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CRIMINAL LAW
CASE INDEX
(as at March 2015)
ACKNOWLEDGMENT:
The vast majority of case references are drawn from
those published by LexisNexis and Jutastat and
attention is drawn to their comprehensive services on
www.lexisnexis.co.za and www.jutalaw.co.za
respectively. A special acknowledgment is also
extended to Mr. L. Wiese, Senior Public Prosecutor,
Pretoria for his valuable contribution.
COMPILED BY GREG NEL
ADDITIONAL MAGISTRATE: TABANKULU
CONTACT: grnel@justice.gov.za (0846379166)
KEY TO USE :
a)
b)
c)
d)
topics are listed alphabetically,
case references are given as accurately as available,
cases are often mentioned under more than one topic,
cases are summarized very briefly and it thus essential that
users draw and read the entire case and this is in no way
intended to be a complete guide to available case-law,
e) this guide will be updated monthly, and all additions and
suggestions are welcomed.
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1) ACCESS TO DOCKET
S v Schietekat -1999(2) SACR 51 (CC) – dealt with defence access to docket for
purposes of bail proceedings. Normally no access to docket for purposes of bail
proceedings. Important to note court can order state to give accused access to docket.
2) ACCOMPLICE
MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND
ANOTHER v MASINGILI AND ANOTHER 2014 (1) SACR 437 (CC)
The appellants appealed against a decision of the high court that had declared that s
1(1)(b) of the Criminal Procedure Act 51 of 1977 created strict liability (liability
without fault) and was therefore unconstitutional, as an accomplice could be
convicted of robbery with aggravating circumstances, as a result of this provision,
even if she/he had no intent with regard to the existence of an aggravating
circumstance such as the use of a dangerous weapon by another accomplice. The
court also held that because an accused could be convicted even where there was
reasonable doubt, the presumption of innocence was unjustifiably infringed. On
appeal,
Held, that the high court had wrongly targeted the words 'or an accomplice'
as the culprit in the constitutional deficiency it had identified. Its concern
seemed to be that a person could be guilty of robbery with aggravating
circumstances as an accomplice, without having intended the aggravating
circumstances. The words 'or an accomplice' were irrelevant to this
question. They said nothing about the requirement of intent. Even if the
words were not present, two of the respondents in the present case could
still be guilty of robbery with aggravating circumstances under the ordinary
common-law rules of accomplice liability, assuming that intent regarding
the use of a knife was not required, because one of the other respondents
had wielded a knife. (Paragraph [25] at 446f–g.)
Held, further, that the appeal could succeed on this narrow ground only, but in the
circumstances where the court would, if it upheld the appeal on this basis, not
pronounce on the main concern of the high court, namely whether or not an
accomplice to robbery may be found guilty of robbery with aggravating
circumstances if the state does not prove that he or she intended the commission of
the aggravating circumstance. The role of culpability in our law was a question of
constitutional importance, as well as of practical significance, and it was therefore in
the interests of justice for the court to consider whether the Constitution required
that, in order for a person to be convicted of being an accomplice to robbery with
aggravating circumstances, the prosecution had to prove that the accomplice
intended the commission of the aggravating circumstance. (Paragraphs [28] at
447c–d and [29] at 447f.)
Held, further, that in spite of the practice of treating armed robbery as a separate
crime, it was not. The definitional elements of armed robbery were no different to
that of robbery. The aggravating circumstances were relevant for sentencing. Intent
regarding the circumstances was not required for conviction, exactly because an
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accused will be convicted of robbery, given that armed robbery was merely a form of
robbery. (Paragraph [34] at 449a–b.)
Held, further, that the absence of intent or even knowledge of, for example, the use
of a knife during the course of an armed robbery could therefore be taken into
account as a factor which may, probably together with other mitigating factors,
amount to substantial and compelling circumstances justifying a lesser sentence than
the prescribed minimum, but one could not say that this always had to be the case.
Courts had to have a discretion when imposing sentences and a firm rule, that the
absence of dolus regarding the aggravating circumstances always justified a lesser
sentence, could defeat the purpose of the provision, namely to direct courts to
impose harsher sentences for armed robbery than for mere robbery. (Paragraph [47]
at 453h–454a.)
Held, further, the absence of dolus regarding the aggravating circumstances on the
part of an accused could be taken into account in sentencing and may result in the
imposition of a lighter sentence than the statutorily prescribed minimum. Even when
it did not, the statutory determination that the existence of aggravating
circumstances called for a harsher sentence than what would be appropriate for
mere robbery, did not amount to the arbitrary deprivation of freedom, or deprivation
without just cause. Section 12(1)(a) of the Constitution was not contravened, nor
was s 35(3)(h) violated. The order of the high court was not confirmed, and the
appeal was upheld. (Paragraphs [59]–[60] at 457a–c.)
Case Information
A la Grange SC (with T Sidaki) for the first applicant.
W Tarantal for the second applicant.
A Paries for the first respondent.
M Calitz (with A Dejongh) for the second respondent, instructed by Legal Aid, South
Africa.
Appeal from a declaration of invalidity of a statutory provision in the Western Cape
High Court, Cape Town.
3) ACCOMPLICE EVIDENCE
Molimi v S
[2008] JOL 21324 (CC)
Case Number: CCT 10 / 07
Judgment
04 / 03 / 2008
Date:
Country:
South Africa
Jurisdiction:
Constitutional Court
Division:
Bench:
Langa CJ, Moseneke DCJ, Nkabinde, Madala, Ngcobo, Sachs, Skweyiya, Van der
Westhuizen, Yacoob JJ, Mpati AJ
Keywords:
Criminal procedure – Extra-curial statements – Admissibility against co-accused
Mini Summary:
The admissibility of extra-curial statements of an accused against a co-accused in a criminal trial was the
issue for determination in this case. The court was required to consider the rules governing the
admissibility of hearsay evidence under the provisions of the Law of Evidence Amendment Act 45 of 1988
in the context of the right to a fair trial and the need to prevent procedural abuse.
The Supreme Court of Appeal had dismissed the applicant's appeal against his convictions. He therefore
approached the Constitutional Court for leave to appeal against that decision.
The charges against the applicant arose out of an armed robbery at a store at which he was the manager.
A shootout resulted in one of the group of robbers being killed, and two others surrendering. Those two
implicated the applicant in the robbery in a statement made to the police.
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Held, that the admissibility of the above-mentioned statement was in issue.
One of the objections raised by the applicant was that the statements should have been recognised as
confessions and that a confession of an accused cannot be used as evidence against a co-accused. The
court agreed with that submission and held that the Supreme Court of Appeal and the trial court had erred
in admitting the confession as evidence against the applicant.
The court went on to hold that the late admission of hearsay evidence against the applicant was
prejudicial to him and not in the interests of justice.
Leave to appeal was granted.
Robiyana & others v S
[2008] JOL 22402 (Ck)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CC 55 / 01
27 / 06 / 2008
South Africa
High Court
Bisho
Dhlodhlo ADJP, Greenland, Darwood AJJ
Keywords:
Criminal law – Murder – Attempted murder – Convictions – Sentence – Appeal
Mini Summary:
The appellants faced 30 counts involving, inter alia, murder, attempted murder, racketeering and unlawful
possession of firearms all arising out of a turf war between rival taxi associations.
Held that one of the grounds of appeal was that the trial court, having made no specific adverse findings
based on credibility of the appellants, should not have rejected their evidence. The present court held that
the fact that the trial court did not articulate or particularise demeanour findings as regards the appellants
was of no great significance and did not constitute misdirection.
Ultimately, the appeal turned on the correctness of the trial court's acceptance of the evidence of an
accomplice who was the primary source of incrimination. The appeal court could not fault the lower court
in its assessment of the evidence.
As with the appeal against conviction, the appeal against sentence was found to be without merit.
The appeal was thus dismissed.
S v Nzama & another
[2008] JOL 21476 (N)
Case Number:
180 / 06
Judgment Date:
25 / 01 / 2008
Country:
South Africa
Jurisdiction:
High Court
Division:
Natal Provincial
Bench:
Padayachee AJ
Keywords:
Criminal law – Robbery with aggravating circumstances – Accomplice evidence – Conviction – Sentence
Mini Summary:
Based on information provided by an accomplice of the accused, they were charged in connection with a
hijacking of a taxi.
Held, that in accepting the evidence of an accomplice witness, it is not necessary that his evidence be
true in all that he says. His testimony would suffice if it is to a large extent truthful and sufficient
corroboration thereof exists. The court also referred to the need to exercise extreme caution in the
examination of the veracity of an accomplice's evidence given the accomplice's peculiar position and
knowledge. It decided that the accomplice's evidence in this case was reliable.
Assessing the evidence and the defences raised by the accused, the court convicted them both on the first
two counts against them, and convicted the second accused on a third count. The first accused was
sentenced to 15 years' imprisonment, and the second accused to 20 years' imprisonment.
Mthembu v S
[2008] JOL 21609 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
379 / 07
10 / 04 / 2008
South Africa
Supreme Court of Appeal
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Division:
Bench:
A Cachalia, Cameron, Maya JJA
Keywords:
Criminal Procedure – Admissibility of evidence – Testimony of accomplice – Obtained after torture – Right
to a fair trial – Absolute prohibition against torture – Evidence excluded – Appeal partially upheld The
Constitution of the Republic of South Africa, 1996 – The Constitution of the Republic of South Africa, 1996,
section 35 – The Constitution of the Republic of South Africa, 1996, section 35(3)
Mini Summary:
The appellant, a former police officer, had been convicted on two counts involving the theft of two motor
vehicles. During his trial, his accomplice, who was the chief state witness, testified that he, the
accomplice, had been beaten and tortured before he had led the police to crucial evidence, viz, one of the
stolen vehicles and a cash box which had contained R60 000. The appellant was sentenced to an effective
23 years' imprisonment. He appealed to the high court where the convictions were confirmed but the
sentences were reduced to an effective 17 years' imprisonment. He now appealed to the Supreme Court of
Appeal and the main issue before the court was whether the evidence given by the accomplice should
have been excluded in terms of section 35(5) of the Constitution.
Held that under section 35(3) of the Constitution evidence must be excluded if it (a) renders the trial
unfair; or (b) is otherwise detrimental to the administration of justice. A plain reading of the section
suggests that it requires the exclusion of evidence improperly obtained from any person, not only from an
accused. There was no reason of principle or policy not to interpret the provision in this way. It followed
that the evidence of an accomplice could also be excluded. The absolute prohibition on the use of torture
in both South African and international law demands that "any evidence" which is obtained as a result of
torture must be excluded "in any proceedings". The torture had stained the evidence irredeemably and it
had to be excluded. The conviction and sentences on charges relating to the theft of one of the two
vehicles were set aside and the conviction for the theft of the other was confirmed. The sentences were
reduced accordingly.
Mocke v S
[2008] JOL 21819 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
609 / 07
02 / 06 / 2008
South Africa
Supreme Court of Appeal
KK Mthiyane, Cloete JJA, Mhlantla AJA
Keywords:
Criminal law– Murder– Conviction and sentence– Appeal
Mini Summary:
Having been convicted of murder and sentenced to 7 years’ imprisonment, the appellant appealed against
his conviction and sentence.
The incident underlying the charge was a stabbing of an employee of the appellant’s father. The main
State witness was a friend of the appellant who was with him at the time.
Held that the trial court had misdirected itself in its handling of the conflicting evidence of the State
witness and the appellant. It should have treated the State witness as an accomplice as the evidence
strongly suggested that he was implicated in the murder. The misdirection warranted the present court’s
interference and fresh assessment of the evidence.
Examining the evidence, the court held that at best, the facts showed that the appellant was an accessory
after the fact. The conviction was replaced, and a sentence of correctional supervision imposed.
4) ACCSESSORY AFTER THE FACT
Street v S
[2008] JOL 22807 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
164 / 08
26 / 11 / 2008
South Africa
Supreme Court of Appeal
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Bench:
Lewis JA, LE Leach, Mhlantla AJJA
Keywords:
Criminal law – Accessory after the fact – Conviction – Appeal
Mini Summary:
An incident in which a person was stabbed to death led to the appellant being charged with murder. The
deceased had died as a result of a stab wound to the stomach. The appellant admitted having punched the
deceased on the night in question, but pleaded that he was not guilty of murder and denied having
inflicted the fatal wound. Nevertheless, he was convicted as charged and sentenced to 15 years'
imprisonment.
On appeal, it was held that in the light of contradictory evidence which had been led, the state had failed
to prove beyond a reasonable doubt either that the appellant had been the person who had inflicted the
fatal wound or that he had acted with a common purpose with the person who had done so. It was found
that the appellant was an accessory after the fact to the deceased's murder, and he was sentenced to 5
years' imprisonment. He appealed against the conviction.
Held that the trial court was faced with two mutually destructive versions before the trial court as to who
had been responsible for the fatal stab wound. The state alleged that it was the appellant, while the latter
claimed that it was a person who had become involved in an altercation with the deceased. The trial court
had found that the appellant had concealed the knife used to inflict the fatal wound, and that he had acted
in collusion with the third party referred to above to conceal important evidence by furnishing incorrect
statements. Those findings were not supported by any evidence. Therefore, the conclusion that the
appellant was guilty as an accessory after the fact was not sustainable.
The conduct which the court did find the appellant to have committed involved his physically restraining
the deceased from escaping, and punching him in the face. That amounted to an unlawful assault. As
common assault is a competent verdict on a charge of murder in terms of section 258(e) of the Criminal
Procedure Act 51 of 1977, the conviction was replaced with one of assault. The sentence was replaced
with one of a fine of R6 000 or six months' imprisonment, half of which was suspended for three years on
certain conditions.
Mocke v S
[2008] JOL 21819 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
609 / 07
02 / 06 / 2008
South Africa
Supreme Court of Appeal
KK Mthiyane, Cloete JJA, Mhlantla AJA
Keywords:
Criminal law– Murder– Conviction and sentence– Appeal
Mini Summary:
Having been convicted of murder and sentenced to 7 years’ imprisonment, the appellant appealed against
his conviction and sentence.
The incident underlying the charge was a stabbing of an employee of the appellant’s father. The main
State witness was a friend of the appellant who was with him at the time.
Held that the trial court had misdirected itself in its handling of the conflicting evidence of the State
witness and the appellant. It should have treated the State witness as an accomplice as the evidence
strongly suggested that he was implicated in the murder. The misdirection warranted the present court’s
interference and fresh assessment of the evidence.
Examining the evidence, the court held that at best, the facts showed that the appellant was an accessory
after the fact. The conviction was replaced, and a sentence of correctional supervision imposed.
5) ACQUITAL
DPP, KwaZulu-Natal v De Bruyn & others
[2009] JOL 23341 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
AR 397 / 07
24 / 03 / 2009
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
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Bench:
Levinsohn DJP, Gyanda J, Lopes AJ
Keywords:
Criminal procedure – Acquittal – Application for review – Court's powers
Mini Summary:
The applicant sought the review and setting aside of first respondent's acquittal of the second to eighth
respondents (the accused). The latter were charged with kidnapping and two counts of assault with intent
to do grievous bodily harm.
Held that the first question was whether the court was competent to review proceedings of a lower court
where an accused was acquitted.
The court found that the only basis upon which review proceedings could be instituted was in terms of
section 24(1) of the Supreme Court Act 59 of 1959. The section confers an inherent jurisdiction on the
high court to review proceedings of any nature in inferior courts including criminal cases, subject however,
to the proviso in subsection (2) of section 24 that this will not affect or derogate from other laws which
deal with reviews.
As the prosecution must at all times be permitted to present its case, and was in this case prevented from
doing so, the court found that a reviewable irregularity had occurred.
The acquittals were thus reviewed and set aside.
6) ADDRESS AFTER CLOSING
S v Goeieman
[2008] JOL 21997 (NC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
648 / 07
20 / 06 / 2008
South Africa
High Court
Northern Cape
LO Bosielo AJP, FE Mokgohloa AJ
Keywords:
Criminal procedure – Assault with intent – Conviction and sentence – Review
Mini Summary:
Convicted of assault with intent to cause grievous bodily harm, the accused was sentenced to
imprisonment for 6 months, wholly suspended on suitable conditions.
Held, on review that the trial proceedings were tainted by three irregularities. Two of those related to the
failure of the court to assist the accused with his plea explanation, and with his cross-examination of
witnesses. Finally, at the close of the defence case, the magistrate proceeded to give judgment without
having given either the State or the accused the opportunity to address the court on the merits of the
case.
The effect of the irregularities was that the trial was rendered unfair. The conviction and sentence were
accordingly set aside.
S v Adams
[2008] JOL 22284 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
SLH 117 / 07
22 / 08 / 2008
South Africa
High Court
Cape of Good Hope Provincial
Traverso DJP, Dlodlo J
Keywords:
Criminal procedure – Trial – Fairness of proceedings – Irregularity
Mini Summary:
After the accused was convicted of rape, the defence attorney informed the court that she had not been
given an opportunity to address the court prior to judgment. The trial court therefore referred the case to
the present court on special review, with the request that the judgment be set aside and the case remitted
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to it so that the defence could be afforded the opportunity to deliver closing argument, before judgment
be delivered.
Held that even though there is no express provision under section 35(3) of the Constitution entitling an
accused person to address the court at the conclusion of all evidence, it is a fundamental right of the
accused person to be heard before any decision affecting him is taken by the court. This is not only an
expression of the audi alteram partem rule, but it is also an integral component of the right to adduce and
challenge evidence.
The omission in this case constituted a beach of the right to a fair trial.
The proceedings were set aside, and it was ordered that the matter be tried de novo before a different
magistrate.
7) AMENDMENT TO CHARGE SHEET / ADDITIONAL
CHARGES
S v NCOKO 2014 (1) SACR 607 (ECG)
The accused appeared in a magistrates' court on charges of reckless and/or
negligent driving in contravention of s 63(1) of the National Road Traffic Act 93 of
1996. The state led the evidence of its first witness who was then cross-examined by
the accused's legal representative. The cross-examination could not be finished on
that day and the matter had to be postponed for further hearing. At that stage the
prosecutor then indicated that she wished to add additional charges based on facts
that had emerged from the evidence of the witness. The prosecutor indicated that
she could do so 'in terms of the Criminal Procedure Act'. The legal representative
made a token protest, but she was overruled by the magistrate who allowed the
charge-sheet to be amended. The matter was sent on special review by another
magistrate.
Held, that, in terms of s 81(1) of the Criminal Procedure Act 51 of 1977,
additional charges could only be added before any evidence was led. The
court accordingly held that the addition of the further charges later in the same
proceedings is irregular and the matter had to be remitted to the magistrate to
continue with the trial from the point at which the further charges were added.
(Paragraphs [7] at 608j–609a and [14] at 609g.)
S v MHLAMBISO AND ANOTHER 2014 (1) SACR 610 (ECG)
The two accused were charged with and pleaded not guilty to an offence of
housebreaking with the intent to steal and theft. During the course of the
proceedings, whilst the state was presenting the evidence of the complainant, the
prosecutor asked the court to amend or add to the charge a count of trespassing, on
the basis that it had been covered in the testimony of the witness. Despite
opposition, the magistrate informed the defence attorney that his objection to the
proposed amendment was without merit, as trespassing was a competent verdict on
the housebreaking charge. Without giving the accused an opportunity to plead to the
new charge, the matter proceeded and the accused were convicted on a charge of
trespassing in contravention of s 1(1) of the Trespass Act 6 of 1959. The matter was
subsequently sent on review.
