S v Jaipal

• Jurisdiction: South Africa
• Judge: Langa ACJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 18 February 2005
• Citation: 2005 (1) SACR 215 (CC)
• Docket Number: CCT 21/04
• Hearing Date: 16 November 2004
• Counsel: C J Snyman for the applicant. S Manilall for the State.
• Court: Constitutional Court

Van Der Westhuizen J:

Introduction

[1] D This application for leave to appeal against a decision of the Supreme Court of Appeal (the SCA) deals with the constitutional right of an accused person to a fair trial. It poses the question whether the presence in an office, occupied by the assessors, of the State advocate on a daily basis, the investigating officer from time to time, and a State witness occasionally, where they were seen by members of the public, renders criminal trial proceedings irregular to the extent that E a conviction and sentence must be set aside. [1] It does so against the background of practical difficulties such as case backlogs and insufficient facilities in criminal courts.

The facts and the proceedings in the High Court

[2] F In the early afternoon of 21 October 1997 Mrs Argentina Pento Loutsaris, a 39-year-old widow, was brutally attacked in Island View Road in the suburb of Bluff in Durban. Petrol was poured over her and she was set alight. She died shortly afterwards. The State charged the applicant in this matter, 42-year-old Mr Shane Jaipal, with murder. G

[3] The trial took place in the Durban High Court (the High Court) before Squires J and two assessors. Because of a shortage of accommodation in the High Court building, facilities were made available in the Pinetown magistrate's court. H

[4] The trial commenced on Monday, 12 June 2000. The applicant, as the accused, was legally represented and pleaded not guilty to the charge. His defence was that of an alibi: At the time of the attack he was at the University of Transkei in Umtata. The State called 15 witnesses, including the son of the deceased, and closed its case on Thursday, 15 June. When the defence case was due to start, I counsel for the applicant requested a postponement until Monday, 19 June. On 19 June

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the applicant and another six defence witnesses testified. Two of these, Ms Sethuntsa and Mr Panday, gave A evidence in support of the applicant's alibi. Mr Panday's evidence was based on Telkom records of telephone calls. The evidence of the two witnesses took the State by surprise. An application to reopen the State's case in order to lead evidence in rebuttal was granted. On 23 June 2000 Mr Grobbelaar, a Telkom employee, testified and B produced a document which destroyed Mr Panday's evidence. The proceedings were adjourned to Tuesday, 27 June 2000.

[5] On 27 June - the eighth day of the trial - counsel for the applicant applied for a special entry to be made in terms of s 317 of the Criminal Procedure Act 51 of C 1977. He submitted that the proceedings had been irregular and not according to law, because the two assessors had been sharing an office with the prosecutor, the investigating officer, and the son of the deceased, during adjournments and recesses, including in the mornings before the Court started as well as tea times. He added that the D deceased's son was the State's most important witness. According to counsel, it did not bother him because he knew 'how things work now and then on circuit', but he had been approached on many occasions by members of the public who, because they had observed what had been happening, were very concerned and did not 'understand how the law works'. These included family members and friends of the applicant. E Eventually counsel was approached by his client, who instructed him to bring the application. He stressed that he was not submitting that the assessors actually discussed the case with any of the other people in the office. F

[6] The prosecutor informed the Court that he did not have an office of his own and that the office occupied by the assessors was the only one from where he could make telephone calls. He had called State witnesses to make practical arrangements, but had not discussed the case with them in the presence of the assessors. He submitted that the situation was unfortunate, and that a prosecutor in 'a case of this magnitude' needed an office of his own, with a telephone. It was an G exaggeration to say that he had been seen in the same office as the assessors, the investigating officer and the deceased's son every day. The investigating officer accompanied him, because he was in possession of the telephone numbers of witnesses. The deceased's son might H occasionally have stepped into the office after he had testified. He submitted that the application was frivolous and an abuse of the procedure of the Court.

