S v Tandwa and Others

• Jurisdiction: South Africa
• Judge: Cameron JA, Mlambo JA and Hancke AJA
• Judgment Date: 28 March 2007
• Citation: 2008 (1) SACR 613 (SCA)
• Docket Number: 538/06
• Counsel: JG Brisley (with JL McConnachie) for the appellants, instructed by the Legal Aid Board. Adv Carpenter (with J Neveling) for the respondent.
• Court: Supreme Court of Appeal

The court:

[1] During the early morning hours of Wednesday 18 November 1998, J a robbery took place at the Standard Bank in Mthatha, Eastern Cape, in

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which the perpetrators looted R9,6 million from the branch's strongroom. A The police arrived soon after the bank's usual daily round began. They found three bank employees locked inside the now-depleted strongroom. All three had spent the previous night under the robbers' guard. At dawn the robbers brought them to the bank and instructed them to deactivate the alarm and to open the strongroom safe. All three B claimed to have done so under compulsion. But within hours, police suspicion focused intense scrutiny on two of the three, Mr Siyabulela Tandwa and Mr Aubrey Godolozi. By the day's end the two had been arrested on suspicion of complicity in the crime. They later stood trial in the Mthatha High Court as accused 1 and 2, with six further accused, on a charge of robbery in contravention of s 155(1) and (2) of the Transkei C Penal Code Act 9 of 1983. [1]

[2] At the trial's commencement the accused (who were all legally represented) pleaded not guilty and declined to offer any plea explanations, reserving their defence. Seven of the eight were convicted as charged. Accused 4, Ms Xoliswa Tekula, the wife of accused 3, was D acquitted. Those convicted were sentenced to terms of imprisonment of between 17 and 20 years. With the leave of the trial judge (Van Zyl J) the seven appellants now appeal against their convictions only. We refer to them as they were arraigned in the trial court (where the other accused were Mr Nkqubela Tekula (3), Mr Khaya Gasa (5), Mr Tanduxolo E Rozani (6), Mr Mzukiseni Tshefu (7) and Mr Luyanda Ngubelanga (8)).

[3] The robbers' plan and its execution were soon established, and were not disputed at the trial. In the course of the evening of 17 November 1998 - a drizzly night - the three bank employees were accosted at their homes by armed men and taken together with the members of their households to the residence of accused 2, where they were detained F overnight. The three bank employees were taken to a separate room - that of accused 2. There they were questioned about the bank's security systems and alarm codes. Early the next morning the robbers proceeded to the bank with accused 1 and 2 and the third employee, Mr Mtutuzeli

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A Sibindlana, where they disarmed the alarms and gained access to the bank and its vaults. The loot was taken, and the robbers scarpered after locking the three employees in the safe where the police later found them.

[4] The State case against the eight accused pivoted on three axes: direct B evidence against five; inferential evidence arising from possession of part of the loot against one; and inferential evidence from lapses in bank procedures implicating the two employees. Direct evidence of the complicity of five of the accused came from an accomplice witness, Mr Eric Pakamani Dlamini, who in court identified accused 3, 5, 6, C 7 and 8 as fellow robbers. In the case of each of these accused, the State also led corroborating evidence. This included a confession, admissions and other compromising statements and pointings out, as well as cash retrieved.

[5] Against accused 4 (spouse of accused 3), the State led evidence that D she had safeguarded some of the loot, contending unavailingly that this - together with her associated conduct and statements - established her complicity.

[6] Against accused 1 and 2 the State's case rested largely on lapses in and deviations from bank procedures which it contended were E compatible only with the inference that the two were complicit in the crime. During police questioning accused 1 denied his involvement (though he pointed the police to accused 2 as having possibly been involved). But accused 2, the police testified, soon admitted complicity, and it was he who led them to accused 3, 4 and 5. After the State closed its case, F accused 2 testified in his own defence, and was vigorously cross-examined. By contrast, accused 1 did not testify at all. His advocate closed his case without calling him to the witness stand. After he was convicted, but before being sentenced, he sacked his advocate (who had represented him for the preceding 16 months), claiming that he had been prevented from testifying in his own defence. Our first task is to G examine this claim and consider its consequences.