Held, that there was no provision in the Criminal Procedure Act 51 of 1977 which
permits the joining of further charges in the same proceedings against an accused
after evidence had already been adduced in the trial. The magistrate was therefore
patently in error in granting the state leave to add the charge of trespassing. The
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convictions accordingly had to be set aside on review. (Paragraphs [6]–[9] at 612b –
d.)
Held, further, that, in the circumstances where the magistrate had chosen to acquit
the accused completely on the charge of housebreaking and to rely on the irregular
second count to convict him, it would be improper to revive the housebreaking
charge by remitting the matter to the magistrates' court for trial afresh. The
proceedings were accordingly set aside in their entirety. (Paragraph [11] at 612g.)
Ngumbela v S
[2008] JOL 21934 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 163 / 07
04 / 04 / 2008
South Africa
High Court
Eastern Cape
AR Erasmus, D van Zyl JJ
Keywords:
Criminal procedure – Appeal against conviction – Incorrect charge – Amendment to charge – Permissibility
Mini Summary:
The appellant was convicted of unlawfully resisting or wilfully hindering or obstructing a police officer in
the exercise of his powers or the performance of his duties or functions, and assault. He appealed against
the convictions.
Held that the record showed that there was no evidence of the appellant committing the acts which
underlay the first charge. Faced with that hurdle, the State requested the court to amend the charge,
relying on section 86(1) of the Criminal Procedure Act 51 of 1977.
In terms of section 86(1), the amendment of a charge involves the exercise of a discretion on the part of
the trial court. Amendment on appeal is not simply a matter of this court substituting its discretion for that
of the magistrate. The court of appeal must effect the amendment to the charge which the magistrate
ought to have effected, but in quite different circumstances and with fewer procedural powers than the
magistrate had to abate the potential prejudice to the accused. The court refused the amendment.
As the second charge was linked to the first, the appeal was allowed in respect of that conviction also.
Daniels and others v S
[2012] JOL 29258 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
125 / 11
25 / 05 / 2012
South Africa
Supreme Court of Appeal
JA Heher, S Snyders, MJD Wallis JJA, McLaren, Southwood AJJA
Keywords:
Criminal law – Inclusion in charge sheet of statutory provisions which had been declared unconstitutional
– In terms of section 322(1) of the Criminal Procedure Act 51 of 1977, a court of appeal may allow the
appeal if it thinks that the judgment of the trial court should be set aside on the ground of a wrong
decision of any question of law or that on any ground there was a failure of justice – Test for a failure of
justice requires the appellate court to exclude from consideration all aspects of the trial that were affected
or influenced by the irregularity and to evaluate only the evidence that remains unsullied
Mini Summary:
Both applicants for leave to appeal in this case had been convicted of dealing in drugs in contravention of
section (b) of the Drugs and Drug Trafficking Act 140 of 1992 (“the Drugs Act”). The trial judge having
refused the applicants leave to appeal against their convictions, they applied to the present court. The
applicants’ submissions were that as the charges on which they were convicted contained reference to
sections of the Drugs Act (the reverse onus provisions) that had been declared unconstitutional, they
amounted to a nullity.
Held that the legal position is that section 322(1) of the Criminal Procedure Act 51 of 1977 sets the limits
of the powers of a court on appeal. A court of appeal may allow the appeal if it thinks that the judgment of
the trial court should be set aside on the ground of a wrong decision of any question of law or that on any
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ground there was a failure of justice, provided that no conviction or sentence shall be set aside or altered
by reason of any irregularity or defect in the record or proceedings, unless it appears to the court of
appeal that a failure of justice has in fact resulted therefrom. The test for a failure of justice requires the
appellate court to exclude from consideration all aspects of the trial that were affected or influenced by
the irregularity and to evaluate only the evidence that remains unsullied. Section 322(1) therefore does
not permit approaching any irregularity or defect in the record or proceedings (including the charge or
indictment) as per se nullifying a conviction in a criminal trial. The appeal court must reassess the
evidence without the influence of the irregularity or defect in order to determine whether a conviction
must inevitably have followed.
In the present case, the inclusion in the charge sheet of a reference to the unconstitutional provisions did
not exercise an adverse influence on the conduct of the trial. The Court was not persuaded that the
irregularity occasioned by the unconstitutional reference to the reverse onus presumptions in the charges
caused the applicants to refrain from testifying in their own defence. The evidence of their guilt was
overwhelming and they knew that the state did not intend to rely on the invalid presumptions. The
inference drawn was that they decided to take a chance on escaping conviction by relying on the technical
irregularity.
Of the view that there was no prospects of success on the merits, the Court refused leave to appeal.
S v Ndaba - 2003 (1) SACR 364 (WLD) – S86(1) amendment of charge sheet before
judgment means before saying “guilty/not guilty” not before starting judgment. (highly
debatable)
8) ADMISSABILITY OF ACCUSED’S STATEMENT
S v Mkhize
[2010] JOL 26109 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CC 157 / 10
13 /09 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
Govindasamy AJ
Keywords:
Criminal law – Murder – Confession – Admissibility
Mini Summary:
The accused was charged with two counts of murder. He pleaded not guilty and alleged that he was not
present in the area of the crimes when they were committed.
None of the three witnesses for the State had actually seen the accused at the scene of the crime.
However, the State sought to prove an alleged confession made by the accused to a police officer within
the meaning of section 217(1) of the Criminal Procedure Act 51 of 1977. The accused objected to the
reception of the confession on the basis that it was inadmissible, in that he was assaulted and threatened
to make a statement.
Held that the court had to consider whether or not the alleged confession was admissible. The onus was
on the state to prove beyond a reasonable doubt that the confession was made freely and voluntarily and
without any undue influence by the accused whilst in his sound and sober senses. That onus was not
discharged in this case. The court was not satisfied that the confession was made freely and voluntarily by
the accused and without any undue influence. The prosecution had failed to prove beyond a reasonable
doubt that a confession was made in terms of the requirements of section 217(1) of the Criminal
Procedure Act. The confession was therefore inadmissible.
The court went on to find that the remaining evidence was insufficient to prove the guilt of the accused
beyond a reasonable doubt. The accused was found not guilty and discharged.
S v Qhinga & others
[2008] JOL 21743 (Ck)
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Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CC 35 / 2007
28 / 1 / 2008
South Africa
High Court
Bisho
AEB Dhlodhlo ADJP
Keywords:
Criminal procedure – Evidence – Statement by accused – Admissibility
Mini Summary:
In a trial-within-a-trial, the court had to decide on the admissibility of a statement made by the second
accused before a magistrate. The second accused opposed the introduction of the statement into
evidence, alleging that he had not made it voluntarily.
Held after considering the facts, that the statement in question was made by the second accused freely
and voluntarily while he was in his sound and sober senses and without having been unduly influenced
thereto. The statement was admissible as evidence.
S v Mthethwa – 2004(1) SACR 449 (ECD) – accused was already a suspect before
statement was taken. Should have been warned of rights. Statement inadmissible.
Sv Abduragham Thebus & Moegemat Adams - Aug. 2003 (CCT 36/02) – court found on
split decision that accused can not be questioned on reason for late disclosure of alibi as
violates right to remain silent. If elects to say nothing in warning statement accused can’t
be questioned on such election despite fact that subsequently offers alibi. The effect is
that if the accused exercises an entrenched constitutional right he may not be prejudiced
for such an election at a later stage of proceedings.
READ JUDGEMENT CAREFULLY. MINORITY DECISION IS FIRST!
S v Nzama & another
[2008] JOL 21476 (N)
Case Number:
180 / 06
Judgment Date:
25 / 01 / 2008
Country:
South Africa
Jurisdiction:
High Court
Division:
Natal Provincial
Bench:
Padayachee AJ
Keywords:
Criminal law – Robbery with aggravating circumstances – Accomplice evidence – Conviction – Sentence
Mini Summary:
Based on information provided by an accomplice of the accused, they were charged in connection with a
hijacking of a taxi.
Held, that in accepting the evidence of an accomplice witness, it is not necessary that his evidence be
true in all that he says. His testimony would suffice if it is to a large extent truthful and sufficient
corroboration thereof exists. The court also referred to the need to exercise extreme caution in the
examination of the veracity of an accomplice's evidence given the accomplice's peculiar position and
knowledge. It decided that the accomplice's evidence in this case was reliable.
Assessing the evidence and the defences raised by the accused, the court convicted them both on the first
two counts against them, and convicted the second accused on a third count. The first accused was
sentenced to 15 years' imprisonment, and the second accused to 20 years' imprisonment.
Molimi v S
[2008] JOL 21324 (CC)
Case Number: CCT 10 / 07
Judgment
04 / 03 / 2008
Date:
Country:
South Africa
Jurisdiction:
Constitutional Court
Division:
Bench:
Langa CJ, Moseneke DCJ, Nkabinde, Madala, Ngcobo, Sachs, Skweyiya, Van der
Westhuizen, Yacoob JJ, Mpati AJ
12
Keywords:
Criminal procedure – Extra-curial statements – Admissibility against co-accused
Mini Summary:
The admissibility of extra-curial statements of an accused against a co-accused in a criminal trial was the
issue for determination in this case. The court was required to consider the rules governing the
admissibility of hearsay evidence under the provisions of the Law of Evidence Amendment Act 45 of 1988
in the context of the right to a fair trial and the need to prevent procedural abuse.
The Supreme Court of Appeal had dismissed the applicant's appeal against his convictions. He therefore
approached the Constitutional Court for leave to appeal against that decision.
The charges against the applicant arose out of an armed robbery at a store at which he was the manager.
A shootout resulted in one of the group of robbers being killed, and two others surrendering. Those two
implicated the applicant in the robbery in a statement made to the police.
Held, that the admissibility of the above-mentioned statement was in issue.
One of the objections raised by the applicant was that the statements should have been recognised as
confessions and that a confession of an accused cannot be used as evidence against a co-accused. The
court agreed with that submission and held that the Supreme Court of Appeal and the trial court had erred
in admitting the confession as evidence against the applicant.
The court went on to hold that the late admission of hearsay evidence against the applicant was
prejudicial to him and not in the interests of justice.
Leave to appeal was granted.
Mthembu v S
[2008] JOL 21609 (SCA)
Case Number:
379 / 07
Judgment Date:
10 / 04 / 2008
Country:
South Africa
Jurisdiction:
Supreme Court of Appeal
Division:
Bench:
A Cachalia, Cameron, Maya JJA
Keywords:
Criminal Procedure – Admissibility of evidence – Testimony of accomplice – Obtained after torture – Right
to a fair trial – Absolute prohibition against torture – Evidence excluded – Appeal partially upheldThe
Constitution of the Republic of South Africa, 1996 – The Constitution of the Republic of South Africa, 1996,
section 35 – The Constitution of the Republic of South Africa, 1996, section 35(3)
Mini Summary:
The appellant, a former police officer, had been convicted on two counts involving the theft of two motor
vehicles. During his trial, his accomplice, who was the chief state witness, testified that he, the
accomplice, had been beaten and tortured before he had led the police to crucial evidence, viz, one of the
stolen vehicles and a cash box which had contained R60 000. The appellant was sentenced to an effective
23 years' imprisonment. He appealed to the high court where the convictions were confirmed but the
sentences were reduced to an effective 17 years' imprisonment. He now appealed to the Supreme Court of
Appeal and the main issue before the court was whether the evidence given by the accomplice should
have been excluded in terms of section 35(5) of the Constitution.
Held that under section 35(3) of the Constitution evidence must be excluded if it (a) renders the trial
unfair; or (b) is otherwise detrimental to the administration of justice. A plain reading of the section
suggests that it requires the exclusion of evidence improperly obtained from any person, not only from an
accused. There was no reason of principle or policy not to interpret the provision in this way. It followed
that the evidence of an accomplice could also be excluded. The absolute prohibition on the use of torture
in both South African and international law demands that "any evidence" which is obtained as a result of
torture must be excluded "in any proceedings". The torture had stained the evidence irredeemably and it
had to be excluded. The conviction and sentences on charges relating to the theft of one of the two
vehicles were set aside and the conviction for the theft of the other was confirmed. The sentences were
reduced accordingly.
9) ADMISSION OF GUILT
1. S v TONG 2013 (1) SACR 346 (WCC)
The applicant was arrested in 2008 on a charge of possession of dagga and was
placed in the police cells. His father was informed that he should pay R300 for the
release of his son and he later paid an amount of R200 by way of an admission of
guilt. The applicant was released, unaware that he had in fact paid an admission of
guilt fine. It was only some years later, when he attempted to travel overseas, that
13
he discovered that he had a criminal record. He brought the present application to
have the conviction set aside.
Held, that, in the circumstances where there was no record that the written notice,
required to be issued in terms of s 56 of the Criminal Procedure Act 51 of 1977 (the
Act), contained a certificate under the hand of a peace officer, that he or she had
handed the original of such written notice to the accused and that he had explained
to the applicant the import thereof, the conviction was not in order. Furthermore, the
payment of the admission of guilt fine was used as a bargaining tool by the police to
effect his release from custody. The applicant was not given the choice as stipulated
in terms of s 57(2)(a) of the Act, to pay the admission of guilt fine before a date
specified in the summons or written notice. The police rather immediately enforced
payment to effect the release of the applicant. This was unlawful, in a situation
where the applicant had not expressly waived his election to consider to pay at a
later date, or to contest the matter in court. The conviction and fine were set aside.
(Paragraphs [13] at 349b–c and [20] at 350e–f.)
Case Information
Special review.
Judgment
S v Mti – 2008 JOL 21262 (E) CA&R 297/07 – accused paid an admission of guilt fine
and now relates to circumstances where a court may order that an admission of guilt fine
be refunded to an accused.
10) ADMISSIONS
S v Gaviyaya
[2009] JOL 23630 (ZH)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
HH 85 / 08
11 / 09 / 2008
Zimbabwe
High Court
Harare
Chitakunye, Guvava JJ
Keywords:
Criminal law – being found in possession of goods in regard to which there is a reasonable suspicion that
they were stolen – whether accused person can be convicted on plea alone, without evidence being led
Criminal procedure – admissions – what may be admitted – by accused person – accused may not admit
facts which are within the peculiar knowledge of another person. Criminal procedure — plea — guilty plea
— conviction on basis of plea — charge under s 125(a) of Criminal Code [Chapter 9:23] —conviction may
not be recorded without leading evidence
Mini Summary:
The accused pleaded guilty in the magistrates court to a charge of contravening section 125(a) of the
Criminal Law (Codification and Reform) Act [Chapter 9:23], that is, being found in possession of goods in
circumstances giving rise to a reasonable suspicion that they were stolen and being unable at any time to
give a satisfactory account of his possession. The magistrate found him guilty on his plea. The facts in the
outline of the state case did not contain any explanation of how accused acquired the goods and the
questions posed by the magistrate did not elicit any explanation from the accused as to how he came to
possess the goods or even what explanation he gave to the police.
Held that it would be absurd to ask an offender in plea proceedings if he admits that there was a
reasonable suspicion that the goods found in his possession had been stolen. It is not the accused who
suspects himself. The suspicion is formed by a third person, usually a police officer. The circumstances
which give rise to the suspicion that the property was stolen must be as perceived by and considered by
that police officer. There must be something that the police officer saw and considered in the accused's
possession or manner of possession for him reasonably to suspect that the property was stolen. Such a
matter is not within the accused's knowledge and so any admission of that element of the offence by the
14
accused would not be of much value. Consequently, where the accused enters a plea of guilty the
presiding magistrate should still receive evidence on the circumstances giving rise to a reasonable
suspicion that the goods were stolen. Where no evidence has been given, the court is never in a position
to satisfy itself that the explanation is not satisfactory. It is the court that has to be satisfied that the
accused has failed to give a satisfactory account of his possession and that the suspicion alleged is
therefore reasonable in the circumstances.
S v Ngxokolo – 2008 JOL 21267 (E) CA 366/07 – accused convicted of housebreaking
with intent to steal and theft. Admissibility of an admission made by accused to police on
arrest in question. Court held admission not properly admitted into evidence and its
admission amounted to an irregularity. Irregularity, however, did not result in miscarriage
of justice therefore not fatal. Conviction stood
11) AGE OF ACCUSED
S v Mbelo – 2003(1) SACR 84 (NC) – where age of accused or a complainant is in issue
or relevant, evidence must be presented. Not sufficient to use hearsay or baptismal
certificate. Formal admission by defense will be sufficient.
12) AGGRAVATING CIRCUMSTANCES
S v Jacobus Smith – 401/2002 (SCA) –discussed severity of offence and elements of
crime. Specifically found court should not be influenced on sentence by video of events.
(This was the infamous SAP dog training video).
S v PHILANDER (ECG)
VAN ZYL J and GRIFFITHS J
2011 AUGUST 10; SEPTEMBER 2
Culpable homicide—Sentence—Spousal violence—Death caused by assault on
spouse—Court justified in taking into account prevalence of spousal violence in its area
of jurisdiction—Can be treated as aggravating feature of case justifying substantial
custodial sentence.
13) ALIBI DEFENCE
Flietor v S
[2014] JOL 31571 (FB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 253 / 2012
28 / 03 / 2013
South Africa
High Court
Free State, Bloemfontein
JP Daffue, S Ebrahim JJ
Keywords:
Criminal law – Rape – Conviction and sentence – Appeal – Alibi defence
Mini Summary:
15
The appellant was convicted of the rape of a 14-year-old girl and was sentenced to 25 years’
imprisonment. He appealed against his conviction and sentence. The defence to the charge was an alibi
defence.
Held on appeal that in assessing the evidence, a court must in the ultimate analysis look at the evidence
holistically in order to determine whether the guilt of the accused is proved beyond a reasonable doubt.
The same principles apply when an alibi defence is relied upon by an accused. The acceptance of the
evidence on behalf of the state cannot by itself be a sufficient basis for rejecting the alibi evidence.
Something more is required. The evidence must be considered in its totality. In order to convict, there
must be no reasonable doubt that the evidence implicating the accused is true. That can only be done if
there is at the same time no reasonable possibility that the evidence exculpating the accused is not true.
Once the trial court accepts the evidence in support of an accused’s alibi as reasonably possibly true, it
follows that the court should find that there is a reasonable possibility that the evidence led on behalf of
the state is mistaken or false. It is acceptable in evaluating the evidence in its totality to consider the
inherent probabilities.
The court a quo correctly considered the totality of the evidence and assessed it properly in coming to the
conclusion that the appellant’s version was not reasonably possibly true, that it was false and ought to be
rejected. The appeal against conviction could therefore not be upheld.
In terms of section 51(1) of the Criminal Law Amendment Act 105 of 1997, the prescribed minimum
sentence in casu was life imprisonment as the complainant was only 14 years old when she was raped.
The present Court could not find that the court a quo committed any material misdirection or that the
sentence was disturbingly inappropriate, or induced a sense of shock.
The appeal was dismissed.
