S v Khanyile and Another

JurisdictionSouth Africa
Citation1988 (3) SA 795 (N)

S v Khanyile and Another
1988 (3) SA 795 (N)

1988 (3) SA p795


Citation

1988 (3) SA 795 (N)

Court

Natal Provincial Division

Judge

Didcott J and Friedman J

Heard

August 6, 1987

Judgment

June 22, 1988

Flynote: Sleutelwoorde

H Criminal procedure — Trial — Accused unrepresented where matter neither so trivial that representation would, in any event, be dispensed with nor so serious that pro deo representation automatically appointed — Accused unrepresented because he cannot afford representation — Guidelines for judicial officer presiding over such matter laid down — I Circumstances under which judicial officer should refer matter to legal aid or to lawyer willing to act pro bono for assistance to accused before allowing trial to proceed outlined — Review — Of conviction in magistrate's court of unrepresented accused — If record demonstrates that, as result of J cumulative effect of inherent gravity of charge, accused's lack of

1988 (3) SA p796

A personal resources (eg maturity, sophistication, intelligence etc) and consequences of conviction, accused at such disadvantage that resulting trial without representation for accused grossly and palpably unfair, Court on review should set lower court's verdict aside. B

Headnote: Kopnota

It is well established in our law that every person accused of a crime and able to obtain the services of a lawyer has the right to be defended by one. The exercise of that right is vital to the fairness of the proceedings, and the denial of the right therefore makes the ensuing trial per se unfair. There is no real difference between an accused able to obtain the services of a lawyer but denied the right to do so, and an accused who, because he cannot afford the expense, is unable to obtain the services of a lawyer. The latter's trial is no less unfair. C

The duty of a presiding officer, faced by an unrepresented accused, does not end when he has advised the accused of his rights, including the right to legal representation. Where an accused has been charged in a matter which is neither so serious that pro deo representation will be automatically appointed to assist him, nor so trivial that, were the accused able to afford legal representation, he would dispense with it but lies somewhere between the two extremes, and the accused is D unrepresented, not because he has freely and deliberately chosen to be unrepresented, but because he is too poor to pay for representation, the presiding officer has a duty, prior to the commencement of proceedings, to assess whether the lack of legal representation will place the accused at so great a disadvantage that the ensuing trial would be palpably and grossly unfair were it to proceed without a lawyer for the defence. There are three aspects to the enquiry which the presiding officer should conduct: (a) the inherent simplicity or complexity of the E case as far as both the law and the facts go; (b) the personal resources of the accused, such as how mature, sophisticated, intelligent and articulate he looks and sounds, or what impression he gives of his general ability to fend for himself in a case with those dimensions; and (c) the gravity of the case and the possible consequences of a conviction. Imprisonment, a crippling fine, the loss of employment or the means of earning a livelihood are merely some of the matters which should be considered.

The presiding officer should elicit all the information which has a bearing on all three aspects of the enquiry and should then weigh the circumstances thus established or otherwise apparent to him, together with any more of which he learns that are particular and pertinent to the case in hand. Should he conclude that their cumulative effect would be such that a trial without representation for the accused would be grossly unfair, he should refer the case at once to those administering the legal aid scheme or to one of the associations of lawyers who are G willing to offer assistance pro bono and, what is more, he should refuse to proceed with the trial until representation is procured through some agency.

If, on the other hand, the presiding officer concludes that lack of proper representation will not result in a grossly unfair trial, and the matter proceeds without the accused's being legally represented and results in a conviction, the case may reach the Superior Courts on appeal or on automatic review, where the circumstances of the accused may once more be examined. And should it be found, with the advantage of H hindsight as demonstrated by the record of the proceedings in the lower court, that in the judgment of the Superior Court the trial already completed had indeed been grossly and palpably unfair, the Court should set the lower court's verdict aside without hesitation, since no conviction can ever be allowed to stand which is the product of a discredited trial. I

Case Information

Review.

[The order was handed down on 6 August 1987 and the following reasons for judgment were filed on 22 June 1988.]

Judgment

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

1988 (3) SA p797

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

1988 (3) SA p798

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...

