert
the right to silence. Instead, he chose
to make an exculpatory statement to the
effect that the family was in Hanover Park at the time of the crime. This
statement was
inconsistent with his alibi. We are therefore not concerned with
a case of an accused who exercised his right to remain silent.
But we are
concerned with an accused who, despite being appraised of his right to remain
silent and of the consequences of not remaining
silent, chose to make an
exculpatory statement.
[122]
Where the accused person,
having been warned of the right to remain silent and of the consequences of not
remaining silent, chooses
to make an exculpatory statement which differs from
his or her alibi, this is a legitimate topic for cross-examination. The purpose
of such cross-examination is to afford the accused the opportunity to explain
the inconsistency. If no satisfactory explanation
is forthcoming, this is a
proper ground for drawing an adverse inference on credibility. This case simply
does not implicate the
right to remain silent.
[123]
In rejecting the evidence
of the first appellant’s alibi, the majority of the SCA placed much store
by the fact that the first
appellant did not disclose his alibi to the police.
It concluded that the “only inference that can be drawn from his failure
to advise the police, and from other witnesses failure to do so, is that the
alibi has no truth in it at all”. Much was made
of this passage in this
court. It was contended that the conviction of the first appellant
“rested entirely” on his
failure to disclose his alibi to the
police. This, it was contended, infringed the first appellant’s pre-trial
right to remain
silent.
[124]
It is true that the
passage complained of may well be understood to suggest that the conviction of
the first appellant “rested
entirely” upon his failure to disclose
his alibi to the police. Guilt cannot be inferred from silence only. To do so,
would
undermine the right to remain silent that is protected by section 35
(1)(a) of the Constitution. To the extent that the majority
of the SCA rested
the guilt of the first appellant entirely on his failure to disclose his alibi
to the police, it erred. However,
as pointed out earlier, we are not dealing
with an accused who chose to remain silent. The first appellant chose to make a
statement
after receiving a warning about his
rights.
[125]
That said, the wrong
approach of the majority of the SCA to the guilt of the first appellant does not
mean that his conviction must
be set aside. On a conspectus of the evidence,
the guilt of the first appellant was proved beyond a reasonable
doubt.
[126]
For these reasons, the
conviction of the first appellant must
stand.
Langa DCJ concurs in the judgment
of Ngcobo J.
For the Appellant: J Gauntlett SC and DP Borgström instructed by K Kajee
and Associates, Cape Town.
For the Respondents: JA D’Oliveira SC and ADR Stephen on behalf of the
Director of Public Prosecutions, Cape Town.
[1]
See
S v Abduraghman Thebus
and Others,
unreported judgment of the Cape High Court delivered on 14
September 2000, Case SS77/2000.
[2]
During the interview statement
. . . when I informed him of his rights. At that time I asked him if he wished
to provide me with
an explanation and he said yes. He then gave me his version.
As he spoke I took down notes but he did not want me to record it in
statement
form. That he did not want. (My
translation).
[3]
Yes. So in
other words Mr McDonald told you that there are witnesses who say that you were
involved but you knew that you were actually
with your second wife at that time.
--- Yes.
Did you tell Mr McDonald? --- I said the family was in Hanover Park
but I did not say where I was.
Any reason for that? --- No, I had no
reason.
So in other words you told Mr McDonald that the family was in Hanover
Park, but you said nothing about yourself. --- About myself
no.
And you say
there was no specific reason for that? --- No. (My translation).
[4]
Section 39 (2) states:
“When interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must
promote the spirit, purport
and objects of the Bill of
Rights”.
[5]
Section 10 guarantees that “[e]veryone has inherent dignity and the right
to have their dignity respected and protected”.
[6]
Section 12 (1) (a) states
that:
“Everyone has the right to freedom and security of the person which
includes the right . . . not to be deprived of freedom
arbitrarily or without
just cause”.
[7]
Section 35 (3) (h) guarantees that:
“Every accused person has a right to a fair trial, which includes the
right . . . to be presumed innocent, to remain silent,
and not to testify during
the
proceedings”.
[8]
Section 35 (1) (a) states that “[e]veryone who is arrested for allegedly
committing an offence has the right . . . to remain
silent”.
[9]
1989 (1) SA 687 (A).
[10]
Reported as
S v Thebus and
Another
2002 (2) SACR 566
(SCA).
[11]
Section
10.
[12]
Section 12.
[13]
Section 35(3).