Musiker v S
[2014] JOL 31280 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
272 / 12
30 / 11 / 2012
South Africa
Supreme Court of Appeal
KK Mthiyane DP, ZLL Tshiki, LE Leach JA
Keywords:
Criminal law – Alibi defence – Onus of proof – Once the accused raises an alibi defence, that alibi has to
be accepted unless proved to be false beyond reasonable doubt – State not discharging onus resting upon
it, resulting in conviction and sentence being set aside –
Mini Summary:
Convicted of assault with intent to do grievous bodily harm, the appellant was sentenced to a fine of
R4 000 or 12 months’ imprisonment. A further period of 12 months’ imprisonment was suspended for 5
years on condition that he was not convicted of similar offences during the period of suspension. In
addition he was declared unfit to possess a firearm. He appealed against his conviction.
The complainant sustained injury to his eyes while walking on a public street, when an assailant sprayed
pepper spray into his face. He identified the appellant as his assailant, stating that he recognised him as a
security officer he had seen previously in the area where the assault took place. The appellant was further
implicated through the evidence of a car guard who worked in the area.
The only issue in dispute was the identity of the complainant’s assailant. The appellant raised an alibi
defence, alleging that he had been at home with his wife at the material time. The trial court took issue
with the fact that the appellant’s wife was not called as a witness, and convicted and sentenced the
appellant. He thereafter applied for and was granted leave to lead further evidence in terms of
section 309B 5(a) of the Criminal Procedure Act 51 of 1977 to support his alibi defence and to appeal
against both the conviction and sentence. The trial court resumed the trial and received the evidence of
the appellant’s wife, which evidence corroborated the version of the appellant in all material respects. the
magistrate expressed the view that the evidence was of no probative value, and was critical of the belated
decision to lead the evidence of the appellant’s wife.
Held that the magistrate’s criticism was without merit. No fault could be attributed to the appellant with
regard to the failure to timeously call his wife as a witness. The approach adopted by the magistrate failed
to take into account the fact that it was the State that bore the onus to prove the guilt of the appellant.
Once the appellant raised the alibi defence, that alibi had to be accepted unless it was proved to be false
beyond reasonable doubt. That did not happen. What the trial court had before it was the evidence of the
appellant, corroborated by that of his wife, that he had been at home at the relevant time, and the
contradictory evidence of the two state witnesses, placing the appellant at the scene of the crime. Faced
16
with two mutually destructive versions, the magistrate had no sound reason to prefer the evidence of the
complainant to that of the appellant. Therefore, the conviction could not stand.
Having arrived at that conclusion, the Court turned to the unacceptable manner in which the magistrate
conducted the trial. It began with the failure by the magistrate to guide the clearly inexperienced defence
counsel. It highlighted the Court’s duty to assist in such circumstances.
The second area of concern in this matter concerned the unwarranted interruptions by the magistrate
which, taken in totality, clearly undermined the fairness of the trial. Setting out the standard required of a
presiding officer, the Court found the conduct of the magistrate to have fallen short of that standard.
The appeal was upheld and the conviction and sentence set aside.
S v Abader 2010 (2) SACR 558 (WCC)
The appellant was convicted of murder, arising from a shooting incident, and sentenced
to 18 years' imprisonment. At trial the appellant put forward an alibi defence, alleging
that he had been at a social function in another suburb on the evening in question, and
that he had, in any event, not had his firearm with him - he had left it in the safekeeping
of a relative, A. On appeal against conviction it was argued that the forensic evidence,
proving that the appellant's firearm had been used to commit the murder, ought to have
been rejected; that his alibi evidence was reasonably possibly true; and that he could not
have absented himself unnoticed from the function for the time necessary to commit the
murder.
Held (per Davis J; Goliath J concurring), that the case was one which had to be
determined upon an application of inferential reasoning. The trial court had correctly
accepted the ballistics expert's evidence which proved that the appellant's firearm was the
murder weapon. Only two people had had access to the firearm, the appellant and A.
However, there had never been any suggestion that A had been anywhere other than at
home on the night of the murder. In addition, nobody else had had access to the firearm
or knew where it was. The evidence also showed that it was possible for the appellant to
have absented himself from the function, commit the murder, and return. While there had
been a suggestion that certain witnesses had seen him at the function for the duration of
the evening, none of these had been called to give evidence and, accordingly, very little,
if any, weight could be placed on their versions. There was, thus, no reasonable inference
to be drawn other than that it was the appellant who had used his own firearm to commit
the murder.Appeal dismissed.
Case Information
Appeal against conviction for murder. The facts appear from the judgment of Davis J, in
which Goliath J concurred. Fortuin AJ delivered a dissenting judgment, finding that it
had not been proved beyond reasonable doubt who had fired the fatal shots.
S v Van der Vyver
[2008] JOL 21332 (C)
Case Number:
SS 190 / 06
Judgment Date:
29 / 11 / 2007
Country:
South Africa
Jurisdiction:
High Court
Division:
Cape of Good Hope Provincial
Bench:
DH van Zyl J, Adv ET Steyn (Assessor), Adv PGC José (Assessor)
Keywords:
Criminal law – Murder – Alibi defence – Onus of proof
Mini Summary:
The accused was charged with the murder of his girlfriend. Pleading not guilty to the charge, the accused
alleged that he was at work at the relevant time, and therefore could not have committed the murder.
17
Held that the State based its case on a blood smear which it claimed was found on the accused's shoe, on
an ornamental hammer which it claimed was the murder weapon, and on a fingerprint of the accused on a
video recorder at the crime scene. However, the court found that the State had failed to discharge the
onus of proof in respect of any of those pieces of evidence.
In attempting to establish that the accused had a motive for the murder, the State relied on a letter
written to him by the deceased. However, the court could not find that this established a motive.
The conclusion was that the alibi defence of the accused was reasonably possibly true, and that the State
had not proved the guilt of the accused beyond reasonable doubt.
Hadebe v S
[2008] JOL 22538 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 91 / 08
13 / 10 / 2008
South Africa
High Court
Transvaal Provincial
BR Southwood J, S Pottrill AJ
Keywords:
Criminal procedure – Alibi defence – Evaluation – Totality of evidence – Reasonably possibly true Criminal
procedure – State evidence – Logical and coherent – Alibi defence – Proper approach
Mini Summary:
The appellant appealed against his effective 30-year jail sentence on two counts of housebreaking, two
counts of robbery with aggravating circumstances and rape, all committed on the night of 8 August 2004.
Held that the issue was whether the complainants had correctly identified the appellant, bearing in mind
that the appellant had relied on an alibi defence. It would be wrong to reason that, because the state
evidence in isolation was credible, the alibi had to be rejected. The correct approach was to consider the
alibi in the light of all the evidence and then decide whether the alibi might reasonably be true.
The complainant / witnesses identified the appellant, whom they knew well, by the light of his torch and
by his voice, and gave a logical and coherent account of what had happened. The evidence appeared
overwhelming. However the regional magistrate failed to give reasons for accepting the state evidence
and rejecting the appellant's evidence, which was also logical and coherent.
The regional magistrate also failed to advert to problems in the state evidence. The witness in the rape
count had told the doctor that she had been a virgin before the rape and that she had been raped by an
unknown person, when in fact she knew the appellant and had had sexual intercourse with another man
earlier on the same night. The doctor also made no finding that she had been raped. Furthermore, the
appellant had not been arrested after the alleged crimes, but had been allowed to return to Johannesburg
on 10 August 2004. If the witnesses had indeed identified the appellant as the perpetrator, there would
have been ample time to arrest him. Yet the police did not do so. This indicated that the police were not
informed that the appellant was the person who had committed the crimes. He was arrested only on
7 September 2004. The evidence of the witnesses that they knew on 8 August 2004 who had committed
the crimes could therefore not be true.
In the circumstances there was a reasonable doubt that the appellant had committed the crimes and he
should have been acquitted. Appeal allowed.
Khambule v S
[2008] JOL 22539 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 187 / 08
07 / 08 / 2008
South Africa
High Court
Transvaal Provincial
DA Basson J, K Makhafola AJ
Keywords:
Criminal procedure – Single witness – Satisfactory in all material respects – Disproved alibi defence
Mini Summary:
The appellant was convicted of robbing the complainant at gunpoint of a cellphone and R850, and, in the
absence of substantial and compelling circumstances, was sentenced to 15 years in jail.
Held that the trial court had properly warned itself of the danger of convicting on the evidence of a single
witness, the complainant. However the evidence placed the appellant on the scene, described how the
18
robbery had happened and described his white jacket. In cross-examination the appellant did not
challenge these facts, but first put up a bare denial. He only later raised his alibi.
The evidence of the complainant was satisfactory in all material respects. He had known the appellant
well, and the appellant could not advance a reason why the complainant should have been lying. The
complainant's evidence disproved the alibi defence of the appellant. Conviction upheld.
On sentence, the magistrate had warned the appellant about the provisions of the Minimum Sentence Act
105 of 1997, and had taken into account all relevant factors, especially his previous conviction for theft,
for which the suspended sentence was still current. In the absence of any misdirection there was no
reason to interfere with the 15-year sentence.
Mafu & others v S
[2008] JOL 21385 (W)
Case Number:
A 1105 / 05
Judgment Date:
14 / 02 / 2008
Country:
South Africa
Jurisdiction:
High Court
Division:
Witwatersrand Local
Bench:
CJ Claassen J, NF Kgomo AJ
Keywords:
Criminal procedure – Competence of legal representative – Robbery with aggravating circumstances –
Alibi defence – Not led in chief – Not put to prosecution witnesses – Gross irregularity – Irregular conduct
of presiding officer – Convictions set aside
Mini Summary:
The three appellants, who were Zimbabwean citizens, had been charged with robbery with aggravating
circumstances for assaulting their victim in a spaza shop where they robbed him of his cell phone and
passport. The defence that they were not in the spaza shop only came to light during the prosecutor's
cross-examination of them; their own legal representative had failed to lead this evidence during chief,
and he had failed to put this evidence to the state's witnesses during his cross-examination of them. The
appellants were convicted as charged and each sentenced to 13 years' imprisonment. In this appeal the
issue was the competence of their legal representative.
Held that a court is entitled to see and hear the reaction of state witnesses when they are told that the
accused, who they have identified as the perpetrators, were in fact elsewhere and could not have
committed the crime. It is also important for the court to know that the alibi defence will be raised
because the court will then know that the whole question of identification "comes acutely into the
foreground", and a cautionary rule becomes applicable. It is also important for the prosecution to know
that such a defence will be raised in order for the prosecution to verify the correctness of it. The failure of
the appellant's legal representative had been inexcusable and a breach of rudimentary duty. He never
disputed the fact that had been informed about this defence and had referred to it in his closing address.
His failure constituted a gross irregularity that went "to the very ethos of justice and notions of fairness".
The record also showed that the magistrate had been prejudiced against the appellants; the questions put
by the court had not been for purposes of clarification but for the purpose of pressurizing them into saying
things the court wanted them to say. They amounted to judicial harassment. The cumulative effect of the
two types of irregularities vitiated the proceedings in the court a quo. The convictions and sentences were
set aside.
14) APPEAL
Molaudzi v S
[2014] JOL 31800 (CC)
Case Number:
Judgment
Date:
Country:
Jurisdiction:
Division:
Bench:
CCT 126 / 13
20 / 05 / 2014
South Africa
Constitutional Court
Skweyiya ADCJ, Cameron, Froneman, Jafta, Madlanga, Nkabinde, Zondo JJ, Dambuza,
Mhlantla AJJ
Keywords:
Criminal procedure – Criminal conviction – Leave to appeal to Constitutional Court
19
Mini Summary:
Together with his co-accused, the applicant was convicted of the robbery and murder of an off-duty
policeman and unlawful possession of a firearm and ammunition. He was sentenced to life imprisonment
for murder and an additional 21 years for the remaining crimes. His appeal to the full court was dismissed
and an application for leave to appeal to the Supreme Court of Appeal was refused by that court. The
applicant now sought leave to the Constitutional Court essentially on the basis that he was wrongly
convicted.
Held that the application was based on an attack on the factual findings made in the trial court. That did
not raise a proper constitutional issue for this Court to entertain. In addition, there were no reasonable
prospects of success. The application for leave to appeal was therefore dismissed.
However, the Court did express its displeasure at the long delay in the hearing of the appeal before the
full court.
S v TONKIN 2014 (1) SACR 583 (SCA)
E
In an appeal against the refusal by a high court of the appellant's application for
leave to appeal to that court against his conviction in a magistrates' court, where a
differently constituted high court had granted leave to appeal to the Supreme Court
of Appeal (SCA) against the refusal, the court noted that despite the comments of
the court in S v AD [2011] ZASCA 215 at paras 3 – 6, that it was time for
consideration to be given to legislative reform so that petitions could be finalised
speedily at high court level, no such legislative amendment had come about. The
court noted that the process was a cumbersome one and wasteful of both time and
money. In this light the court considered whether it should perhaps, in the exercise
of its inherent jurisdiction, short-circuit the cumbersome process by considering the
appeal against conviction directly.
Held, that the SCA unfortunately did not have the authority to do so. Although the
Icourt had inherent jurisdiction to regulate its own procedure, it had no inherent or
original jurisdiction to hear appeals from other courts, such jurisdiction as it had
being bestowed upon it by ss 20 and 21 of the Supreme Court Act 59 of 1959.
Furthermore, when leave to appeal was refused by the high court, that court did not
decide the merits of the appeal, and, if the SCA were to entertain an appeal on the
merits in those circumstances, it would in effect be hearing an appeal directly from
the magistrates' court, which was in direct conflict with s 309 of the Criminal
Procedure Act. Accordingly leave to appeal had first to be sought from the high court
before the SCA could entertain an application to that effect. In the present case
leave was only sought and obtained to appeal against the refusal of the petition, and
no leave was sought to appeal against the conviction. It followed that even if the
SCA were authorised to entertain an appeal against conviction, leave would first have
to be sought for that appeal from the high court, which in the present instance had
never occurred. (Paragraph [6] at 586f – 587b.) The court accordingly then
considered the merits of the appeal against the refusal of leave to appeal and
granted leave to appeal to the high court.
Case Information
E Killian for the appellant.
C Steyn for the state.
Appeal against the refusal of an application for leave to appeal to the Free State High
Court against a conviction in a magistrates' court (Jordaan J and Snellenburg AJ).
Order
1. The appeal is upheld.
H 2.
The order of the court a quo is set aside and replaced with the following:
'The applicant is granted leave to appeal to the Free State High Court, Bloemfontein, against his conviction of
malicious injury to property in the Harrismith Magistrate's Court.'
20
Malgas and others v S
[2014] JOL 31551 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
703 / 2012
31 / 05 / 2013
South Africa
Supreme Court of Appeal
NP Willis, MS Navsa, SA Majiedt JJA
Keywords:
Criminal procedure – Appeal – Delay in hearing of appeal – Whether on its own constituting grounds for
lighter sentence – There is no automatic alleviation of sentence merely because of the long interval of
time between the imposition of sentence and the hearing of the appeal – Where appellants were
responsible for delay, appeal was dismissed
Mini Summary:
The appellants had all been employed within the South African Police Services, and were convicted of
drug-related offences. The first three appellants were found guilty of housebreaking with intent to steal
dagga from the exhibits storeroom of a police station, while the third and fourth appellants were found
guilty of the theft of dagga from a motor vehicle that belonged to the police which had been parked on the
premises of the same police station. The first and second appellants were sentenced to 10 years’
imprisonment each (reduced to 8 years’ imprisonment on appeal). The third appellant was sentenced to a
period of imprisonment of 8 years on count one and 10 years on count three. Taking the cumulative effect
of the sentences into account, the magistrate ordered that 6 years of the third appellant’s sentence on
count three run concurrently with the 8 years on count one. The effective sentence for the third appellant
was therefore 12 years’ imprisonment. The fourth appellant was sentenced to e8 years’ imprisonment. The
present appeal was against sentence.
Held that more than 8 years passed before the appeal was heard in the court below. The only ground of
appeal that could be considered in this appeal was whether the 8 year delay from the imposition of
sentence by the magistrate to the hearing of the appeal in the court below, in and of itself, justified a
lighter sentence.
There can be no automatic alleviation of sentence merely because of the long interval of time between the
imposition of sentence and the hearing of the appeal for those persons fortunate enough to have been
granted bail pending the appeal. The appellants had adopted a supine attitude to the hearing of their
appeal, and were to blame for the long delay in bringing this matter to finality. Their appeal was
accordingly dismissed.
Mnisi v S
[2014] JOL 31298 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
531 / 2012
28 / 03 / 2013
South Africa
Supreme Court of Appeal
L Mpati P, ZLL Tshiqi, Pillay JJA, Southwood, BH Mbha AJJA
Keywords:
Criminal law – Factual findings – Powers of appeal court – An appeal court can only interfere with the
factual findings of a trial court where it finds that the trial court misdirected itself on questions of facts –
Criminal law – Sentence – Failure of trial court to warn accused that he was liable upon conviction to be
sentenced in terms of the Criminal Law Amendment Act 105 of 1997 – Where no reference was made to
the Act either in the charge sheet or at the commencement of the trial, that on its own did not render the
trial or the sentencing part thereof, unfair – The ultimate test was whether or not the accused had had a
fair trial
Mini Summary:
Convicted of murder, the appellant was sentenced to 15 years’ imprisonment. His appeal to the high court
failed, but leave was granted to appeal to the present Court against conviction and sentence.
The appellant had fired a single shot at a person at a taxi rank, killing him. The question was whether the
appellant was acting in self-defence, as alleged by him. Two state witnesses provided insight into the
circumstances surrounding the shooting. One of them was an eye-witness to the shooting, and testified
that the appellant had approached the deceased and when he was approximately three metres from him,
21
produced a pistol from his waist, pointed it at the deceased who was then facing him, and shot him. The
witness disputed the appellant’s contention that the deceased had produced a firearm which he pointed at
the appellant shortly before the latter produced his and shot the deceased. He therefore disputed the
appellant was acting in self-defence. The second witness did not witness the actual shooting, but testified
that the appellant had followed the deceased to the back of the vehicle from which they just alighted. The
witness then heard a gunshot and when he went to investigate, he saw the body of the deceased on the
ground. Immediately after the shooting he saw the appellant run away from the scene whilst being chased
by a crowd of people consisting mainly of other taxi drivers and owners.
Held that the appellant’s version of events was unsatisfactory. He contradicted himself and gave different
versions on the important aspect about when exactly did the deceased produce his firearm. He could not
furnish any reasons as to why he followed the deceased to the back of the vehicle after the deceased had
allegedly threatened to kill him whilst they were still inside the vehicle.
An appeal court can only interfere with the factual findings of a trial court where it finds that the trial court
misdirected itself on questions of facts. The Court was unable to fault the trial court’s finding and
conclusion. The trial court correctly accepted the state witness’ evidence as both truthful and reliable. The
appellant’s version that the deceased had produced a firearm which he pointed at him could therefore not
reasonably possibly be true. It was in fact false beyond reasonable doubt. His defence of self-defence was
accordingly rejected, and the appeal against conviction failed.
