Summary of S v Thebus

Abduraghman Thebus and Another v The State

Constitutional Court – CCT 36/02                 Hearing date: 20 February 2003

                                                 Judgment date: 28 August 2003

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    Media Summary

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The following explanation is provided to assist the media in reporting this case and is

 not binding on the Constitutional Court or any member of the Court.

Mr Thebus and Mr Adams (the appellants) were convicted and sentenced by the Cape

 High Court on a count of murder and two counts of attempted murder. They had been

 part of a protesting group involved in a shoot-out with a reputed drug dealer in Ocean

 View, Cape Town. As a result of the cross-fire, a young girl was killed and two

 others wounded. The shots which killed the girl and wounded the other persons came

 from the group of which first and second appellant were part. However, there was no

 direct evidence that any of the appellants fired the shots. Appellants were convicted

 on the basis of the common law doctrine of common purpose and each was sentenced

 to a period of eight years imprisonment suspended for five years on certain

 conditions.

Appellants only raised alibi defences at trial some two years after their arrest. The

 first appellant testified in support of his defence and called two witnesses. The trial

 court rejected the alibi evidence as untrustworthy and in doing so took into account

 the late disclosure of the alibi. The SCA confirmed these findings, upheld the state

 appeal against sentence, and sentenced each appellant to fifteen years imprisonment.

Appellants approached the Constitutional Court on two issues: firstly, whether the

 SCA acted unconstitutionally in failing to develop the doctrine of common purpose,

 thereby violating their rights to dignity and freedom of the person as well as their

 right to a fair trial, which includes the right to be presumed innocent; secondly,

 whether the first appellant’s right to silence contained in section 35(1)(a) of the

 Constitution has been infringed by the negative inference drawn by reason of the late

 disclosure of his alibi defence.

For a unanimous court (on the doctrine of common purpose challenge), Moseneke J

 endorsing the principles set out in S v Mgedezi, held that the common law doctrine of

 common purpose is constitutional and does not, in this case, require to be developed

 as commanded by section 39(2) of the Constitution. It did not violate the right to

 dignity and did not amount to an arbitrary deprivation of freedom. The right to be

 presumed innocent had not been violated because the doctrine does not place an onus

 upon the accused and does not presume his or her guilt. Under the doctrine of

 common purpose, the state is required to prove beyond reasonable doubt, all the

 elements of the crimes charged.

On the right to pre-trial silence the Court was divided. Moseneke J, with Chaskalson

 CJ and Madala J concurring, held that the right to silence is an integral part of the

 right to a fair trial. It was further held that it is impermissible for a court to draw an

 inference of guilt from the silence of the accused. However, where appropriate,

 looking at the evidence as a whole, a court may draw a negative inference from the

 late disclosure of an alibi defence. This is a justifiable limitation of the right to

 silence. Consequently, it is permissible to cross-examine an accused person on why

 he or she chose to remain silent and to have regard to his or her response when

 making a credibility finding.

The majority of the SCA had improperly made an inference of guilt from the pre-trial

 silence of the first appellant. However, aside the misdirection, his trial had been

 substantively fair as required by section 35(3) of the Constitution as the evidence had

 established his guilt beyond reasonable doubt.

The court dismissed the appeals.

Goldstone J and O’Regan J (Ackermann J and Mokgoro J concurring) disagree with

 Moseneke J’s reasons for refusing the appeal in relation to the right to remain silent.

 They find that the Supreme Court of Appeal drew an adverse inference from the

 appellant’s failure to disclose his alibi, and breached his constitutional right to remain

 silent.

They hold that the right to silence has many aspects so a court must identify the

 underlying purpose of the relevant aspect of the right to silence before considering

 whether it has been infringed. In the present case they find that the right to silence

 prohibits the drawing of an adverse inference from the failure of the accused to

 disclose an alibi before the trial commences for two reasons. First, a rule against the

 drawing of adverse inferences from pre-trial silence protects arrested persons from

 improper questioning and procedures by the police. Secondly, once an arrested person

 has been informed of the right to remain silent and implicitly that she or he will not be

 penalised for exercising this right, it is unfair subsequently to use that silence to

 discredit the person.

They hold that were an appropriate rule of law to be adopted tailoring the warning so

 that accused persons are properly informed that if they fail to disclose a defence or

 material fact prior to their trial, that failure may be used against them in the trial, it

 would pass constitutional muster.

Yacoob J, in a separate judgment concurring with the order made by the court holds

that:

    (a) The need to ensure a fair criminal trial is key to determining whether the right

        to silence has been infringed. The right is infringed only if it is implicated in a

        way that renders the trial unfair.

    (b) Cross examination of witnesses concerning the reason why an alibi was not

        disclosed infringes the right to silence only if it renders the trial unfair.

    (c) The responses thus obtained may be taken into account by a judicial officer in

        conjunction with the failure to disclose an alibi in the process of making an

        inference provided that the way in which the inference is made and the

        drawing of the inference itself does not render the trial unfair.

                                                                                         

    (d) Drawing an inference as to guilt or credibility solely from the silence of the

        accused would render a trial unfair.

    (e) The inference drawn by the SCA was entirely fair.

In a judgment concurred in by Langa DCJ, Ngcobo J found that the first appellant’s

 right to pre-trial silence was not implicated in the matter because the first appellant

 had been warned of his right to remain silent but instead chose to make an

 exculpatory statement which was inconsistent with his alibi. He accordingly found it

 unnecessary to decide the question whether failing to disclose an alibi defence to the

 police can ever attract an adverse inference.