S v Singo

• Jurisdiction: South Africa
• Citation: 2002 (2) SACR 160 (CC)

S v Singo
2002 (2) SACR 160 (CC)

2002 (2) SACR p160

Citation	2002 (2) SACR 160 (CC)
Case No	CCT 49/01
Court	Constitutional Court
Judge	Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Kriegler J, Madala J, Ngcobo J, O'Regan J, Sachs J, Du Plessis AJ and Skweyiya AJ
Heard	March 12, 2002
Judgment	June 12, 2002
Counsel	J G Wasserman SC (with him A Louw) for the applicant at the request of the Court.; J A van S d'Oliveira SC (with him AL Collopy and R Sampson) for the State.

Flynote : Sleutelwoorde

Trial — The accused — Failure to appear in court — Enquiry in terms of s 72(4) of Criminal Procedure Act 51 of 1977 — Although procedure provided for in s 72(4) is summary and does not conform to customary adversarial trial procedure, enquiring court is obliged to furnish details of alleged offence to accused — Summary procedure does C not, in this respect, limit accused's right to fair trial — There is further nothing in s 72(4) to effect that right to adduce and challenge evidence is limited — Imposing burden of proof on accused, which is inseparable from summary procedure, compels accused to break her or his silence — To this extent summary procedure envisaged in D s 72(4) limits right to remain silent and not to testify at such inquiry — Effect of phrase 'unless such a person satisfies the court that his failure was not due to fault on his part' is that if probabilities are evenly balanced, accused has failed to satisfy court as required and conviction and sentence must follow — This limits rights to be presumed innocent and to remain silent — Having regard to importance of dealing effectively with conduct that hampers E administration of justice, incursion into right to silence is justifiable — Same cannot be said of legal burden which requires conviction despite existence of reasonable doubt — Such limitation is not justified — In all circumstances, it is appropriate to read in words necessary to establish evidentiary burden — Section 72(4) to be read as though words 'there is a reasonable possibility that' appear therein F between words 'that' and 'his failure'.

Trial — The accused — Failure to appear in court — Enquiry in terms of s 72(4) of Criminal Procedure Act 51 of 1977 — Procedure consists of two distinct yet connected enquiries — Court may, but need not, undertake either enquiry — First is when court considers whether or not to issue warrant for arrest — At this stage accused is absent and G court of its own accord establishes whether accused had been duly warned to appear in court and fails to comply with warning — Second phase begins when accused person is brought to court and summary procedure is invoked — At this stage it is not necessary for court to be satisfied afresh as to whether two pre-conditions exist — When the H accused appears in court pursuant to provisions of s 72(4) she or he may be asked by presiding officer whether non-compliance with warning is conceded — Depending on response to question, summary procedure may continue — In order to comply with obligation imposed by s 35(3) of Constitution of the Republic of South Africa Act 108 of 1996 presiding officer must ensure that enquiry is fair — As part of enquiry, presiding I officer must establish from accused whether she or he disputes fact that she or he was duly warned and that she or he failed to comply with warning — If accused does not dispute two basic facts, presiding officer must then establish from accused reason for her or his failure to appear in court — Fairness requires presiding officer to assist undefended accused to explain her or his failure to appear in court by J

2002 (2) SACR p161

putting questions to accused — By its very nature, enquiry envisaged in A s 72(4) contemplates that presiding officer will play active role in such enquiry by putting questions to accused — Objective of such questions is to elicit explanation, if any, for failure to appear in court.

