S v Tandwa and Others

• Jurisdiction: South Africa

S v Tandwa and Others
2008 (1) SACR 613 (SCA)

2008 (1) SACR p613

Citation	2008 (1) SACR 613 (SCA)
Case No	538/06
Court	Supreme Court of Appeal
Judge	Cameron JA, Mlambo JA and Hancke AJA
Heard	February 19, 2007; February 20, 2007
Judgment	March 28, 2007
Counsel	JG Brisley (with JL McConnachie) for the appellants, instructed by the Legal Aid Board.; Adv Carpenter (with J Neveling) for the respondent.

Flynote : Sleutelwoorde

Fundamental rights — Right to a fair trial — Right to legal representation — H Constitution of the Republic of South Africa, 1996, s 35(3)(f) — Appellant accusing legal representative of misconduct leading to violation of right to fair trial — Legal representative denying allegations — Legal representative's affidavit admissible for purpose of assessing appellant's claims.

Fundamental rights — Right to a fair trial — Right to legal representation — I Constitution of the Republic of South Africa, 1996, s 35(3)(f) — Right to legal representation meaning right to representation that was competent and of quality and nature that ensured that trial indeed fair — Following from structure of s 35 that accused person having right to represent him- or herself — If unwanted or inept advice of counsel unfairly thwarting exercise of that right, accused's right to fair trial infringed. J

2008 (1) SACR p614

A Fundamental rights — Right to remain silent — Constitution of the Republic of South Africa, 1996, s 35(3)(h) — Exercise of right to remain silent not suspending operation of ordinary rational processes — Choice to remain silent in face of evidence suggestive of complicity leading, in appropriate case, to inference of guilt — Absence of explanation, plausibly advanced, becoming decisive and circumstantial web pointing overwhelmingly to B accused's complicity.

Evidence — Admissibility — Evidence illegally obtained — Abundantly established that appellant assaulted by police prior to his pointing out location of stolen money — Accordingly, statements made by appellant on this occasion, his pointing out of buried bucket of money, and discovery of bucket itself, all inadmissible against him — Bucket constituting 'real' evidence, as C opposed to 'testimonial' evidence such as confession or admissions, but inextricably tainted with blemish of police brutality — Such evidence not fit for receipt in civilised legal proceedings.

Evidence — Admissibility — Evidence illegally obtained — Constitution plainly envisaging cases where evidence to be excluded for broad public policy D reasons beyond fairness to individual accused — Admission of real evidence procured by torture, assault, beatings and other forms of coercion violating accused's fair trial right at its core, and staining administration of justice — Admission of such evidence rendering accused's trial unfair due to introduction of evidence obtained by means offensive to civilised injunctions against assault and compulsion — Admission of such evidence E impairing administration of justice by bringing entire system into disrepute by associating it with barbarous and unacceptable conduct.

Evidence — Assessment of — Identification — Dock identification — Generally, unless sourced in independent preceding identification, dock identification carrying little weight — In casu, identification reliable — Witness having no F malicious intent towards accused — Witness having had extensive, intimate and protracted exposure to accused — Accused unable to account with any plausibility for sudden spending spree he had gone on immediately after date of robbery — Accused's alibi defence notably lacking in detail as to his whereabouts on day preceding, and day of, robbery — Under these circumstances, witness's identification of accused as one of G the robbers establishing his involvement beyond reasonable doubt.

Headnote : Kopnota

The seven appellants were convicted of robbery arising from an incident in which a large amount of cash was taken from the vaults of a bank. An eighth accused was acquitted. All seven appellants appealed against their convictions on the merits, but the first appellant also contended that his right to H a fair trial had been violated in that his counsel had been incompetent, had given him bad advice, and had conducted himself obstructively. In particular, he claimed that he had not been properly informed about the consequences of not testifying, and that his counsel had misled him on the legal position in this regard. This version was disputed on affidavit by the advocate concerned, which gave rise to the further question of how an I appellate court should deal with conflicting testimony from an accused and his or her former legal advisor as to what had transpired between them. The court dealt with these aspects before considering the various appeals on the merits.