[7] The Judge asked counsel for the applicant whether he wanted to apply for the recusal of the assessors. Counsel assured the Court that he was not applying for their recusal. I

[8] The Judge indicated that he needed time to consult with the assessors and reserved his decision. He allowed the prosecutor to continue to lead evidence in rebuttal of the alibi evidence. This evidence rebutted the evidence of Ms Sethuntsa and the evidence of Mr Panday. The Court J

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thereafter recalled several witnesses. The proceedings were adjourned to Durban for judgment, which was delivered A on 25 July 2000.

[9] For the determination of this matter it is not necessary to deal with the High Court's detailed analysis of all the evidence and legal arguments. The High Court concluded that it was overwhelmingly clear that Mr Panday had falsified the purported Telkom document on which his evidence was based. It furthermore found that Ms Sethuntsa's B evidence did not support the alibi as to the specific day of the attack. The circumstantial evidence presented established beyond a reasonable doubt that it was the applicant who had attacked the deceased. The High Court found the applicant guilty as charged and subsequently sentenced him to 20 years' imprisonment. C

[10] The applicant then applied for leave to appeal to the SCA and at the same time for the special entry to be made. Leave to appeal was granted by the High Court and the special entry was noted as sought. Regarding the special entry, the shortage of accommodation in the Durban High Court and Pinetown magistrate's court buildings was mentioned by the Judge in his unreported judgment. Whereas there was D office space available for assessors (in what was essentially the office of the Judge's Registrar, shared by the recording apparatus operator and on one occasion by a defence witness), the absence of office space for the prosecutor was the real problem. He had nowhere to leave his documents and bags and to make telephone calls. E

[11] The Judge stated that it was not alleged, and indeed specifically disavowed, that anything had been said by the assessors to the prosecutor or vice versa about any aspect of the trial during those moments of 'enforced proximity'. During the visits the assessors would merely continue with whatever they were privately doing F and take no interest in or notice of the intrusion.

[12] The Judge concluded as follows:

'While the situation was not desirable, it seems to have been really unavoidable. There was simply insufficient space for what is ideally desirable. And it was the same in an earlier sitting of the G High Court in the same Court in May and will be the same for the foreseeable future until the present backlog of awaiting-trial prisoners is reduced.

But to the public, who might not realise the reason for a representative of the prosecution being in the same small room as members of the Court, it could be thought that there was some possible H connection or control on the part of the assessors with the State. Although I have no doubt whatever that it had no such effect, I do not think it can be said that the application is frivolous and therefore the special entry will be made as requested.'

[13] The contents of the special entry represent the factual basis on which this matter has to be determined. The special entry reads as follows: I

'That the proceedings in the trial of the accused are irregular and not according to law, in that the State Advocate, on a daily basis, the investigating officer with him from time to time and one of the State witnesses with both of them on isolated occasions, had been present in the same office accommodation J

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being used by the assessors, both before the commencement of Court proceedings and/or during Court A recesses or adjournments, and were so seen by members of the public attending the trial.'

[14] Bail was granted to the applicant, pending the appeal, and the operation of the sentence was conditionally suspended. The High Court took the special entry into account in this decision.

The SCA

[15] B In considering the special entry and the possibility of bias, the SCA stressed the importance of the judgment of this Court in Van Rooyen and Others v The State and Others (General Council of the Bar of South Africa Intervening). [2] In that case it is stated that the perception that is relevant is C a perception based on a balanced view of all the material information. The SCA concluded as follows in its unreported judgment:

'[12] . . . In the instant case the material information on which public perceptions would be based would include the statements made by counsel for the appellant and the State Advocate when the application for the special entry was originally applied for. A D thoughtful and objective observer, informed that no discussion about the case in fact took place between the assessors and the State Advocate, the investigating officer and the deceased's son and that their presence in the office used by the assessors was due simply to the need for certain telephone calls to be made to State witnesses, without anything being said about the case itself, would, I am satisfied, not lose confidence in the legal system and in particular its functioning in the case in which the appellant was being E prosecuted.

[13] This...