About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2017
>>
[2017] ZACC 27
|
|
Barlow v S (CCT233/15) [2017] ZACC 27; 2017 (2) SACR 535 (CC); 2017 (11) BCLR 1357 (CC) (3 August 2017)
Links to summary
Heads of arguments
CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 233/15
In the matter between:
DESHWIN
BARLOW
Applicant
and
THE
STATE
Respondent
Neutral citation:
Barlow v S
[2017]
ZACC 27
Coram:
Nkabinde ADCJ,
Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga
J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J
Judgments:
Froneman J (majority): [1] to [18]
Zondo J (partially dissenting): [19] to [46]
Heard on:
7 March 2017
Decided on:
3 August 2017
Summary:
Application for leave to appeal — no prospects of success —
not in the interests of justice to grant leave — application
is
dismissed
Section 35(3)(a) of the Constitution —
right to be informed of charge with sufficient detail to answer to it
— inadvertent
omission — detail given in the course of
judgment —no violation
Section 35(3)(o) — right to appeal
— no express consideration — no reason to interfere with
factual finding of
trial Court — no violation
ORDER
On appeal from the Full Court in the
High Court of South Africa, Gauteng Local Division, Johannesburg, the
following order is made:
1.
The application for leave to appeal is dismissed.
JUDGMENT
FRONEMAN J (Nkabinde ADCJ, Cameron
J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ and
Pretorius AJ concurring):
[1]
Some carelessness and inaccuracies in the judgments of both
the Trial Court and on appeal, the Full Court, in the High Court of
South Africa, Gauteng Local Division, Johannesburg (High Court),
raised the question whether Mr Barlow (applicant) was deprived
of his
right to a fair trial.
[2]
According to the Trial Court judgment, the applicant was
charged with eight counts: (1) unlawful pointing of a firearm; (2)
murder;
(3) robbery with aggravating circumstances; (4) attempted
murder; (5) unlawful possession of a firearm; (6) unlawful possession
of ammunition; (7) another count of unlawful possession of a firearm;
and (8) another count of unlawful possession of ammunition.
He
pleaded not guilty to all the charges.
[3]
At the close of the State’s case, the applicant applied
for discharge, on all counts, in terms of section 174 of the Criminal
Procedure Act.
[1]
The application succeeded in respect of count 1 (unlawful pointing of
a firearm) and counts 5 and 6 (the first counts of
unlawful
possession of a firearm and ammunition), but not in respect of the
remaining counts 2 (murder), 3 (robbery with aggravating
circumstances), 4 (attempted murder) and 7 and 8 (unlawful possession
of a firearm and ammunition).
[4]
When delivering the judgment in the Trial Court, Mabesele J
started by stating that:
“The accused
stands trial on counts of pointing a firearm, murder (read with the
provisions of section 51 of Act 105 of 1997),
robbery with
aggravating circumstances (read with the provisions of [s]ection
51(2) of Act 105 of 1997), unlawful possession of
firearms and
unlawful possession of ammunition.”
[2]
[5]
This statement was incorrect because the applicant had already
been discharged on the count of pointing a firearm (count 1) and it
did not refer to the count of attempted murder (count 4). From
the rest of the judgment, however, it is clear that it
was an
inadvertent mistake. Mabesele J dealt fully with the evidence
relating to all the remaining charges and found
the applicant
guilty of murder (count 2), theft (a competent verdict on count
3 – robbery), attempted murder (count
4) and the unlawful
possession of a firearm and ammunition (counts 7 and 8).
[6]
On 1 April 2011, Mr Barlow was sentenced to 10 years’
imprisonment on count 2 (murder), three years on count 3
(theft),
five years on count 4 (attempted murder) and three
years for counts 7 and 8 (unlawful possession of a firearm and
ammunition).
The sentences on counts 3, 4, 7 and 8 were all
ordered to run concurrently. The result was that the accused is
sentenced
to an effective term of 15 years’ imprisonment.
[7]
Mr Barlow launched an opposed application for leave to appeal
against the convictions. This was on the grounds that the State
did not prove his guilt beyond a reasonable doubt for the convictions
of murder and attempted murder and that the element of intention
to
permanently deprive the deceased of his firearm was not established.
Leave to appeal to the Full Court was granted.
[8]
The appeal turned on the facts and involved no challenge to
the fairness of the trial. The Full Court found that the
undisputed
facts were that the deceased and the applicant had an
argument; the deceased had his firearm on his person; and that the
deceased
died of a gunshot fired by the applicant from that firearm.
