S v Shiburi

JurisdictionSouth Africa
Citation2004 (2) SACR 314 (W)

S v Shiburi
2004 (2) SACR 314 (W)

2004 (2) SACR p314


Citation

2004 (2) SACR 314 (W)

Case No

A193/02

Court

Witwatersrand Local Division

Judge

Satchwelll J, Makhanya J and E M Du Toit AJ

Heard

February 10, 2003

Judgment

April 20, 2003

Counsel

A M Persad for the appellant.
S T Nkosi for the State.

Flynote : Sleutelwoorde F

Fundamental rights — Right to a fair trial — Right to have access to contents of police docket prior to trial — Duty incumbent upon judicial officers to inform unrepresented accused of legal rights — Accused's legal rights include right to docket or State witnesses' statements, unless there is good ground for their refusal — Where appellant undefended, she or he entitled G to be informed of right to State witnesses' statements and failure to do so is misdirection or irregularity on part of presiding judicial officer.

Headnote : Kopnota

Per Makhanya J and Satchwell J; Du Toit AJ dissenting: There is a duty incumbent upon judicial officers to inform an unrepresented accused of her or his legal rights. An accused's legal H rights include her or his rights to the docket or State witnesses' statements, unless there is a good ground for their refusal. Where the appellant is undefended, she or he is entitled to be informed of the right to the State witnesses statements and a failure to do so is a misdirection or irregularity on the part of the presiding judicial officer. (At 346g - h; 352c - d, I 352j - 353a, 353c - e and 354i.)

Where the accused had not been advised of his right of access to the police docket and he had been convicted, the majority of the Court on appeal held that, insofar as an irregularity has been committed, it had not been so fundamental as to vitiate the trial proceedings. (Makhanya J and Du Toit AJ; Satchwell J dissenting.) J

2004 (2) SACR p315

Cases cited

Cole v Government of the Union of South Africa 1910 AD 263: considered A

Hlantlalala and Others v Dyantyi NO and Another 1999 (2) SACR 541 (SCA) ([1999] 4 All SA 472): B considered

Key v Attorney-General, Cape Provincial Division, and Another 1996 (2) SACR 113 (CC) (1996 (4) SA 187; 1996 (6) BCLR 788): considered

Molebatsi v Federated Timbers (Pty) Ltd 1996 (3) SA 92 (B): considered

R v Hepworth 1928 AD 265: dictum at 277 applied

R v Steyn 1954 (1) SA 324 (A): considered

S v Dlamini, S v Dladla and Others, S v Joubert, S v Schietekat 1999 (2) SACR 51 (CC) (1999 (4) SA 623; 1999 (7) BCLR 771): considered

S v Dzukuda and Others; S v Tshilo C 2000 (2) SACR 443 (CC) (2000 (4) SA 1078; 2000 (11) BCLR 1252): dictum in paras [9] and [53] applied

S v Khoza 1979 (4) SA 757 (N): considered

S v Lubbe 1981 (2) SA 854 (C): dictum at 860F - G applied

S v Maritz 1994 (1) SACR 456 (T): considered

S v McKenzie 2003 (2) SACR 616 (C): D considered

S v Nel 1987 (4) SA 276 (O): considered

S v Nhantsi 1994 (1) SACR 26 (Tk): applied

S v Radebe, S v Mbonani 1988 (1) SA 191 (T): dictum at 196F - G applied

S v Ramalope 1995 (1) SACR 616 (A): referred to E

S v Rudman and Another; S v Mthwana 1992 (1) SACR 70 (A) (1992 (1) SA 343): referred to

S v Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk NO and Another 1989 (3) SA 368 (E): considered

S v Shezi and Another 2003 (2) SACR 547 (W): referred to

S v Shikunga and Another 1997 (2) SACR 470 (NmS): dictum at 484b - f applied

S v Siwela 1999 (2) SACR 685 (W) F ([2000] 1 All SA 389): referred to

S v Smile and Another 1998 (1) SACR 688 (SCA): dictum at 692e - f applied

S v Steyn 2001 (1) SACR 25 (CC) (2001 (1) SA 1146; 2001 (1) BCLR 52): considered

S v Yengeni and Others (1) 1990 (1) SA 639 (C): considered

S v Zondi 2003 (2) SACR 227 (W): considered

S v Zulu 2003 (2) SACR 22 (SCA): considered

S v Zuma and Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401): considered

Sanderson v Attorney-General, Eastern Cape 1998 (1) SACR 227 (CC) (1998 (2) SA 38; 1997 (12) BCLR 1675): considered

Shabalala v Attorney-General, Transvaal, and Another; Gumede and Others v Attorney-General, Transvaal 1995 (1) SACR 88 (T) (1995 (1) SA 608; 1994 (6) BCLR 85): considered H

Shabalala and Others v Attorney-General of Transvaal and Another 1995 (2) SACR 761 (CC) (1996 (1) SA 725; 1995 (12) BCLR 1593): applied.

