THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable

Case number :   179/2002

In the matter between :

MOSEKI MAPUTLE

FIRST APPELLANT
SONNYBOY FORTUIN

SECOND APPELLANT

and

THE STATE

RESPONDENT

CORAM :

MARAIS, NAVSA and CLOETE  JJA

HEARD :

17 MARCH 2003

DELIVERED :

26 MARCH 2003

Summary:   No indication should be given to a trial court that an accused has a
previous conviction.  Such an indication is nevertheless not an irregularity
which per se vitiates the trial.  Whether there has been an irregularity, ie
whether  the accused's constitutional right to a fair trial has been infringed,  is
a question of fact in each case.
_________________________________________________________

JUDGMENT

CLOETE JA/

CLOETE JA :
[1] The appellants were convicted by a regional magistrate of robbery
and each sentenced to ten years' imprisonment. The convictions were
confirmed by the Witwatersrand Local Division (Lewis and Cachalia JJ)
but three years of the second appellant's sentence was conditionally
suspended. The judgment is reported in 2002 (1) SACR 550 (W).
[2] The Court a quo was of the view that this Court may differ from its
conclusion as to whether the second appellant's right to a fair trial in
terms of s 35(3) of the Constitution had been infringed and accordingly
granted the second appellant leave to appeal to this Court on that
question. It also granted leave to appeal to both appellants on their
convictions generally, even although both judges were of the view 'that
another court is not likely [to] or may not reasonably arrive at another
conclusion' in this regard. Leave to appeal against sentence was
refused.
[3] Leave to appeal against the convictions generally should not have
been granted. There is obviously no merit in either appeal for the
reasons adequately set out by the Court a quo at 551c-552g, which it is
not necessary to repeat. The purpose of the requirement for leave to
appeal is to protect an appeal court against the burden of having to deal
with appeals in which there are no prospects of success, and further to
ensure that the roll of this Court is not clogged with hopeless cases: S v
Rens 1996 (1) SA 1218 (CC) at 1221A-B (par [7]) and 1225E-F(par [25]);

S v Twala (South African Human Rights Commission Intervening) 2000
(1) SA 879 (CC) at 888F (par [20]).
[4] The only question which requires detailed consideration is whether
the second appellant's constitutional right to a fair trial in terms of s 35(3)
of the Constitution was infringed because he appeared before the
magistrate in prison clothing, and the cover sheet to the proceedings
before the magistrate reflected, under the heading 'date of arrest', that he
was 'gevonnis'. In other words, the magistrate, before convicting the
second appellant, must have been aware of the fact that he was dealing
with an accused who had at least one previous conviction which resulted
in imprisonment.
[5] This Court, in deciding a matter on further appeal in terms of s 21
of the Supreme Court Act, 59 of 1959, cannot, because of the provisions
of s 22 of that Act read with the proviso in s 309(3) of the Criminal
Procedure Act, 51 of 1977 ('the Act'), reverse a conviction by reason of
an irregularity in the proceedings unless it appears to this Court that 'a
failure of justice has  in fact resulted from such irregularity'. The meaning
of the proviso is that 'the Court, before setting aside the conviction, must
be satisfied that there had been actual and substantial prejudice to the
accused'   R v Matsego and Others 1956 (3) SA 411 (A) at 418E.
[6] It is well established that there are two kinds of irregularities: the
kind that per se vitiates the proceedings1 and the kind which requires

1 As in S v Moodie 1961 (4) SA 752 (A).

consideration of the question whether, on the evidence and credibility
findings unaffected by the irregularity, there was proof of guilt beyond a
reasonable doubt, in accordance with the test laid down in S v Yusuf
1968 (2) SA 52 (A) at 57C-D.2  It is necessary to emphasize 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 categorized as an irregularity per se.  If the
deviation is not fundamental, it is not an irregularity at all unless it results
in prejudice.
[7] It is equally well established that despite the provisions of ss 893
and 2114 of the Act, disclosure of an accused's previous convictions is
not an irregularity which per se vitiates the proceedings: S v Mgwenya
1931 AD 3; S v Papiyana 1986 (2) PH H115 (A); S v Mthembu and
Others 1988 (1) SA 145 (A) at 155C.
[8] Where there has been such a disclosure, judicial officers have, on
occasion, recused themselves.5 But they are not obliged to do so. It is for
the individual court to decide whether this is the right and proper course
to be followed:  Papiyana at 206.
[9] Where the court has not recused itself, the question in a case such

2 Eg in S v Xaba 1983 (3) SA 717 (A).
3 Section 89 reads: 'Except where the fact of a previous conviction is an element of any offence with which an
accused is charged, it shall not in any charge be alleged that an accused has previously been convicted of any
offence, whether in a Republic or elsewhere.'
4 Section 211 reads: 'Except where otherwise expressly provided by this Act or except where the fact of a
previous conviction is an element of any offence with which an accused is charged, evidence shall not be
admissible at criminal proceedings in respect of any offence to prove that an accused at such proceedings had
previously been convicted of any offence, whether in the Republic or elsewhere, and no accused, if called as a
witness, shall be asked whether he has been so convicted.'

