Judgment S v Singo

1 judgment

1.1 constitutionality of summary procedure in section 72(4)
1.2 limitation on right presumed innocent , right remain silent
1.3 justification limitation of accused s rights
1.4 remedy

judgment

it not gainsaid, court held, person being dealt in terms of section 72(4) accused person contemplated in section 35(3) of constitution. followed provisions of section 35(3) applicable enquiry.

constitutionality of summary procedure in section 72(4)

the court found that, although procedure provided in s 72(4) summary , not conform customary adversarial trial procedure, enquiring court obliged furnish details of alleged offence accused. elements of charge simple. should accused require particularity, however, enquiring court must furnish there , then. absence of formal written charge-sheet, therefore, of no consequence. while accused not have opportunity make formal written request further particulars, nevertheless enjoys right informed of details of charge against him. court held, accordingly, summary procedure not, in respect, limit accused s right fair trial. there is, furthermore, nothing section 72(4) effect right adduce , challenge evidence limited.

the purpose of summary procedure, court found, accused explain failure comply warning. achieve purpose, burden of proof imposed upon accused, which, if should fail discharge it, results in conviction. remaining silent, therefore, invariably invites conviction. because fact of warning , failure comply ordinarily become conclusive proof and, in absence of explanation failure, conviction must ensue. viewed in context, court found summary procedure , burden of proof imposed upon accused inseparable. burden of proof essential effectiveness of summary procedure , achievement of purpose. combined effect of 2 accused compelled break or silence risk of conviction. extent, court determined, summary procedure envisaged in s 72(4) limits right remain silent , not testify @ such inquiry.

limitation on right presumed innocent , right remain silent

the effect of phrase unless such person satisfies court failure not due fault on part found court plain. once warning , failure comply have been established, accused must establish failure not due or fault. if probabilities evenly balanced, accused has failed satisfy court required. conviction , sentence must therefore follow. in effect, court found, there reasonable doubt whether failure appear due fault of accused, or nevertheless liable convicted because court has not been satisfied required provision.

what emerges s 72(4), therefore, 2 features raised constitutional concerns court:

these, court held, clear limitations of right presumed innocent guaranteed in section 35(3)(h) of constitution.

apart this, accused compelled adduce evidence in order avoid conviction. effect of presumption therefore force accused break silence. therefore, s 72(4) limited rights presumed innocent , remain silent guaranteed in s 35(3)(h) of constitution.

justification limitation of accused s rights

the court held, having regard importance of dealing conduct hampers administration of justice, incursion right silence justifiable. same not said, however, of legal burden required conviction despite existence of reasonable doubt.

section 72(4) limited right presumed innocent. south african conception of justice , forensic fairness demands accused person presumed innocent until proven guilty, , state required establish or guilt beyond reasonable doubt. section 72(4) demanded opposite, presuming accused guilty , requiring accused establish innocence on balance of probabilities. carried risk innocent person might sent jail. may have been rare occurrence did not matter. court held that, once established such risk exists, fundamental principle of south african criminal justice system has been offended.

having regard importance of right presumed innocent in south african criminal justice system , fact state have achieved objective less intrusive means, imposition of legal burden upon accused had disproportional impact on right in question. in these circumstances, court held, risk of convicting innocent person high, , outweighed other considerations in favour of limitation. there no compelling societal reasons in particular case justify imposing legal burden on accused. therefore, court held limitation not justified.

remedy

striking down section 72(4) , leaving @ that, court held, leave vacuum in present legislative structure designed deal conduct hinders administration of justice. in regard, court thought important bear in mind section 72(4) deals case of accused has failed comply warning appear in court. there no other provision dealt such accused. while true parliament remedy situation, take time; in interim gap remain.

in circumstances, court found appropriate read in words necessary establish evidentiary burden. less invasive strike down section 72(4), accordingly henceforth read if words there reasonable possibility appeared between words , failure.