[14]
Section 35(3)(h).
[15]
Section 35(1)(a).
[16]
Also known as “common
intent” or in Afrikaans as “
gemeenskaplike opset
” or
“
gemeenskaplike doel
.” This doctrine is said to have been
received into South African law from English law and recognised as part of the
common
law in
R v Garnsworthy and Others
1923 WLD 17
at 19. In this
regard see also Burchell and Milton
Principles of Criminal Law
2
nd
ed at 393; Kriegler and Kruger
Suid-Afrikaanse Strafproses
6
th
ed at 404.
[17]
Id Burchell and Milton at
393.
[18]
Snyman
Criminal Law
4
th
ed at 261; see also
S v Safatsa and Others
1988 (1) SA 868
(A) at 894, 896 and 901;
S v Mgedezi
n 9;
S v Banda and Others
1990 (3) SA 466
(B) at 500-1.
[19]
In practice the doctrine
finds application in a variety of crimes other than murder and these include
treason, public violence, robbery,
housebreaking, unlawful possession of a
firearm, assault, theft, fraud. For a catalogue of cases which exemplify such
application,
see Synman n 18 at 262. It is, however, unnecessary to express an
opinion, in the context of this case, on whether the principles
of common
purpose should be applied in a charge of culpable homicide. In
S v Nkwenja
en ’n Ander
1985 (2) SA 560
(A) and in
Magmoed v Janse van
Rensburg and Others
[1992] ZASCA 208
;
1993 (1) SA 777
(A) at 818D-F it was held that the
doctrine is applicable in culpable homicide cases provided the negligence of
each accused is not
imputed but determined independently.
[20]
Id
Magmoed v Janse van
Rensburg and Others
per Corbett CJ at 810G:
“[a] common purpose may arise by prior agreement between the participants
or it may arise upon an impulse without prior consultation
or
agreement.”
[21]
See Kriegler and Kruger n 16 at 405; See also
S v Mgedezi
n 9 at 705-6
and
S v Ngobozi
1972 (3) SA 476
(A).
[22]
See n 9 at 705I-706B.
[23]
S v Petersen
1989 (3)
SA 420
(A);
S v Yelani
1989 (2) SA 43
(A);
S v Jama and Others
1989 (3) SA 427
(A);
Magmoed v Janse van Rensburg
n 19 above;
S v
Motaung and Others
[1990] ZASCA 75
;
1990 (4) SA 485
(A);
S v Khumalo en Andere
[1991] ZASCA 70
;
1991
(4) SA 310
(A);
S v Singo
[1992] ZASCA 219
;
1993 (2) SA 765
(A).
[24]
See
Magmoed v Janse van
Rensburg
n 19 at 789G.
[25]
In
R v Powell and
Another; R v English
[1997] UKHL 45
;
[1997] 4 All E.R 545
HL, the House of Lords held that
the doctrine of joint enterprise liability still applies in English Law.
[26]
Section 21(2) of the
Canadian Criminal Code reads:
“Where two or more persons form an intention in common to carry out an
unlawful purpose and to assist each other therein and
any one of them, in
carrying out the common purpose, commits an offence, each of them who knew or
ought to have known that the commission
of the offence would be a probable
consequence of carrying out the common purpose is a party to that
offence”.
In
R v Logan
(1990) 58 CCC (3d
)
391
it
was
found that only the phrase “or ought to have known” is
inconsistent with the Charter of Rights and Freedoms because it
authorises a
conviction for murder or attempted murder based on negligence, and not on the
requirement of subjective foresight of
the murder. Otherwise, the
constitutionality of section 21(2) was confirmed. See also
R v Rodney
(1990) 58 CCC (3d) 408
.
[27]
See Gillies
Criminal
Law
4
th
ed (LBC, 1997) at 173-81.
[28]
In Scotland there are three
ways in which one may be “art and part” of a crime: (1) by counsel
or instigation; (2) by
supplying materials for the commission of the crime and
(3) by assisting at the time of the actual commission of the crime. In cases
of
agreement, guilt exists because of that agreement. Gordon et al:
The
Criminal Law
of Scotland
2000 at 158 para 5.19.
[29]
See La Fave
Criminal
Law
(West. St Paul 2000) at 623-32.
