S v Rudman and Another; S v Mthwana

• Jurisdiction: South Africa
• Citation: 1992 (1) SACR 70 (A)

S v Rudman and Another;
S v Mthwana
1992 (1) SACR 70 (A)

1992 (1) SACR p70

Citation	1992 (1) SACR 70 (A)
Court	Appellate Division
Judge	Nicholas AJA
Heard	August 22, 1991
Judgment	September 27, 1991
Counsel	A Chaskalson SC (with him J Pickering, M S Navasa and G J Marcus) for the appellants in both cases; M C J Hodgen SC (with him J Bezuidenhout and P Blomkamp) for the State in both appeals

Flynote : Sleutelwoorde F

G Trial — The accused — Legal representation of — Accused unrepresented — Entitlement to legal representation — Such accused not entitled to be provided with legal representation — Problems associated with provision of legal representation to indigent accused discussed — Semble: Ideal that an accused entitled to be afforded legal representation where trial H otherwise would be palpably unfair a sine qua non of a complete system of criminal justice — Although that ideal cannot presently be attained in South Africa, it should not be lost sight of and should guide all concerned with its improvement.

Headnote : Kopnota

In appeals from decisions of two Provincial Divisions the issue was whether an accused person was entitled to be afforded legal I representation in cases where, by reason of his indigence, he was unable to obtain such 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 the absence of representation would render the J ensuing trial palpably and grossly unfair.

1992 (1) SACR p71

A The Court on appeal (per Nicholas AJA; Corbett CJ, Van Heerden JA, E M Grosskopf JA and Eksteen JA concurring) pointed out that in criminal appeals from lower courts to the Supreme Court where it was contended that there had been irregularities of procedure in connection with the trial, the Court of Appeal was not required to enquire whether the trial had been fair in accordance with 'notions of basic fairness and justice' (as contended for in S v Khanyile and Another); the enquiry was whether B there had been an irregularity or illegality, that is a departure from the formalities, rules and principles designed to ensure a fair trial: an irregularity in this context did not encompass every flaw in the way a criminal trial was run which rendered it truly unfair. The argument, expressed in S v Davids; S v Dladla 1989 (4) SA 172 (N), that the Khanyile rule was the elaboration and development of the right, C well-established in South African law, to a fair trial or, more narrowly expressed, the right to be represented on trial was rejected, the Court holding that no such right had ever been recognised either by statute or in the practice of the Courts: the Khanyile rule had been a new departure which could not claim legitimacy by reference to 'the right to a fair trial', since the 'right to a fair trial' was not the test of an D irregularity or illegality.

As to whether the Court should adopt the Khanyile rule, it was argued for the appellants that the South African law had reached the stage where it was necessary for accused persons to be provided with legal representation when the interests of justice required it; that the affirmation of the rule would be a cautious move bringing South African criminal procedure closer to the standards of fairness observed in E countries in Europe, North America and the Commonwealth; and would enable the Courts to work out incrementally, on the facts of each case, when the absence of legal representation had resulted in a failure of justice. It was argued, further, that if the State wished to put a person on trial, it had an obligation to ensure that he was given a fair F trial: it could not, by its own omission, force the courts into a situation in which they were required to conduct unfair trials. The State objected, arguing that judicis est jus dicere sed non dare.

Held, that the Supreme Court's power to regulate procedure in criminal trials was exemplified by the numerous reported cases which formulated and implemented the rules which had been evolved for the assistance of G undefended accused persons and to reduce the risk of an unfair trial.

Held, further, that the maxim judicis est jus dicere sed non dare was not, therefore, an obstacle to the adoption of the Khanyile rule; nor was a bar thereto constituted by the fact that, in terms of the law as it currently was, no irregularity was committed when legal representation was not provided for an indigent accused.

H Held, further, that to keep pace with changed circumstances and new insights and perceptions changes in procedural rules might become necessary.

Held, accordingly, that the Court would not be precluded by the present state of the law on the point from adopting the Khanyile rule.

