RIGHT TO FAIR TRIAL INCLUDES RIGHT TO HAVE TRIAL BEGIN AND CONCLUDE WITHOUT UNREASONABLE DELAY

Dalindyebo v S [2015] 4 All SA 689 (SCA)
Criminal law – Arson – Whether crime of arson can be committed when a person sets fire to his own immovable property – A person may be guilty of arson if he sets fire to his own immovable property with the intent to injure another.
Criminal law – Right to fair trial – Includes right to have trial begin and conclude without unreasonable delay – Where delays were caused by appellant’s own dilatory and obstructive behaviour, objection that trial was rendered unfair was dismissed.
Criminal procedure – Appeal in respect of severity of sentence – Complaint concerning inadequacy of legal representation rejected – Accusation that trial judge acted irregularly by descending into the arena calling into question his impartiality unfounded.

The appellant was the Paramount Chief of the AbaThembu tribe in the Eastern Cape. The State’s case against him was that he had set fire to dwellings that housed the three complainants, who were his “subjects” and tenants, to secure their eviction when he considered that they had breached tribal rules. He was also alleged to have publicly assaulted three young men so brutally that some of the people present could not bear to continue to watch and had it not been for later medical intervention they might have died. The assaults were perpetrated, so the State contended, as punishment, without a trial, for criminal acts allegedly committed by the young men in question, being, inter alia, housebreaking and rape. Arising from the above, the appellant was charged and convicted of arson, kidnapping, defeating the ends of justice by unduly influencing a complainant to withdraw the arson charges, assault and culpable homicide. The sentence imposed on the various counts resulted in an effective term of 15 years’ imprisonment.
Both conviction and sentence were appealed against. Although, at the instance of the State, the questions of law were reserved by the court below, that was not persisted with on appeal.
The appellant challenged his convictions on the basis that his trial was unfair. He contended that because his trial had commenced approximately 8 years after the events on which his convictions were based, he was hindered in his ability to adduce and challenge evidence, which was in violation of his constitutional right to a speedy trial in terms of section 35(3) of the Constitution. Another challenge to the fairness of the trial was that the legal representatives that appeared on the appellant’s behalf failed to represent him competently and effectively. The appellant also accused the judge in the court below of unjustifiably descending into the arena with persistent questioning that amounted to repeated irregularities vitiating the trial.
Furthermore, the appellant challenged the merits of his conviction. In relation to his convictions on the charges of arson, his principal defence was that the two houses he had admitted to setting on fire were his property and he could therefore not rightly have been convicted of arson. In respect of the sentences, the appellant’s case was that they were shockingly severe.

Held – Our Constitution dictates that criminal trials should begin and conclude without unreasonable delay. In this case, it was true that years had passed between the commission of the alleged offences and the commencement of the appellant’s trial. Much, if not all of that delay was caused by the appellant being obstructive and employing dubious means to thwart the administration of justice, including the intimidation of complainants. Pressure had to be brought to bear by the community for the prosecution to be reinstated. The appellant’s dilatory and obstructive behaviour continued after the commencement of his trial. The Court concluded that the delay in the appellant’s prosecution was caused largely by his own bad behaviour. The Court also rejected the allegations that the legal representation of the appellant was inadequate.

The next question addressed was whether the judge in the court below breached any of the canons of good judicial behaviour. The record satisfied the Court that the judge’s interventions were not tainted by any impropriety.
On the merits, the Court began by describing the deplorable nature of the appellant’s conduct. The first question addressed was to consider whether the crime of arson can be committed when a person sets fire to his own immovable property. A primary problem for the appellant was that whilst the farm was registered in his name, the restrictions contained in the title deed were significant. The restrictions showed that the land was held by the appellant as hereditary monarch for the benefit of his tribe and subjects. Therefore, it could not be said that the property was his to set to fire to at will. In any event, the Court held that arson can be committed where a person sets fire to his own immovable property with the intention to injure another person.
The Court aligned itself with the findings of the trial court in all respects other than the conviction on the charge of culpable homicide. The evidence linking the appellant to the killing of a young man had not been proved beyond a reasonable doubt. Other than for the setting aside of the conviction and related portion of the sentence in that regard, the appeal was dismissed.

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