S v J L T Hlophe (NPD, dated 22 November 1978): referred to I

S v Ntombela (WLD case No A671/2001, dated 21 August 2002): referred to.

Case Information

Appeal from a decision in a regional court. Three separate judgments were handed down. On the issue as to whether the accused should be advised of the right of access to the docket, Makhanya J and Satchwell J wrote separate but concurring judgments, Du Toit AJ dissenting. On the J

2004 (2) SACR p316

issue as to whether there had been a fatal A irregularity committed by the trial court, Makhanya J and Du Toit AJ wrote separate, but concurring judgments, Satchwell J concurring. As to whether an appellant could raise a point of law not dealt with in the notice of appeal, Satchwell J and Du Toit wrote differing judgments, Makhanya J not deciding the point as he found that the appeal should be dismissed in any event. The facts appear from the judgment of Du Toit B AJ.

A M Persad for the appellant.

S T Nkosi for the State.

Cur adv vult.

Postea (April 20). C

Judgment

E M du Toit AJ:

[1] The appellant was convicted in the Germiston regional court of housebreaking with intent to steal and theft and sentenced to five D years' imprisonment. He appeals against both conviction and sentence.

Proceedings in court a quo

[2] The trial was a short one and the entire appeal record comprises 53 pages, 34 whereof contain the transcript of the proceedings from E plea to sentence.

[3] According to the charge-sheet the appellant on 11 June 2001 unlawfully and with intent to steal broke into a house in 6th Avenue, Edenvale, and unlawfully and intentionally stole a CD player, the property or in the lawful possession of N D Heron. F

[4] The initial note in the record was made by an additional magistrate upon the appellant's first appearance in court on 12 June 2001 and reads:

'Rights in terms of s 35 Act 108/96 [1] explained - will conduct own defence.'

When the accused first appeared in the regional court, the G magistrate a quo made a similar note, viz:

'Rights in respect of legal aid, own defence, own attorney explained. He understands and he elects own defence.'

Subsequently the appellant, who in the result was H unrepresented, pleaded not guilty to the charge. Having been informed that he could give an explanation of his plea but was not obliged to do so and had the right to remain silent, he elected to furnish an explanation which was as follows:

'I plead not guilty because I know nothing of this case as also this radio, I know nothing of the stolen radio.' [2] I

2004 (2) SACR p317

E M Du Toit AJ

[5] The magistrate thereupon told the appellant that the State would call witnesses to testify and explained the nature and purpose of A cross-examination to him, as also the implications of failing to cross-examine.

[6] The State case was an extremely simple one. Three witnesses only were called, namely the complainant, who related how, upon hearing his kitchen window being smashed, he discovered that his CD player had B been removed from in front of it and that the police returned it to him some 40 minutes later; a security officer who testified that he had apprehended the accused in possession of the CD player in question; and a member of the South African Police Service who received the CD player from the security officer and returned it to the complainant. It is C desirable briefly to set out the evidence.

[7] The complainant, Mr N D Heron, testified that he resided at 191, 6th Avenue, Edenvale, with his wife and small son. His housekeeper and her husband also lived there in a flat. The property was walled in the front and the big security gates were kept locked so that a person would have to jump over the wall in order to get to the kitchen. The house had a burglar alarm installed and in the kitchen there was a D sensor which would go off if somebody walked around inside the house. There was also a security gate between the bedrooms and the kitchen and lounge area. In addition, the complainant had two dogs which were usually in the front. E

[8] Because Sunday night, 10 June 2001, was a very cold night, the complainant locked the dogs in the back garden where there was a scullery under cover. Before going to bed he secured all the doors and windows of the house. The following morning at about or just F after 06h00 when it was still dark but just about getting light, he was awakened by the noise of a banging on the kitchen window, which was a very big window. There were two attempts and then he heard the window break. He got his wife up and 'hit the panic button' to alert the security company, thereby causing the alarm to go off. The dogs were barking 'like crazy'. He fetched his son out of his bed, took him to G his wife and asked her to telephone the security company. He did not go into the kitchen for eight to ten minutes because he 'was too scared to go in'.