The deceased’s companion sitting in the back of his
vehicle,
Ms Botha, was shot at by the applicant shortly after the
deceased was shot. The applicant then fled from the scene
taking
with him the deceased’s firearm. Given these
facts, the Full Court found no misdirection in the manner in which
the Trial Court evaluated the evidence and that its conclusion that
the State had proved its case beyond a reasonable doubt could
therefore not be faulted.
[9]
So far, so good. An ordinary appeal on the facts that
would normally not attract this Court’s jurisdiction.
[3]
But now another glitch. Although the Full Court dismissed
the applicant’s appeal against his convictions, it
failed to
mention that he had been found guilty of theft on count 3 (the
robbery charge).
[10]
The inaccuracies in the introductory paragraph of the Trial
Court’s judgment relating to the charges he faced may be argued
to have infringed his right to a fair trial and this infringement may
also have been compounded by the Full Court’s failure
to
mention the theft conviction in the appeal judgment.
[11]
The right to a fair trial in the Bill of Rights includes the
right to be informed of the charge with sufficient detail to answer
it.
[4]
There is no suggestion that the applicant’s rights in
this regard were infringed. Although not expressly spelled
out
in the section, it seems evident that an accused person is entitled
to be provided with reasons for each charge he is convicted
of and
that this also extends to the right of appeal to a higher court.
[5]
[12]
As noted earlier, the initial wrong reference to the charge of
pointing a firearm (count 1) instead of attempted murder (count 4)
was clearly an inadvertent error. In the course of the judgment
Mabesele J dealt extensively with the evidence, including
the
evidence relating to the attempted murder charge, and came to the
conclusion that the applicant was guilty on that count. He
was
then duly sentenced for the conviction on that charge.
[13]
In the course of his judgment in the Trial Court, Mabesele J
also considered and gave reasons why robbery with aggravating
circumstances was not established in relation to count 3, and why a
competent verdict of theft was called for. However, on
appeal,
the Full Court did not expressly consider the reasons the Trial Court
gave for the theft conviction. Nor did
it expressly consider
the basis upon which the applicant appealed, namely, that intention
on his part to permanently deprive the
deceased of his firearm was
not established beyond a reasonable doubt.
[14]
The right to a fair trial includes the right to appeal.
[6]
Because the Full Court did not expressly consider Mr Barlow’s
appeal on theft, it may be argued that he has had no
appeal on the
theft conviction. Consequently it may be argued that the
applicant has not had a fair trial regarding his appeal
on the theft
conviction. The application for leave to appeal against the
conviction of theft on the basis of a violation
of the applicant’s
right to a fair trial must therefore be considered with care.
[15]
It nevertheless does not assist the applicant materially.
Although the Full Court on appeal did not specifically make
mention
of the theft charge, it dismissed the appeal on the
basis that there was no reason to interfere with the factual findings
made by Mabesele J in the Trial Court. There is no ground for
faulting that approach. On those findings the applicant
appropriated the firearm and did not return it. The rejection
of his version by Mabesele J in the Trial Court as untrustworthy
means that his defence of no intention to permanently deprive the
owner of the firearm cannot stand. Although this aspect
of the
application raises a constitutional issue, there are no
prospects of success.
[16]
There is another reason why it is not in the interests of
justice to grant leave on this aspect alone. In another case it
might have been appropriate to refer the matter back to the Full
Court. But in this case it would not be in the interests
of
justice to do so. The trial court sentenced the applicant to
three years’ imprisonment on count 3 (theft).
The sentences on counts 3, 7 and 8 together (unlawful possession of a
firearm and ammunition), were ordered to run concurrently
with the
five-year sentence on count 4 (attempted murder). It thus makes
no difference on sentence whether the theft conviction
stands or
falls.
[17]
The application regarding the remaining convictions on murder,
attempted murder, unlawful possession of a firearm and
ammunition
must also stand. That said, though, it must be
reiterated and emphasised that clear and careful reasons for the
findings
on criminal charges are vital for the administration of
justice not to fall into disrepute.
[18]
The following order is issued:
1.
The application for leave to appeal is dismissed.
