S v Davids; S v Dladla

• Jurisdiction: South Africa
• Judge: Didcott J, Nienaber J, Bristowe J
• Judgment Date: 01 June 1989
• Citation: 1989 (4) SA 172 (N)
• Hearing Date: 25 November 1988
• Court: Natal Provincial Division

Didcott J:

These two appeals and a couple more were set down for argument together. Judge's certificates had been granted in all four C on the strength of the decision in S v Khanyile and Another 1988 (3) SA 795 (N), the appellants having stood trial without legal representation because, so it seemed, they could not afford to pay for any. It soon became clear, however, that the other two were bound to succeed on different points, on points which had nothing to do with that D circumstance and no provenance in that case. We therefore dealt with them separately, allowing each for the reasons peculiar to it that were given then and need not be mentioned again.

That left the pair we must now determine, an appeal by a man named Moses Davids against his conviction on a charge of rape, for which he was sent to gaol for three years, and one by a person called E Siphiwe Dladla against a conviction for housebreaking with intent to steal and theft leading, on account of his bad record, to a sentence of imprisonment for four years. A debate over these ensued, which turned out to be intense, searching and lively. We are much indebted to the Deputy Attorney-General and to counsel who, at the request of the F Court, appeared for Davids and Dladla. Their contributions to the debate, and the perspectives they brought to bear on it, have proved most helpful to our deliberations.

For such assistance we had hoped, as it happened, the Khanyile judgment having been written without the benefit of argument. A G fresh look at the decision and some of its implications, taken in the light of that, had therefore seemed a good idea. Indeed, the Deputy Attorney-General had been specifically invited to make use of the occasion by telling us of, and letting us have his contentions on, anything in it that he felt we should reconsider. We had also requested him to acquaint us with any difficulties in its workings which had H been experienced and reached the attention of his office since it was announced five months earlier, or which had not yet shown themselves but he foresaw in the future. To these snags, or the ones at all events that have struck either him or us, I shall come later. Larger issues will first be addressed.

Here the Deputy Attorney-General gave us some food for thought. I His argument was prefaced, to quote from the heads of it, by the following acknowledgment:

'It should be emphasised that the respondent in no way suggests that what the Khanyile judgment seeks to achieve is anything but desirable and highly laudable. That accused persons should, in deserving and appropriate cases, have the benefit of legal J representation is unarguably an objective worthy of zealous pursuit.'

Didcott J

A The zeal was overdone, he protested, however, when representation procured for an accused person who could not himself obtain such got elevated from an achievement commendable in any trial to a positive requirement for a proper one. To raise it to that level, to do so even now and then, to do it for that matter on any occasion whatever or in any circumstances at all, exceeded our judicial reach, he B maintained, well within our domain though the field in general lay, the field filled with the trials we supervised and marked by the responsibility we bore for the justice dispensed in them. That would be unfortunate, to say the least, were it true. It was, we were urged to accept all the same, the line taken in the Khanyile case, the one going C in the opposite direction, having been preferred 'without any basis in our law', as the heads of argument stamped it.

Quite what that line was, quite where it went, had better be fixed in one's mind at once, right at the outset and before the attack on the decision is described in any detail.

D A good deal of the 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 E 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. The cry was hardly novel. Those who had voiced it over the years included the Hoexter Commission, which declared:

F 'Any state that prides itself on a democratic way of life should not regard legal representation of parties before its courts as a pure luxury or a fortuitous benefaction of the Government, but as an essential service. Indispensable to the achievement of the democratic ideal in any modern state is access to its courts for all its inhabitants. As has been pointed out, however, access means more than a sophisticated legal system and an incorruptible judiciary. For any G 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 H representation of the parties concerned.'

The passage will be found in the Commission's fifth and final report (vol 1 part II para 6.4.1). Its echo in the judgment is not now questioned. Nor in the least is the plea itself. It is by the way, in any event, at present. For it formed no part of the actual decision in the case, a case that had to be decided, that was indeed decided, I on matters as they stood and without a bet on the swift attainment of any such goal.

The decision reached in that situation, to recapitulate it, went thus. An accused person with no forensic skill of his own laboured under the same disadvantage when he had to defend himself, whether he was denied J the opportunity to employ some lawyer whom he could have got or unable to hire any despite every chance. Lack of representation differed in its

Didcott J

A causes, to be sure, but not in its effect on cases otherwise comparable. On that score there was no distinction in principle between them, a defence sorely handicapped being the result common to all. And that made the trials equally unfair, unless the cross in any happened to be borne by deliberate choice. In principle again, no reason existed why the recognised and usual remedy for the unfairness once its cause was a B denial of the opportunity to obtain representation, the vitiation then of the trial as a whole if it nevertheless proceeded, should not likewise be administered for an unfairness identical in nature and scale that was caused by an inability to procure such. There was a practical reason, however, why that could not as a rule be done, for the time being at any rate. It arose from the difference between the two kinds C of case which did matter when their treatment was considered, the first presupposing a representation accessible in the market to the person accused, the second postulating none affordable and his consequent need to be supplied gratuitously with some. And what comprised it was insufficient money and manpower available to cope with more than D a fraction of the innumerable cases like the second. Until things improved markedly, it followed, the remedy had to be dispensed in them frugally and selectively. It had perforce to be limited to instances of extreme hardship for the want of help, to trials adjudged 'palpably and grossly unfair' on account of none.

That was all very well, said the Deputy Attorney-General, joining E no issue there. He approached the matter from a different angle. His argument conjured up the interdependence of rights and obligations. And its crux, if I grasped that correctly, was this. The right to be represented, the right to enjoy representation, was beyond question, but one distinct thing. The reciprocal obligation consisted of the duty resting on all involved in the proceedings to respect the right, F the merely negative duty in other words not to deny it and in no way to obstruct or frustrate its exercise. Quite another phenomenon was a right to be provided with representation. The obligation had then to be a positive duty to provide it. And no known rule of law imposed such a duty on the judicial officer trying the case, on a single organ of the State, or on anyone else when it came to that. Legally, the duty did G not therefore exist. Nor as a result, being dependent on its existence, could any such right.

This made the debate sound like one that had to do with some problem encountered in the law of contract. Scarcely similar, however, is the ground we are now busy treading. It lends itself less to the systematic analyses and interlocking classifications of a Hohfeld than to H a pragmatism transcending such refinements. And it is governed not so much by rules hard and fast that operate no matter what happens to be at stake on any particular occasion, that produce certainty but sometimes for the sake of it a raw deal too, as by principles calibrated for individual cases, principles attuned to circumstances and results, the I broad principles of fundamental fairness and justice which we are pledged to uphold in the way our criminal trials are run. What these entail in their application to given situations, what amounts then to unfairness and injustice, is not always easy, of course, to determine. The question is one of dimension and degree, in the first place, neither absolute fairness nor perfect justice being an ideal that is J attainable all the time or even very often. A variety of

Didcott J

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