[9] On investigation the complainant noticed that the kitchen window had been smashed, that a brick was lying on his microwave oven and that his CD player with a value of approximately R1 000 was missing. It had been standing on the microwave oven in front of, and H one or two feet from, the now broken window. The glass from the window had smashed through a blind in front of it which would have screened the CD player from the view of anybody outside.

[10] The complainant's wife telephoned the South African Police I Service, who arrived half an hour or maybe 40 minutes after he first heard the smashing of the window. They said that they had caught somebody with a CD player, which...

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8 practice notes
  • 2010 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...127South African Railways v Symington 1935 AD 37 ...................................... 129S v Shiburi 2004 (2) SACR 314 (W) ............................................................. 344SWEAT v Minister of Safety & Security 2009 (2) SACR 417 (WCC) ............. 133TTsose v Minister of J......
  • 2005 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...341–346S v Shangase 1972 (2) SA 419 (N) ........................................................... 386S v Shiburi 2004 (2) SACR 314 (W) ........................................... 108; 121; 357–359S v Shuping 1983 (2) SA 119 (B) ...................................................................
  • S v Hammond
    • South Africa
    • Invalid date
    ...476i - 477a (SACR) and 1009G and 1009J - 1010B (SA). By way of contrast, the appellant's evidence was beyond reproach. Furthermore, J 2004 (2) SACR p314 Cloete there is no gainsaying the fact that his version A was corroborated by Mitchell, even if one approaches the latter's evidence with ......
  • Recognising the centrality of disclosure to the realisation of equality of arms in criminal proceedings in Botswana
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...to a fair trial. This is the framework in which the development of common law rules about disclo-sure by the Crown must be seen’. 81 2004 (2) SACR 314 (W).82 [1985] BLR 177.Recognising the centrality of disclosure to the realisation of equality of arms in criminal proceedings in Botswana 34......
  • Request a trial to view additional results
3 cases
  • S v Hammond
    • South Africa
    • Invalid date
    ...476i - 477a (SACR) and 1009G and 1009J - 1010B (SA). By way of contrast, the appellant's evidence was beyond reproach. Furthermore, J 2004 (2) SACR p314 Cloete there is no gainsaying the fact that his version A was corroborated by Mitchell, even if one approaches the latter's evidence with ......
  • S v Small
    • South Africa
    • Cape Provincial Division
    • 20 April 2005
    ...dealing with the nature and seriousness of the offence in his response to my enquiry, the magistrate cites the matter of S v Shiburi 2004 (2) SACR 314 (W). A CD player was indeed C removed from the complainant's premises, as the magistrate points out, but an important difference appears at ......
  • S v Small
    • South Africa
    • Invalid date
    ...SA 20 (NC): applied G S v Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk NO and Another 1989 (3) SA 368 (E): referred to S v Shiburi 2004 (2) SACR 314 (W): Case Information Automatic review of a conviction and sentence in a magistrate's court. The facts appear from the reasons for judgment. ......
5 books & journal articles
  • 2010 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...127South African Railways v Symington 1935 AD 37 ...................................... 129S v Shiburi 2004 (2) SACR 314 (W) ............................................................. 344SWEAT v Minister of Safety & Security 2009 (2) SACR 417 (WCC) ............. 133TTsose v Minister of J......
  • 2005 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...341–346S v Shangase 1972 (2) SA 419 (N) ........................................................... 386S v Shiburi 2004 (2) SACR 314 (W) ........................................... 108; 121; 357–359S v Shuping 1983 (2) SA 119 (B) ...................................................................
  • Recognising the centrality of disclosure to the realisation of equality of arms in criminal proceedings in Botswana
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...to a fair trial. This is the framework in which the development of common law rules about disclo-sure by the Crown must be seen’. 81 2004 (2) SACR 314 (W).82 [1985] BLR 177.Recognising the centrality of disclosure to the realisation of equality of arms in criminal proceedings in Botswana 34......
  • Case Review: Constitutional application
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...of Cape TownInterpretation –– right to a fair trialRight of access to police dockets or state witnesses’ reportsIn S v Shiburi 2004 (2) SACR 314 (W), the court had to decide whether the right to a fair trial included the right of access to police dockets or state witnesses’ reports and, if ......
  • Request a trial to view additional results

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