IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION)
In the matter: Case No: Waterval-Boven High Court Ref No: 2033
Magistrate’s Serial No: 6/2002
THE STATE
versus
ORLANDO PHIRI
JUDGMENT
VAN DER WESTHUIZEN, J:
[1] The accused, Mr Orlando Phiri, was charged in the Magistrates’ Court, Waterval-Boven, with the theft of corrugated iron plates. He pleaded guilty and was convicted as charged. Before he was sentenced, the trial magistrate sent the matter on special review to this court.
[2] The magistrate explained the following in a letter accompanying the record:
“Nadat die beskuldigde voor my verskyn het en ek by hom verneem het of hy nog sy eie verdediging gaan behartig het ek agtergekom dat hy voetboeie aangehad het. Ek het toe by die aanklaer verneem wat die posisie was waarop die aanklaer (my) meegedeel het dat die korrektiewe beampte hom meegedeel het dat dit ʼn opdrag van hul hoofkantoor was
dat gevonnisde gevangenes geboei moet bly en dat hulle nie ʼn sleutel by die hof gehad het om die voetboeie af te haal nie. Blykbaar was die sleutel te Belfast gevangenis 40 km van Waterval-Boven hof.
Ek het na aanleiding hiervan die beskuldigde gevra of hy enige beswaar (het) dat hy verhoor word terwyl hy in voetboeie was, waarop hy my meegedeel het dat hy geen beswaar gehad het nie. Die aanklag was gestel, hy’t skuldig gepleit en na ondervraging ooreenkomstig artikel 112(1)(b) Wet 51/77 was beskuldigde toe skuldig bevind. Die saak was toe vir SAP 69 en vonnis uitgestel.
Ek was daarna nie gelukkig met die omstandighede waarin die beskuldigde toe hy gepleit het, hom bevind het, ten spyte van sy mededeling dat hy geen beswaar gehad (het nie) dat hy in die omstandighede verhoor word en het toe die regspraak nagegaan. Dit blyk duidelik …dat so iets nie geduld word nie.
Ek het die Area Bestuurder by Korrektiewe Dienste Belfast vanwaar die bekuldigde afkomstig was gewys op die twee beslissings S v Pakkies 1985 (4) SA 592 (Tk) en S v Stevens 1961 (3) SA 518 (c) en my ongelukkigheid oor die aangeleentheid uitgespreek. Ten spyte hiervan het hy my meegedeel dat dit in opdrag van sy hoofkantoor was.
Die verskyning van ʼn gevonnisde gevangene in opdrag van Korrektiewe Dienste se hoofkantoor is in elk geval teenstrydig met die vereiste van menswaardige behandeling van onder andere ʼn gevonnisde gevangene neergelê in die Grondwet, artikel 35(12)(c) Wet 108/1969.”
[3] The magistrate requested that the conviction be set aside and that the accused be retried de novo by another magistrate, free of any shackles. He added that in the ten years he had been serving in the Waterval-Boven and Belfast courts, no escape had ever taken place from the courts, but that people had escaped from the court holding cells at Belfast as well as the Waterval-Boven police cells.
[4] Section 35(3) of the Constitution of the Republic of South Africa of 1996 (the Constitution) states that every accused person has a right to a fair trial. It mentions 15 aspects of a fair trial, which are included in the right. One is the presumption of innocence (in section 35(3)(h)). However, the right is broader than the list of specific rights set out in the subsection, and “embraces a concept of substantive fairness which is not to be equated with what might have passed muster in our criminal courts before the (interim) Constitution came into force”. (See S v Zuma and Others 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC) para 16.) The constitutional recognition of the right to a fair trial requires criminal trials to be conducted in accordance with “notions of basic fairness and justice” and courts hearing criminal trials or appeals have to give content to these notions. (See Zuma para 16.) In Sanderson v Attorney- General Eastern Cape (1998 (2) SA 38 (CC); 1997 (12) BCLR 1675 (CC) para 22) the need to conduct criminal trials in accordance with open ended notions of basic fairness and justice, and the presumption of innocence, were mentioned. In considering what lies at the heart of a fair trial, one should bear in mind that dignity, freedom and equality are the fundamental values of our Constitution. (See S v Dzukuda and Others; S v Tshilo 2000 (4) SA 1078 (CC); 2000 (11) BCLR 1252 (CC) para 9.)