ZONDO J
Introduction
[19]
The applicant, Mr Deshwin Barlow, applies to this Court for an
order:
“Declaring
the decision of the Full Court of the Gauteng Local Division,
Johannesburg, [Makgoka J, Mphahlele J and Baloyi
AJ] . . .
dismissing the applicant’s appeal against his conviction
by the Gauteng Local Division (Mabesele J) . . .
on one count of
murder, one count of theft, one count of attempted murder, one count
of unlawful possession of a firearm and one
count of unlawful
possession of ammunition, unconstitutional and set aside to an extent
that the verdict was inconsistent with
regard to the following
constitutional factors.”
Thereafter, the applicant sets out the
bases for his attack on the decision of the Full Court.
[20]
The applicant’s application was not prepared by an
attorney or counsel. The applicant either prepared it himself
or
he got someone else with some knowledge of the preparation of
court papers to prepare it for him. It seems to me that
we must
treat the application as an application for leave to appeal against
the judgment and order of the Full Court which heard
his appeal.
I shall, therefore, approach this judgment on this basis.
Background
[21]
The applicant initially faced eight charges before Mabesele J
in the Gauteng Local Division of the High Court. He was
acquitted
of three at the end of the State’s case and was left
with five charges to face. In the view I take of this matter,
it is not necessary to give a detailed background to the matter.
According to the judgment of the trial court the applicant
faced the
following counts before it:
(a)
pointing a firearm;
(b)
murder (read with the provisions of section 51(1)
of Act 105 of
1997);
(c)
robbery with aggravating circumstances (read
with the provisions of
section 51(2) of Act 105 of 1997);
(d)
unlawful possession of firearms; and
(e)
unlawful possession of ammunition.
The trial court must have meant that
these were the charges the applicant faced after his acquittal
of three other charges
at the end of the State’s case.
[22]
The applicant pleaded not guilty to all the charges. The
events that gave rise to the charges had occurred on 24 October 2009
at about 02h00 at Reiger Park, Johannesburg. The applicant had
attended a certain function at Reiger Park on the evening
of 23
October 2009. The function went on until the early hours of
24 October 2009. At about 02h00 at the
parking of the
venue where the function had been held, Mr Frederick Flagg died as a
result of a gunshot to his stomach. There
were two or
three other gunshots to one or both of his legs.
[23]
There are different versions concerning the circumstances
under which Mr Flagg died. According to one witness, the
applicant
shot Mr Flagg deliberately as he was asking him not to
shoot. This was after an argument which had arisen between
Mr Flagg
and someone else and/or the applicant at the parking.
According to the applicant, an argument arose between himself and the
deceased after the applicant had accidently bumped against the mirror
of Mr Flagg’s motor vehicle. The deceased had
a firearm
and the two struggled for the firearm and, in that struggle, shots
went off from the deceased’s firearm and
wounded the
deceased in his stomach and legs.
[24]
It is common cause that the shot that killed Mr Flagg came
from his firearm. According to the State witnesses, the
applicant
got the firearm from Mr Flagg. After Mr Flagg had
been shot, a Ms Botha, who was in Mr Flagg’s car, was also shot
in
the arm. Ms Botha raised her arm to protect her head as she was
being shot at by, according to her, the applicant. Had
she
not raised her arm, she would have been shot in the head. Mr
Flagg had come out of his motor vehicle (of which he was
the driver)
and he died outside his motor vehicle. After Mr Flagg had been
shot, the applicant left the scene with Mr
Flagg’s firearm
and ammunition. The charge of robbery was based on the fact
that the applicant took Mr Flagg’s
firearm and ammunition with
him.
Trial Court
[25]
The trial court convicted the applicant of “counts 2, 3,
(theft), 4, 7 and 8.” That is five counts. At the
beginning of its judgment, the trial Court did not specify the count
numbers but simply stated what charges the applicant
was facing.
However, when it convicted the applicant, it referred to count
numbers without specifying what the charges were
to which the count
numbers referred.
[26]
At the beginning of its judgment, the trial court also
mentioned the charges that the applicant faced but it did not mention
the
charge of attempted murder. However, in his judgment
on sentence, the trial Judge began his judgment by specifying the
counts of which he said the applicant had been found guilty.
In mentioning them, he included attempted murder.
The trial
Judge said in the first paragraph of his judgment on sentence:
“The accused
is guilty of murder of Metro Police Officer, Flagg Mervin Frederick.
He is also guilty of theft of
a firearm of the deceased,
attempted murder, unlawful possession of a firearm and unlawful
possession of ammunition.”
The applicant was sentenced to an
effective term of fifteen (15) years’ imprisonment.
