S v Mthwana

• Jurisdiction: South Africa
• Judge: Howard JP, Booysen J and Combrink J
• Judgment Date: 28 July 1989
• Citation: 1989 (4) SA 361 (N)
• Hearing Date: 18 May 1989
• Court: Natal Provincial Division

Howard JP:

The appellant was convicted in the magistrate's court for the F district of Durban of the crime of housebreaking with intent to steal. In view of his previous convictions (three for theft and one for housebreaking with intent to steal and theft) this case was referred to the regional court for sentence and there he received a sentence of two years' imprisonment. Having been granted a Judge's certificate in terms of s 305 of the Criminal Procedure Act 51 of 1977, he now appeals against his conviction on the ground that, for want of compliance G with the rule laid down in S v Khanyile and Another 1988 (3) SA 795 (N) the trial was 'palpably and grossly unfair'. Counsel for the State contends that Khanyile's case was wrongly decided.

It was alleged in the charge that the appellant broke and entered the H complainant's house at 36 Rand Road, Manor Gardens, Durban, on 26 October 1987. The charge was put to the appellant on 6 July 1988 and he pleaded not guilty. The magistrate then asked him whether he required the services of an attorney, and he indicated that he would engage an attorney if he were released from custody in order to consult his relatives and raise the necessary funds. Bail had already been fixed at R100 and the magistrate was not prepared to reduce the amount or I release the appellant on warning. He informed the appellant that he could instruct an attorney whilst in custody, and told him how to go about doing so. He also told the appellant that he would endeavour to obtain legal aid for him, and instructed the prosecutrix to assist. An application for legal aid was duly made but did not succeed. The J appellant was informed on 8 July that legal aid had been refused and that he would have to make alternative

Howard JP

A arrangements to procure legal representation. He was then remanded in custody but his bail was paid and he was released on 12 July. When the trial was resumed on 29 August 1988 the magistrate noted that the appellant was still unrepresented and asked him what he intended to do. The reply was 'I am going to conduct my own defence because I cannot afford to pay an attorney. I don't have R700.' B When questioned by the court pursuant to s 115 of the Criminal Procedure Act the appellant stated he had never been to 36 Rand Road, Manor Gardens. The complainant gave evidence to the effect that on 26 October 1987 someone broke into his house at that address and attempted to steal various articles, including a microwave oven which he had left C in the kitchen and found in the sitting room after the burglary. The only evidence to connect the appellant with the commission of the offence was that of police witnesses to the effect that his fingerprint was found on the microwave oven.

Constable Smith, a duly qualified and experienced fingerprint expert, testified that on 27 October 1987 he went to the complainant's house D at 36 Rand Road, Manor Gardens, and lifted fingerprints from the side of the microwave oven which he found lying on a sofa in the sitting room. He did so by means of an adhesive tape which he handed in as exh A. On 27 November 1987 he received exh B, a set of fingerprints purporting to be those of the appellant. He compared one of the prints on exh A with E the left forefinger print on exh B and found them to be identical. Before entering the witness-box on 29 August 1988 Smith had taken a further print (exh D) of the appellant's left forefinger, had compared it with the corresponding prints on exhs A and B, and had found it to be identical with them. In order to illustrate his evidence Smith produced photographic enlargements (exh C) of the relevant fingerprints on exhs F A and B and marked nine points of similarity on them. Points 1, 2 and 9 on exh C are bifurcations and points 3, 4, 5, 6, 7 and 8 are the beginning or ending of ridges. Smith reiterated what the courts have come to accept as axiomatic, namely that no two fingerprints are exactly alike unless made by the same person, and that seven or more points of similarity (such as bifurcations or ridge endings) are sufficient G to establish identity. Finally, Sgt Tsautse testified that the fingerprints on exh B were indeed those of the appellant, for he had taken them from the appellant on 20 November 1987. H The magistrate informed the appellant of his right to cross-examine the State witnesses, explaining the purposes of cross-examination and advising the appellant on how to exercise this right. The appellant did cross-examine the witnesses but his questions were largely irrelevant and altogether futile. He also gave evidence in his defence and called a witness to support his story that he was at school on the day that the offence was committed. He said that, although he did not dispute the evidence of the complainant or the fingerprint evidence of I Constable Smith, he did not break into the complainant's house or go anywhere near 36 Rand Road, Manor Gardens on 26 October 1987. As he could not explain how his fingerprint came to be on the microwave oven the magistrate explored the possibility that he might have handled the oven before it was installed in the complainant's house. It transpired J that the appellant had worked as a

Howard JP

A packer at certain Pick 'n Pay shops during 1986 and 1987 and could have handled microwave ovens in the course of that employment. However, the complainant was recalled in due course and testified that he had purchased his own during 1985 from Allan's Furnishers. Any possibility that the appellant might have handled the oven in question before B the burglary was entirely eliminated.

The appellant's alibi witness, one Vusi Dubasani, turned out to be hopelessly unreliable. His evidence-in-chief was that the appellant was at school on 26 August which was a school sports day. It was left to the magistrate to enquire whether he knew of the appellant's whereabouts on 26 October 1987 (the day of the burglary) and he glibly replied C the appellant was at school that day, that he remembered the date because it was a sports day. He thought that 26 October 1987 was a Thursday (the sports day) whereas in fact it was a Monday.

In his reasons for judgment the magistrate says that he has examined D the exhibits produced by Constable Smith and is satisfied that the points of identity referred to by the witness are present. The exhibits form part of the record in the appeal and I am able to confirm from my own examination of them that the points of identity are plainly visible.

On the evidence before us there is not the slightest doubt that the appellant was rightly convicted. And yet, if the law was correctly stated and applied in Khanyile's case, the conviction and sentence E in this case must be set aside.

Leaving aside for the moment the question whether the appellant was duly apprised of his right to legal representation and afforded an adequate opportunity to exercise that right, his case is indistinguishable from that of Khanyile and Another. The accused in F that case faced a charge of housebreaking with intent to steal. They conducted their own defences, not from choice (so it was assumed) but simply because they were too poor to employ a lawyer and could not get legal aid. The case against them depended on police evidence, including that of an expert, to the effect that their fingerprints were found in the house a couple of days after the burglary. They were incapable G of conducting their defences properly and failed to discredit the fingerprint evidence which connected them with the burglary. They were convicted and sentenced to substantial terms of imprisonment. Their convictions and sentences were set aside on review on the ground that

'... the seriousness of the matter, the difficulties involved, H the inadequacy of the men to deal on their own with those amounted cumulatively and quantitatively to a state of affairs in which their lack of representation put them at a disadvantage that was, and rendered the trial as a whole, palpably and grossly unfair'.

That conclusion was reached through the application of a rule laid down by Didcott J (who wrote the judgment) for cases in which I accused persons stand trial unrepresented not because they have chosen freely and deliberately to dispense with legal representation but because they cannot afford to pay for it. Save in the least serious cases, in which the average accused person would not seek legal representation even if he could afford it, and the most serious, for which pro deo counsel are available, the judicial officer is enjoined to consider and decide whether the trial 'would be palpably and grossly J unfair were it to go ahead without a lawyer for the

Howard JP

A defence'. In order to decide this question he is directed to examine the complexity of the case, the ability of the accused to defend himself and the gravity of the charge, to elicit all the information which has a bearing on these three...