[5] The Criminal Procedure Act 51 of 1977 governs criminal proceedings. Its provisions must be interpreted to promote the spirit, purpose and objects of the Bill of Rights, in other words Chapter 2 of the Constitution. (See section 39(2) of the Constitution.) Criminal proceedings are supposed to ensure a fair trial and therefore section 35(3) of the Constitution has to guide the interpretation of the Criminal Procedure Act.
[6] Several provisions of the Criminal Procedure Act (for example section 317, section 322 and section 324) deal with irregularities. From the wording of section 322(1) (on the powers of a court of appeal) it is clear though that not every irregularity has to result in a conviction or sentence being set aside. A conviction or sentence may only be set aside by reason of an irregularity, if it appears to the court that a “failure of justice” has in fact resulted from the
irregularity. The concept of a failure of justice must be understood within the context of the constitutional guarantee of a fair trial and therefore poses the question whether the irregularity has resulted in an unfair trial.
[7] Sections 302 and onwards of the Criminal Procedure Act deal with reviews.
Section 304A, which is applicable to this case, requires the reviewing judge to enquire whether or not the proceedings were “in accordance with justice” (as does section 304). This concept, which appears to be similar to the above mentioned notion of a failure of justice, must be interpreted in the light of section 35(3) of the Constitution and necessarily raises the question whether the accused had a fair trial.
[8] The issue of accused persons appearing in court in manacles or leg irons, or in prison clothing, from time to time arises in courts and has evoked different and sometimes strong reactions, in the pre- as well as post-constitutional period of our criminal justice system. Whereas some judicial officers regard it as unacceptable, others seem to be of the view that the discretion of police or correctional service officials regarding issues of safety and security should not be interfered with and that a judicial officer should in any event be able to remain objective and impartial and ignore any potential undue influence as to the history or character of an accused. Whereas the latter view has – understandably – not necessarily been expressly formulated in reported judgments, the former has been stated in emphatic language.
[9] In S v Stevens 1961 (3) SA 518 (CPD) Diemont J said the following (on pages 518H to 519C) with regard to an accused charged with the crime of murder:
“After the prosecution had closed its case this morning, counsel for the defence called the accused as his first witness. When the accused left the dock I became aware that he was in leg irons. I immediately adjourned the case; my reason for so doing is because I object to an accused man being brought into Court in chains and leg irons. When he is brought into court manacled one draws the inference that he is a man of bad character in that it is either dangerous to allow him loose
or alternatively that he is a man who has escaped from custody before.
Either way there is the possibility that he may be prejudiced. In the circumstances I adjourned the Court for further information. I have since been informed by … the Attorney-General’s assistant who is prosecuting in this matter, that he was not consulted in advance by the Prison authorities. Indeed, he was not even aware that the accused was in leg irons until he walked to the witness box. I am also informed that the manacles cannot be removed as the keys are not here but are kept at the Prison.
I think the whole position is unsatisfactory. I have previously said that I do not wish to see people in the witness box in my Court in chains and that is a matter for me to decide and not for the Prison authorities.
In any event it seems to me that the Prison authorities should consult in advance with the Attorney-General in a case where they feel that it is necessary to have a man in chains. I think that if it is felt that the accused is a dangerous person and he may attack the Judge or try to escape then extra police protection can be provided in Court. Such cases must be rare.
I have decided in the circumstances that it will be wrong for me to continue in this case and may add that my assessors …, both of whom are magistrates of long experience agree with me in the decision I have come to, and I hope that the Prison authorities will consult now with the police and with the Attorney-General so that this situation will not arise again in the future.”
[10] This view was echoed in S v Pakkies 1985 (4) 592 (Tk SC). In S v Papiyana 1986 2 PH H115 (A) the appellant appeared at his trial in prison clothes and with his feet shackled in leg irons. The Appellate Division (at 206) compared this ‘information’ with ‘evidence which … [should be] … excluded on the ground that relevance is too tenuous to compensate for its prejudicial nature’.
In S v Mthembu and Others 1988 (1) SA 145 (A) Smallberger JA stated the following (at 155G-H):
“The practice (of allowing an accused person to appear in court in prison garb) is undesirable and is to be deprecated. I trust that the responsible authorities will heed this and similar comments that have been made in the past, and act accordingly. The only instance where the appearance of an accused in prison garb may be justified is where his trial involves an offence committed in prison or one related to his imprisonment, e.g. escaping from custody.”
[11] The matter of S v Maputle 2002 (1) SALR 550 (WLD) – a criminal appeal - was decided under the present constitutional regime. The appellant argued that his court attendance in prison clothing had clearly indicated to the magistrate that he was a sentenced prisoner, which “resulted in a failure of justice in terms of the common law” (at 552i). His constitutionally guaranteed right to a fair trial was violated, and more particularly his right to be presumed innocent.
