S v Davids; S v Dladla

• Jurisdiction: South Africa
• Citation: 1989 (4) SA 172 (N)

S v Davids;
S v Dladla
1989 (4) SA 172 (N)

1989 (4) SA p172

Citation	1989 (4) SA 172 (N)
Court	Natal Provincial Division
Judge	Didcott J, Nienaber J, Bristowe J
Heard	November 25, 1988
Judgment	June 1, 1989

Flynote : Sleutelwoorde B

Criminal procedure — Trial — The accused — Legal representation of — Accused unrepresented where matter is neither so trivial that C representation would, in any event, be dispensed with nor so serious that pro deo representation automatically appointed — Accused not able to afford representation — Effect thereof on validity of trial — Approach to the issue previously taken by Natal Provincial Division reaffirmed.

Headnote : Kopnota

In an appeal by two accused who had been sentenced to three and D four years' imprisonment respectively for rape and housebreaking, Judge's certificates had been granted on the strength of the decision in S v Khanyile and Another 1988 (3) SA 795 (N), as it appeared that the accused had stood trial without legal representation because they could not afford to pay for it. During argument on appeal it was contended by the State that the principle laid down in S v Khanyile exceeded the Court's judicial reach in that the right to be provided with legal representation had the reciprocal obligation of a positive duty on E the judicial officer or the State or anyone else involved in criminal proceedings to provide it, and that, legally, this duty did not exist. The Court therefore reconsidered its decision in the Khanyile judgment in the light of the State's submission and held (per Didcott J) that to search for an obligation corresponding to the general right to a fair trial, of which the right to be represented and the right to be provided with representation as discussed in the Khanyile decision were seen to be part and parcel, was both artificial and pointless, and that F what mattered was the object of the exercise, the purpose for which the duties or responsibilities have come to be prescribed. That has been done in the interests of fairness and in an endeavour to ensure that some at least of its essential requirements are met. Unless these are satisfied the trial is aborted and that is that. The result is one which has never depended on the identification, let alone the location, of an exigible duty and the breach of such. This proposition is G stoutly supported and well illustrated by our case law, where some instructive examples will be found of convictions quashed on appeal or review because of irregularities which had come to light and ruined the trials, although nothing that amounted to a breach of duty was held to be committed by or could realistically have been attributed to anyone in command of the proceedings. The result of the Khanyile decision was therefore not the fashioning of a brand-new right, nor was it based on a foreign doctrine which was imported into our jurisprudence without H warrant, but was the elaboration and development of a right well-embedded in our law, the right to be represented on trial.

The decision in S v Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk NO and Another 1989 (3) SA 368 (E) criticised.

The Court, therefore, reconfirmed the Khanyile judgment and, after setting out certain guidelines for the practical implementation of the principle laid down in that judgment, applied such principle to the appeal in Dladla's case and (per Didcott J, Bristowe J and Nienaber I J concurring) set aside the accused's conviction of housebreaking in that the only evidence linking him with the crime consisted of fingerprints and the accused's cross-examination of the expert witness in this regard had been perfunctory and ineffective. The Court (Nienaber J dissenting) also set aside the conviction in the Davids appeal, but on application of the rule in S v Radebe; S v Mbonani 1988 (1) SA 191 (T), rather than the principle in the Khanyile case, as it appeared that the accused in the latter appeal had never been informed about the existence J of legal aid and the possibility of obtaining such assistance.

1989 (4) SA p173

Case Information A

Appeals against convictions and sentences imposed in a regional magistrate's court, Judge's certificates having been granted in both cases.

R E Griffiths for both appellants at the request of the Court.

H C de J Slabbert SC (Deputy Attorney-General) for the State in both appeals.

B Cur adv vult.

Postea (June 1).

Judgment

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.'

1989 (4) SA p174

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...