as the present is whether an irregularity has taken place. In Papiyana
Nestadt JA, writing for the Court, said at 206:
'The test to be applied, in order to determine this, is the possibility of bias on the part
of the court resulting from the improper divulgence of the previous convictions (or
other damaging matter). Where it exists, or appears to exist, the judicial officer will be
held to have been bound not to have heard the case, and, having done so, the
accused would not have received a fair trial. In this event, an irregularity would have
been committed. But this need not necessarily be the case. Ex hypothesi, one is
dealing with a case where the detrimental information does not comprise admissible
evidence of the accused's actual commission of the crime for which he is charged;
moreover, it has not been admitted, but, on the contrary, was, in effect, rejected and
purportedly disregarded by the trial court. It is assumed that a judge or magistrate, as
well as assessors, will not, in view of their training, normally be influenced thereby
but will give an objective decision on the merits.'
[10] Innes CJ said in R v Essa 1922 AD 241 at 246-7:
'Now it must be borne in mind that the real disqualification for the due discharge of a
juror's duty is not knowledge, but bias. And a Judge is specially trained to separate
the two; to acquire the one without entertaining the other. He is continually
confronted with the task. He listens to a hardened offender relating a plausible story;
he must not allow the knowledge of a long list of previous convictions to influence
him in the lightest degree in summing up the case to the jury. He has a record read to
him, from which it is necessary in the result to excise certain portions; he must
dismiss these portions from consideration. During the course of a trial important
evidence is objected to. Its nature and effect transpire before he can give his
decision, he must treat the case as if he had never heard the evidence. So that his

5 Eg S v Stevens 1961 (3) SA 518 (C); S v Pakkies 1985 (4) SA 592 (Tk SC).

intellect is trained to discriminate between various facts all within his knowledge, to
apply some and to reject others as having no bearing upon the matter to be decided.
These general considerations show that a Judge is not in the same position as an
ordinary juryman as regards the propriety of acquainting himself with the earlier
stages of a criminal investigation.'
The same applies to a magistrate:  R v Alli Ahmed 1913 TPD 500 at 503.
Assessors, since the amendment to s 145(4) of the Act by s 4 of Act 64
of 1982, do take part in the decision whether a disputed confession
which, ex hypothesi, contains information highly prejudicial to the
accused, should be admitted, unless the presiding judge is of the opinion
that it would be in the interests of the administration of justice that they
should not do so.
[11] Since the decisions in Essa and Alli Ahmed, the  Constitution was
enacted. The advent of the constitutional era in South Africa and the right
of an accused to a fair trial entrenched in s 35(3) of the Constitution
requires criminal trials to be conducted in accordance with notions of
basic fairness and justice:  S v Zuma and Others 1995 (2) SA 642 (CC)
at 652 (D) (par [16]).  But it remains untenable to argue that simply
because a judicial officer has been made privy to information prejudicial
to an accused, the accused has not received the fair trial which the
Constitution  guarantees.  Section 35(5) itself provides:
'Evidence obtained in a manner that violates any right in the Bill of Rights must be
excluded if the admission of that evidence would render the trial unfair or otherwise
be detrimental to the administration of justice.'

The section contemplates that the admissibility of evidence which will be
prejudicial to the accused will be adjudicated upon by the trial court: cf
Ferreira v Levin NO and Others;  Vryenhoek and Others v Powell NO
and Others 1996 (1) SA 984 (CC) at 1078A-B (para [153]).6 In the
process the nature of the evidence could well become known to the
court.  Yet the section does not contemplate that in such a case the trial
is automatically rendered unfair.
[12] The appellant's counsel submitted that a distinction is to be drawn
between the situation where prejudicial information inadvertently comes
to the attention of the judicial officer, and the situation where this is done
deliberately. The submission is without substance. It is the effect of the
disclosure, and not the intention with which it was done, which is
relevant.
[13] I return to the test formulated in Papiyana to determine whether
there has been, or appears to have been, bias on the part of the
magistrate. As Smallberger JA pointed out in Mtembu at 155C-D:
'[O]ne cannot always gauge the extent of the influence which inadmissible evidence
or prejudicial information which comes to light during a trial may have on the
subconscious mind of a presiding judicial officer (and/or, where appropriate, his
assessors), particularly where issues of credibility are being dealt with.7'
In Estelle v Williams 425 US 501 (1976) Burger CJ, delivering the
opinion of the Court, said in this context at 504 (and I respectfully adopt

6 Although contained in a minority judgment, the passage quoted accords with the view of the majority.  See also
Key v Attorney-General, Cape Provincial Division, and Another 1996 (4) SA 187 (CC) at 196A-B.
7 Indeed, it may be difficult for the trier of fact to gauge this for him- or herself: see Mgwenya supra at 5.

this approach):
'Courts must do the best they can to evaluate the likely effects of a particular
procedure, based on reason, principle and common human experience.'
[14] In the present appeal the evidence placed before the court of first
instance, objectively assessed, established the guilt of the second
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
second appellant had a previous conviction.  I accordingly conclude that
no irregularity took place.
[15] This Court has in the past emphasized that potential prejudice to
an accused should be eliminated, where possible; and in view of what
happened in this case, I shall repeat that was said in S v Mthembu and
Others, supra, 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, eg escaping from custody.'
These remarks apply equally to an entry on a cover sheet in the
magistrate's court which reflects that the accused is a sentenced
prisoner and the registrar is requested to forward a copy of this judgment
to the National Director of Public Prosecutions so that steps can be taken

to obviate such entries being made in the future.
[16] The appeals are dismissed.

………………
T D CLOETE
JUDGE OF APPEAL

Concur:

Marais  JA
Navsa JA`