The appellant also complained about the fact that on the charge sheet (J15) there was an indication in the space requiring information about the date of his arrest that he had been sentenced (“gevonnis”), which clearly indicated to the magistrate that he had a previous conviction. The court referred to the United States Supreme Court’s explicit recognition in Estelle v Williams (1976) 425 US 501 of the danger that the accused’s appearance in prison attire may have on the judgment of a juror, and specifically focused on the words of Brennan J as to how the right to a fair trial and the presumption of innocence are compromised by the appearance of an accused person in prison clothing. The court however drew attention to the differences between the jury system in the United States and our legal system, where trained judicial officers are expected to and often do disabuse their minds of prejudicial information about an accused which may inadvertently come to their attention. The court concluded (on 554f-i) that while there can be no doubt that the practice of an accused person appearing in prison attire is irregular and must be disapproved of in the strongest terms, the question is whether the irregularity has prejudiced the accused in a way which has resulted in a failure of justice.
There was nothing in the record prior to the conviction of the appellant which indicates that the magistrate was aware of the fact that he had been sentenced,
or that he was dressed in prison attire. In the circumstances the appellant had clearly not been prejudiced by the irregularity and there was no failure of justice which justified the conviction being set aside.
[12] In the same matter, reported as S v Maputle and Another 2003 (2) SALR 15 (SCA)), the Supreme Court of Appeal (SCA) restated the principle that not all irregularities require proceedings to be set aside ( in para 6):
“It is well established that there are two kinds of irregularities: the kind that per se vitiates the proceedings and the kind which requires consideration of the question whether, on the evidence and credibility findings unaffected by the irregularity, there was proof of guilt beyond reasonable doubt … It is necessary to emphasise that the word
‘irregularity’ has a technical meaning. Not every deviation from a norm constitutes an irregularity in law. Where the deviation is fundamental, it is properly categorised as an irregularity per se. If the deviation is not fundamental, it is not an irregularity at all unless it results in prejudice (footnote and reference omitted).”
[13] With regard to the appellant’s appearance in the trial court in prison clothing, Cloete JA (writing for the court) mentioned that the potential prejudice to an accused should be eliminated, and repeated what was said in Mthembu (as quoted in para [10] above). According to the judge these remarks also apply to an entry on a cover sheet in the magistrate’s court which reflects that the accused is a sentenced prisoner. In other words, the appearance in prison clothing seems to be viewed largely within the context of information about an accused’s previous convictions which is somehow being brought to the attention of the court. However, the SCA concluded (in para 14):
“In the present appeal the evidence placed before the court of first instance, objectively assessed, established the guilt of the appellant beyond any reasonable doubt; and a consideration of the record and the result of the trial give no reason to believe that the regional magistrate was in any way influenced by the knowledge that the …
appellant had a previous conviction. I accordingly conclude that no irregularity took place.”
[14] In view of the above, the following (perhaps overlapping) questions have to be dealt with in the present matter:
(a) Did the appearance of the accused before the trial court in leg irons constitute an irregularity?
(b) If so, did the irregularity result in a failure of justice, or in justice not having been done, so as to render the trial unfair and necessitate the proceedings to be set aside?
(c) What is the significance of the magistrate’s request that the conviction be set aside?
[15] Courts have on several occasions expressed the clear view that the practice of accused persons appearing in court in manacles, leg irons, chains, or prison clothing is unsatisfactory, undesireable and objectionable and is to be deprecated and strongly disapproved of. On the simplest and perhaps most technical level it may indicate to a judicial officer that the accused has been brought from prison, where he or she is serving a sentence for a previous conviction and thus in effect place inadmissible evidence before the court.
Under certain circumstances it may also influence a judicial officer to draw an inference about an accused’s character, for example that the he or she is a dangerous person and a potential threat to the public, court officials, or the judicial officer. Thus it may even induce a sense of fear or apprehension. It may also lead to an inference that he or she has escaped from custody before, or has given reason to believe that he or she would escape if the opportunity arises. All of this to some extent relates to the presumption of innocence, which is an aspect of the right to a fair trial, as guaranteed in section 35(3) of the Constitution. However, the undesirability of such a situation goes further.