[30]
Sections 25 (perpetration),
27 (accessoryship), 29 (independent punishability of the participant) and 30
(attempted participation)
of the Strafgesetzbuch (StGB) draw a clear line
between a perpetrator, a co-perpetrator and an accessory. The
StGB
specifically provides that every participant shall be punished according to his
or her own guilt irrespective of the guilt of
the other. The French Penal Code
(Articles 121-1, 121-4, 121-6 and 121-7)
permits the same punishment for
a perpetrator, a co-perpetrator and an accomplice. The French Code provides
that no one is criminally
liable except for his own conduct (article 121-1).
Perpetrators are defined according to their own conduct (article 121-4),
however,
an accomplice may be liable for the same punishment as the perpetrator
(article 121-6). In both criminal codes, no provision akin
to common purpose is
discernible.
[31]
Section 2 of the
Constitution provides that:
“This Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations
imposed by it must be
fulfilled”.
[32]
Item 2(1) of Schedule 6 retains the validity of “all law that was in force
when the new Constitution took effect” subject
to consistency with the
Constitution.
[33]
See sections 7(2) and 7(3)
of the Constitution.
[34]
See section 8(1) of the
Constitution.
[35]
See sections 8(3)(a) and (b)
of the Constitution.
[36]
See also section 173 which
confers on all higher courts, including this Court, the inherent power to
develop the common law taking
into account the interests of justice;
Pharmaceutical Manufacturers Association of SA and Another; In Re Ex
Parte
Application of the President of RSA and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 46-9;
Carmichele v Minister of Safety
and Security and Another
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 33-6;
Brisley v Drotsky
2002 (4) SA 1
(SCA);
2002 (12) BCLR
1229
(SCA) per Cameron JA at para 88-9;
Afrox Healthcare Bpk v Strydom
2002 (6) SA 21
(SCA) at para 27-9.
[37]
Id.
[38]
Id at para 49.
[39]
See n 36 at para 40.
[40]
Id at para 56.
[41]
Id at para 54.
[42]
Id at para 56.
[43]
Shabalala and Others v
A-G Transvaal and Another
[1995] ZACC 12
;
1996 (1) SA 725
(CC);
1995 (12) BCLR 1593
(CC);
National Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC).
[44]
Compare
Carmichele
and
Afrox Healthcare Ltd
n 36 above.
[45]
Ex Parte Minister
of Safety and Security and Others: In Re S v Walters and Another
[2002] ZACC 6
;
2002 (4) SA
613
(CC);
2002 (7) BCLR 663
(CC).
[46]
Id at para 26-7. Also see
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC);
1995 (2) SACR 1
(CC).
[47]
For the test whether
severance is competent see
Coetzee v Government of the Republic of South
Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison and
Others
[1995] ZACC 7
;
1995 (4) SA 631
(CC);
1995 (10) BCLR 1382
(CC) at para 16 and para
75-6. See also
S v Coetzee and Others
[1997] ZACC 2
;
1997 (3) SA 527
(CC);
1997 (4)
BCLR 437
(CC) per Langa J at para 51.
[48]
Section 43 of the
Constitution. In
Ferreira v Levin NO
and Others; Vryenhoek and Others
v Powell NO and Others
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at para
183, Chaskalson P reminds us that:
“. . . there are functions that are properly the concern of the courts and
others that are properly the concern of the legislature.
At times these
functions may overlap. But the terrains are in the main separate, and should be
kept
separate.”
[49]
Amod v Multilateral Motor Vehicle Accidents Fund
[1998] ZACC 11
;
1998 (4) SA 753
(CC);
1998 (10) BCLR 1207
(CC) at para 22.
[50]
Sections173 and 8(3) of the
Constitution.
[51]
On requirements of factual
and legal causation and theories of causation see Snyman n 18 at 73 et seq;
Burchell and Milton n 16 at
115;
S v Daniels en ’n Ander
1983 (3)
SA 275
(A) at 331C-D and
S v Mokgethi en Andere
1990 (1) SA 32
(A) at
39.
[52]
R v Powell and Another; R
v English
n 25 at 545H-I; also see
R v Logan
n 26 at 402-3.
[53]
See n 5.
[54]
See n 6.
[55]
See n 7.
[56]
A similar criticism of the
doctrine of common purpose is levelled by the writers Burchell and Milton n 16
at 406.
[57]
Compare the remarks of Langa
DP in
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at para
37.
[58]
Per O’Regan J in
S
v Coetzee
n 47 at para 178.
[59]
See Snyman n 18 at 31-9;
Burchell and Milton n 16 at 29-37.