Later, the High Court granted
the applicant “leave to appeal
against CONVICTIONS” to a Full Court of the High Court.
Full Court
[27]
The applicant appealed to a Full Court of the High Court
against all his convictions. The appeal was heard by Makgoka J,
Mphahlele
J and Baloyi AJ. Makgoka J wrote a unanimous
judgment.
[28]
At the beginning of its judgment, the Full Court pointed out
that the applicant’s appeal was against his conviction on four
counts which it identified as murder (count 2); attempted
murder (count 4); unlawful possession of a firearm (count 7)
and
unlawful possession of ammunition (count 8)”.
[7]
At the end of the judgment, the conclusion and order read as follows:
“[28]
In the result the appeal against the conviction has to fail.
[29] The following
order is made:
1.
The appeal against the conviction is dismissed.”
[8]
This is the order against which the
applicant must be taken to seek leave to appeal.
In this Court
[29]
The applicant contends that the Full Court failed “to
take cognisance of the fact that [his] right to ‘human dignity’
and to receive ‘a fair trial’ in terms of sections 10
and 35(3) of the Constitution” had been infringed
by the
Full Court in that it:
(a)
disregarded his version of
events;
(b)
convicted the applicant “based
on a single witness’ evidence” when that evidence was
contradictory and inconsistent
with the objective facts; and
(c)
drew a negative inference from
the applicant’s “failure to call the two ‘so called’
unnamed witnesses
to testify that they
had
witnessed the shooting”.
[30]
In regard to the Full Court’s decision to dismiss the
applicant’s appeal against the murder conviction, the
applicant’s
Counsel’s attack did not raise any
constitutional issue nor did it raise any arguable point of law of
general public importance
that deserves to be considered by this
Court. His submissions were simply directed at persuading this
Court that the Full
Court was wrong not to interfere with the factual
findings that were made by the trial court in regard to the murder
charge and
to have itself made the factual findings that it made in
this regard. For this reason, the applicant’s application
for leave to appeal against the Full Court’s dismissal of his
appeal concerning the murder conviction falls to be dismissed
for
lack of jurisdiction.
[31]
The applicant’s application also relates to his appeal
before the Full Court against his convictions on the other
counts.
There is a problem with the applicant’s
application for leave to appeal against what the applicant calls in
his Notice of
Motion “the decision of the Full Court of the
Gauteng Local Division, Johannesburg . . . dismissing [his] appeal
against
his conviction” on the other counts. The problem
is that, upon a proper reading of the Full Court’s
judgment,
it is clear that that Court did not make any decisions on
the applicant’s appeals in respect of his convictions on the
other
counts. Since the Full Court did not decide those
appeals, there cannot in law be an appeal to this Court. I
elaborate
below to show that the Full Court only decided the appeal
only against the murder conviction and nothing else.
[32]
In the first two paragraphs of its judgment the Full Court
said:
“[1]
This appeal is against the conviction only. Initially, the
appellant faced eight
counts in this court. However, the trial
culminated in his conviction on four of those counts, namely,
murder (count
2); attempted murder (count 4); unlawful possession of
a firearm (count 7) and unlawful possession of ammunition (count 8).
With the order of concurrency of the sentence, the appellant was
sentenced to an effective period of 15 years’ imprisonment.
The appeal is against the conviction on all four counts, with
leave of the trial court (Mabesele J).
[2]
In the indictment, the appellant was alleged to have murdered Mr
Mervin Frederick
Flagg (the deceased) by shooting him. The
attempted murder count was in respect of Ms Myrna Botha (Ms Botha).
The allegation
was that after the appellant had shot dead the
deceased, he took his firearm, which had ammunition in it. This forms
the basis
of the counts of unlawful possession of a firearm and of
ammunition (counts 7 and 8, respectively).”
[9]
[33]
It will be seen that in paragraph 1, the Full Court said that
the applicant’s trial had culminated in his conviction on four
counts. This was incorrect. At the trial the applicant
was convicted of five counts. This is spelt out clearly
in the
last paragraph of Mabesele J’s judgment. The
applicant had originally faced eight charges but he was acquitted
of three in terms of section 174 of the Criminal Procedure Act.
The trial then proceeded in respect of five charges and he
was
convicted of all of them.
[34]
The Full Court said that the appeal before it was an appeal
against four convictions. It said that the counts of which the
applicant
had been convicted were “murder (count 2); attempted
murder (count 4); unlawful possession of a firearm (count 7) and
unlawful possession of ammunition (count 8).”
