S v Dzukuda and Others; S v Tshilo

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Yacoob J and Madlanga AJ
• Judgment Date: 27 September 2000
• Citation: 2000 (4) SA 1078 (CC)
• Docket Number: CCT 23/2000 and 34/2000
• Hearing Date: 16 August 2000
• Counsel: U R D Mansingh for the first applicant, instructed by the Legal Aid Board. U R D Mansingh (with N Makopo) for the second applicant, instructed by the Legal Aid Board. F Snyckers for the third applicant. S A Jazbhay (attorney) for the amicus curiae. J A van S D'Oliveira SC (with him A Nieman, A M Persad and Z J van Zyl) for the State.
• Court: Constitutional Court

S v Dzukuda and Others;
S v Tshilo
2000 (4) SA 1078 (CC)

2000 (4) SA p1078

Citation	2000 (4) SA 1078 (CC)
Case No	CCT 23/2000 and 34/2000
Court	Constitutional Court
Judge	Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Yacoob J and Madlanga AJ
Heard	August 16, 2000
Judgment	September 27, 2000
Counsel	U R D Mansingh for the first applicant, instructed by the Legal Aid Board.; U R D Mansingh (with N Makopo) for the second applicant, instructed by the Legal Aid Board.; F Snyckers for the third applicant.; S A Jazbhay (attorney) for the amicus curiae.; J A van S D'Oliveira SC (with him A Nieman, A M Persad and Z J van Zyl) for the State.

Flynote : Sleutelwoorde B

Constitutional law — Human rights — Right of accused to fair trial in terms of s 35(3) of Constitution of the Republic of South Africa Act 108 of 1996 — Not to be assumed that fair trial can only be achieved by C one specific system of criminal procedure — There can be more than one way of securing various elements necessary for fair trial and, provided Legislature devises system which effectively secures such right, it cannot be faulted merely because system departs from past procedures — Imprudent, even if possible, in particular case concerning D right to fair trial, to attempt comprehensive exposition thereof — At heart of right to fair criminal trial and what infuses its purpose, is for justice to be done and also to be seen to be done — In considering what, for purposes of case before Court, lies at heart of fair trial in field of criminal justice, to be borne in mind that dignity, freedom E and equality are foundational values of Constitution — Important aim of right to fair criminal trial is to ensure adequately that innocent people are not wrongly convicted — There are, however, other elements of right, such as presumption of innocence, which cannot be explained exclusively on basis of averting wrong conviction, but which arise F primarily from considerations of dignity and equality.

Constitutional law — Human rights — Right of accused to fair trial in terms of s 35(3) of Constitution of the Republic of South Africa Act 108 of 1996 — Referral of accused to High Court for sentencing in terms of s 52 of Criminal Law Amendment Act 105 of 1997 — In relation to sentencing in context of such referral, what right to fair trial G requires, inter alia, is procedure which doesn't prevent any factor relevant to sentencing process and which can have mitigating effect on punishment to be imposed from being considered by sentencing court — In those circumstances fair trial has to ensure that, in process of sentencing, court put in possession of factors relevant to sentencing and accused not compelled to suffer infringement of any H other element of fair trial right — Test not whether procedure adopted by Legislature ideal, but whether it is fair — Deviation from perfect does not by that reason alone result in accused not being afforded fair trial — Section 52 not in conflict with Constitution.

Criminal procedure — Sentence — Imposition of — Referral of accused to High Court for sentencing in terms of s 52 of Criminal Law Amendment I Act 105 of 1997 — Nature of High Court's sentencing function under s 52 an original sentencing jurisdiction, designed to place High Court in same position as trial court after it has convicted accused, and not comparable to that exercised by Court on appeal — Not all information concerning offence or parties relevant to question of sentencing and J fair trial not

2000 (4) SA p1079

requiring sentencing court to be in position identical to that of trial court, provided it is in all material respects in same A position and procedure adopted affords accused fair trial.

Criminal procedure — Sentence — Imposition of — Referral of accused to High Court for sentencing in terms of s 52 of Criminal Law Amendment Act 105 of 1997 — When assessing 'triad' in sentencing, not necessarily more favourable for accused to be sentenced by trial court — Circumstances of and surrounding offence emerge from judgment on B merits — Even where trial court imposes sentence, it is bound by such factual findings in its judgment — Where necessary, additional evidence relevant to sentence which supplements, but not contradicts such factual findings, can be received — Nothing in provisions of s 52 placing High Court in any worse position than regional C court — Atmosphere in trial court alone cannot be relevant to imposition of sentence — High Court not prevented from enabling accused to place all relevant material before it which might be necessary to ensure fair trial for accused on sentence.

