S v Alexander and Others (1)

• Jurisdiction: South Africa
• Judgment Date: 25 March 1965
• Citation: 1965 (2) SA 796 (A)

S v Alexander and Others (1)
1965 (2) SA 796 (A)

1965 (2) SA p796

Citation	1965 (2) SA 796 (A)
Court	Appellate Division
Judge	Ogilvie Thompson JA, Wessels JA and Potgieter AJA
Heard	March 2, 1965
Judgment	March 25, 1965

Flynote : Sleutelwoorde G

Criminal procedure — Trial — Irregularity — Within meaning of sec. 364 of Act 56 of 1955 — Pre-requisite of — Failure of justice within meaning of proviso to sec. 369 of Act — What constitutes — Evidence — Privilege — H Communication between client and legal adviser — Scope of privilege — Witness — Statement by policeman — Privilege attaching thereto — Such not waived by State.

Headnote : Kopnota

Before an irregularity within the meaning of section 364 of Act 56 of 1955 can be said to have occurred, that which is complained of must be associated with the trial in a degree imperilling that basic concept that the accused must be fairly tried,

The appellants had all been convicted of contravening section 21 (1) of Act 76 of 1962 in that they had committed sabotage by conspiring to overthrow the Government by means of violent revolution, guerilla warfare, and the

1965 (2) SA p797

commission of sabotage. After the conclusion of the trial the trial Judge refused an application for leave to appeal on the merits, but granted an application for the reservation of two questions of law under section 366 of Act 56 of 1955 and also made two special entries on the record. The first special entry related to the action of a prison official in the execution of what he conceived to be his duty under the A Prisons Act in reading a 60 - page statement which was a document enjoying the privilege of communication between client and legal adviser. The second special entry was 'whether the refusal to order the production of, and allow cross-examination on, the notes made by the witness Kotzee and relied upon by him in refreshing his memory for the purpose of making his statement to the police was an irregularity or illegality of the proceedings during the trial'.

Held, as in fact the prison official had not divulged the contents of the statement to the police or prosecution in accordance with the B appellants' alleged contemporaneous apprehension, that such apprehension was an insufficient link to justify the conclusion that the reading of the statement was an irregularity in 'the proceedings in connection with or during' the trial within the meaning of section 364 (1) of Act 56 of 1955.

Held, further, as appellants had failed to show any real prejudice, that no failure of justice within the meaning of the proviso to section 369 C (1) of the Act could in any case be said to have resulted therefrom.

Held, further, as to the second special entry, that Constable Kotzee's notes formed part of his witness-statement and, as such, were at the trial convered by the privilege attaching to that statement, which had in no way been waived by the State.

Held, further, as to the first question of law, viz. 'whether it was permissible in law for the prosecution to make any reference direct or indirect in cross-examination of an accused to a written statement given by him to the police officials while such accused was being detained D pursuant to section 17 of Act 16 of 1963', that there was no substance in it in that, even should the question be answered in the negative, on the facts no failure of justice, within the meaning of section 369 of Act 56 of 1955, could be said to have resulted therefrom.

Held, further, as to the second question of law reserved, which was designed to reflect the complaint that the trial Judge had inaccurately explained that a statement from the dock 'might not' - instead of E 'would not' - carry the same weight as evidence given on oath, that it was clear that none of the appellants, who had been represented and had the matter explained to them by counsel, had sustained any prejudice whatsoever consequent upon such inaccurate expression. Appeal accordingly dismissed.

Case Information

Appeal on questions of law reserved and special entries made in the Cape F Provincial Division (VAN HEERDEN, J.). The nature of the questions and special entries appears from the judgment of OGILVIE THOMPSON, J.A.

G. Gordon, Q.C. (with him R. M. Marais), for the appellants: The reading and censoring of the written instructions of accused Nos. 1, 2, G 3, 5, 6, 7 and 11 by members of the Prisons Department at Robben Island, prior to the opening of the defence case, constituted an irregularity or illegality in connection with the trial. The right of an accused to be represented legally under sec. 158 of the Criminal Code (cf. Gardiner & Lansdown, South African Criminal Law & Procedure, 6th ed., p. 382) postulates confidential access by him to his legal adviser; see Wigmore, Evidence, 3rd ed., vol. 8, pp. 550 - 2, 600, 626, 629 - H 30; Rossouw v Sachs, 1964 (2) SA at p. 559. The law has granted secrecy so far as its own process goes; see Wigmore, ibid p. 629. There is nothing in the Prisons Act or Regulations which authorises, and therefore renders lawful, the perusal of privileged communications between attorney and client by any member of the Prison staff; cf. proviso (aa) to sec. 82 of Act 8 of 1959, reg. 123 (1). The words 'if such member is satisfied, etc. . . .' provide no warrant for the reading of