[10]
In the last sentence of the first paragraph of its judgment, the Full
Court said: “The appeal is against the conviction
on all four
counts, with leave of the trial court (Mabesele J)”.
[11]
[35]
There is one count of which the applicant was convicted in the
trial court which the Full Court did not include as one of the counts
for consideration on appeal. That is the count of theft.
The applicant’s conviction of theft came about in this
way.
One of the charges that the applicant had faced in the trial court
was robbery with aggravating circumstances (read
with section 51(2)
of the Act 105 of 1997). The trial court concluded that there
was not enough evidence to convict the applicant
of robbery because
no force had been used to take the firearm. It, nevertheless,
took the view that there was enough
evidence to convict the
applicant of the competent verdict of theft. This was the
alleged theft by the applicant of the deceased’s
firearm and
ammunition.
[36]
A reading of the entire judgment of the Full Court reveals
that that Court never considered the applicant’s appeal against
his conviction of theft despite the fact that the trial Judge
had granted him leave to appeal against his conviction of this
count
as well. This means that the Full Court failed to carry out its
statutory obligation to consider and decide the applicant’s
appeal against his conviction of this count. This was
prejudicial to the applicant and was a denial of his right to an
appeal
in terms of section 35(3)(o) of the Constitution.
[37]
The judgment of the Full Court consists of 29 paragraphs.
Paragraphs 28 and 29 contain, respectively, the conclusion and
the order. I have already quoted paragraphs 1 and 2 of the
judgment. They relate to the counts that the Full Court
believed the applicant had been convicted of which were before it on
appeal. From paragraphs 3 to the end of the judgment,
the
judgment is all about the evidence relating to the murder
charge, the analysis of the evidence relating to that charge,
the
conclusion of the Full Court on the appeal against the conviction of
murder and the order. Paragraphs 28 and 29 of the
judgment
read:
“[28]
In the result the appeal against the
conviction
has to fail.
[29]
The following order is made:
1.
The appeal against the conviction is dismissed.”
[38]
Although at the beginning of its judgment, the Full Court
demonstrated that it was alive to the fact that the appeal was not
limited
to the murder conviction and that there were other counts of
which the applicant had been convicted which were on appeal before
it, it focused its judgment on the appeal against the murder
conviction. It would seem that, by the time that the Full
Court concluded its consideration of the applicant’s appeal
against the murder conviction, it had forgotten that that did
not
mark the end of the matter and it still had to consider the
applicant’s appeals against his convictions on
the other
counts. The two other members of the Court also did not pick
this up. That is the only logical explanation
for the Full
Court’s failure to discharge its obligation to consider
and determine the applicant’s appeals against
the other
convictions including that of theft. The Full Court’s
failure to consider and determine the applicant’s
appeals
against the other convictions was a denial of the applicant’s
right to appeal entrenched in section 35(3)(o) of the
Constitution.
[39]
Since the Full Court did not decide the applicant’s
appeals against the other four convictions, that means that
those
appeals are still pending in the High Court. They must
first be decided before there can be an application for leave
to
appeal to this Court. The matter must be remitted to the
Full Court to enable it to determine the applicant’s
appeals
against the other convictions including the conviction of theft.
To this end the applicant’s attorneys should
approach the Judge
President of the Gauteng Provincial Division of the High Court or his
relevant Deputy to request that arrangements
be made for the appeals
against the other convictions to be heard by a Full Court.
[40]
Because of the cumulation of errors in the trial court and
Full Court judgments, the applicant has been very unlucky. The
only charge that the trial court dealt with in any serious way was
the charge of murder. It dealt with other charges in two
or
three sentences only. That is when it was convicting him of the
other charges. It analysed evidence only in regard
to the
murder charge and did not do so in respect of the other charges.
In fact, in respect of the other charges it did not
even state what
his defence was nor did it state his explanation for his conduct.
[41]
In the first page and a half or so of the trial court’s
judgment, the trial court sought to identify the charges that the
applicant had faced. It then recorded that: the applicant
pleaded not guilty to each one of the charges, did not offer a plea
explanation and, made certain formal admissions in respect of, I
think, the murder charge. The Court then stated that
it was
admitted that the deceased’s firearm was found at the
applicant’s place of residence. The Court also
recorded
the State witnesses’ evidence in regard to count 1
which was the charge of pointing a firearm. It
did not refer to
the applicant’s evidence in regard to that charge. This
is one of the charges of which the applicant
was acquitted at
the end of the State case.
