S v Tshidiso

• Jurisdiction: South Africa
• Judge: Boruchowitz J and Van der Walt AJ
• Judgment Date: 12 November 2001
• Citation: 2002 (1) SACR 207 (W)
• Hearing Date: 22 August 2001
• Counsel: H W Sibuyi for the appellant. P Schutte for the State.
• Court: Witwatersrand Local Division

Van der Walt AJ:

This appeal raises the question whether there has been an infringement of the appellant's constitutional right to a fair trial as envisaged by s 35 of the E Constitution Act 108 of 1996.

The appellant, who was unrepresented at the trial, was convicted in the regional court Johannesburg on 27 November 1998 on the following counts: two counts of kidnapping; a count of robbery; a count of theft; rape; the unlawful possession of a fire-arm; and the unlawful possession of ammunition. He was sentenced on the counts of kidnapping, F taken together, to five years' imprisonment; on the count of robbery to 15 years' imprisonment; on the count of theft to seven years' imprisonment; on the rape count to 10 years' imprisonment, and on the count of the unlawful possession of a firearm and ammunition, taken together, to three years' imprisonment. It was ordered that the sentences on the kidnapping counts run concurrently with those on the G counts of robbery, theft, rape and the unlawful possession of a firearm and ammunition. The effective sentence imposed was 35 years' imprisonment.

The appeal is against the convictions as well as the sentences imposed.

At the appeal hearing it came to light that the matter had a long history of delay and postponements. The parties also sought to H supplement the record by handing in from the Bar the original charge-sheet (J15) and several affidavits by the appellant, the presiding magistrate and the prosecutor in the magistrate's court. As it was in the interests of justice that the matter be disposed of as expeditiously as possible, the Court sought clarity from counsel for I the appellant and the respondent and they agreed that the matter should proceed on the basis of the record of proceedings in the magistrate's court of 23 September 1998 and 24 to 27 November 1998 and the supplementary documentation referred to.

The undisputed facts on which the verdict of the magistrate rests, are as follows: J

Van der Walt AJ

On 5 August 1998, at about 18h00, Loraine Pretorius drove her A Corolla car on the N1 South road. She had to stop as a result of a puncture. Francois Mulder, driving a Mercedes Benz, stopped behind her to assist her. While busy assisting her, the appellant emerged from the bushes alongside the road. He had a cocked firearm in his hand; he shouted at them; and he ordered them (first Mr Mulder) into the boot of B the Corolla. The appellant ransacked the car. He then, with both Pretorius and Mulder still in the boot, drove away in the car. He stopped somewhere, ordered Pretorius out of the boot, kept Mulder closed in the boot, and led her to a secluded spot where he raped her. He also robbed her of her jewellery. He released Mulder from the boot and drove off with the car. She recovered her vehicle that same night. Goods stolen from the car (a cellular phone, a purse, computer and C attache bag) were also later recovered by the police. After having been left by the respondent, they wandered off and summoned help. An ambulance arrived to take her to hospital.

The Mercedes Benz, belonging to Mulder, was also removed. This became clear when Mulder, after the rape, arrived at the scene of the hijacking. D

The appellant was positively identified by both Pretorius and Mulder at a police identity parade. A finger-print of the appellant was also found on the boot of the Corolla.

The appeal as regards the conviction is not on the merits of the matter but on the basis of the fairness of the trial. It is essentially E an appeal on the ground of an infringement of the appellant's constitutional right to a fair trial as envisaged by s 35 of the Constitution, Act 108 of 1996.

It appears from the record (pp 1 - 5) that the appellant on 23 September 1998 pleaded not guilty to the two counts of kidnapping, the count of rape and the count of unlawful possession of a firearm. He pleaded guilty to the two counts of robbery and the count of unlawful F possession of ammunition.

Counsel for the appellant argued that the magistrate erred in assuming that the appellant understood the implications of certain sections of Criminal Procedure Act 51 of 1977 (ss 1, 260, 261); the Arms and Ammunition Act 75 of 1969 (ss 1, 12(1), 39(1)(h), G 39(2)); and the Criminal Law Amendment Act 105 of 1997 (s 51(2)). He also argued that the magistrate failed to assist the appellant, who was not represented; that the magistrate failed in his duty to explain statutory provisions which raised presumptions against the appellant; that the appellant's failure to challenge evidence against him reveals H a lack of understanding the implications of relevant statutes; and that the magistrate did not promptly inform the appellant of his right to legal representation at the expense of the State.

The respondent, on the other hand, contends that the right to legal counsel was explained. The extent to which it was explained is set out I in the magistrate's affidavit. The record shows that the magistrate assisted the appellant, particularly in respect of giving a plea-explanation, the cross-examination of witnesses, evidence-in-chief and his right to call witnesses. In view of the appellant's denial of everything and his defence of an alibi the magistrate was restricted in respect of his assistance to the J

Van der Walt AJ

appellant. He also argues that the evidence against the appellant is overwhelmingly strong and that the A appellant eventually voluntarily admitted to guilt on all the counts.

As indicated, the only issue before the Court in respect of the convictions is the question of the fairness of the trial.

Section 35(3) of the Constitution of the Republic of South Africa Act B 108 of 1996 affords an accused 'a right to a fair trial'. This right includes no less than 15 rights which relate to the procedure and process of a trial.

Section 35(5) states that evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission would render the trial unfair. This section indicates that the evidence at trial and the manner in which it is obtained are crucial factors in order to determine fairness. C

Before 1994 the right to a fair trial was rather limited. Nicholas AJA (as he then was) in S v Rudman 1992 (1) SA 343 (A) at 387 stated it as follows:

'What an accused person is entitled to is a trial initiated and conducted in accordance with those formalities, rules and principles of D procedure which the law requires. He is not entitled to a trial which is fair when tested against abstract notions of fairness and justice.'

This view was changed drastically, after 1994, in the first judgment of the Constitutional Court in S v Zuma 1995 (4) BCLR 401 (CC). In the Zuma case Kentridge AJ stated that all courts E must give content to just those notions of fairness and justice. (See also S v Ramuongiwa 1997 (2) BCLR 268.)

The constitutional right to a fair trial is broader than the list of rights articulated in s 35 (see S v Simxadi 1997 (1) SACR 169 (C)). A fair trial therefore also extends to 'substantive fairness' (see Steytler Constitutional Criminal Procedure (1998) 216 et seq) or to the F so-called 'residual fair trial right'. (See in general Chaskalson and Others Constitutional Law of South Africa 27 - 60B et seq.) Assistance by the presiding magistrate...