In the appeal against sentence, the appellant did not pursue the point raised in his heads of argument,
but raised a completely new ground of appeal. That ground was that the trial court never warned the
appellant adequately, or at all, that he was liable upon conviction to be sentenced in terms of the Criminal
Law Amendment Act 105 of 1997. The charge of murder did fall within the purview of the section 52(2) of
the act, which prescribes a minimum sentence of 15 years’ imprisonment for a first offender, unless there
were substantial and compelling circumstances justifying the imposition of a lesser sentence. While no
reference was made to the act either in the charge sheet or at the commencement of the trial, that on its
own did not render the trial or the sentencing part thereof, unfair. The ultimate test was whether or not
the accused had had a fair trial. In the present case, even if it were to be held that the act was not
applicable, the sentence of 15 years’ imprisonment was within the ordinary jurisdiction of the trial court
and was not shockingly inappropriate in light of the relevant facts and circumstances of this case. An
appeal court cannot, in the absence of a material misdirection by the trial court, approach the question of
sentence as if it were the trial court and then substitute the sentence arrived at simply because it prefers
to do so. To do so, so the Court held, would be to usurp the sentencing discretion of the trial court.
The appeal was thus dismissed.
Van der Merwe v NDPP A O 2011 (1) SACR 94 (SCA)
Before his trial on charges of contravening Exchange Control Regulations and of
defeating the ends of justice could begin, the appellant launched an urgent application for
a declaratory order that the Directorate of Special Operations (DSO) had acted outside its
mandate by investigating the offences he was alleged to have committed. It was common
cause that those offences did not constitute the 'serious and organised crime' that the DSO
was mandated to investigate. The appellant argued that this conduct was therefore in
conflict with the Constitution of the Republic of South Africa and invalid, and that it
should be declared to be such. The High Court found, firstly, that the appellant had not
established that the DSO had in fact driven the investigation against him; and, secondly,
regardless of this aspect, that it would be inappropriate for it to decide the constitutional
issue, which would best be left to the trial court. It dismissed the application, but made no
costs order. The appellant appealed the dismissal, and the first and second appellants
cross-appealed against the finding concerning costs. The Supreme Court of Appeal
assumed, for purposes of its judgment, that the appellant had indeed established that the
DSO had exceeded its mandate and that its conduct was thus inconsistent with the
Constitution. The question to be decided was whether a court was obliged in such
circumstances to issue a declaratory order, notwithstanding that no consequent relief was
claimed.
Held , that the argument, that once a court found that conduct was unconstitutional it had
to issue a declaratory order to that effect, was not supported by authority. This was not a
22
constitutional issue that needed to be decided in the interests of justice. A court, faced
with an unmeritorious forensic finesse, clothed in constitutional garb, and designed to
delay or avoid pleading in a criminal trial, or to pre-empt the consideration of an
admissibility question by the trial court, had a duty to refuse an order that would
encourage preliminary litigation. An accused was not entitled to have his trial interrupted
- or not begin at all - so as to have alleged irregularities reviewed by another court. It was
the duty of the trial court to try the charge and to ensure a fair trial; if it did not, the
conviction might be set aside. A court was not obliged to entertain a constitutional claim
in a vacuum; thus, declaratory relief was not simply there for the asking. Since the
appellant was asking for a declaration in vacuo , the court below had been correct to
dismiss the claim, and the appeal must fail.
Held , further, regarding the cross-appeal, that the court below had considered the issue to
be a serious constitutional one. It could not be said to have exercised its discretion not to
award costs to the successful party capriciously or injudiciously; there were accordingly
no grounds on which to interfere with its order in this regard. Appeal dismissed with
costs.
Case Information - Appeal against a decision of the Western Cape High Court (Olivier
AJ). The facts appear from the judgment of Bertelsmann AJA; Harms DP, Nugent JA,
Shongwe JA and Tshiqi JA concurred.
S v SMITH (SCA)
CLOETE JA, MAYA JA and PLASKET AJA
2011 MARCH 3, 15
Appeal—Generally—Reasonable prospects of success—Issue to be decided is whether
the appellant has reasonable prospects of success on appeal, and not the merits of the
appeal—Reasonable prospects of success present if a sound, rational basis exists for the
conclusion that the appellant has prospects of success on appeal.
S v Marais 2010 (2) SACR 606 (CC)
The applicant was convicted in the High Court of murdering her husband, and sentenced
to life imprisonment. Both the High Court and the Supreme Court of Appeal (SCA)
refused her leave to appeal against the conviction, but the former granted her leave to
appeal the sentence, which appeal was pending at the time of the Constitutional Court
application. The applicant's approach to the Constitutional Court was grounded on the
argument that the trial court had breached her right to a fair trial under s 35 of the
Constitution of the Republic of South Africa, 1996, in that it had dismissed her defence
of having been a battered woman, and instead found that she had hired people to carry
out her husband's murder for financial gain. She contended that the trial court had
misapplied certain legal rules applicable to criminal trials and the leading of evidence,
particularly regarding 'battered woman syndrome', and that this had compromised the
fairness of her trial. The court had therefore to decide, firstly, whether the application
raised a constitutional issue; and, if so, whether it was in the interests of justice to hear
the appeal; secondly, whether it should hear further evidence on 'battered woman
23
syndrome'; and thirdly, whether it should admit a prospective amicus curiae to the
proceedings.
Held, that the 'legal rules' allegedly breached by the trial court appeared to relate to the
caution that a court should observe when making factual findings. The pith of the
applicant's complaint was no more than that the trial court's factual determinations on the
battered woman defence were incorrect; it had been wrong on the facts. In itself,
dissatisfaction with a court's factual findings did not raise a constitutional issue and,
absent such an issue, an application for leave to appeal to the Constitutional Court must
fail.
Held, further, however, that a question remained: whether it was open to the court to
receive further evidence that might upset the trial court's conviction, or to remit the
matter to either of the courts a quo to receive such evidence. Both the applicant and the
prospective amicus curiae sought to introduce new matter that had not been tendered
before the trial court, and which was directed at contesting the correctness of that court's
findings on the battered woman syndrome. Once an application for leave to appeal had
been disposed of, the High Court that had finally determined the matter was rendered
functus officio and ceased to have the power to entertain an application to lead further
evidence, unless the matter was remitted to it by the SCA. Likewise, once the SCA had
refused an application for leave to appeal, it was not open to the High Court or the SCA
to consider an application to receive further evidence. Furthermore, since the present
matter did not raise a constitutional issue, the Constitutional Court held no power either
to reopen the case for further evidence or to remit the matter to the SCA or the High
Court.
Held, further, that neither the Supreme Court Act 59 of 1959 nor the Criminal Procedure
Act 51 of 1977 gave the Constitutional Court express power, when refusing leave to
appeal in a criminal case, to undo a prior refusal of leave to appeal to another court and to
remit the matter to another court. Having found that there was no constitutional issue, the
court was therefore not empowered to set aside the SCA's refusal of leave to appeal, and
grant leave to either the full bench of the High Court or to the SCA. Since the present
application fell to be dismissed - as not raising a constitutional issue - and since an
application to be admitted as an amicus curiae was always ancillary and subservient to
the main application, when the main application faltered, so must the request to become
an amicus. (Paragraphs
Application for leave to appeal dismissed. Application for admission as amicus curiae not
granted.
Case Information
Application for leave to appeal against conviction and sentence. The issues and facts
appear from the judgment of the court.
S v SITHOLE AND OTHERS (KZD)
STEYN J
2011 AUGUST 12, 19
Bail—Appeal against refusal of—From magistrates’ court to high court—Duty of
prosecution—State counsel has a public duty to place all relevant facts before a court
24
deciding an appeal—State in present case had failed in its duty when it did not file heads
of argument and merely filed a notice to abide by the court’s decision.
Khauli & another v S
[2011] JOL 26779 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 1010 / 08
10 / 12 / 2010
South Africa
High Court
North Gauteng, Pretoria
G Webster, N Ranchod JJ, BM Pakati AJ
Keywords:
Criminal procedure – Appeal – Competence
Mini Summary:
The appellant and another accused were convicted of robbery with aggravating circumstances, murder and
theft. The effective sentence was life imprisonment.
Immediately after sentencing, the appellant applied for leave to appeal against both conviction and
sentence, but his application was dismissed by the trial judge. Some five years later, he brought another
application for leave to appeal, before a different judge. Leave to appeal was granted in respect of
sentence only.
Held that the question was whether the court a quo was competent to entertain the appellant's second
application after leave had been refused by the trial court against both conviction and sentence.
It emerged that the judge who granted leave to appeal was not made aware that the appellant had
already exhausted his appeal remedies in the high court. The application was not supposed to have been
entertained because the high court was functus officio. The appellant's remedy was to seek leave to
appeal from the president of the Supreme Court of Appeal by way of petition. The present court, sitting as
a court of appeal, could therefore not entertain the appeal.
The appeal was struck from the roll.
Moremoholo v S
[2011] JOL 27762 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 100 / 2008
26 / 08 / 2011
South Africa
High Court
South Gauteng, Johannesburg
FHD van Oosten J, L Windell AJ
Keywords:
Criminal procedure – Bail application – Transcript of – Loss of transcript – Effect on appeal
Mini Summary:
The appellant was convicted of robbery with aggravating circumstances and sentenced to 15 years’
imprisonment. He appealed against both conviction and sentence with leave of the court, granted on
petition.
The appeal concerned the powers of the court on appeal, in regard to a lost transcript of bail proceedings
which was handed in at the trial as an exhibit, containing the only evidence linking the appellant to the
commission of the crime of which he had been convicted.
Held that the only evidence linking the appellant to the robbery consisted of his earlier evidence given in
an application for bail after his arrest pending trial, which the prosecutor presented to the court a quo by
way of a certified transcript of those proceedings. In his evidence in the bail proceedings the appellant,
inter alia, admitted that he had been in possession of and driving a certain vehicle on the day of the
incident. The vehicle it became common cause at the trial, was involved in the robbery.
The court of appeal is endowed with wide powers in the consideration of an appeal. The loss of the
transcript was nothing but a technicality which in the interests of justice, had to be remedied. The original
recording of the evidence presented at the bail proceedings was still available and had again been
transcribed. The Court remitted the case to the trial court to allow the state to prove the content of the
bail proceedings.
25
S v Leve 2011 (1) SACR 87 (ECG)
The fundamental rule to be applied by a court of appeal is that, while the appellant is
entitled to a rehearing, because otherwise the right of appeal becomes illusory, a court of
appeal is not at liberty to depart from the trial court's findings of fact and credibility,
unless they are vitiated by irregularity, or unless an examination of the record of evidence
reveals that those findings are patently wrong. The trial court's findings of fact and
credibility are presumed to be correct, because the trial court, and not the court of appeal,
has had the advantage of seeing and hearing the witnesses, and is in the best position to
determine where the truth lies. These principles are no less applicable in cases involving
the application of a cautionary rule. If the trial judge does not misdirect himself on the
facts or the law in relation to the application of a cautionary rule, but, instead,
demonstrably subjects the evidence to careful scrutiny, a court of appeal will not readily
depart from his conclusions.
Case Information - Appeal from a conviction in the Eastern Cape High Court, Port
Elizabeth. The facts appear from the judgment of Jones J.
Alam v S
[2011] JOL 27255 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 354 / 10
13 / 05 / 2011
South Africa
High Court
Western Cape, Cape Town
Bozalek J, Cloete AJ
Keywords:
Criminal procedure – Appeal – Right to appeal – Rape – Conviction and sentence
Mini Summary:
The appellant was convicted on one count of abduction and five counts of rape and was sentenced to 1
year's imprisonment for the abduction and five terms of life imprisonment for the rapes, with all of the
sentences to run concurrently.
The record of the proceedings in the Regional Court showed that although the appellant had filed an
application for leave to appeal against both his convictions and sentence, together with an application for
condonation for the late filing thereof, there was no indication whether those applications were ever heard
by that court.
Held that the first issue to be addressed was whether the appeal was properly before the present court.
The effect of an amendment of 1 April 2010 to section 309(1)(a) of the Criminal Procedure Act 51 of 1977
was that persons sentenced to life imprisonment by a regional court no longer have an automatic right of
appeal unless, at the time of commission of the alleged offence, such person was under the age of 16
years; or 16 years or older but under the age of 18 years and sentenced to any form of imprisonment that
was not wholly suspended. The appellant was convicted and sentenced after section 309(1)(a) was
amended by the Criminal Law (Sentencing) Amendment Act (which came into effect on 31 December
2007) but before the amendment to section 309(1)(a) by section 99(1) of the Child Justice Act (which
came into effect on 1 April 2010). The amendment of 1 April 2010 is not retrospective and the appellant
thus fell squarely within the "window period" in which a person sentenced to life imprisonment by a
regional court was entitled to note an appeal against both conviction and sentence without having to apply
for leave to appeal to the lower court which convicted and sentenced him. The appeal was therefore
properly before the Court.
On the merits, the Court found that the state had proved its case on all but one of the counts. It had failed
to prove beyond a reasonable doubt that the appellant had raped the complainant twice in the hut in
which the offences occurred. The appeal was upheld only in respect of the single count.
In respect of sentence, the Court found that the magistrate misdirected himself in attaching no weight at
all to the appellant's personal circumstances and the fact that he was a first offender for rape. Those,
together with the appellant's youth, were clearly mitigating factors and, notwithstanding the seriousness
of the offences, constituted substantial and compelling circumstances. The magistrate did not consider at
all the possibility that the appellant could be rehabilitated. The sentences which he imposed for the rapes
26
were the heaviest permitted by law. Taking into account the mitigating factors, the five sentences of life
imprisonment imposed by the magistrate for the rapes were disturbingly inappropriate.
The Court deemed an effective sentence of 18 years' imprisonment in respect of each of the four counts of
rape to be appropriate, subject to the sentences running concurrently.
Mnisi v S
[2011] JOL 26770 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 107 / 10
09 / 12 / 2010
South Africa
High Court
North Gauteng, Pretoria
PZ Ebersohn, N Kollapen AJJ
Keywords:
Criminal law – Appeal against sentence – Further appeal against conviction – Due process
Mini Summary:
After being convicted of rape, the applicant appealed against his conviction and sentence. The appeal
against conviction was dismissed but the appeal against the sentence imposed was successful and the
sentence was altered.
The applicant then applied on notice of motion to the present court for leave to appeal to the Supreme
Court of Appeal against his conviction.
Held that the above procedure was not proper and the way for the applicant to proceed was by way of a
petition to the Judge President of the Supreme Court of Appeal in terms of the Rules of the Supreme Court
of Appeal.
The application was struck from the roll.
Kani v S
[2009] JOL 22717 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
65 / 05
20/ 12 /07
South Africa
High Court
Eastern Cape
HJ Libenberg J
Keywords:
Criminal procedure – Conviction and sentence – Leave to appeal
Mini Summary:
Having been convicted of robbery with aggravating circumstances and sentenced to 18 years'
imprisonment, the applicant brought the present application for leave to appeal.
The grounds of appeal were that the court had erred in not attaching sufficient weight to certain facts
regarding the identification of the applicant, and in over-emphasising the seriousness of the offence at the
expense of the applicant's personal circumstances in imposing sentence.
Held that the offence, involving an armed robbery at a bank, was a serious one, in which the perpetrators
had poured petrol over the bank employees and threatened to set them alight.
Due to the narrow grounds upon which an appeal court is entitled to interfere on appeal, the court found
no prospects of success. The application was dismissed.
Khumalo v S
[2008] JOL 21785 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
A 1249 / 06
16 / 05 / 2008
South Africa
High Court
Transvaal
FG Preller, AP Ledwaba JJ, TJ Vilakazi AJ
27
Criminal procedure – Sentence – Leave to appeal – Earlier refusal – Judge functus officio – Appeal
Mini Summary:
The appellant was convicted in the regional court of rape and sentenced in the High Court to life
imprisonment. Leave to appeal was refused on the same day. Later, the court granted leave to appeal to a
Full Court against sentence, apparently oblivious of the previous refusal.
Held: Section 315(4) of the Criminal Procedure Act allows appeals from superior court convictions only in
accordance with the provisions of sections 316–319 of the Act.
The decision in S v Sawman 2001 (1) SACR 649 (E) that an appeal court had no jurisdiction to reconsider
the decision already given by two other judges on review was wrong. It could not have been the intention
of the Legislature to abolish the right of a convicted person to be heard on appeal in such an off-hand
manner. Review and appeal were distinct procedures and whatever may have happened in a case on
review did not affect the accused's right of appeal.
The limitation on the right of appeal contained in the Criminal Procedure Act has been declared
constitutional. There was nothing in the Constitution that conferred the right on the High Court or the
Supreme Court of Appeal to grant leave to appeal without having regard to the provisions and the
structures created by the statutes and the Rules of Court. To hold otherwise would endanger the very core
of the purpose of the intention of the Legislature to ensure a system in which swift justice is meted out to
accused.
Therefore the granting of leave to appeal in the face of a previous refusal of such leave was a nullity and
the case was not properly before the appeal court. The appeal was struck from the roll.
Wouter Basson v The State - (293/2002) (SCA) – court can only hear issues of fact and
not academic questions.
S v Ntuli – 2003(1) SACR 613 (WLD) – practitioners must represent client properly.
Heads of argument in appeal case must be done properly and should not be simple
“notice”.
S v Zulu – 2003(2) SACR 22 (SCA) – court dealt with grounds of appeal and powers of
appeal courts.
S v McKenzie – 2003(2) SACR 616 (CPD) – notice of appeal can not simply aver that
“defense version reasonably possibly true”. Must give reasons. Struck from roll.
S v Katsiru – 2008 JOL 21158 (ZH) – deals with duty of presiding officer to comment
on matters raised in notice of appeal. Not sufficient to simply adhere to decision without
comment.
S v Sando – 2008 JOL 21156 (ZH) –procedure when Attorney – General does not oppose an
appeal and appeal may be disposed of in chambers.
Sobhanga v S
[2008] JOL 21292 (E)
Case Number:
CA 210 / 07
Judgment Date:
28 / 11 / 2007
Country:
South Africa
Jurisdiction:
High Court
Division:
Eastern Cape
Bench:
F Kroon, RJW Jones, JCH Jansen JJ
Keywords:
Criminal law – Rape– Sentence – Life imprisonment – Appeal
Mini Summary:
The appellant was convicted of housebreaking with intent to steal, theft and rape. He was sentenced to life
imprisonment on the rape charge. He appealed against that sentence.
28
Held that in deciding whether to interfere with sentence on appeal, it had to be asked whether the
sentence imposed was vitiated by a material misdirection, or was one which no reasonable court would
have imposed.
The court examined the factors taken into consideration by the court a quo in imposing sentence, and
found that that court had made a value judgment. No misdirection could be found, and it could not be said
that the sentence was shockingly inappropriate.
The appeal was dismissed.
Van Staden v S
[2008] JOL 21619 (NC)
Case Number:
105 / 07
Judgment Date:
28 / 03 / 2008
Country:
South Africa
Jurisdiction:
High Court
Division:
Northern Cape
Bench:
CJ Olivier, HJ Lacock, CC Williams JJ
Keywords:
Criminal procedure – Leave to appeal – Delay – Condonation – Missing record
Mini Summary:
After the accused was convicted and sentenced on a charge of murder, the case was sent on special
review as the accused had lodged an application for condonation and for leave to appeal against the
sentence, but the record of the trial proceedings was missing and could not be reconstructed.
Held that the constitutional right of an accused to a fair trial includes the right of appeal. Where an
accused has the right to appeal and a missing or incomplete record makes it impossible to consider and
adjudicate such appeal, the conviction or sentence will often be set aside. However, the mere fact that the
record of the proceedings might be lost or incomplete would not automatically entitle an accused to the
setting aside of a conviction or sentence.
