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