Criminal procedure — Sentence — Imposition of — As far as fundamental considerations and procedures regarding sentencing concerned, law not distinguishing between heavy and lesser sentences — Responsibility D resting on judicial officer may well be more onerous, in human terms, when considering choice between sentence of life imprisonment and lesser sentence of imprisonment on one hand, than when considering choice between lesser sentences of imprisonment or choice between custodial and non-custodial sentence, on other — Broad principles are E same and in all cases judicial officer has to be put, inter alia, in possession of all information relevant to imposition of sentence and in particular information relevant to mitigating circumstances, in broadest sense of expression, which might ameliorate severity of ultimate punishment.

Constitutional law — Human rights — Right of accused to fair trial in terms of s 35(3) of Constitution of the Republic of South Africa Act F 108 of 1996 — Referral of accused to High Court for sentencing in terms of s 52 of Criminal Law Amendment Act 105 of 1997 — Provisions of s 52(3)(d) capable of being applied, and have to be applied, in conformity with Bill of Rights and in particular in conformity with accused's s 35(3) fair trial right — They do not G compel High Court to act or apply them in way which would infringe accused's constitutional rights, nor do they prohibit High Court from acting or intervening in way which would prevent any such infringement — Provisions of s 52(3)(d) of Act capable of application, and ought therefore to be applied, so as not to affect accused any more negatively than in case where trial court was also H sentencing court — Accused's right under s 35(3)(h) of Constitution to remain silent, and not to testify during proceedings, applies to sentencing stage as well.

Constitutional law — Human rights — Right of accused to fair trial in terms of s 35(3) of Constitution of the Republic of South Africa Act 108 of 1996 — Referral of accused to High Court for sentencing in terms of s 52 of Criminal Law Amendment Act 105 of 1997 — Constitutionality I of — Section 52 not compelling High Court to apply it in contravention of accused's constitutional rights — Potential misapplication of statutory provision not test for unconstitutionality — No provision in s 52 requiring High Court to act in way which would impinge on accused's right to fair J

2000 (4) SA p1080

trial — For High Court, in each case committed A to it under s 52 for sentence, to ensure that accused receives fair trial and nothing in section preventing High Court from doing so — Duty of High Courts to flesh out procedures enacted in s 52 in manner consistent with accused's right to fair trial — Any violation of accused's right to fair trial caused by delay caused by procedure should be considered on case by case basis — Section 52 not constitutionally invalid. B

Constitutional law — Human rights — Right of accused to fair trial in terms of s 35(3) of Constitution of the Republic of South Africa Act 108 of 1996 — When applied to post-conviction stage of trial, prejudice suffered by accused in respect of liberty and security (dignity) interests, while not totally absent, significantly reduced. C

Constitutional law — Human rights — Right of accused to fair trial in terms of s 35(3) of Constitution of the Republic of South Africa Act 108 of 1996 — Right to be tried within reasonable time — Accused face formidable task when seeking to persuade court, which it is their obligation to do, that statutory provision limits their fair trial right due to unreasonable delay — Incumbent on them to show that nature D of provision such that it invariably, however applied, has to lead to delay of such a nature that it compromised right to fair trial — Anything short of this could be destructive of any criminal procedure system.

Constitutional law — Human rights — Right of accused to a fair trial in terms of s 35(3) of Constitution of the Republic of South Africa Act 108 of 1996 — Accused's right under s 35(3)(h) of Constitution to remain silent and not to testify during proceedings, applying to sentencing stage as well.

Constitutional law — Human rights — Right of accused to fair trial in terms of s 35(3) of Constitution of the Republic of South Africa Act 108 of 1996 — Not to be assumed that fair trial can only be achieved by one specific system of criminal procedure — More than one way of securing various elements necessary for fair trial and, provided Legislature devises system which effectively secures such right, it cannot be faulted merely because system departs from past procedures — Imprudent, even if possible, in particular case concerning right to fair trial, to attempt comprehensive exposition thereof — At heart of right to fair criminal trial and what infuses its purpose, is for justice to be done and also to be seen to be done — In considering what, for purposes of case before Court, lies at heart of fair trial in field of criminal justice, to be borne in mind that dignity, freedom and equality are foundational values of Constitution —...