As the accused was found to have contributed to the predicament in which he found himself, his
applications were struck from the roll.
15) APPEAL BY STATE
1. S v CARTER 2014 (1) SACR 517 (NCK)
In dismissing an appeal by the appellant against his conviction and
sentence in a regional magistrates' court for a number of counts, including
kidnapping and attempted rape, the court remarked on a number of
misdirections committed by the magistrate, including, seemingly, lack of
appreciation by the magistrate that even the slightest penetration was
sufficient to constitute the crime of rape. These misdirections had resulted
in the appellant being convicted only of attempted rape and not of rape
itself. The court pointed to the anomalous situation where the state was
only entitled to appeal against the discharge of an accused on a point of
law, and suggested that perhaps the time had come for the courts to
enquire whether the state should not also be entitled to appeal against a
discharge on the merits. The court ordered that a copy of its judgment be
sent to a number of authorities for the purpose of possibly amending the
law in this regard. (Paragraphs [6] at 520e – f and [32] at 529f – h.)
It appeared that, after leave to appeal had been granted on petition, no notice of
appeal had been filed in terms of s 309B of the Criminal Procedure Act 51 of 1977
and rule 67 of the Magistrates' Court Rules. The courts had often expressed their
dismay at non-compliance with these provisions and the time had come to put these
indulgences to a stop. Respondents in both criminal and civil cases were urged to
wake up to these requirements and take the stand against their abuse by taking
points in limine.
Case Information
PJ Cloete for the appellant, instructed by the Legal Aid Board, Kimberley.
CG Jansen for the state.
29
(1)
I
(2)
Appeal from convictions in a regional court and sentences imposed for a
offences, including kidnapping and attempted rape.
Order
The appeal in respect of both the convictions and sentences is dismissed.
H
number of
The registrar is directed to send a copy of this judgment to the following instances to
consider the feasibility or the need to introduce, legislation to address the issue
alluded to in para [6] of this judgment:
S v Balfour
[2008] JOL 22657 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
109 / 06
25 / 09 / 2008
South Africa
Supreme Court of Appeal
Brand, Ponnan JJA, LE Leach AJA
Keywords:
Criminal law – Murder – Sentence – Leniency – Appeal
Mini Summary:
The respondent, a policeman, had shot and killed a third party in an altercation whilst off duty. He was
charged and convicted of murder and sentenced to 14 years' imprisonment, wholly suspended on certain
conditions.
The state appealed against the sentence, arguing that it was too lenient.
Held that the court began by highlighting the unacceptable delays in the prosecution of the trial. The
prosecution was advised to avoid such delays in future.
On the merits, the court reminded that the imposition of sentence is a matter falling pre-eminently within
the judicial discretion of the trial court and the appeal court cannot interfere merely because it would have
imposed a different sentence. It can only do so if the sentence is shockingly inappropriate or if the trial
court substantially misdirected itself either on the facts or by placing undue emphasis on certain issues
and underplaying others.
The length of a period of imprisonment imposed on an offender reflects the gravity of the offence
committed. The lengthy sentence imposed on the respondent was justified by the offence in this case.
Wholly suspended sentences are designed to keep offenders out of prison in the hope that the suspended
sentences hanging over their heads will deter them from future criminal conduct. A sentence may also
only be suspended for no more than five years and its beneficial influence will be restricted to that extent.
The longer the sentence of imprisonment, the less appropriate it will be for it to be suspended in its
entirety.The court pointed to the brutal nature of the offence in casu. The trial judge misdirected himself
by not taking proper account of all relevant considerations. The sentence was set aside and replaced with
one of 12 years' imprisonment
DPP, Transvaal v Venter
[2008] JOL 21813 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
430 / 07
30 / 05 / 2008
South Africa
Supreme Court of Appeal
D Mlambo, TD Cloete, RW Nugent JJA
Keywords:
Criminal law– Murder– Attempted murder– Sentence – Leniency– Appeal
Mini Summary:
The respondent was convicted in the court a quo on one count of attempted murder and two counts of
murder. He was sentenced to an effective 10 years' imprisonment. The State noted the present appeal,
contending that the court a quo had been too lenient.
The victims in the murder charges were the two minor children of the respondent, while the complainant
in the attempted murder charge was his wife.
30
Held that the present Court's power to interfere with sentence was limited. It could interfere with the
sentence imposed by the court a quo if found that the court misdirected itself materially particularly in
over-emphasising some factors and underplaying others. It could also interfere where there was no
apparent misdirection but where the sentence was so light that it induced a sense of shock.
While the mitigating circumstances in this case warranted deviation from the prescribed minimum
sentence of life imprisonment, the court believed that the lower court had over-emphasised those factors.
It replaced the sentence with one of 18 years' imprisonment.
S v Nzimande (2) SACR 517 (SCA)
The appellant, an attorney, was acquitted in a regional court on 197 charges of fraud, all
relating to claims submitted by him to the Legal Aid Board for professional services
rendered by his firm. The trial court found that, while there had clearly been irregularities
in numerous of the appellant's claims, these might have arisen from gross negligence on
his part; it could not be inferred beyond reasonable doubt that he had had the intention to
defraud. The State appealed to the High Court against the acquittal, contending that the
acquittal had been based on a question of law. The High Court upheld the appeal, set
aside some of the acquittals, and convicted the appellant on certain counts; it then
remitted the matter to the trial court for the imposition of sentence. The view of the High
Court was that the question of the appellant's guilt or innocence had to be determined by
inference drawn from common-cause facts. Such an inference was a matter of legal,
rather than factual, reasoning, and it had therefore been open to the State to lodge an
appeal in the matter. The appellant then appealed against the decision of the High Court,
contending that the appeal to the High Court had in fact been on a question of fact, and
should accordingly not have been entertained by it.
Held, that the question for decision had been whether, on the proven facts, the State had
established that the appellant had made the misrepresentations with the necessary
intention. This required an inference to be drawn from the primary facts already found.
Any inference so drawn was a secondary fact, not a question of law. Thus, the State's
complaint was not that the trial court had committed an error of law, but that it had drawn
an incorrect inference from the facts. Such an error - if indeed it was one - was one of
fact, not of law, and as such did not confer upon the State a right to appeal against the
acquittal of the appellant. Accordingly, the High Court had not had jurisdiction to
entertain the appeal, which ought to have been struck from the roll.
S v Mngoma
[2008] JOL 22122 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
236 / 07
29 / 05 / 2008
South Africa
High Court
Eastern Cape
RJW Jones, JJ Nepgen, D Chetty JJ
Keywords:
Criminal procedure – Appeal – Leave to appeal – Jurisdiction
Mini Summary:
The respondent was convicted of murder and sentenced to 5 years' imprisonment. The prosecution
successfully appealed on the basis that the sentence was too lenient, and the sentence was increased to
12 years' imprisonment.
Held that in terms of section 316B of the Criminal Procedure Act 51 of 1977, a Full Bench has no
jurisdiction to hear the appeal. Appeals on sentence by the prosecution must be heard by the Supreme
Court of Appeal. Thus, the order of the court allowing the appeal was a nullity.
31
The court remitted the case to the trial court so that the application for leave to appeal could be disposed
of afresh.
16) ARREST AND DETENTION
2. MINISTER OF SAFETY AND SECURITY AND ANOTHER v NDLOVU 2013
(1) SACR 339 (SCA)
The respondent was arrested and charged with the possession of stolen property in
contravention of s 36 of the General Law Amendment Act 62 of 1955. Two days later
he was brought before what was referred to as a 'reception court', where the case
against him was postponed and he was held in custody until he was granted bail a
week later. Six weeks later the charges against him were withdrawn and the goods
seized were returned to him. He instituted action against the appellants for unlawful
arrest and detention and his claim was upheld in the high court. In an appeal against
this decision the appellants contended that the respondent's damages should have
been computed on a basis that excluded the period after the respondent appeared in
the 'reception court'. The evidence before the trial court indicated that the reception
court was a court that merely postponed cases: no evidence was led and no bail
applications were heard. The prosecutor in that court merely referred to a document
in the police docket, that the respondent was not to be granted bail, and he testified
that it was not his function to consider bail issues. That was the responsibility of the
control prosecutor, but the control prosecutor was not called as a witness. The police
officer who suggested that the respondent not be released on bail relied on an entry
in the docket that the respondent was a Zimbabwean national who had no fixed
abode. This information was not correct as the police had already been to the
respondent's home and seized his possessions at his home.
Held, that it was common cause that the reception court never embarked on any
judicial evaluation because, as a matter of course, its function was merely to
postpone cases and without, it would seem, enquiring whether or not anaccused
person ought to be detained pending a trial. It could thus hardly be contended that
the unlawful detention of the respondent ceased when he was brought before that
court, which ordered his further detention. It followed that the appeal had to fail.
(Paragraph [16] at 344i–j.)
Case Information
Appeal from a decision in the Eastern Cape High Court, Grahamstown (Mageza AJ) in
an action for damages. The facts appear from the reasons for judgment.
MJ Louw SC (with NJ Sandi) for the appellants.
A Byleveld SC (with D Niekerk) for the respondent.
1. NATIONAL COMMISSIONER OF POLICE AND ANOTHER v COETZEE
2013 (1) SACR 358 (SCA)
Arrest, being the most drastic method to secure a person's attendance at his trial,
ought to be confined to serious cases, that is, it should be confined to cases where
such person faces a relatively serious charge. Indeed, that is what is desirable. But
where a peace officer does effect a lawful arrest in terms of s 40(1)(a) of the
Criminal Procedure Act 51 of 1977 for what may not be considered to be a serious
offence, the arrest, or subsequent detention, does not become unlawful, thereby
entitling a high court to order the release of the arrested person, merely because a
summons, or notice to appear in court, would have been equally effective in ensuring
his or her attendance at court, or because bail has been refused. (Paragraph [13] at
365f–g.)
32
Case Information
Appeal from costs order made in an application for an interdictum de homine libero
exhibendo in the North Gauteng High Court (Du Plessis AJ).
TP Kruger (with L le Roux) for the appellants.
JR Bauer for the respondent.
Mashilo and another v Prinsloo
[2013] JOL 30300 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
576 / 11
28 / 09 / 2012
South Africa
Supreme Court of Appeal
L Mpati P, ZLL Tshiqi, MS Navsa, RW Nugent, LV Theron JJA
Keywords:
Criminal procedure – Arrest – Rights of arrested person – Section 50(1), Criminal Procedure Act 51 of
1977 – An arrested person has the right to be brought before court to enable a bail application as soon as
is reasonably possible – Words and phrases – “court day” – Section 50(1), Criminal Procedure Act 51 of
1977 – A day on which the court in question normally sits as a court
Mini Summary:
In November 2009, the respondent was arrested by the first appellant, and detained at a police station
after he was implicated in the murder of his former wife. His attorney’s attempts to secure his attendance
at court as soon as possible were in vain, as the first appellant informed him that he was entitled to detain
the applicant for 48 hours before he had to be brought to court for the first time. The attorney therefore
decided to approach the High Court. A court order was obtained, requiring the respondent to be taken to
the Magistrates’ Court by a certain date. Although that was done, the matter was not heard because the
Magistrate had taken the confession from the main state witness in the case. The application then went
before the High Court which granted an order effectively releasing the respondent on certain conditions.
The Court granted a costs order against the first appellant in his personal capacity. Leave to appeal was
sought in respect of that costs order. Although the respondent conceded that the costs order against the
first appellant should not have been made as the respondent had abandoned his prayer for costs against
the first appellant, because the costs order was based on an alleged misinterpretation by the court below
of the provisions of section 50 of the Criminal Procedure Act 51 of 1977, the appellant submitted that this
Court should consider the merits of the matter. What was sought to be achieved was a definite
interpretation of that section.
Held that section 50(1) provides for an arrested person to be brought to a police station as soon as
possible and be informed of his or her right to institute bail proceedings. If such an arrested person is not
released because no charge is to be brought against him or bail is not granted to him, he shall be brought
before a lower court as soon as reasonably possible, but not later than 48 hours after the arrest. If the
period of 48 hours expires outside ordinary court hours or on a day which is not an ordinary court day, the
accused shall be brought before a lower court not later than the end of the first court day.
The High Court’s interpretation of section 50(1) was erroneous. The outer limit of 48 hours envisaged in
the subsection does not, without more, entitle a policeman to detain someone for that entire period
without bringing him to court if it could be done earlier. The subsection obliges police authorities to bring
someone before court as soon as is reasonably possible, whether or not the 48 hour expires before or
during the weekend. Deliberately obstructive behaviour, as was evidenced by the first appellant, is not
tolerated. On that basis alone, the Court below could quite easily have ordered that the respondent be
brought to court immediately to facilitate a bail application.
As such, leave to appeal was granted and the appeal was upheld.
Le Roux v Minister of Safety & Security & another
[2009] JOL 23313 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
AR 436 / 07
17 / 03 / 2009
South Africa
High Court
KwaZulu Natal, Pietermaritzburg
Msimang J
33
Criminal procedure – Arrest and detention – Unlawful arrest – Claim for damages – Dismissal of claim –
Appeal
Mini Summary:
The appellant had claimed damages from the defendants arising out of his arrest and detention at the
instance of the second respondent, acting in the course and within the scope of his employment with the
first respondent. The present appeal was against the dismissal of his claim.
In dismissing the claim, the trial court found that the second respondent had reasonable grounds for
effecting the appellant's arrest.
Held that the question was whether compliance with the provisions of section 40(1)(b) of the Criminal
Procedure Act 51 of 1977 alone is sufficient to render an arrest lawful or whether more care and diligence
is required from an arresting officer before a decision is taken to arrest a suspect.
The court found that the second respondent's actions did not pass constitutional muster, and upheld the
appeal.
17) ASSAULT COMMON
S v Ngubeni
[2008] JOL 22245 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 459 / 08
17 / 06 / 2008
South Africa
High Court
Transvaal Provincial
JNM Poswa, NM Mavundla JJ
Keywords:
Criminal procedure – Assault – Domestic violence – Sentence – Review
Mini Summary:
The accused was convicted of assault and sentenced to 12 months' imprisonment, conditionally suspended
for 5 years. On review, the court asked whether the sentence was not excessive considering the fact that
the accused was a first offender, and that the complainant (his wife) sustained no injuries.
Held that the magistrate's reasoning in sentencing the accused was open to question.
The present court emphasised that while domestic violence is a serious offence which must be deterred, it
is important to also mark the distinction between actual domestic violence and normal assault (which
might occur in the domestic environment).
Whilst confirming the conviction on a charge of common assault, the court replaced the sentence with one
of a fine of R10 000 or imprisonment for a period of three months, wholly suspended for a period of three
years on condition that the accused person was not convicted of assault within the period of suspension.
S v Livi
[2008] JOL 21284 (E)
Case Number:
CA & R 254 / 07
Judgment Date:
11 / 10 / 2007
Country:
South Africa
Jurisdiction:
High Court
Division:
Eastern Cape
Bench:
RJW Jones J
Keywords:
Criminal procedure – Assault with intent to do grievous bodily harm – Evidence of intent – Insufficient –
Conviction set aside – Replaced with common assault – Sentence reduced and suspended
Mini Summary:
The accused, who had kicked and hit his pregnant wife, had thereafter locked her in their house, which
had made it difficult for her to obtain medical assistance. At his trial on a charge of assault with intent to
do grievous bodily harm (assault GBH), there was no medical evidence the assault had caused any
injuries. The accused was convicted as charged and sentenced to 24 months' imprisonment.
Held, on automatic review, that the evidence fell short of proof of intent to do grievous bodily harm. The
conviction was set aside and replaced with a conviction of common assault. His sentence was reduced to
six months' imprisonment wholly suspended for four years.
34
S v Mazomba
[2009] JOL 23402 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R2 / 09
31 / 03 / 2009
South Africa
High Court
Eastern Cape, Bhisho
PHS Zilwa AJ, AEB Dhlodhlo ADJP
Keywords:
Criminal law – Assault with intent to do grievous bodily harm – Conviction and sentence– Review
Mini Summary:
The accused was convicted of assault with intent to do grievous bodily harm and was sentenced to pay a
fine of R3 000 or in default of payment to undergo two years' imprisonment. He was further declared unfit
to possess a firearm in terms of section 103(1) of Act 60 of 2000.
The acting senior magistrate submitted the case on special review on the grounds that the verdict of the
magistrate was incompetent in that the essential elements of the crime of assault with intent to do
grievous bodily harm were not included in the offence of contravention of a protection order which the
accused had been charged with; and that the alternative of two years' imprisonment was disproportionate
to the amount of the fine imposed.
Held that having gone through the record of proceedings and having considered the magistrate's
submissions, the court agreed that the magistrate had indeed erred in convicting the accused of assault
with intent to do grievous bodily harm in the circumstances of the case. The evidence proved the offence
of common assault rather than assault with intent.
Setting aside the conviction and sentence, the court ruled that the accused was convicted of common
assault and sentenced to pay a fine of R3 000 or in default of payment to undergo six months'
imprisonment.
18) ASSAULT GBH
Helm v S
[2014] JOL 32323 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 119 / 2012
17 / 09 / 2014
South Africa
High Court
Western Cape, Cape Town
PAL Gamble J, Smit AJ
Keywords:
Criminal law – Assault with intent – Conviction and sentence – Appeal – Onus of proof
Mini Summary:
The appellant ran a crèche for infants and toddlers. Her business was raided by the police after allegations
by the appellant’s domestic worker that the appellant had been administering noxious substances to the
children in order that they would sleep during the day. The appellant was charged and convicted of eight
counts of assault with intent to do grievous bodily harm and one count of contravening section 30(2) of
the erstwhile Childcare Act 74 of 1983 in that she had taken up children in a place of care without the
place being properly registered. She was sentenced to five years’ direct imprisonment under section
276(1)(i) of the Criminal Procedure Act 51 of 1977 (“the CPA”) on the assault counts, all of which were
taken as one for purposes of sentence, and to a fine of R1 000 or six months’ imprisonment on the
remaining count.
Leave to appeal was obtained in respect of the assault charges.
Held that the State bore the onus of establishing the administration of substances to the children, which
substances were considered to be noxious. The Court was not persuaded that the State had established
beyond reasonable doubt either, that the alleged substance was administered to the eight children in
question, or that it was a noxious substance. Consequently, the appeal against the convictions was upheld
and the convictions and subsequent sentences were set aside.
35
S v Jantjie
[2014] JOL 32189 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
20140037
18 / 08 / 2014
South Africa
High Court
Eastern Cape, Grahamstown
M Makaula J
Keywords:
Criminal law – Assault with intent – Nature of offence – Conviction and sentence – Review
Mini Summary:
The accused pleaded guilty to a charge of assault with intent to do grievous bodily harm, and was
convicted and sentenced to 18 months’ imprisonment.
Held on review that it did not appear on the record that the accused was apprised of his right to advance
factors which the Court should take into account when considering sentence. In aggravation of sentence,
the court a quo took into account that the accused did not lead a clean life hence he had a number of
previous convictions which involved assault and domestic violence.
Assault with intent to do grievous bodily harm consists in an assault which is accompanied by the intent to
do grievous bodily harm. What is required is that the accused must have known, or at least foreseen the
possibility, that his conduct (whether that took the form of the application of force or threats) might cause
the complainant grievous bodily harm. The trial court formed the view that the offence of assault with
intent to do grievous bodily harm was committed as the accused had used a stick, which is per se a
dangerous weapon. The review court pointed to the shortcomings in that approach, as there are other
factors which are relevant. In the present case, the complainant was hit once, and sustained no injury.