[42]
After the trial court had dealt with the matters to which I
have referred above, it pointed out that Mr Lawrence Flagg, a cousin
of the deceased, and Ms Myrna Botha testified for the State in
respect of counts 2, 3, 4, 7 and 8. From then on up to the
last
but one paragraph of the judgment, the trial court recorded the
evidence of the State witnesses, the only defence witness
called
and the applicant (who testified in his own defence) and analysed
that evidence in respect of the murder charge only and
concluded that
the applicant should be convicted of murder.
[43]
To the extent that the trial court referred to some evidence
relating to one or other charge other than the murder charge, it
did so as part of simply recording the sequence of events. It
did not do so in the course of considering the question whether
the
applicant should be convicted or acquitted of those charges. It
was only in the last paragraph of the judgment that the
trial court
said something about the other charges. Even then, it was
simply two or three sentences. The last paragraph
of the
judgment reads:
“The evidence
of the state clearly calls for conviction of the accused on counts 2,
3, 4, 7 and 8. However, accused
should be guilty of theft on
count 3. The reason is that there is no evidence that the
deceased’s firearm was taken
from him by force. In the
result, the accused is GUILTY on counts 2, 3, (theft), 4, 7 and 8.”
This is about all the trial court said
about the other counts.
[44]
From this, one can see that the trial court did not state what
the applicant’s defence was to each one of those charges nor
what his explanation was for this conduct. This was
strange because, for example, in regard to the charge of robbery,
the applicant testified to the effect that, when he took the
deceased’s firearm, he did so because he did not want someone
else to pick it up and shoot him with it. He also said that he
intended to hand it over to the Police when he handed himself
over.
The only basis upon which the public prosecutor sought to challenge
the applicant’s explanation for why he had
taken the deceased’s
firearm and ammunition was that the applicant never intended to hand
himself over to the police.
However, the public prosecutor
withdrew this challenge after the applicant’s Counsel had
pointed out that the Investigating
Officer had confirmed in the bail
application that an arrangement had been made with him for the
applicant to hand himself
over to the Police but the Metro Police
arrested him before the time when he was to hand himself over.
Of course, the
Full Court did not fare better. It simply
dealt with the appeal against the murder conviction only and left out
all the other
convictions.
[45]
It is important that courts should consider all issues or
matters before them and decide them properly and give reasons for
their
conclusions. When they do not do that, they infringe
the fair trial rights of accused persons or appellants.
[46]
In the result I would have made the following order:
1.
Leave to appeal against the Full Court’s dismissal of the
applicant’s appeal against
the murder conviction is refused.
2.
The application for leave to appeal against the Full Court’s
alleged decision dismissing
the applicant’s appeals against the
rest of his convictions is struck off the roll.
3.
The Registrar of this Court is directed to bring this judgment to the
attention of the Registrar
of the Gauteng Local Division of the High
Court who must in turn bring it to the attention of the Judge
President or his Deputy.
For the Applicant:
V
T Seboko pro deo counsel appointed on behalf of the applicant
For the Respondent:
C E Britz and H H P Mkhari
instructed by Director of Public
Prosecutions, Johannesburg
[1]
51 of 1977.
[2]
Barlow v S
[2015] ZAGPJHC 318 (30 January 2015) at paras 1-2.
[3]
See, for example,
S v Boesak
[2000] ZACC 25; 2001 (1) BCLR 36
(CC); 2001 (1) SA 912 (CC).
[4]
Section 35 of the Constitution 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.”
[5]
Section 146 of the Criminal Procedure Act provides:
“A ju`1 of
the proviso to section 145(4) whether any matter constitutes a
question of law or a question of fact, give the
reasons for his
decision.”
See also, for example,
Mphahlele v
First National Bank of South Africa Ltd
[1999] ZACC 1
;
1999 (2)
SA 667
(CC);
1999 (3) BCLR 253
(CC) at paras 4 and 12; and
Mokela
v The State
[2011] ZASCA 166
;
2012 (1) SACR 431
(SCA) at paras
12-3.
[6]
Section 35(3)(o) of the Constitution.
[7]
Above n 2 at para 1.
[8]
Id at paras 28-9.
[9]
Id at paras 1-2.
[10]
Above n 9.
[11]
Id at para 1.