Held, that the right to legal representation meant a right to representation that was competent and of a quality and nature that ensured that the trial was J indeed fair. An accused person had the right under s 35(3)(i) of the

2008 (1) SACR p615

Constitution of the Republic of South Africa, 1996, to adduce evidence, and A this clearly encompassed the right to adduce his or her own evidence. It also followed from the structure of s 35 that an accused person also had the right to represent him- or herself, and if the unwanted or inept advice of counsel unfairly thwarted the exercise of that right, the accused's right to a fair trial would have been infringed. (Paragraphs [7] and [8] at 621a - b and 621c - d.)

Held, further, that it was only when he applied for leave to appeal that the first B appellant claimed that, while he and his advocate had initially agreed that he would testify, the advocate had subsequently decided, to his prejudice, that he should not testify. The advocate, on the other hand, had deposed to an affidavit in which he averred that he had fully and properly advised the first appellant about the risk associated with not giving evidence. What had transpired in discussions between the first appellant and his then legal C advisor was privileged, and could not be revealed unless the former had given his consent or waived his privilege. Since he nowhere expressly consented, the admissibility of his advocate's affidavit depended on whether or not he had waived his right to legal professional privilege. Where an accused charged a legal representative with incompetence or neglect giving rise to a fair trial violation, it was more sensible to talk of an imputed waiver, D rather than to cast around to find an actual waiver. Even without an express or implied waiver, a fair evaluation of the allegations would always require that a waiver be imputed to the extent of obtaining the impugned representative's response to them. Accordingly, the advocate's affidavit was admissible in assessing the accused's claims. (Paragraphs [14] - [20] at 622j - 626e.) E

Held, further, that the primary question was whether or not the failure of representation complained of by the first appellant had actually occurred. Even though neither deponent had been tested by cross-examination, the appellate court was not helpless; it was possible to explore two unprobed counter-assertions in order to establish the truth, and the court had the inherent power to develop a mechanism to allow this to happen. However, F such a procedure would be required only where the accused's allegations raised a real possibility that there had been incompetence or misconduct on the part of the legal representative. In casu, the accused's allegations were so weak, contradictory and inherently improbable that they could be rejected on affidavit without further enquiry. It was inherently improbable that a well-educated accused with experience of testifying in previous proceedings G would not either insist on testifying, as previously agreed, or complain at the first opportunity about having been unjustly thwarted in his wish to do so. It was impossible to attribute even the minimum plausibility to the first appellant's claims, and not to accept the exposition of his advocate; the first appellant's complaints were to be attributed to his chagrin at the fact that he had been convicted. (Paragraphs [21] - [26] at 626e - 629a.) H

Held, further, that the circumstantial evidence indicated overwhelmingly that when the robbery had taken place things had been profoundly amiss at the bank, in ways that pointed to the guilty complicity of the first and second appellants (both of whom were employees of the bank). While the second appellant had attempted, though to no avail, to answer this evidence, the first appellant had chosen to call no witnesses and to shun the witness stand I himself. This was his constitutional entitlement, but his exercise of that right did not suspend the operation of ordinary rational processes; the choice to remain silent in the face of evidence suggestive of complicity must, in an appropriate case, lead to an inference of guilt. It was true that the State's inferential case rested entirely on circumstance, and that no direct physical evidence linked the first appellant to the crime. Careful thought J

2008 (1) SACR p616

A had to be given to the possibility that he might have been guilty only of carelessness in carrying out his duties. It was here, however, that his choice not to give evidence became pivotal, for while it was not inconceivable that the accumulated occurrences could have been explained as sloppiness, they had not been so explained. It was the absence of such an explanation, plausibly advanced, that became decisive; and in the absence of anything to gainsay it, the circumstantial web pointed overwhelmingly to his complicity. B (Paragraphs [52] - [56] at 634e - 635h.)

Held, further, that it was abundantly established...