Headnote : Kopnota

The procedure envisaged by s 72(4) of the Criminal Procedure Act B 51 of 1977 consists of two distinct yet connected enquiries. It is important to note that the court may, but need not, undertake either enquiry. The first is when the court considers whether or not to issue a warrant for the arrest of the accused person. At this stage the accused is absent and the court of its own accord establishes whether the two pre-conditions to issue a warrant of arrest exist. These C conditions are that the accused person, in the first place, had been duly warned in terms of ss (1)(a) or (b) and, secondly, fails to comply with the warning. The second phase begins when the accused person is brought to court and the summary procedure is invoked. At this stage it is not necessary for the court to be satisfied afresh as to whether the two pre-conditions exist. Their existence will ordinarily appear from the record and therefore be prima facie established. The court is indeed required to D record in full the proceedings at which the warning is given and an extract of such proceedings, if certified as correct, is prima facie proof of the warning given. It is therefore imperative that the warning be recorded in full. Where the warning was issued by a police official, the terms of the warning will appear from a written notice completed by the official. When the accused appears in court pursuant to the provisions of s 72(4) she or he may be asked by the E presiding officer whether non-compliance with the warning is conceded. Depending on the response to the question, the summary procedure may continue. In order to comply with the obligation imposed by s 35(3) of the Constitution of the Republic of South Africa Act 108 of 1996, the presiding officer implementing the 72(4) procedure must ensure that it is fair. Therefore unless the accused is legally represented the court F ought, the moment it decides to pursue the matter of the ostensible non-compliance with the warning, to explain the nature, requirements and effect of the proceedings about to be commenced. The explanation should include telling the accused that it appears from the record that she or he was duly warned (the contents of the warning may have to be explained) and that there was a non-appearance or other failure to G comply with the warning. It should include telling the accused that such non-compliance is an offence for which the law allows a fine or imprisonment of up to three months; that unless the pre-conditions are cogently challenged, they may be regarded as having been established, whereupon the court will be empowered there and then to investigate the issue of culpable non-compliance and intends doing so. In addition to the above, the presiding officer is obliged to inform an undefended H accused of her or his basic procedural rights. The enquiry must be conducted in a fair and impartial manner. As part of the enquiry, the presiding officer must establish from the accused whether she or he disputes the fact that she or he was duly warned, giving the details of the warning as recorded, and that she or he failed to comply with the warning. If the accused does not dispute the two basic facts, the I presiding officer must then establish from the accused the reason for her or his failure to appear in court. Fairness requires the presiding officer to assist an undefended accused to explain her or his failure to appear in court by putting questions to the accused. By its very nature, the enquiry envisaged in s 72(4) contemplates that the presiding officer will play an active role in such an enquiry by putting questions to the accused. The objective of such J

2002 (2) SACR p162

questions is to elicit the explanation, if any, for failure to appear in court. A Provided that the questioning is conducted in a fair and impartial manner, this will help an undefended accused to put forward the reason for her or his failure to appear in court. (Paragraphs [9], [10], [11], [12] and [13] at 167h - 169c and 169d - g.)

It cannot be gainsaid that the person who is being dealt with in terms B of s 72(4) is an accused person as contemplated in s 35(3) of the Constitution of the Republic of South Africa Act 108 of 1996. It follows that the provisions of s 35(3) are applicable to the enquiry. (Paragraph [15] at 169h - i.)

Constitutionality of the summary procedure in s 72(4)

Although the procedure provided for in s 72(4) is summary and does not conform to the customary adversarial trial procedure, the enquiring court is obliged to furnish details of the alleged offence to the C accused. The elements of the charge are likely to be very simple but, should the accused require particularity, the enquiring court must furnish it there and then. Therefore the absence of a formal written charge-sheet is of no consequence. While the accused does not have the opportunity to make a formal written request for further particulars, such accused nevertheless enjoys the right to be informed of the D details of the charge against him or her. Accordingly the summary procedure does not, in this respect, limit the accused's right to a fair trial. There is further nothing in s 72(4) to the effect that the right to adduce and challenge evidence is limited. (Paragraphs [19] and [21] at 170g - 171b and 171f.)

The purpose of the summary procedure is to get the accused to explain E his or her failure to comply with a warning. To achieve this purpose, the burden of proof is imposed upon the accused, which, if she or he should fail to discharge, usually results in a conviction. Thus remaining silent at the enquiry invariably invites a conviction. This is so because the fact of the warning and failure to comply with it will ordinarily become conclusive proof, and in the absence of the F explanation for failure, the conviction must usually ensue. Viewed in this context...