I Held, further, however, that it did not follow that the rule was such that it ought to be affirmed.

Held, further, that in considering whether the rule should be adopted, two questions arose: one of principle, the other of feasibility.

Held, further, as to the question of principle, that the adoption of the rule would constitute notice to the Government that if legal aid on the scale required were not provided, the prospect would have to be faced of numerous criminal trials being delayed and many convictions being upset on appeal because of the failure to provide accused persons with legal J aid.

1992 (1) SACR p72

A Held, further, that the Court had no power to issue a mandamus to Government to provide legal aid, and that it should not adopt a rule, the tendency of which would be to oblige the Government to do so.

Held, further, rejecting the argument that the State was obliged to ensure that a person put on trial had a fair trial, that what an accused person was entitled to was a trial initiated and conducted in accordance B with those formalities, rules and principles of procedure which the law required; he was not entitled to a trial which was fair when tested against abstract notions of fairness and justice.

Held, further, as to the short-terms feasibility of adopting the Khanyile rule, that, since the funds available to the Legal Aid Board had always been markedly insufficient to supply even its present needs, C overnight implementation of the rule would be impossible, not only because of the financial constraints on the Legal Aid Board, but also because of the intolerable burden which would be placed upon its organisation, its agents and representatives by the flood of applications which would ensue.

Held, further, that, if the rule were implemented without the necessary ground work being done and the necessary infrastructure being created, D the business of the courts, both of the district and regional magistrates, would be thrown into chaos, with some prosecutions being inordinately delayed until lawyers became available, and others being withdrawn.

Held, further, as to the long-terms feasibility of adopting the Khanyile rule, that, whereas the rules listed by the Court a quo in Rudman's case E related solely to the internal procedure of the court (in that they imposed upon judicial officers duties which they had to perform inside the court room), the Khanyile rule, while relating to the court's internal procedure, had an extra dimension which took the matter beyond the court room and into the realm of politics.

Held, further, that, if the Court entered the field of politics, it F would generally have to be informed by evidence and guided by the opinions of skilled persons: a feasibility study, based upon detailed and comprehensive statistical and other information, together with expert analysis and assessment thereof, would be required.

Held, further, that the information placed before the Court by the appellants' counsel, by contrast, was partial, fragmentary and quite G insufficient to enable a reasoned assessment of the feasibility of implementing the rule to be made.

Held, accordingly, that the Court should not adopt the rule formulated in Khanyile's case.

The decisions in the Eastern Cape Division in S v Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk NO and Another 1989 (3) SA 368 and in the Natal H Provincial Division in S v Mthwana 1989 (4) SA 361 confirmed.

Semble (per Corbett CJ; Van Heerden JA, E M Grosskopf JA, Eksteen JA and Nicholas AJA concurring): The ideal which the Khanyile case and S v Davids; S v Dladla strive for is a sine quo non of a complete system of criminal justice, and any system which lacks it is flawed. Although the ideal cannot be attained under present circumstances in South Africa, it I should never be lost sight of and should continue to guide all who are concerned with the improvement of the South African criminal justice system.

Case Information

Appeal from decisions in the Eastern Cape Division reported at 1989 (3) SA 368 (Cooper J, Jennet J and Jansen J) and in the Natal Provincial Division reported at 1989 (4) SA 361 (Howard JP, Booysen J and Combrink J J). The facts appear from the judgment of Nicholas AJA.

1992 (1) SACR p73

A A Chaskalson SC (with him J Pickering, M S Navsa and G J Marcus) for the appellants in both cases: The appeals, which are to be argued together, raise the same questions, namely (a) whether the accused persons, who (i) faced serious charges, (ii) because of indigency or ignorance of their rights did not obtain legal representation, (iii) as a result were required to defend themselves in person, can be said to have had a fair trial; and, if not, (b) whether in the circumstances of each of the cases, it can be said that a failure of justice resulted B from the unfairness of the proceedings. The legal issues raised by these questions have been the...