S v Khanyile and Another

• Jurisdiction: South Africa
• Judge: Didcott J and Friedman J
• Judgment Date: 22 June 1988
• Citation: 1988 (3) SA 795 (N)
• Hearing Date: 06 August 1987
• Court: Natal Provincial Division

Didcott J:

Two men, Payise Khanyile and Mkezi Mkwanyana, stood trial together on a charge of housebreaking with intent to steal and theft. J Each

Didcott J

A pleaded not guilty. In the result, however, they were both convicted and sentenced to imprisonment for a year. We now have their case before us on automatic review.

The crime itself was clearly proved. It had been committed some seven years earlier, when a house in Empangeni was burgled and various things were stolen from it. The only issue at the trial was whether the pair in B the dock, or either of them, had done the deed.

What told against the men were fingerprints which, according to the evidence tendered by the police, had been found inside the house a couple of days after the burglary and identified as theirs much later, a few months before the trial took place. On that evidence alone the case against them depended. Nothing else linked either man with the crime, C even tenuously. None of the stolen property was ever retrieved from or traced to him. Nor at the time that mattered had he happened to be seen anywhere near the house.

Three policemen testified in support of this single but substantial point scored by the prosecution. The first had taken impressions of the D fingerprints detected in the house. The second had obtained from the men impressions of their own fingerprints. And the third, an expert on such matters, had compared the sets of impressions and concluded that they matched, that some of the fingerprints discovered at the scene were Khanyile's and the others came from Mkwanyana. He produced photographs, E illustrating the comparison and explaining the opinion he had formed.

Like so many South Africans who face criminal charges, like the vast majority indeed, the two men had no lawyer to advise and represent them. They therefore conducted their own defences, if their efforts may thus F be described. Neither cross-examined the first policeman or the second, asking no questions at all. A few were put by each to the third policeman, the expert, but these were perfunctory, superficial and aimless.

The men took the stand in turn, stoutly denying any participation in or knowledge of the crime. They maintained that throughout the year when it was committed they had been nowhere near Empangeni but far away, the G one in Durban, the other in Johannesburg. The cross-examination of them did not probe their alibis, concentrating instead on the topic of their fingerprints. Neither could account for his own having got into the house, if those found there in truth included them. Each insisted that never once had he entered the place. That the expert must be wrong was H all he could suggest.

Having examined the photographs and considered the reasons furnished by the expert for the opinion he had expressed, the magistrate who tried the case felt confident that he might rely safely on the evidence concerning the fingerprints. He therefore accepted it with no qualms. It proved the falsity of the alibis, he held in the first place. And it established beyond doubt, he decided in the second, the guilt of both I men. The verdict then ensued.

When the case first came here on review my Brother who concurs in this judgment raised with the magistrate the problem it had posed, the problem of accused persons defending themselves yet doing so ineffectually once they were laymen and the matter had its difficulties, J since they

Didcott J

A then lacked the training and experience for which the task called. That our two were scarcely equal to the one they faced was recognised by the magistrate in his reply. He acknowledged in particular how badly ignorance had handicapped them in their endeavours to cross-examine the expert and rebut his testimony. This was obvious. To do battle with an expert witness is seldom easy, even for a skilled litigator. The men B were quite at sea, the record shows, and far beyond their depth.

The record also shows this. With one exception, to which I shall come in a moment, the magistrate lent the men all the assistance in the running of their defences that was required of him once they otherwise had none. Carefully and correctly he explained to them their procedural C rights, the purposes served on the whole by those, the choices lying open to them in the exercise of such, and the advantages and disadvantages inherent as a rule in each course. By questions of his own, what was more, he took the trouble to clarify and elucidate the testimony of the expert so that they might stand a better chance of following it. The guidance he gave them was necessary and important. It D was no substitute, however, for the professional help they missed. It could not guarantee that they got the hang of things, in the first place, even if they thought they did and therefore said so. Nor in the second could it teach them how they might best set about the business still left to them, the tricky business of actually defending themselves. And theirs in the end that job inevitably remained, E performable for them by no judicial officer, not even the most conscientious and sympathetic one. The point was made long ago, in 1826 to be specific, when the Edinburgh Review carried an article which, according to an excerpt from it reproduced in Acta Juridica (1965 - 66) at 70, declared:

F 'Of all false and foolish dicta, the most trite and the most absurd is that which asserts that the Judge is counsel for the prisoner.... The Judge cannot be counsel for the prisoner, ought not to be counsel for the prisoner, never is counsel for the prisoner.'

With this second sentence I agree fully. A lawyer doing the work confers confidentially with his client and with witnesses whom the client would G like to call. Having learnt what each has to say, he advises the client on the line to be taken, on the plea to be tendered, the admissions to be offered, the particular allegations to be disputed. He plans the strategy and tactics he will use in answering these, then executes the plan. He decides what testimony the defence will present and, when his H turn comes, he presents it. Mindful in the meantime of his expectations from that quarter, he determines those parts of the prosecutor's case which the defence will challenge, and he proceeds to challenge them. He objects to the admissibility of any evidence questionable on that score. Cross-examining, he does not content himself with clarification and elucidation. He seeks to draw from the witnesses for the prosecution I information damaging to it and, where they incriminate his client all the same, to show errors by them in observation and recollection, to demonstrate uncertainty and confusion in their minds, to exploit inconsistencies and improbabilities in their versions, to expose bias and downright lying once such looks likely. And the case for the client he argues at the end, casting on it the best light that the law and the J evidence sheds. Hardly any of this can effectively or may

Didcott J

A properly be done for an accused person by the judicial officer trying him, under the system we have at all events, a system in which the judicial officer is no inquisitor conducting his own investigations but an adjudicator who by and large must leave the management of the trials he hears and the combat waged in them to the adversaries thus engaged. Above all, to quote again from the article I have mentioned, your B judicial officer whose role is that functionally detached one

'... cannot fling the whole weight of his understanding into the opposite scale against the counsel for the prosecution and produce that collision of faculties which... is supposed to be the happiest method of arriving at the truth'.

Where the magistrate did slip was in not telling the men that they C were entitled to legal representation if they could get it, and in not offering them the opportunity to obtain it if they wanted one. The omission is explicable. My recollection of records read on appeal and review is that, while some magistrates made a point of doing this, the practice was far from universal at the time of the trial. And, although writers in law journals and the like had pleaded often enough for a firm D rule along those lines, I know of no judgment introducing any which had been reported by then. Now, however, we have one. It was delivered in a couple of appeals up north that were heard recently, the twin cases of S v Radebe; S v Mbonani1988 (1) SA 191 (T). The appellants had been convicted by magistrates of crimes they were said to have but denied E having committed. They had defended themselves. Strong though the evidence against them looked, deserved though the verdicts seemed on the strength of it, a picture very different might have emerged from the records had lawyers acted for them and gone to work on the material. The opportunity to engage the services of one had been sought at a late F stage in the first case, when it was refused, and not at all in the second. In neither, however, had the magistrate told the appellant of his right to be represented so that he might arrange for that, if he could, from the beginning. Both appeals succeeded, the convictions being quashed. Goldstone J, who wrote the judgment, examined two sets of precedents in criminal matters, the first proclaiming the right to G representation of all accused persons wishing and able to gain it, the second dictating the duties owed by judicial officers to everybody coming before them with none. Weaving the strands together, he concluded (at 196F - J):

'If there is a duty upon judicial officers to inform unrepresented accused of their legal rights, then I can conceive of no reason why the H right to legal representation should not be one of them. Especially where the charge is a serious one which may merit a sentence which could be materially prejudicial to the accused, such an...