S v Rudman and Another; S v Mthwana

• Jurisdiction: South Africa
• Judge: Nicholas AJA
• Judgment Date: 27 September 1991
• Citation: 1992 (1) SACR 70 (A)
• Hearing Date: 22 August 1991
• Counsel: A Chaskalson SC (with him J Pickering, M S Navasa and G J Marcus) for the appellants in both cases M C J Hodgen SC (with him J Bezuidenhout and P Blomkamp) for the State in both appeals
• Court: Appellate Division

Nicholas AJA:

These three matters, which have their main ground of appeal in common, were heard together. G

The first appeal is that of Charles Rudman, who was convicted in the Port Elizabeth magistrate's court of housebreaking with intent to steal and theft and then referred for sentence to the regional court, where he H was declared an habitual criminal. The second appeal is that of Ricardo Johnson, who was convicted in the Port Elizabeth magistrate's 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 this I 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 Johnson's appeal against conviction and sentence. The judgment (per Cooper J; Jennet J and Jansen J concurring) is reported: S v Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk NO and Another 1989 (3) SA 368 (E). The case will be referred to as S v Rudman. The third appeal is that of Paulus Mthwana, who was convicted in the Durban magistrate's court of housebreaking with intent to steal and sentenced to J imprisonment for two years.

Nicholas AJA

A His appeal to the Natal Provincial Division was dismissed (per Howard JP, with Booysen J and Combrink J concurring). The judgment is reported: S v Mthwana 1989 (4) SA 361 (N).

The main question 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 B legal representation, if necessary at the expense of the State. No such rule had ever been recognised in South Africa 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, and Another 1989 (3) SA 655 (Ck) Heath J, with whom Liebenberg AJ concurred, also disagreed. In C 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 184G-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 D did not agree with the Khanyile decision, but agreed with the dissenting 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 178C-E:

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 (1) 1965 (2) SA 796 (A) with the subject, he said (at 809C-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 29G-H): F "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 snippets taken from passages in judgments and articles quoted by Didcott J: '. . . a concept . . . encompassing notions of basic fairness and justice', 'comprising common and G 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 administration', 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 H grounds of principle and policy to formulate a coherent general rule. This rule, as I have extracted it from 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 defended by one. It is 'fundamental and essential to a fair trial' that he should be allowed to exercise that right, and if he desires and cannot himself afford legal representation, he should be provided with it. A denial of the right I makes the trial per se unfair and any conviction which follows will inevitably be upset. The learned Judge recognised, 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 at 815-16). He explained J the rationale of the compromise in S v Davids at 184G-185A:

Nicholas AJA

A '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 consequence 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 B 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 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 C 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 D submitted the following as a correct formulation of the question to be decided by this Court:

'1.1

Whether the accused persons who

1.1.1

faced serious charges;

1.1.2

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; E 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 F 'fairness' and 'justice' and, it may be added, 'equity', 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 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 G trials. If there was not, cadit quaestio. If there was an irregularity, a question would then arise under the proviso to ss (3) of s 309 of the Criminal Procedure Act 51 of 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 H 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 irregularity or defect.'

In s 322(1) of the Act, which is concerned with the powers of the Court I 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 s 370 or a question of law reserved under s 372. No appeal lay on the facts except J upon a question of law reserved alleging that there was no

Nicholas AJA

A 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...