[60]
In conduct crimes, a defined
conduct is prohibited regardless of its result. Crimes of rape, perjury and
incest come to mind. In
a consequence crime, any conduct which causes a
proscribed outcome is punishable. Murder and culpable homicide are such
crimes.
[61]
S v Boesak
per Langa
DP n 57 at para 38.
[62]
De Lange v Smuts NO and
Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at para 23.
[63]
S v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC);
1995 (1) SACR 568
(CC) at para
41.
[64]
See
S v Makwanyane
n
46 at para 117. See also
S v Williams and Others
[1995] ZACC 6
;
1995 (3) SA 632
(CC);
1995 (7) BCLR 861
(CC) at para 80.
[65]
S v Dlamini; S v Dladla
and Others
;
S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (4) SA 623
(CC);
1999
(7) BCLR 771
(CC) at para 67. See also para 68 where the Court cautions that
alarming levels of crime should not be exploited to justify inappropriate
invasion of individual rights.
[66]
S v Mbatha; S v
Prinsloo
[1996] ZACC 1
;
1996 (2) SA 464
(CC);
1996 (3) BCLR 293
(CC) at para 16-8.
[67]
[1995] ZACC 11
;
1996 (1) SA 388
(CC);
1995
(12) BCLR 1579
(CC) at para 15
.
[68]
See also
S v Zuma and
Others
n 63 at para 33;
S v Ntsele
[1997] ZACC 14
;
1997 (11) BCLR 1543
(CC);
1997 (2)
SACR 740
(CC) at para 3-4;
S v Manamela and Another (Director-General of
Justice Intervening)
[2000] ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR 491
(CC);
2000 (1)
SACR 414
(CC) at para 25-6.
[69]
See Burchell and Milton n 16
above at 406-7.
[70]
See
S v Boesak
n 57
at para 15.
[71]
See n 9 at 703I-J, Botha
JA held that in a common purpose case:
“The trial Court was obliged to consider, in relation to each individual
accused . . . the facts found proved by the State
evidence against that accused,
in order to assess whether there was a sufficient basis for holding that accused
liable on the ground
of active participation in the achievement of a common
purpose.”
[72]
See n 23.
[73]
S v Boesak
n 57 at
para 15.
[74]
See
S v Mgedezi
n 9
at 706A-B;
S v Khumalo en Andere
n 23 at 350;
S v Singo
n 23 at
772. See also
S v Coetzee
and Others
n 47 at para 177 for a
discussion on an appropriate level of criminal culpability under the
Constitution and forms of intent under
the common law.
[75]
See n 23 above.
[76]
See n 8.
[77]
See for example:
Osman
and Another v Attorney-General, Transvaal
1998 (4) SA 1224
(CC);
1998 (11)
BCLR 1362
(CC);
S v Dlamini and Others
n 65;
S v Manamela
n 68;
S v Boesak
n 57 above.
[78]
Ferreira v Levin NO
n
48 at para 92.
[79]
Chaskalson et al
Constitutional Law of South Africa,
Frank Snyckers “Criminal
Procedure”, Juta, Cape Town at 27-44.
[80]
See n 68 at para 35 where
the Court confirmed the dicta contained in
Osman
n 77 at para 17.
[81]
See n 57.
[82]
Id at para 24.
[83]
See n 77 at para 22.
[84]
1944 AD 571.
[85]
1944 1 All ER 80.
[86]
See n 84 at 583-4. See also
S v Zwayi
1998 (2) BCLR 242
(Ck);
1997 (2) SACR 772
(Ck). Compare
S v
Brown
en ’n Ander
1996 (11) BCLR 1480
(NC);
1996 (2) SACR 49
(NC).
[87]
For examples of foreign
authorities on this point in common law jurisdictions see
Doyle v Ohio
[1976] USSC 120
;
426 US 610
at 618;
Jenkins v Anderson
[1980] USSC 114
;
447 US 231
at 238-45;
R v Noble
114 CCC (3d) 385 at 432-3;
Murray v United Kingdom
[1996] ECHR 3
;
(1996) 22 EHRR 29
at 45-7 and 51-4;
Averill v United Kingdom
[2000] ECHR 212
;
(2001) 31 EHRR 36
at 42-3.
[88]
Id at 617.
[89]
R v Leckey
n 85 at
83.
[90]
See n 87 at 635.
[91]
100 CCC (3d) 393.
[92]
Id at para 22 from the
minority judgment per Major J, which appears not to be inconsistent, on this
point, with the approach found
in the majority judgment at para 4.