1965 (2) SA p798

that which the section prohibits the official to read. The intention was that he must satisfy himself dehors the document, cf. discovery procedure in civil cases where in the absence of mala fides there is no warrant for going behind the ipse dixit of the parties in their A affidavits; see Herbstein & van Winsen, Civil Practice of Superior Courts in S.A., at p. 346. Alternatively, there is nothing in the Prisons Act or Regulations which authorised the prison officials, Visser and Killian, neither of whom was 'the member of the Prisons Service in B charge of the prison', to read the instructions. The member of the Prisons Service in charge of the prison may not delegate this duty; cf. Shidiack v Union Government, 1912 AD at pp. 650, 648; Rose-Innes, Judicial Review of Administrative Tribunals in S.A., pp. 207 - 10. In any event, if Parliament intended some delegation in so important a matter as the potential invasion of professional privilege, the qualification of the delegatee would surely have been expressly C prescribed. Alternatively, if delegation is required owing to the impracticability of the member in charge fulfilling the function of reading and censoring a multitude of letters, etc., it is not required for the limited function of deciding whether a letter or document is intended solely for the defence of the prisoner. The implication of D power to delegate must go no farther than is necessitated. There is no room for the implication of a power of delegation because the Legislature has made express provision in the Act for powers of delegation and no power of delegation is conferred upon the member of the Prisons Service in charge of the prison; see sec. 93. Expressio E unius exclusio alterius est. A failure of justice occurs where there is unfairness in the conduct of a trial; see Halsbury, Laws of England, 3rd ed., vol. 10, pp. 538 - 9; R v Rose, 1937 AD at pp. 476 - 7; S v Moodie, 1961 (4) SA at p. 756. The trial was unfair in that from the 13th January, 1964, the fundamental principle of confidential access by the accused to their legal representatives was violated. Whether or not F the investigating authorities or State counsel became aware of the privileged instructions is not the sole test of prejudice to the accused; see R v Sussex Justices, (1924) 1 K.B. at p. 259, cited in R v Venter, 1944 AD at p. 364; R v Matsego, 1956 (3) SA at p. 418. The irregularity which occurred may properly be described as an G irregularity or illegality in the proceedings in connection with the trial. There are two kinds of irregularities contemplated by sec. 364 (1) of the Criminal Code, namely 'at the trial or in connection with it'; see R v Knight, 1935 AD at p. 344; R v Velshi, 1953 (2) SA at p. 561. It is clear that, as far as the second kind of irregularity is concerned, what is contemplated is something other than the actual H proceedings in Court. The Legislature obviously appreciated that a criminal trial might be rendered unfair in an infinite variety of ways and that unfairness might ensue as a result of factors dehors the actual hearing itself, for example, by prison authorities refusing to allow an accused to communicate with a lawyer prior to trail, telling him that he is not entitled to be represented except in certain particular cases. It was, in order to provide a remedy in such eventualities, that the Legislature employed the wide phrase 'in connection with the trial'. It could never have intended by its wording of sec. 364 (1) to

1965 (2) SA p799

confine the irregularities to those which take place in facie curiae. Otherwise the words 'in connection with' would have no subject matter to operate upon. Tautology is never presumed to be intended. Just as sec. 364 may apply to things done before the Judge comes into Court, so it A applies to things done after he has entered but in his absence, i.e. not in facie curiae, e.g. S v Moodie, 1961 (4) SA 752, where something striking at the very root of the privacy of the jury was an irregularity. Something striking at the very root of confidential access between accused and his counsel is likewise matter for special entry. B The Criminal Code provides remedies for an appellant which are exhaustive. There is no extra-statutory jurisdiction; see R v Mofokeng, 1962 (3) SA at p. 558. If the afore-mentioned examples are not held to be matters in respect of which special entries may properly be made in terms of sec. 364 (1), the result will be that no redress would be available to an accused...