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74 practice notes
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...representation. In the decisions appealed against, the Court in each case had held that he was not; while in S v Khanyile and Another 1988 (3) SA 795 (N), an earlier decision in the Natal Provincial Division, the Court had held that he was entitled to be afforded legal representation where ......
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...representation. In the decisions appealed against, the Court in each case had held that he was not; while in S v Khanyile and Another 1988 (3) SA 795 (N), an earlier decision in the Natal Provincial E Division, the Court had held that he was entitled to be afforded legal representation wher......
  • Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
    • South Africa
    • Invalid date
    ...v Hammer and Others 1994 (2) SACR 496 (C) E S v Heller 1969 (2) SA 361 (W) S v Holshausen 1983 (2) SA 699 (D) S v Khanyile and Another 1988 (3) SA 795 (N) S v Khumalo 1992 (2) SACR 411 (N) S v Lasker 1991 (1) SA 558 (C) S v Lebea 1975 (4) SA 337 (W) F S v Mabaso and Another 1990 (3) SA 185 ......
  • S v Mabaso and Another
    • South Africa
    • Invalid date
    ...the request of the Court referred B to the following authorities: S v Radebe; S v Mbonani 1988 (1) SA 191 (T); S v Kanyile and Another 1988 (3) SA 795 (N) at 815D - H, 816A; S v Gwebu 1988 (4) SA 155 (W); S v Morrison 1988 (4) SA 164 (T); S v Masjiyana 1989 (1) SA 592 (C); S v Chaane 1978 (......
  • Request a trial to view additional results
67 cases
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...representation. In the decisions appealed against, the Court in each case had held that he was not; while in S v Khanyile and Another 1988 (3) SA 795 (N), an earlier decision in the Natal Provincial Division, the Court had held that he was entitled to be afforded legal representation where ......
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...representation. In the decisions appealed against, the Court in each case had held that he was not; while in S v Khanyile and Another 1988 (3) SA 795 (N), an earlier decision in the Natal Provincial E Division, the Court had held that he was entitled to be afforded legal representation wher......
  • Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
    • South Africa
    • Invalid date
    ...v Hammer and Others 1994 (2) SACR 496 (C) E S v Heller 1969 (2) SA 361 (W) S v Holshausen 1983 (2) SA 699 (D) S v Khanyile and Another 1988 (3) SA 795 (N) S v Khumalo 1992 (2) SACR 411 (N) S v Lasker 1991 (1) SA 558 (C) S v Lebea 1975 (4) SA 337 (W) F S v Mabaso and Another 1990 (3) SA 185 ......
  • S v Mabaso and Another
    • South Africa
    • Invalid date
    ...the request of the Court referred B to the following authorities: S v Radebe; S v Mbonani 1988 (1) SA 191 (T); S v Kanyile and Another 1988 (3) SA 795 (N) at 815D - H, 816A; S v Gwebu 1988 (4) SA 155 (W); S v Morrison 1988 (4) SA 164 (T); S v Masjiyana 1989 (1) SA 592 (C); S v Chaane 1978 (......
  • Request a trial to view additional results
7 books & journal articles
  • The Right to Legal Representation and Equality before the Law in Criminal Proceedings in Botswana
    • South Africa
    • Juta Stellenbosch Law Review No. , August 2019
    • 16 August 2019
    ...access to th e courts bec ause of poverty (Bekker (2004) CILSA 179) See also V Smi t “Indigence and the R ight to Counsel: S v Kha nyile 1988 (3) SA 795 (N)” (1988) 4 SAJHR 363 366: “Equality before the law is s o manifestly inco mpatible with the po ssibility that an i mportant rig ht may ......
  • Legal expenses POCA clauses: A loophole to make crime pay?
    • South Africa
    • Juta South African Criminal Law Journal No. , September 2019
    • 6 September 2019
    ...335 (E) at 348I-349B; S v Oakers 1990 (1) SACR 147 (C); S v Davids; S v Dladla 1989 (4) SA 172 (N) at 193G; S v Khanyile and Another 1988 (3) SA 795 (N); Gideon v Wainwright 372 US 335, 344 (1963) on the topic of the right to fair trial. 41 Section 3 of the Legal Aid Act 22 of 1969, provide......
  • Constitutional and political developments
    • South Africa
    • Sabinet South African Human Rights Yearbook No. 8-1, January 1997
    • 1 January 1997
    ...Order :303. 94 Dugard ‘Public International Law’ in: The Constitutional Law of South Africa [original service], 13-9. 95 S v Khanyile 1988 (3) SA 795 (N), in which Didcott J invoked international human rights conventions to support a finding that an independent person might not be sentenced......
  • Criminal justice and the truth in Zimbabwe: A necessary introspection
    • South Africa
    • Juta South African Criminal Law Journal No. , May 2019
    • 24 May 2019
    ...and reliability of the product of their investigation. Since those factors are judged 60 See the remarks by Didcott J in S v Khanyile 1988 (3) SA 795 (N). The adversarial system of criminal justice presupposes equality between the contestants. Where this is absent, the truth often correspon......
  • Request a trial to view additional results

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