[93]
Id at para 23.
[94]
SA Law Commission Project
73: Fifth Interim Report on the Simplification of Criminal Procedure at 120-3.
The Interim Report, at
28, relies on the decision of the European Court of Human
Rights in the case of
Murray v United Kingdom
n 87 in which it was held
that the right to silence is not absolute and that inferences from the silence
could be drawn in appropriate
instances, as well as on statutes in England and
in several states in Australia and the USA.
[95]
See n 91 at para 4.
[96]
Id.
[97]
See n 84.
[98]
See
R v Mashelele
n
84 at 585;
R v Patel
1946 AD 903
at 908;
S v Maritz
1974 (1) SA
266
(NC) at 267G; Hoffmann and Zeffertt
The South African Law of Evidence
4
th
ed at 179.
[99]
Jenkins v Anderson
n
87 at 238.
[100]
Sections 167(3)(b) and
(c) of the Constitution.
[101]
Compare the
earlier common law test of whether by reason of the irregularity or misdirection
“a failure of justice has, in fact,
resulted”. See
S v
Harris
1965 (2) SA 340
(A) at 364A-B. A lucid formulation of the test is
offered by Holmes JA in
S v Bernadus
1965 (3) SA (A).
[102]
Id
S v Bernadus
at
305C-F and Kriegler and Kruger n 16 at 831.
[103]
See n 65.
[104]
Id at para 93.
[105]
R v Hlongwane
1959
(3) SA 337
(A) at 340H.
[106]
Osman and Another v
Attorney-General, Transvaal
1998 (4) SA 1224
(CC);
1998 (11) BCLR 1362
(CC)
at para 17.
[107]
There is a wealth of
academic writing on the matter, both in South Africa and elsewhere. References
to much of this debate can be
found in three recently published South African
articles: RW Nugent “Self-incrimination in Perspective” (1999) 116
SA Law Journal
501; K Van Dijkhorst “The Right to Silence: Is the
Game Worth the Candle?” (2001) 118
SA Law Journal
26; and C
Theophilopoulos “The So-called Right to Silence and the Privilege Against
Self-incrimination: A Constitutional Principle
in Search of Cogent
Reasons” (2002) 18
SA Journal on Human Rights
505.
[108]
[1993] AC 1
(HL) at 30E
– 31B, quoted with approval in
Osman’s
case, above n 2, at
para 18.
[109]
Id 31D – 32D.
[110]
Id 32B.
[111]
See
Osman’s
case, above n 2 at para 22.
[112]
At para 108 - 109 of his
judgment. Section 35(5) of the Constitution provides that: “Evidence
obtained in a manner that violates
any right in the Bill of Rights must be
excluded if the admission of that evidence would render the trial unfair or
otherwise be
detrimental to the administration of justice.”
[113]
[1999] ZACC 8
;
1999 (4) SA 623
(CC);
1999 (7) BCLR 771
(CC) at para 94.
[114]
The fact that a court
concludes that the accused is lying and that the alibi is false does not mean
that the accused is guilty and
must automatically be convicted.
S v
Mtsweni
1985 (1) SA 590
(A) at 593I says, “[v]eral moet daar gewaak
word teen 'n afleiding dat, omdat 'n beskuldige 'n leuenaar is, hy daarom
waarskynlik
skuldig is.”
[115]
As Mason CJ reasoned in
Petty and Maiden v The Queen
[1991] HCA 34
;
(1991) 173 CLR 95
(HC):
“We acknowledge that there is a theoretical distinction between the two
modes of making use of the accused’s earlier
silence. However, we doubt
that it is a distinction which would be observed in practice by a jury, even if
they understand it.
And, what is of more importance, the denial of the
credibility of that late defence or explanation by reason of the accused’s
earlier silence is just another way of drawing an adverse inference (albeit less
strong than an inference of guilt) against the accused
by reason of his or her
exercise of the right of silence. Such an erosion of the fundamental right
should not be permitted. Indeed,
in a case where the positive matter of
explanation or defence constitutes the real issue of the trial, to direct the
jury that it
was open to them to draw an adverse inference about its genuineness
from the fact that the accused had not previously raised it would
be to convert
the right to remain silent into a source of entrapment.” (At 100-101).
