S v Khubeka

• Jurisdiction: South Africa

S v Khubeka
2013 (1) SACR 256 (GNP)

2013 (1) SACR p256

Citation	2013 (1) SACR 256 (GNP)
Case No	CC 76/05
Court	North Gauteng High Court, Pretoria
Judge	Bertelsmann J
Heard	April 24, 2012
Judgment	April 24, 2012
Counsel	Counsel's details not supplied

Flynote : Sleutelwoorde

B Trial — The accused — Appearance of — Physical restraints — Court issuing warning that it would impose fines if prisoners brought to court in leg-irons, if contemptuous of court.

Headnote : Kopnota

C The court, in a matter where the applicant was brought to court in leg-irons, remarked that it wished to underline strongly that the time had come for the Department of Correctional Services to take heed of what various courts, including the Supreme Court of Appeal, had advised them of before. The court would in future not hesitate to impose fines if the court held that bringing the accused into court in leg-irons was contemptuous of the court. D This the court might hold if this practice were continued in spite of the repeated admonishments that have in the past been made and issued by the court and by other courts. Prima facie, the instruction given to officials that every incarcerated individual should be brought to court in leg-irons was unconstitutional. If the court experienced offensive behaviour of this nature again from the officials of the Department of Correctional Services, it would not hesitate to raise the constitutional issue and enforce a hearing on the question of whether the practice of the Department was constitutional or E not. [At 260i–261b.]

Cases cited

S v Maputle and Another 2003 (2) SACR 15 (SCA): applied F

S v Pakkies 1985 (4) SA 592 (TkS): applied

S v Phiri 2005 (2) SACR 476 (T): applied

S v Stevens 1961 (3) SA 518 (C): applied.

Case Information

Application for special entries during the course of a criminal trial in G the high court. The facts appear from the reasons for judgment.

Counsel's details not supplied.

Judgment

Bertelsmann J:

On the morning of 24 April 2012 Mr Khubeka, the applicant, was again H brought into court in leg-irons.

Time and again, during the last three or four years, litigants who happened to be incarcerated, even in appeals, have been brought to court in shackles. These shackles are not removed and the victims of this practice have to suffer the indignity of standing in the dock or moving I from the dock to the witness box while so restrained.

This court has on a number of occasions pointed out to various officials of the Department of Correctional Services (DCS) that this practice is unacceptable. It is in conflict with the fundamental values of our Constitution as it constitutes a gross invasion of the dignity of the J individual concerned. Only in those cases where there is a very real

2013 (1) SACR p257

Bertelsmann J

danger of an assault taking place or an attempt to escape being made, or A for other extraordinary reasons, would there be some excuse for infringing the dignity of the persons who come to court to do their business here.

I am concerned about the fact that in spite of repeated admonishments B the DCS has not seen fit to take heed of what I and several of my colleagues have said over the past few years. I was shown a standing instruction by the officials of the DCS this morning, in terms of which they are, in bold print, reminded of the fact that no person who is a sentenced prisoner, or is an awaiting-trial detainee, may come to court without being shackled. This is a practice that must be deprecated in the C strongest terms. Whatever the needs of the situation may be while the person is in the DCS's facility, or being transported from there, once litigants enter the courtroom they are treated like any ordinary citizen. Neither their appearance nor any physical restraint may cast a reflection upon their dignity, their human value, their self-respect and the freedom which they must have to address the court as any other litigant. D

These principles antedate the Constitution which has enshrined them as fundamental values. As long ago as 1961 in S v Stevens 1961 (3) SA 518 (C) Diemont J (as he then was) said the following at 518H:

'After the prosecution had closed its case this morning, counsel for the E defence called the accused as his first witness. When the accused left the dock I became aware that he was in leg irons. I immediately adjourned the case; my reason for doing so is because I object to an accused man being brought into Court in chains and leg irons. When he is brought into Court manacled one draws the inference that he is a man of bad F character in that it is either dangerous to allow him loose or alternatively that he is a man who has escaped from custody before. Either way there is the possibility that he may be prejudiced. In the circumstances I adjourned the Court for further information. I have since been informed by...