Despite that, the magistrate held that there was evidence of injuries, and that the accused had the
intention to cause such injuries.
Setting aside the conviction and sentence, the Court replaced them with a conviction on a count of
assault, and sentenced the accused to 12 months’ imprisonment, wholly suspended on certain conditions.
S v SWARTZ 2014 (1) SACR 461 (NCK)
The accused had been charged in a magistrates' court with two counts of assault F
with intent to do grievous bodily harm. He pleaded not guilty to these charges, but
guilty to common assault. The prosecutor accepted this plea. On questioning by the
magistrate, however, the accused did not admit all the elements of the offence and
the magistrate accordingly recorded a plea of not guilty. The matter then proceeded
on the original charges of assault with intent to do grievous bodily harm, and after
hearing evidence the G magistrate duly convicted the accused on these charges. The
magistrate then submitted the matter for special review and requested that the
convictions be set aside on the basis that, in terms of s 113(2) of the Criminal
Procedure Act 51 of 1977, the trial should have proceeded on the charges of
common assault, to which the accused had pleaded. On review the court embarked
upon an analysis of the proper interpretation of H s 113(2) of the Act.
Held, that, on a proper interpretation of the section, it did not require an election by
the prosecutor, as to the charge in respect of which the prosecution was to proceed,
before the trial could proceed. It provided that the trial would proceed on the original
charge/s, and, in other words, not on the lesser I charge/s, unless the prosecutor
indicated otherwise. In the absence — as in the present case — of an indication by
the prosecutor, the magistrate had correctly proceeded on the basis of the original
charges against the accused, namely of assault with intent to do grievous bodily
harm. (Paragraphs [40] — [41] at 470c – e.)
Held, however, that on the evidence, the charge had not been proven and the
conviction had to be set aside. (Paragraph [46] at 471b.) J
36
2. S v CHABALALA 2014 (1) SACR 458 (GP)
The accused was convicted on his plea of guilty in the magistrates' court, of assault
with intent to do grievous bodily harm, wherein a knife was used. He was sentenced
to a fine of R4000 or one year's imprisonment. The accused was 65 years of age, a
pensioner, and had no previous convictions whatsoever. It appeared that he had
consumed alcohol at the time and was drunk. On review, the court held that
imposing a fine of R4000 on a pensioner was steep, and if it were not paid the
accused would have to be incarcerated. A fine had to be within the realistic ability of
the accused to pay it. It was also strange that the magistrate had not invoked the
provisions of s 297(5) of the Criminal Procedure Act 51 of 1977, which would have
afforded the accused an opportunity to pay the fine over a period of time. Had these
provisions been invoked, the fine would still be excessive, but would have been more
palatable. In the circumstances the sentence had to be set aside and replaced with a
sentence of a fine of R2000 or 12 months' imprisonment, of which R1000 or six
months' imprisonment was suspended for five years. An enquiry was to be held in
terms of s 297(5), if the accused were unable to pay the fine immediately.
(Paragraphs [9] at 459g and [10] at 459i–j.)
Janse van Rensburg & another v S
[2008] JOL 22294 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 689 / 07
24 / 07 / 2008
South Africa
High Court
Cape of Good Hope Provincial
E Moosa, A le Grange JJ
Keywords:
Criminal procedure – Assault with police dog – Criminal Procedure Act, No 51 of 1977, s 49(1)(b) –
Forfeiture of protection – Proof ofCriminal procedure – Evidence – Cautionary rule
Mini Summary:
The appellants appealed against their conviction and 24-month jail sentence for assaulting the
complainant with intent to do grievous bodily harm on the ground that they had used a police dog under
section 49(1)(b) of the Criminal Procedure Act, No 51 of 1977 (the "Act") to arrest the fleeing
complainant. The complainant was bitten by the dog.
Held that the evidence of a single witness had to be clear and satisfactory in every material respect. The
evidence must not only be credible, but must also be reliable. The trial court failed to account for all the
evidence and convicted the appellants on a balance of probabilities instead of proof beyond reasonable
doubt. The court also misdirected itself by finding that the evidence of the complainant, as a single
witness, was satisfactory in every material respect, and failed to warn itself that the evidence of the
complainant, as a single witness, had to be approached with caution. The court further only considered the
merits of the complainant's evidence and failed to consider the demerits of such evidence.
The State had not proved that the first appellant, in setting the dog on the complainant, had forfeited the
protection afforded by section 49(1)(b) of the Act. Because of the conflicting versions of the complainant's
and appellants' evidence and the quality of the evidence as a whole on this issue, it was not possible make
a finding on which version was true beyond reasonable doubt and which version was beyond reasonable
doubt false.
Convictions and sentences set aside.
S v Mereatlhe & others
[2008] JOL 22250 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
A 625 / 08
01 / 08 / 2008
South Africa
High Court
37
Division:
Bench:
Transvaal Provincial
BR du Plessis, C Botha JJ
Keywords:
Criminal procedure – Assault with intent – Sentence – Review
Mini Summary:
The accused were convicted of assault with intent to do grievous bodily harm, and were each sentenced to
3 years' imprisonment.
Held that the sentence did not reflect the circumstances surrounding the offence. The court noted that the
accused were young, and were first offenders. There was also a degree of provocation from the
complainant. Those factors had to be considered together wit the aggravating circumstances.
The court replaced the sentence with one of 2 years' imprisonment of which
S v Mazomba
[2009] JOL 23402 (ECB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R2 / 09
31 / 03 / 2009
South Africa
High Court
Eastern Cape, Bhisho
PHS Zilwa AJ, AEB Dhlodhlo ADJP
Keywords:
Criminal law – Assault with intent to do grievous bodily harm – Conviction and sentence– Review
Mini Summary:
The accused was convicted of assault with intent to do grievous bodily harm and was sentenced to pay a
fine of R3 000 or in default of payment to undergo two years' imprisonment. He was further declared unfit
to possess a firearm in terms of section 103(1) of Act 60 of 2000.
The acting senior magistrate submitted the case on special review on the grounds that the verdict of the
magistrate was incompetent in that the essential elements of the crime of assault with intent to do
grievous bodily harm were not included in the offence of contravention of a protection order which the
accused had been charged with; and that the alternative of two years' imprisonment was disproportionate
to the amount of the fine imposed.
Held that having gone through the record of proceedings and having considered the magistrate's
submissions, the court agreed that the magistrate had indeed erred in convicting the accused of assault
with intent to do grievous bodily harm in the circumstances of the case. The evidence proved the offence
of common assault rather than assault with intent.
Setting aside the conviction and sentence, the court ruled that the accused was convicted of common
assault and sentenced to pay a fine of R3 000 or in default of payment to undergo six months'
imprisonment.
S v Jacobus Smith – 401/2002 (SCA) –discussed severity of offence and elements of
crime. Specifically found court should not be influenced on sentence by video of events.
(this case is the infamous SAP dog training video).
S v Abels – 2008 JOL 21260 (E) – 18 year-old accused convicted of assault GBH.
Sentenced to direct imprisonment as first offender. Sentence held to be shockingly
severe. Magistrate committed irregularity in failing to call for pre-sentence report.
S v Nzeku: S v Qinela – 2008 JOL 21261 (E) – 2 matters dealt with together on review.
Relate to appropriate sentence in assault GBH matters. Discuss effect and balance of
aggravating and mitigating factors.
S v Mbele
[2008] JOL 21276 (E)
Case Number:
Judgment Date:
Country:
CA & R 278 / 07
8 / 11 / 2007
South Africa
38
Jurisdiction:
High Court
Division:
Eastern Cape
Bench:
LE Leach , C Plasket JJ
Keywords:
Criminal procedure – Assault with intent to do grievous bodily harm – Severity of sentence – First
offended – Advantages of suspension – Sentence set aside – Reduced and partially suspended
Mini Summary:
The accused, who had stabbed his victim in the face with a broken bottle, had been convicted of assault
with intent to do grievous bodily harm (assault GBH), and had been sentenced to 25 months'
imprisonment. The severity of the sentence was queried on automatic review.
Held that, by its nature, the assault had been a severe matter. However, a sentence of 25 months' direct
imprisonment was unduly harsh. The magistrate appeared to have lost sight of the advantages of
imposing a partially suspended sentence in the case of a first offender. The conviction was confirmed but
the sentence was set aside. It was reduced to 18 months of which half were conditionally suspended for
five years.
S v Livi
[2008] JOL 21284 (E)
Case Number:
CA & R 254 / 07
Judgment Date:
11 / 10 / 2007
Country:
South Africa
Jurisdiction:
High Court
Division:
Eastern Cape
Bench:
RJW Jones J
Keywords:
Criminal procedure – Assault with intent to do grievous bodily harm – Evidence of intent – Insufficient –
Conviction set aside – Replaced with common assault – Sentence reduced and suspended
Mini Summary:
The accused, who had kicked and hit his pregnant wife, had thereafter locked her in their house, which
had made it difficult for her to obtain medical assistance. At his trial on a charge of assault with intent to
do grievous bodily harm (assault GBH), there was no medical evidence the assault had caused any
injuries. The accused was convicted as charged and sentenced to 24 months' imprisonment.
Held, on automatic review, that the evidence fell short of proof of intent to do grievous bodily harm. The
conviction was set aside and replaced with a conviction of common assault. His sentence was reduced to
six months' imprisonment wholly suspended for four years.
S v Jama
[2008] JOL 21714 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA & R 223 / 07
6 / 9 / 2007
South Africa
High Court
Eastern Cape
JD Pickering J, E Crouse AJ
Keywords:
Criminal procedure – Assault with intent to do grievous bodily harm – Conviction and sentence–
Correctness – Common assault
Mini Summary:
The accused was convicted of assault with intent to do grievous bodily harm and sentenced to 12 months'
imprisonment of which 6 months were conditionally suspended for five years.
On review, the correctness of the conviction and sentence was queried.
Held that the intention to do grievous bodily harm was not proven. The accused did not stab the
complainant with a knife. It could not be inferred that the accused had subjectively foreseen the possibility
that the complainant could be seriously injured or that she had reconciled herself with that possibility.
The conviction was replaced with one of common assault, and the sentence substituted by a sentence of a
fine of R400 or 14 days imprisonment.
19) ASSESMENT OF EVIDENCE
Shusha v S
[2011] JOL 27877 (SCA)
Case Number:
Judgment Date:
609 / 10
29 / 09 / 2011
39
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
LV Theron, JA Heher, A Cachalia, JB Shongwe, SA Majiedt JJA
Keywords:
Criminal law – Rape – Appeal against conviction – Onus of proof – Trial court committing a fatal
misdirection in rejecting appellant’s version merely because it was improbable – An accused’s version can
only be rejected if the court is satisfied that it is false beyond reasonable doubt – Where evidence favours
either version, an accused is entitled to an acquittal
Mini Summary:
In the regional court, the appellant was convicted on one count of rape and was sentenced to eight years'
imprisonment, two of which were conditionally suspended. The matter was sent on special review in terms
of section 204(4) of the Criminal Procedure Act 51 of 1977 as the magistrate had not applied the relevant
minimum sentencing provisions of the Criminal Law Amendment Act 105 of 1997. On review, the sentence
was set aside and the matter remitted to the magistrate to impose sentence afresh. The appellant was
then sentenced to the prescribed minimum sentence of ten years’ imprisonment. On appeal, the high
court dismissed the appeal against conviction, but upheld the appeal against sentence to the extent that
the sentence of 10 years’ imprisonment was set aside and replaced with a sentence of eight years’
imprisonment, two of which were conditionally suspended.
The appeal to the present Court was against the conviction.
The appellant and the complainant worked together at a police station. The appellant had, on the day of
the incident, given the complainant and other colleagues, a lift home from the police station. After the
other colleagues had been dropped off, the appellant had according to the complainant, forcibly, and
against her will, had sexual intercourse with her. The appellant’s version was that the intercourse had
been consensual.
Held that the narrow issue on appeal was that of consent.
A perusal of the magistrate’s analysis of the evidence revealed that he had applied the incorrect standard
of proof. In appearing to have rejected the appellant’s version on the basis that it was improbable, the
magistrate committed a fatal misdirection. In criminal matters the state must prove its case beyond
reasonable doubt. An accused’s version can only be rejected if the court is satisfied that it is false beyond
reasonable doubt. An accused is entitled to an acquittal if there is a reasonable possibility that his or her
version may be true. A court is entitled to test an accused’s version against the improbabilities. However,
an accused’s version cannot be rejected merely because it is improbable. The magistrate, in his judgment,
did not point to any improbabilities in the appellant’s version, and the present Court was of the opinion
that there were none.
An examination of the facts and the probabilities led the Court to conclude that neither party’s version was
favoured. The facts did not assist with the determination of the narrow issue of consent. They did not
support either the state’s case or the appellant’s defence. In those circumstances, it could not be said that
there was proof beyond reasonable doubt and the appellant was therefore entitled to an acquittal.
The appeal was upheld, and the conviction and sentence were set aside.
Naude & another v S
[2010] JOL 26421 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
488 / 10
16 /11 / 2010
South Africa
Supreme Court of Appeal
MS Navsa, RW Nugent JJA, K Pillay AJA
Keywords:
Criminal procedure – Murder and attempted murder – Appeal against conviction – Proper test is that an
accused is bound to be convicted if the evidence establishes his guilt beyond reasonable doubt, and must
be acquitted if it is reasonably possible that he might be innocent –Evidence – Assessment of – Failure by
accused to testify in circumstances calling for an answer – Where evidence is credible and calls for an
answer, the decision of the accused not to testify strengthens the prosecution’s caseS v Van der Meyden
1999 (1) SACR 447 (W) – FollowedS v Van Aswegen 2001 (2) SACR 97 (SCA) – Referred toS v Trainor
2003 (1) SACR 35 (SCA) – Referred toS v Crossberg 2008 (2) SACR 317 (SCA) – Referred toS v Chabalala
2003 (1) SACR 134 (SCA) – Referred toS v Boesak 2001 (1) SACR 1 (CC) – Referred toMapande v S
(046/10) [2010] ZASCA 119 (29 September 2010) – Referred to
Mini Summary:
40
In May 2004, an attack on a house left four dead and one survivor sustaining 25 gunshot wounds. The
survivor (“the complainant”) identified one of the assailants (“Moosa”), and he and the two appellants
were subsequently convicted of four counts of murder and one of attempted murder. The first appellant
was sentenced to an effective 20 years’ imprisonment, while the second appellant was effectively
sentenced to life imprisonment.
Both appellants appealed against their convictions on the basis of the insufficiency of the evidence against
them, and the first appellant also appealed against his sentence.
The state led evidence that Moosa’s friendship with the complainant’s brother (who was one of the victims
of the attack) had soured and that Moosa had planted the notion in the second appellant’s head, that the
latter’s girlfriend was romantically involved with the complainant’s brother.
An important part of the state’s case against Moosa and the appellants was the testimony of the first
appellant’s girlfriend, who testified that the appellants had left her home at approximately midnight of the
night preceding the morning of the shooting. When they did not return as she had expected them to, she
called the second appellant on his cellular phone. She testified that the appellants and second appellant’s
girlfriend returned to her home between 5am and 5:30am in the morning.
The testimony of the second appellant’s girlfriend differed from that of the first appellant’s girlfriend in
certain material respects. While she did not account for the presence of Moosa and the first appellant at
the times material to the case, she alleged that the second appellant had been asleep throughout, thereby
providing an alibi for him.
Other evidence adduced by the prosecution included a neighbour’s account of what she heard on the
morning in question, and a third party’s testimony that the second appellant had told him that he had
committed a massacre.
In the face of all the evidence adduced by the state, the appellants and Moosa had decided not to testify
in their own defence.
Held that in order to determine the correctness of the convictions and the sentence imposed, it was
necessary to have regard to the material parts of the evidence adduced by the state and to the factors
associated with sentencing.
As set out in case law, the proper test is that an accused is bound to be convicted if the evidence
establishes his guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is
reasonably possible that he might be innocent. It was found that in assessing the evidence before it, the
trial court had correctly considered the totality of evidence and left none of the material evidence out of
account.
The court pointed to improbabilities in the evidence of the second appellant’s girlfriend. It noted that she
was still in a relationship with the second appellant and had a child by him. She was clearly an interested
party with a motive to lie.
On the other hand, the testimony of the first appellant’s girlfriend was found to be credible. Even the
second appellant was unable to submit that her evidence was untruthful. He was constrained to argue only
that it was reasonably possible that she might have been mistaken. The court rejected that submission.
All the evidence set out above was considered by the court below and it was careful in its detailed
evaluation. The court below was very aware that it was dealing with a number of witnesses who
themselves were implicated in offences in respect of which they were required to be warned in terms of
section 204 of the Criminal Procedure Act 51 of 1977. The court was conscious of the need to be cautious
in evaluating the evidence of a single witness, particularly one seeking indemnity.
It was submitted on behalf of the appellants that because of the conflict in the evidence of the appellants’
respective girlfriends, both of whom were state witnesses, a successful prosecution was precluded. The
submission was held to be fallacious. The second appellant’s girlfriend’s evidence was rightly rejected.
The present court agreed with the trial court that the state had produced weighty evidence against the
appellants, which called for an answer. The appellants had been in the company of Moosa, against whom
the evidence was damning. On the evidence before the court, the inference was irresistible, in the absence
of an explanation from them, that they were with him at all relevant times. The evidence against the
appellants established their association with Mr Moosa in the perpetration of the murders. It undoubtedly
called for an answer, which was not forthcoming. Consequently, both appeals against convictions had to
fail.
The first appellant’s appeal against his sentence was also dismissed, the court going as far as to suggest
that the trial court may have been too generous with him.
S v Vika 2010 (2) SACR 444 (E)
Roberson J, having set out the regional magistrate’s “very short”
judgment on sentence, stated, inter alia, as follows at 448 h – j:
41
“In these few lines there is no mention of the appellant’s personal
circumstances, and the magistrate seems to have had regard only to
the seriousness of the offences..”
Mphalele v First National Bank of SA Ltd 1999 (2) SA 667 (CC) the
following was stated at 671E – H:
“There is no express constitutional provision which requires Judges to
furnish reasons for their decisions. Nonetheless, in terms of s1 of the
Constitution, the rule of law is one of the founding values of our
democratic state, and the Judiciary is bound by it.
The rule of law
undoubtedly requires Judges not to act arbitrarily and to be
accountable. The manner in which they ordinarily account for their
decisions is by furnishing reasons. This serves a number of purposes.
It explains to the parties, and to the public at large which has an
interest in courts being open and transparent, why a case is decided as
it is. It is a discipline which curbs arbitrary judicial decisions. Then,
too, it is essential for the appeal process, enabling the losing party to
take an informed decision as to whether or not to appeal or, where
necessary, seek leave to appeal. It assists the appeal Court to decide
whether or not the order of the lower court is correct. And finally, it
provides guidance to the public in respect of similar matters. It may
well be, too, that where a decision is subject to appeal it would be a
violation of the constitutional right of access to courts if reasons for
such a decision were to be withheld by a judicial officer.”