See also
R v Gilbert
(1978) 66 Cr App R 237 (CA) at 244
where the distinction between an adverse inference to guilt and to credit was
rejected, and also
the rejection of that distinction by Rupert Cross “The
Evidence Report: Sense or Nonsense”
[1973]
Criminal Law Review
329
at 333. All these sources consider the distinction in the context of
instructions to the jury, and are therefore in a somewhat different
context to
the one we are considering. Notwithstanding the difference in context, however,
the reasoning remains valid in our context.
[116]
At para 69.
[117]
In
R v Mashelele and
Another
1944 AD 571
at 585, the Appellate Division (per Tindall JA) held
that it was permissible for a judge to inform a jury when an explanation or
alibi is only disclosed at trial, that the prosecution has not had the
opportunity of testing it and therefore it does not have the
same weight or
persuasive force as if it had been disclosed earlier. The Court specifically
held that it was impermissible to use
the late disclosure of an alibi to infer a
guilty mind on the part of the accused or that the alibi is false.
[118]
Section 36 of the
Constitution states that:
“(1) The rights in the Bill of Rights may be limited only in terms of law
of general application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human dignity, equality
and freedom, taking into account
all relevant factors, including –
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the
Constitution, no law may limit any right entrenched in
the Bill of
Rights.”
[119]
See
R v Cleghorn
100 CCC (3d) 393 at para 4, per Iacobucci J. The common
law rule discussed in
Cleghorn
stems back to the decision of
Russell v
The King
(1936) 67 CCC 28
at 32. The rule establishes that the failure of
an accused to disclose an alibi prior to the trial is relevant to the weight and
credibility to be attached to the alibi. See the discussion in John DR Craig
“The Alibi Exception to the Right to Silence”
39 (1996)
Criminal
Law Quarterly
227.
[120]
See section 34 of the
Criminal Justice and Public Order Act, 1994.
[121]
See
Murray v United
Kingdom
[1996] ECHR 3
;
(1996) 22 EHRR 29
;
Condron v United Kingdom
[2000] ECHR 191
;
(2001) 31 EHRR 1
and also the discussion by Ian Dennis “Silence in the Police Station: the
Marginalisation of Section 34”
[2002]
Criminal Law Review
25.
[122]
See SA Law Commission
Project 73: Fifth Interim Report on the Simplification of Criminal Procedure (A
more inquisitorial approach
to criminal procedure ─ police questioning,
defence disclosure, the role of judicial officers and judicial management of
trials)
August 2002, chapter 8, proposed new section 207A.
[123]
The section will be set
out and discussed later in this judgment.
[124]
Section 35(2)(a) of the
Constitution.
[125]
Section 35(2)(b) and (c)
of the Constitution.
[126]
Section 35(2)(d) of the
Constitution.
[127]
Section 35(2)(e) of the
Constitution.
[128]
Section 35(2)(f) of the
Constitution.
[129]
Compare section 35(2)(b)
and (c) with section 35(3)(f) and (g).
[130]
Section 35(3)(h) of the
Constitution.
[131]
S v Zuma and
Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC);
1995 (1) SACR 568
(CC)
at para 16.
[132]
S v Twala
(SA Human Rights Commission Intervening)
[1999] ZACC 18
;
2000 (1) SA 879
(CC);
2000 (1) BCLR
106
(CC) at
para 9
; Osman and Another v A-G, Transvaal
1998 (4) SA
1224
(CC);
1998 (11) BCLR 1362
(CC) at para 12
; S v Dzukuda and Others; S v
Tshilo
2000 (4) SA 1078
(CC);
2000 (11) BCLR 1252
at para 9
; S v
Rens
[1995] ZACC 15
;
1996 (1) SA 1218
(CC);
1996 (2) BCLR 155
(CC) at para 18.
[133]
Key v
Attorney-General, Cape Provincial Division
, and Another
[1996] ZACC 25
;
1996 (4) SA 187
(CC);
1996 (6) BCLR 788
(CC) at para 13.
[134]
S v Dlamini; S v Dladla
and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (4) SA 623
(CC);
1999 (7) BCLR 771
(CC) at paras 97-8.
[135]
Section 7 of the
Constitution.
[136]
Para 7 of the
concurrence.
[137]
S v Steyn
[2000] ZACC 24
;
2001 (1)
SA 1146
(CC);
2001 (1) BCLR 52
(CC) at para 13.
[138]
Para 63 of the main
judgment.
[139]
R v Mashelele and Another
1944 AD 571.
[140]
Para 14 of
the main judgment.
[141]
Para
72.