Accused 1's legal representation fair-trial complaint

[7] The Constitution guarantees every accused person the right to a fair trial (Bill of Rights s 35(3)). This includes the right 'to choose, and to be represented by, a legal practitioner' (s 35(3)(f)), as well as the right 'to H have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result' (s 35(3)(g)). The right to chosen or assigned legal representation is a right of substance, not form:

The constitutional right to counsel must be real and not illusory and an accused has, in principle, the right to a proper, effective or competent defence. [2]

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Incompetent lawyering can wreck a trial, thus violating the accused's fair A trial right. The right to legal representation therefore means a right to competent representation - representation of a quality and nature that ensures that the trial is indeed fair. [3] When an accused therefore complains about the quality of legal representation, the focus is no longer, as before the Constitution, only on the nature of the mandate the B accused conferred on his legal representative, [4] or only on whether an irregularity occurred that vitiated the proceedings [5] - the inquiry is into the quality of the representation afforded.

[8] It need hardly be added that accused 1 enjoyed a constitutional right to testify in his own defence. The right of an accused person to 'adduce' C evidence (Bill of Rights s 35(3)(i)) clearly encompasses the right to adduce his own evidence. It also follows clearly from the structure of s 35 that an accused person has the right to represent himself, without the interposition of counsel. [6] If the unwanted or inept advice of counsel improperly or unfairly thwarted his exercise of that right, his right to a fair trial would have been infringed. D

[9] And this exactly is accused 1's complaint: that his counsel's incompetence, bad advice and obstructive conduct violated his fair trial guarantee. We must explain the circumstances under which his complaint arose. The trial was protracted - it started in November 1999, one E year after the robbery, and the appellants were convicted 30 months later. Initially accused 1 was represented by Mr Rowan, later by Mr Noxaka, and from 1 March 2001 by Mr Fuyiziwe Shepherd Gagela, an advocate practising at the bar in Mthatha, who appeared on Legal Aid Board instructions. F

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A [10] The State closed its case against the accused on 10 September 2001, more than six months after Mr Gagela took over accused 1's defence. On the same day various of the accused, including accused 1 (but not accused 2), applied for their discharge. All the applications were refused. In dismissing accused 1's application, the trial judge found that 'there is B evidence at this stage justifying an inference that he may have been involved in the commission of the offence'. Thereupon accused 1 and accused 4 closed their cases without testifying. Accused 4 was acquitted, but not accused 1.

[11] When the convictions were brought in on 23 May 2002, accused 1's C bail was revoked, and he was taken into custody. Six weeks later, on 10 July, all the accused appeared in court when a postponement was granted. When court resumed on 23 July, the record reflects that Mr Gagela had been to see the judge in chambers. In court, he recorded cryptically that he was 'withdrawing as counsel of record for D accused 1 because the communication has since waned'. The judge established from Mr Gagela, and confirmed from accused 1, that his withdrawal was at the request of accused 1. He then asked accused 1 whether there was 'any possibility' that he could 'resolve your difficulties' with Mr Gagela. To this accused 1's only response was 'I E don't want to be represented, I want to talk on my own.' He offered no further elaboration.

[12] The State then led evidence in aggravation of sentence. The next day, 24 July, the accused were invited to lead evidence in mitigation. After the judge had explained his rights and opportunities to accused 1, F he took the stand. He proceeded to relate his personal circumstances, including details about his employment with the bank, his family, his financial position and health. In the midst of these details, he stated (second-person appellations omitted):

When this matter was proceeding I didn't elect to remain silent, I did want G to speak but I was advised not to speak. I was advised by my attorney saying that he knows what he says because he is an attorney, because he knows the law. I did as he told me thinking that he knew what he was saying. I also have two photos showing my involvement in the sport as I have told the Court, I don't know whether the Court would also like to see them or whether the Court has got any interest in this sport.

H In response the judge merely indicated that since the evidence of his involvement in sport was unlikely to be disputed, it was not necessary to hand up the photographs.

[13] Although he was then cross-examined by other counsel and by the I State, and although the judge inquired of accused 1 at the end of his evidence whether he wished to say anything else, nothing further emerged. Sentence was passed two days later, on 26 July, accused 1 being sentenced to 18 years.

[14] Only in an affidavit lodged with his application for...