S v Bruintjies and Others unreported case no CA&R71/2010 Eastern Cape
Division,
Chetty J, with whom Dambuza J agreed, stated:
“Although the transcript of the evidence amounts to one hundred and
thirty two pages, the magistrate’s judgment is regrettably rather terse.
Courts of law are required to hand down reasoned judgments and it is
lamentable that the magistrate ignored this salutary practice for
exigencies of time. This no doubt contributed to the obfuscation of the
triable issues for the judgment proceeds on the assumption that the
issue which fell for decision related to identification. Identity was not
the real issue given the admitted common cause fact that the
complainants and the appellants lived in the same area and were well
acquainted with each other. The appellant’s defence throughout was
that the complainants, for reasons of their own, had conspired to falsely
incriminate them. Consequently, the court was called upon to analyze
and evaluate the evidence and make credibility findings.”
20) ASSESSORS
42
S v Didloff
[2011] JOL 27817 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 136 / 2011
27 / 05 / 2011
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen, N Dambuza JJ
Keywords:
Criminal procedure – Murder trial – Assessors – Election of accused
Mini Summary:
The accused was charged with assault with intent to do grievous bodily harm and murder. The trial
proceeded in the regional court and the accused was convicted as charged. Subsequent to the conviction
and prior to sentencing, the presiding magistrate passed away and another magistrate was designated to
proceed with the trial to its conclusion. That magistrate found from a perusal of the record, that an
irregularity had occurred in the proceedings.
Held that section 93ter(1) of the Magistrate’s Court Act 32 of 1944 required the magistrate to summons
the assistance of two assessors as the accused was charged with murder. That provision is subject to the
right to the right of the accused to expressly elect to proceed without the assessors. The peremptory
requirement was not followed b the magistrate in this case.
The consequence of the irregularity has given rise to divergent views. However, the Court found that there
was nothing preventing the accused from now making the election regarding whether or not to proceed
without assessors. There was therefore nothing preventing the matter proceeding to finality.
21) AUDI ALTERAM PARTEM RULE
Zuma v NDPP
[2008] JOL 22416 (N)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
8652 / 08
12 / 09 / 2008
South Africa
High Court
Natal Provincial
CJ Nicholson J
Keywords:
Criminal law – Prosecution – Decision to prosecute – Review
Mini Summary:
The applicant in this case was the current president of the African National Congress. He sought a
declaration that a decision to prosecute him, taken by the National Prosecuting Authority during or about
June 2005, was invalid. He also sought to declare invalid an indictment served pursuant to the decision to
prosecute.
Held that the proceedings had nothing to do with the guilt or otherwise of the applicant on the charges
brought against him. They dealt with the disputed question of a procedural step that the State was
required to comply with prior to instituting proceedings against the applicant. If there were defects, at
best for the applicant, the indictment might be set aside. Once the defects were cured, subject to any
other applications that are brought, the State was at liberty to proceed with any charges they deemed
meet.
The crux of the dispute was whether the applicant was entitled to make representations to the prosecuting
authorities before the decision was taken to prosecute him. It was common cause that the applicant was
not afforded an opportunity to make representations. The obligation to hear representations forms part of
the audi alteram partem principle.
Addressing the question of the nature of the proceedings, the court concluded that the application was in
the nature of a civil review. The court went on to express the opinion that the executive might have
interfered in the decision to prosecute the applicant.
The application succeeded.
43
S v Adams
[2008] JOL 22284 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
SLH 117 / 07
22 / 08 / 2008
South Africa
High Court
Cape of Good Hope Provincial
Traverso DJP, Dlodlo J
Keywords:
Criminal procedure – Trial – Fairness of proceedings – Irregularity
Mini Summary:
After the accused was convicted of rape, the defence attorney informed the court that she had not been
given an opportunity to address the court prior to judgment. The trial court therefore referred the case to
the present court on special review, with the request that the judgment be set aside and the case remitted
to it so that the defence could be afforded the opportunity to deliver closing argument, before judgment
be delivered.
Held that even though there is no express provision under section 35(3) of the Constitution entitling an
accused person to address the court at the conclusion of all evidence, it is a fundamental right of the
accused person to be heard before any decision affecting him is taken by the court. This is not only an
expression of the audi alteram partem rule, but it is also an integral component of the right to adduce and
challenge evidence.
The omission in this case constituted a beach of the right to a fair trial.
The proceedings were set aside, and it was ordered that the matter be tried de novo before a different
magistrate.
22) AUTOMATIC REVIEW
S v Sekoere
[2012] JOL 29358 (FB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
141 / 2012
14 / 06 / 2012
South Africa
High Court
Free State, Bloemfontein
LJ Lekale, MB Molemela JJ
Keywords:
Criminal procedure – Automatic review – Cases involving minor children
Mini Summary:
The accused, a 16-year old boy, pleaded guilty to housebreaking with intention to steal and theft. He was
sentenced in terms of section 76(1) of the Child Justice Act 75 of 2008 to three years’ compulsory
residence at a child and youth care centre providing a programme designed for the reception,
development and secure care of children as contemplated in section 191(2)(j) of the Children’s Act 38 of
2005. The matter came before the present Court on automatic review.
Held that the automatic review regime in our criminal justice system is limited, in its application, to cases
in which the accused was not legally represented at the proceedings which resulted in the sentences
envisaged in section 302(1) of the Criminal Procedure Act 51 of 1977. Any argument to the effect that an
interpretation which excludes a child who was legally assisted at the relevant trial from the purview of
section 302(1) as read with section 85(1) of the Child Justice Act defeats the clear intention of the
legislature to afford children additional protection, and loses sight of the fact that not all children in
conflict with the law are afforded additional protection in the form of automatic review.
The court pointed out that cases involving minor children sentenced in terms of the Child Justice Act, like
all other cases envisaged in section 302, are not automatically reviewable where the accused minor child
was legally represented. The present matter did not call for the exercise of the court’s inherent powers of
review
I however need to inform you of the outcome on a case which is set out under Criminal
Law Index Para 21: Automatic Review
44
1. The finding as referred to in S v T. Sekoere [2012] JOL 29358 (FB) was recorded
incorrectly .
2. A full bench of the Free State division has made the following finding i.r.o the above
matter: All matters falling within the provisions of sec 85(1) of the CJA must be
referred in accordance with that section, whether or not the children concerned were
represented by legal representatives.
Trust you will do the required rectification.
Warm regards.
Ms.Ezra J. Morrison
Magistrate
Mag. Office Welkom - Free State
Tele (Work) 057-916 2500 (x9)
Faxs (Work) 086 507 0668
“ The Lord is my light and my Salvation”
23) BAIL
Sewnarain v S
[2014] JOL 31611 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
877 / 12
25 / 03 / 2013
South Africa
Supreme Court of Appeal
FR Malan, LV Theron JJA, CHG van der Merwe AJA
Keywords:
Criminal law – Bail – Refusal of – Appeal against refusal of bail – In terms of section 60(11)(a) of the
Criminal Procedure Act 51 of 1977, appellant required to satisfy the court that exceptional circumstances
existed which in the interests of justice permitted his release on bail – In absence of exceptional
circumstances, appeal dismissed
Mini Summary:
Having confessed to arranging for his wife to be murdered in 2010, the appellant was convicted of murder
and sentenced to life imprisonment. Approximately a year later, he applied to have the conviction and
sentence reviewed and set aside, alleging that he was assaulted, threatened and unduly influenced by the
investigation officer, as a result of which neither the confession nor the plea of guilty was made freely and
voluntarily. He alleged further that he had admitted to doing that which he had not actually done as a
result of the combined effect of medication, exhaustion and bereavement. He applied to the court a quo
for his release on bail pending the outcome of the review application. The dismissal of that application led
to the present appeal.
Held that section 60(11)(a) of the Criminal Procedure Act 51 of 1977 being applicable, the appellant had
to satisfy the court a quo that exceptional circumstances existed which in the interests of justice permitted
his release on bail. The court a quo found that a reasonable prospect of success in the review application
is an indispensable criterion which the appellant failed to show, and that in any event the appellant did not
show exceptional circumstances as contemplated in section 60(11)(a).
The present Court held that a reasonable prospect of success on appeal or review in itself does not entitle
an applicant to bail. The question therefore was whether the court a quo erred in finding that the appellant
did not prove exceptional circumstances. The only circumstance relied upon by the appellant that could
possibly be regarded as exceptional, was the allegation that because his financial resources had been
exhausted he would only be able to retain his present legal team and expert witnesses in order to conduct
the review application properly, if he was allowed to recommence his bus building and repair business in
45
order to generate income and that he would be able to do so almost immediately after his release.
However, there was no evidence to support that allegation. In fact, the available evidence suggested the
contrary.
As a result, the appeal was dismissed.
Mooi v S
[2012] JOL 29148 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
162 / 12
30 / 05 / 2012
South Africa
Supreme Court of Appeal
S Snyders, MS Navsa, BJ van Heerden JJA
Keywords:
Criminal law – Bail – Refusal of bail – Appeal – Section 60(11)(a) of the Criminal Procedure Act 51 of 1977
– Appellant had to adduce evidence that satisfied the court that exceptional circumstances existed which
in the interests of justice permitted his release – Unexplained delay by state in concluding its case taken
together with weakness of State’s case constituting exceptional circumstances which in the interests of
justice permitted the release of accused on bail
Mini Summary:
The appellant was standing trial on several counts of robbery with aggravating circumstances, attempted
robbery with aggravating circumstances, attempted murder and the unlawful possession of a firearm and
ammunition relating to an armed robbery of a petrol station. The appellant was arrested on the day of the
robbery, namely 24 December 2008 and had been in custody ever since. The trial commenced on 12
November 2009 and the state had not yet concluded its evidence. During March 2011 the appellant
applied to be released on bail. Bail was refused and an appeal to the high court was dismissed. That led to
the present appeal.
The parties were in agreement that the bail application fell under section 60(11)(a) of the Criminal
Procedure Act 51 of 1977 and therefore the appellant had to adduce evidence that satisfied the Court that
exceptional circumstances existed which in the interests of justice permitted his release. In terms of
section 65(4) the appellant had to persuade the Court that the decision to refuse bail was wrong.
The magistrate refused bail on the ground that there was evidence linking the accused to the offence and
therefore that it would not be in the interests of justice to grant bail. In the present Court it was accepted
that in the circumstances the determining factor whether to grant or refuse bail was the strength of the
state’s case against the appellant.
Held that section 60(4) lists several grounds which, if shown to exist, would have the effect that the
interests of justice would not permit the release of an accused. In considering whether the grounds stated
in section (4)(b), namely the likelihood of an accused evading his trial, have been established, the Court
may take into account a number of factors as set out in section 60(6). Those include the emotional and
occupational ties of the accused; his assets and where they are situated; his means of travel and available
travel documents; whether he can afford to forfeit the amount of money paid in relation to bail; prospects
of extradition; the nature and gravity of the offences charged with; the strength of the case against him;
the nature and gravity of the likely punishment in the event of the accused being convicted; the binding
effect of possible bail conditions and the ease with which they could be breached, and any other factor
which in the opinion of the Court should be taken into account.
The state’s case, whilst described by it as a strong one, was not shown to be so before the Court. The
state had not managed, in a period of two and a half years, to complete the evidence of their alleged
strong case in the trial court. The inordinate delay in presenting the asserted strong case on behalf of the
state was unexplained. In the circumstances, the delay since the trial started in November 2009 was
significant and called for an explanation that had not been forthcoming.
There was no indication that the appellant would not stand trial. Instead, the evidence suggested the
contrary. In the premises, the Court below was wrong in not concluding that the appellant had succeeded
in showing that exceptional circumstances were present that, in the interests of justice, permitted his
release.
The appeal was upheld and the appellant released on bail of R5 000 subject to certain conditions.
Mashilo and another v Prinsloo
[2013] JOL 30300 (SCA)
Case Number:
576 / 11
46
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
28 / 09 / 2012
South Africa
Supreme Court of Appeal
L Mpati P, ZLL Tshiqi, MS Navsa, RW Nugent, LV Theron JJA
Keywords:
Criminal procedure – Arrest – Rights of arrested person – Section 50(1), Criminal Procedure Act 51 of
1977 – An arrested person has the right to be brought before court to enable a bail application as soon as
is reasonably possible – Words and phrases – “court day” – Section 50(1), Criminal Procedure Act 51 of
1977 – A day on which the court in question normally sits as a court
Mini Summary:
In November 2009, the respondent was arrested by the first appellant, and detained at a police station
after he was implicated in the murder of his former wife. His attorney’s attempts to secure his attendance
at court as soon as possible were in vain, as the first appellant informed him that he was entitled to detain
the applicant for 48 hours before he had to be brought to court for the first time. The attorney therefore
decided to approach the High Court. A court order was obtained, requiring the respondent to be taken to
the Magistrates’ Court by a certain date. Although that was done, the matter was not heard because the
Magistrate had taken the confession from the main state witness in the case. The application then went
before the High Court which granted an order effectively releasing the respondent on certain conditions.
The Court granted a costs order against the first appellant in his personal capacity. Leave to appeal was
sought in respect of that costs order. Although the respondent conceded that the costs order against the
first appellant should not have been made as the respondent had abandoned his prayer for costs against
the first appellant, because the costs order was based on an alleged misinterpretation by the court below
of the provisions of section 50 of the Criminal Procedure Act 51 of 1977, the appellant submitted that this
Court should consider the merits of the matter. What was sought to be achieved was a definite
interpretation of that section.
Held that section 50(1) provides for an arrested person to be brought to a police station as soon as
possible and be informed of his or her right to institute bail proceedings. If such an arrested person is not
released because no charge is to be brought against him or bail is not granted to him, he shall be brought
before a lower court as soon as reasonably possible, but not later than 48 hours after the arrest. If the
period of 48 hours expires outside ordinary court hours or on a day which is not an ordinary court day, the
accused shall be brought before a lower court not later than the end of the first court day.
The High Court’s interpretation of section 50(1) was erroneous. The outer limit of 48 hours envisaged in
the subsection does not, without more, entitle a policeman to detain someone for that entire period
without bringing him to court if it could be done earlier. The subsection obliges police authorities to bring
someone before court as soon as is reasonably possible, whether or not the 48 hour expires before or
during the weekend. Deliberately obstructive behaviour, as was evidenced by the first appellant, is not
tolerated. On that basis alone, the Court below could quite easily have ordered that the respondent be
brought to court immediately to facilitate a bail application.
As such, leave to appeal was granted and the appeal was upheld.
Mooi v S
[2012] JOL 29148 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
162 / 12
30 / 05 / 2012
South Africa
Supreme Court of Appeal
S Snyders, MS Navsa, BJ van Heerden JJA
Keywords:
Criminal law – Bail – Refusal of bail – Appeal – Section 60(11)(a) of the Criminal Procedure Act 51 of 1977
– Appellant had to adduce evidence that satisfied the court that exceptional circumstances existed which
in the interests of justice permitted his release – Unexplained delay by state in concluding its case taken
together with weakness of State’s case constituting exceptional circumstances which in the interests of
justice permitted the release of accused on bail
Mini Summary:
The appellant was standing trial on several counts of robbery with aggravating circumstances, attempted
robbery with aggravating circumstances, attempted murder and the unlawful possession of a firearm and
ammunition relating to an armed robbery of a petrol station. The appellant was arrested on the day of the
robbery, namely 24 December 2008 and had been in custody ever since. The trial commenced on 12
November 2009 and the state had not yet concluded its evidence. During March 2011 the appellant
47
applied to be released on bail. Bail was refused and an appeal to the high court was dismissed. That led to
the present appeal.
The parties were in agreement that the bail application fell under section 60(11)(a) of the Criminal
Procedure Act 51 of 1977 and therefore the appellant had to adduce evidence that satisfied the Court that
exceptional circumstances existed which in the interests of justice permitted his release. In terms of
section 65(4) the appellant had to persuade the Court that the decision to refuse bail was wrong.
The magistrate refused bail on the ground that there was evidence linking the accused to the offence and
therefore that it would not be in the interests of justice to grant bail. In the present Court it was accepted
that in the circumstances the determining factor whether to grant or refuse bail was the strength of the
state’s case against the appellant.
Held that section 60(4) lists several grounds which, if shown to exist, would have the effect that the
interests of justice would not permit the release of an accused. In considering whether the grounds stated
in section (4)(b), namely the likelihood of an accused evading his trial, have been established, the Court
may take into account a number of factors as set out in section 60(6). Those include the emotional and
occupational ties of the accused; his assets and where they are situated; his means of travel and available
travel documents; whether he can afford to forfeit the amount of money paid in relation to bail; prospects
of extradition; the nature and gravity of the offences charged with; the strength of the case against him;
the nature and gravity of the likely punishment in the event of the accused being convicted; the binding
effect of possible bail conditions and the ease with which they could be breached, and any other factor
which in the opinion of the Court should be taken into account.
The state’s case, whilst described by it as a strong one, was not shown to be so before the Court. The
state had not managed, in a period of two and a half years, to complete the evidence of their alleged
strong case in the trial court. The inordinate delay in presenting the asserted strong case on behalf of the
state was unexplained. In the circumstances, the delay since the trial started in November 2009 was
significant and called for an explanation that had not been forthcoming.
There was no indication that the appellant would not stand trial. Instead, the evidence suggested the
contrary. In the premises, the Court below was wrong in not concluding that the appellant had succeeded
in showing that exceptional circumstances were present that, in the interests of justice, permitted his
release.
The appeal was upheld and the appellant released on bail of R5 000 subject to certain conditions.
Mbangeni & another v S
[2011] JOL 27207 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
57 / 11
18 / 03 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
A Andrews AJ
Keywords:
Criminal procedure – Bail – Refusal of – Appeal
Mini Summary:
The appellants were arrested on charges of robbery with aggravating circumstances and theft, arising out
of the armed robbery of a business. They applied to be released on bail but were refused. The present
appeal was noted against the judgment refusing them bail.
Section 60(11)(a) of the Criminal Procedure Act 55 of 1971 is applicable to bail applications.
Held that the appellants attempted to satisfy the court that the state’s case against them was weak,
entitling them to be released on bail. The Court found that neither of the appellants had discharged the
onus of proving that on a balance of probabilities they would be acquitted of the charges against them.
They therefore failed to prove that the state’s case was weak to the extent that constituted exceptional
circumstances, which in the interests of justice permitted their release.
The appeal was dismissed.
S v Engelbrecht
[2012] JOL 28792 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
41 / 918 / 2011
23 / 03 / 2012
South Africa
High Court
South Gauteng, Johannesburg
48
Bench:
PA Meyer J
Keywords:
Criminal procedure – Bail – Bail money – Deceased accused
Mini Summary:
The accused in this matter had been arraigned for trial on an indictment containing two charges of the
murder of his wife and paraplegic son. He was granted bail pending the finalisation of his criminal trial, but
died before the trial in a road accident.
The question for decision was whether the provisional forfeiture of the bail money that was deposited for
the benefit of the deceased should be confirmed or whether it should be repaid to the deceased’s brother
who had paid it.
Held that section 67 of the Criminal Procedure Act 51 of 1977 deals with the forfeiture of bail money
where the accused does not appear in court on the date appointed for his trial. The plain wording of
section 67 makes it clear that the legislature contemplated living persons. The language used in section 67
is clear and unambiguous and must accordingly be given effect to. The provisions of the section find no
application when the default is due to the passing away of an accused.
