S v Tandwa and Others

In November 1998 a large armed robbery occurred at the Standard Bank in Mthatha, during which R9.6 million was stolen. Three bank employees, including Siyabulela Tandwa and Aubrey Godolozi, were held overnight by the robbers and compelled to deactivate alarms and open the strongroom. Seven accused were charged with robbery with aggravating circumstances under the Transkei Penal Code. The state case against some accused relied on direct accomplice evidence and corroboration, while against Tandwa (accused 1) and Godolozi (accused 2) it relied mainly on inferential evidence from deviations from bank procedures and surrounding circumstances. Tandwa did not testify at trial. After conviction, he alleged that his advocate prevented him from testifying and misled him about the consequences of remaining silent, thereby violating his constitutional right to a fair trial.

The appeal against conviction by all seven appellants was dismissed.

This case is a leading authority on the constitutional right to competent legal representation and how appellate courts assess post-conviction claims of ineffective counsel. It clarifies that alleging counsel misconduct results in an imputed waiver of legal professional privilege, allowing counsel to respond. The judgment also provides important guidance on the limits of the right to silence, the handling of inferential evidence, and the exclusion of evidence obtained through torture, reinforcing fair-trial jurisprudence under the Constitution.