The appearance of an accused in court in leg irons or chains or in prison clothing violates the human dignity of the accused as a person. The recognition of human dignity lies at the heart of the constitutionally guaranteed right to a fair trial, and indeed of the Constitution itself, together
with rights and values such as the right to freedom and security of the person (sections 10 and 11), equality (section 9) and the advancement of human rights and democracy (section 1). As far as humanly possible, an accused person should be viewed by the court not as a criminal, a dangerous character, or a threat, but as a person whose guilt must be proved beyond reasonable doubt, and who has the right to defend him or herself as freely as possible within the prescriptions of the law. Ultimately the dignity of the court itself is at stake. It is a civilized forum for rational discourse and analysis, and not a detention, punishment or torture centre. The confidence of the public, both from the perspective of the accused, and his or her family and friends, as well as of the victims of crime and those close to them depends on perceptions of the fairness of criminal proceedings.
[16] The possibility of violent behaviour, an attempted escape, or other circumstances necessitating extraordinary measures may exist in particular cases. In such cases arrangements which are reasonable under the circumstances should be made by the prison authorities or police, preferably in consultation with the Director of Public Prosecutions and the accused’s legal representative (if available), as suggested in the Stevens case (as quoted in para [9] above). It is trite that rights are not absolute and may be limited.
[17] The undesirability of an accused appearing in court shackled or in prison clothing will not necessarily result in a finding of irregularity. In Maputle (para [13] above) the SCA found that the appellant’s appearance in prison clothing and the indication on the charge sheet that he had been sentenced did not render the proceedings irregular, in view of the fact that no indication could be found on the record that the magistrate had been unduly influenced and the absence of doubt concerning his guilt. Furthermore, not every irregularity results in a failure of justice and an unfair trial, as indicated above.
The circumstances of each particular case may determine whether the proceedings were irregular and, if so, whether the irregularity resulted in a failure of justice and an unfair trial. The appearance of an accused in leg irons, for example, may be more serious than merely wearing prison clothes, both in the message it may convey about the accused, and from the perspective of
dignity. The conduct of the prosecution, the accused or defence, and the court itself, as it appears from the record, may also be relevant.
[18] Courts and judicial officers have to be independent and must apply the law impartially and without fear, favour or prejudice. (See sections 34 and 165(2) of the Constitution.) Courts are indeed presumed to be impartial. (See eg President of the Republic of South Africa and Others v South African Football Union and Others 1999 (4) SA 147 (CC); 1999 (7) BLCR 725 (CC)) and SACCAWU and Others and v Irvin and Johnson 2000 (3) SA 705 (CC)). The ability to remain impartial and objective even in the face of potential influences can therefore be expected from judicial officers to a considerable extent. Yet, as is clear from the cases referred to earlier, some judges have in the past not hesitated to recuse themselves when accused persons appeared before them in prison clothing or leg irons. When a judicial officer does not feel comfortable hearing a case because of factors which could affect his or her impartiality, or be perceived to do so, it is proper to recuse oneself. In President of the RSA v SARFU the Constitutional Court found that a judge who sits in a case in which he or she is disqualified from sitting because, seen objectively, there exists a reasonable apprehension that the judge may be biased, acts in a manner inconsistent with sections 34 and 165(2) of the Constitution (para 30). The same would apply to a judicial officer who feels that he or she should recuse him or herself in view of certain circumstances, including his or her feelings regarding the appearance of an accused.
[19] It is in this light that the request from the trial magistrate in the present matter must be viewed. Objectively viewed, and excluding the magistrate’s own opinion, the record does not indicate that the undesirable appearance of the accused in leg irons resulted in an irregularity leading to a failure of justice.
The magistrate asked the accused whether he had any objection to being tried while he was shackled and he indicated that he did not. The accused pleaded guilty. After the necessary questioning in terms of section 112(1)(b) of the Criminal Procedure Act, he was convicted. However, the magistrate was not happy (“nie gelukkig (nie)”) with the circumstances in which the accused found himself when he pleaded. He felt that the accused’s situation violated
the right to human dignity. He knew of no practical reason which could have justified the bringing of the accused before court with leg irons. In short, he appears to be so dissatisfied with the events that took place in his court, that he is of the opinion that the proceedings must be set aside. His view has to be respected.
[20] In view of the often recognised undesirability of the accused appearing in leg irons before the trial magistrate, and the magistrate’s discomfort with the fairness of the proceedings in his court, I am of the opinion that the proceedings up to that point should be set aside.
[21] It is thus ordered that the conviction of the accused be set aside, and that the matter be referred back to the Magistrates’ Court, Waterval-Boven, so that the accused could be tried de novo before another magistrate.
JV van der Westhuizen, J
I agree.
G Webster, J