In the present case, the bail money therefore had to be repaid to the deceased’s brother.
Ramaisa v S
[2012] JOL 29081 (FSB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 24 / 2012
03 / 05 / 2012
South Africa
High Court
Free State, Bloemfontein
AF Jordaan J, JJ Mhlambi AJ
Keywords:
Criminal procedure – Bail – Refusal of – Appeal
Mini Summary:
The appellant was charged with the murder of his wife. The present appeal was against the refusal of the
magistrate to release the appellant on bail pending his trial.
Held that the issues for determination were whether the appellant had convinced the Court on a balance
of probabilities that the interest of justice did not require his detention; whether the magistrate exercised
her discretion to grant bail wrongly; and if so, whether the present Court was sufficiently persuaded that
that was so, without imposing its view on the court a quo.
In an appeal against the refusal of the bail, no matter what the appeal court’s own views are, the real
question is whether it can be said that the magistrate who had the discretion to grant bail, exercised that
discretion wrongly. Bail has to be granted except where this was not in the interest of justice. In terms of
section 60(9) of the Criminal Procedure Act 51 1977, in considering whether the interests of justice permit
the release from detention of an accused, the court shall decide the matter by weighing the interests of
justice against the right of the accused to his personal freedom and in particular the prejudice he is likely
to suffer if he were to be detained in custody, taking into account various factors set out in the section.
The magistrate did not consider the provisions of section 60(9) in arriving at her conclusion and
overlooked some important aspects.
The appeal was upheld and bail was fixed at R10 000.
S v SITHOLE AND OTHERS (KZD)
S v AGLIOTTI (GSJ)
KGOMO J
2010 AUGUST 12, 16
Bail—Evidence adduced at bail proceedings—Admissibility of at subsequent trial—
Section 60(11B)(c) of Criminal Procedure Act 51 of 1977—Duty of court to warn
accused where accused intends to use affidavit.
49
S v Ali 2011 (1) SACR 34 (ECP)
Having been charged with kidnapping and murder, and released on bail, the appellant
was subsequently arrested again, this time on charges of corruption and defeating or
obstructing the administration of justice. These charges arose from an alleged attempt to
destroy certain evidence relating to the kidnapping and murder charges. His application
for bail on the latter charges was refused, essentially on the grounds that there was a
likelihood that the appellant would again attempt to interfere with the evidence. An
appeal to the High Court against this refusal was dismissed. The Deputy Director of
Public Prosecutions (DDPP) then decided to combine the two sets of charges against the
appellant, and to arraign him in the High Court, which meant that the appellant would
have to remain in custody as an awaiting trial prisoner for some seven months more than
he would have if the trial had been held in the magistrates' court. This anticipated delay
formed the grounds for a further bail application and, that application having failed, for a
further appeal to the High Court. It was contended on his behalf that the magistrate had
failed to have proper regard to the effects of the DDPP's decision to arraign him in the
High Court; and that the delay occasioned thereby had unfairly prejudiced the appellant
by adversely altering his personal circumstances.
Held , that the court could not interfere with the magistrate's decision, unless it was
shown that he had misdirected himself in some way. It might have been so that the State
had led no evidence to justify its decision to move the matter to the High Court, but there
was nothing in s 60 of the Criminal Procedure Act 51 of 1977 that required magistrates
presiding over bail applications to scrutinise the procedures chosen by the State to
prosecute offenders. In the absence of proof that the State had acted mala fide, delays
caused by decisions of the prosecution were not in themselves reason for finding that an
arrested person was entitled to bail. Although the appellant had already spent a
considerable time in custody, it could not be said that the passage of time had diminished
the likelihood of the appellant's flight or of his making further attempts to interfere with
the evidence.
Held , further, concerning the assertion that the appellant's business was losing money
because of his absence, and that his wife and son had to live on less than what they had
been accustomed to, that financial loss was an inevitable conclusion of the incarceration
of any gainfully employed person. However, the evidence did not show that the
appellant's dependants would starve if he were not released to fend for them. While the
moving of the case would prolong and exacerbate the privations of his dependants, in the
absence of bad faith on the prosecution's part, or of any fresh evidence relating to the
appellant's personal circumstances, it could not be found that the magistrate had erred in
finding that these circumstances were outweighed by the possibility that the appellant
might evade trial or tamper with the evidence. Appeal dismissed.
Case Information - Appeal against the refusal of bail. The facts appear from the judgment
of Grogan AJ.
DPP (Transkei) v Nkalweni & another
[2011] JOL 23140 (Tk)
Case Number:
Judgment Date:
Country:
1993 / 08
24 / 12 / 2008
South Africa
50
Jurisdiction:
Division:
Bench:
High Court
Transkei
XM Petse ADJP
Keywords:
Criminal procedure – Bail – Grant of bail – Review
Mini Summary:
In a semi-urgent application, the Director of Public Prosecutions sought the setting aside of the first
respondent’s decision to release the second respondent on bail. The first respondent was acting in his
capacity as magistrate in so doing.
Held that an accused who seeks to be admitted to bail must be charged with an offence listed in schedule
6 of the Criminal Procedure Act 51 of 1977; and must lead evidence which must establish on a balance of
probabilities that exceptional circumstances exist which in the interests of justice permit his/her release on
bail.
In opposing the application, the second respondent relied on several points in limine. The court considered
each one, and found none to have any merit. It was conceded by the second respondent’s representative
that in such an event, the application would fall to be upheld.
The first respondent’s decision was set aside and the second respondent was directed to surrender herself
to the Investigating Officer within 72 hours.
Kapdi & others v S
[2008] JOL 22872 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 171 / 08
27 / 10 / 2008
South Africa
High Court
Cape of Good Hope Provincial
Meer J
Keywords:
Criminal procedure – Drug offences – Bail application – Refusal of bail – Appeal
Mini Summary:
The appellants were facing four counts of contravening the Drugs & Drug Trafficking Act 140 of 1992.
They appealed against the dismissal of their applications for bail. The grounds of appeal were that the
regional magistrate had erred in not granting them bail on the basis of new facts put before the court,
pertaining to delays in the prosecution of their trial and the strength of the case against them.
Held that section 60(11)(a) of the Criminal Procedure Act 51 of 1977 applied to the bail application of the
first appellant who was charged with a schedule 6 offence. The section required him to adduce evidence
which satisfied the court that exceptional circumstances existed which, in the interests of justice permitted
his release on bail. Section 60(11)(b) was applicable to the other appellants as they were charged with a
schedule 5 offence. The section required them to adduce evidence which satisfied the court that the
interests of justice permitted their release on bail.
The court could not find that the lower court had wrongly dismissed the bail applications, and dismissed
the appeal.
Brown & another v DPP & others
[2008] JOL 22392 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
8045 / 08
02 / 06 / 2008
South Africa
High Court
Cape of Good Hope Provincial
Fourie J
Keywords:
Criminal procedure – Arrest – Bail – Lawfulness of arrests – Onus of proof
Mini Summary:
In the wake of the widely reported Fidentia saga, the first applicant was arrested and released on bail of
R1 million. Subsequently, the third respondent issued and authorised two warrants for the arrest of both
applicants on new charges.
In an urgent application, the applicants sought the immediate release of first applicant in terms of section
35(2)(d) of the Constitution.
51
Held that in terms of the Constitution, if a detained person challenges his detention and the State cannot
prove the lawfulness of the detention, the court declares the detention unlawful and the right to be
released follows automatically.
The respondents bore the onus of proving the lawfulness of the arrests.
The starting point in determining the lawfulness of the warrants of arrest was section 43 of the Criminal
Procedure Act 51 of 1977. The court found that the requirements of the section had been met and that the
warrant for the arrest of first applicant had correctly been issued by the magistrate. The court also
confirmed that the respondents acted correctly in arresting him.
The application was dismissed.
Patel v Magistrate Chokwe & others
[2008] JOL 22228 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
26430 / 08
11 / 07 / 2008
South Africa
High Court
Transvaal Provincial
AML Phatudi AJ
Keywords:
Criminal procedure – Bail – Refusal of – Review application – Correct procedure
Mini Summary:
In an urgent application, the applicant sought the review and setting aside of the first respondent's refusal
to release the applicant on bail pending his trial, and declaring his arrest and detention to be unlawful. The
respondent opposed the application on the basis that the applicant was in essence appealing against the
refusal of bail by the lower court and on that point alone, the matter had to be struck from the roll.
Held that every arrested person has a right to be released on bail and such right may be limited if found
to be in the interest of justice to so do. Furthermore, every arrested person has a right to appeal to the
Higher Courts against the refusal of granting of bail. The remedy available to the applicant herein was to
appeal against the refusal to grant bail by the first respondent. The application to review and set aside the
first respondent's decision could therefore not succeed.
Zulu v S
[2008] JOL 22247 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 577 / 08
14 / 08 / 2008
South Africa
High Court
Transvaal Provincial
NM Mavundla J
Keywords:
Criminal procedure – Bail application – Refusal of – Appeal
Mini Summary:
The appellant appealed against the refusal of his bail application.
He was charged with robbery with aggravating circumstances. The State drew to the court's attention that
he also faced 44 other charges.
Held that the appellant was facing serious charges which fell under schedule 6 of the Criminal Procedure
Act 51 of 1977 and as a result, section 60(11)(a) of the Act applied. Section 60(11)(a) contemplates an
exercise in which the balance between the liberty interests of the accused and the interests of society in
denying the accused bail being resolved in favour of the denial of bail unless exceptional circumstances
are shown by the accused to exist. In a bail application, the onus rests on an accused person to prove the
existence of such "exceptional circumstances".
The court found that the refusal of bail should be set aside, and granted bail. Bail was set at R15 000.
Vorster v S
[2008] JOL 21959 (T)
Case Number:
CC 91 / 03
52
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
14 / 04 / 2008
South Africa
High Court
Transvaal Provincial
K Makhafola AJ
Keywords:
Criminal procedure – Bail – Onus of proof
Mini Summary:
An application for bail had to be decided by the court in the present case.
Held, that the applicant's bail application stands to be decided in terms of section 60(1)(b) of the Criminal
Procedure Act 51 of 1977. In terms of that section the applicant bears the onus of proving on a balance of
probabilities that it is in the interests of justice that he be admitted to bail. Section 60(1)(a) of the Act
provides that the accused is entitled to be released on bail if the court is satisfied that the interests of
justice permit. If there exists prima facie indications that the proper administration of justice and the
safeguarding thereof will be defeated or frustrated if the applicant is admitted to bail the court will be
justified to refuse bail.
The fact that the applicant had previously evaded the police meant that it was not in the interests of
justice for him to be released on bail. The application was refused.
S v Schietekat -1999(2) SACR 51 (CC) – dealt with defense access to docket for
purposes of bail proceedings. Normally no access to docket for purposes of bail
proceedings. Important to note court can order state to give accused access to docket.
Carmichele v Minister of Safety and Security - 2002 (1) SACR 79 (CC)
S v Khan – 2003(1) SACR 636 (TPD) – accused granted bail despite being foreigner.
Court had regard to seriousness of offence and summed up factors to be considered.
S v C – 1998(2) SACR 721 (SCA) – court gave interpretation of application of phrase “
exceptional circumstances” relating to Schedule 6 offences. Held that court must simply
exercise exceptional care when considering the usual circumstances.
S v Bruintjies – 2003(2) SACR 575 (SCA) – accused on bail pending trial and sentence
and asked for bail pending appeal. Fact that he got leave to appeal not an exceptional
circumstance and new facts needed. Circumstances changed after conviction and
sentence.
S v Mabapa – 2003(2) SACR 579 (TPD) – accused must show on balance of
probabilities that appeal against conviction and sentence was reasonably arguable. Bail
was refused.
Feyen v S
[2008] JOL 21560 (C)
Case Number:
A 60 / 2008
Judgment Date:
5 / 3/ 2008
Country:
South Africa
Jurisdiction:
High Court
Division:
Cape of Good Hope
Bench:
C Webster AJ
Keywords:
Criminal law – Fraud – Tax offences – Application for bail – Refusal of – Appeal
Mini Summary:
The appellant was charged with 53 counts of fraud and 16 tax-related offences. An application for bail was
refused, leading to the present appeal.
53
Held that the issue for determination before the court a quo was whether or not the interests of justice
permitted the appellant's release on bail.
The appellant bore the onus of establishing, on a balance of probabilities, that the interests of justice
permitted his release on bail.
The evidence established that the appellant had been convicted of similar offences in Belgium, and had
fled to South Africa, leaving behind his wife and daughter. The Belgian government indicated that
extradition procedures had been started against the appellant. The court accepted the respondent's
contention that the appellant posed a serious flight risk.
The appeal was dismissed.
Petersen v S
[2008] JOL 21655 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 717 / 07
27 / 2 / 2008
South Africa
High Court
Cape of Good Hope Provincial
JM Hlophe JP, DH van Zyl J, KE Matojane AJ
Keywords:
Criminal law – Bail – Refusal of – Appeal
Mini Summary:
An application for bail pending the finalisation of her trial having been refused, the appellant noted the
present appeal.
Held that section 60(11)(a) of the Criminal Procedure Act 51 of 1977 makes it clear that the onus is on
the accused to adduce evidence, and hence to prove to the satisfaction of the court, the existence of
exceptional circumstances of such a nature as to permit his or her release on bail. The court must also be
satisfied that the release of the accused is in the interests of justice.
In the present case, the appellant relied on new facts which she alleged had come to light after her
previous bail applications had been decided upon. In such circumstances, the court had to be satisfied,
firstly, that such facts were indeed new and, secondly, that they were relevant for purposes of the new
bail application. They could not constitute simply a reshuffling of old evidence or an embroidering upon it.
The court found that the appellant had not adduced new evidence. Instead, she referred to speculative
facts which did not avail her.
The application was dismissed.
24) BAIL CONDITIONS
S v Ali 2011 (1) SACR 34 (ECP)
Having been charged with kidnapping and murder, and released on bail, the appellant
was subsequently arrested again, this time on charges of corruption and defeating or
obstructing the administration of justice. These charges arose from an alleged attempt to
destroy certain evidence relating to the kidnapping and murder charges. His application
for bail on the latter charges was refused, essentially on the grounds that there was a
likelihood that the appellant would again attempt to interfere with the evidence. An
appeal to the High Court against this refusal was dismissed. The Deputy Director of
Public Prosecutions (DDPP) then decided to combine the two sets of charges against the
appellant, and to arraign him in the High Court, which meant that the appellant would
have to remain in custody as an awaiting trial prisoner for some seven months more than
he would have if the trial had been held in the magistrates' court. This anticipated delay
formed the grounds for a further bail application and, that application having failed, for a
further appeal to the High Court. It was contended on his behalf that the magistrate had
failed to have proper regard to the effects of the DDPP's decision to arraign him in the
High Court; and that the delay occasioned thereby had unfairly prejudiced the appellant
54
by adversely altering his personal circumstances.
Held , that the court could not interfere with the magistrate's decision, unless it was
shown that he had misdirected himself in some way. It might have been so that the State
had led no evidence to justify its decision to move the matter to the High Court, but there
was nothing in s 60 of the Criminal Procedure Act 51 of 1977 that required magistrates
presiding over bail applications to scrutinise the procedures chosen by the State to
prosecute offenders. In the absence of proof that the State had acted mala fide, delays
caused by decisions of the prosecution were not in themselves reason for finding that an
arrested person was entitled to bail. Although the appellant had already spent a
considerable time in custody, it could not be said that the passage of time had diminished
the likelihood of the appellant's flight or of his making further attempts to interfere with
the evidence.
Held , further, concerning the assertion that the appellant's business was losing money
because of his absence, and that his wife and son had to live on less than what they had
been accustomed to, that financial loss was an inevitable conclusion of the incarceration
of any gainfully employed person. However, the evidence did not show that the
appellant's dependants would starve if he were not released to fend for them. While the
moving of the case would prolong and exacerbate the privations of his dependants, in the
absence of bad faith on the prosecution's part, or of any fresh evidence relating to the
appellant's personal circumstances, it could not be found that the magistrate had erred in
finding that these circumstances were outweighed by the possibility that the appellant
might evade trial or tamper with the evidence. Appeal dismissed.
Case Information - Appeal against the refusal of bail. The facts appear from the judgment
of Grogan AJ.
S v Engelbrecht
[2012] JOL 28792 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
41 / 918 / 2011
23 / 03 / 2012
South Africa
High Court
South Gauteng, Johannesburg
PA Meyer J
Keywords:
Criminal procedure – Bail – Bail money – Deceased accused
Mini Summary:
The accused in this matter had been arraigned for trial on an indictment containing two charges of the
murder of his wife and paraplegic son. He was granted bail pending the finalisation of his criminal trial, but
died before the trial in a road accident.
The question for decision was whether the provisional forfeiture of the bail money that was deposited for
the benefit of the deceased should be confirmed or whether it should be repaid to the deceased’s brother
who had paid it.
Held that section 67 of the Criminal Procedure Act 51 of 1977 deals with the forfeiture of bail money
where the accused does not appear in court on the date appointed for his trial. The plain wording of
section 67 makes it clear that the legislature contemplated living persons. The language used in section 67
is clear and unambiguous and must accordingly be given effect to. The provisions of the section find no
application when the default is due to the passing away of an accused.
In the present case, the bail money therefore had to be repaid to the deceased’s brother.
25) BAIL PENDING APPEAL
55
Beetge v S
[2014] JOL 31646 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
925 / 12
11 / 02 / 2013
South Africa
Supreme Court of Appeal
MML Maya, JB Shongwe, SA Majiedt JJA
Keywords:
Criminal law – Bail pending appeal against conviction – Section 321 of the Criminal Procedure Act 51 of
1977 – Appeal against refusal of bail – A trial court’s refusal of bail will be reversed only where the court
failed to bring an unbiased judgement to bear on the issue, did not act for substantial reasons or
exercised its discretion capriciously or upon a wrong principle – Where court not satisfied with appellant’s
prospects of success on appeal, or that she was not a flight risk, appeal dismissed
Mini Summary:
Convicted of the murder of her fiancè, the appellant was sentenced to 15 years’ imprisonment. Although
her application for leave to appeal against her conviction succeeded, her application to be released on bail
pending the appeal was re-used. That led to the present appeal.
Held that an application to be admitted to bail after conviction is governed by section 321 of the Criminal
Procedure Act 51 of 1977. In terms thereof, a sentence imposed by a superior court may not be
suspended by reason of any appeal against a conviction unless the trial court thinks it fit to order the
sentenced accused’s release on bail. In seeking bail, the accused must place before the court the
necessary facts that would allow it to exercise its discretion in his favour and grant bail. A court sitting on
appeal does not readily interfere with the decision of the trial court because the latter court is best
equipped to consider the question of bail by reason of its intimate involvement with the matter. A trial
court’s refusal of bail will be reversed only where the court failed to bring an unbiased judgement to bear
on the issue, did not act for substantial reasons or exercised its discretion capriciously or upon a wrong
principle. The fact that leave to appeal against a conviction has been granted, is not on its own sufficient
to entitle a convicted accused to be released on bail pending appeal. The seriousness of the offence
involved, the risk of abscondment and the likelihood that a non-custodial sentence might be imposed are
other factors which the court must also weigh in the balance.
Two issues which required the court’s attention were the appellant’s prospects of success on appeal, and
whether or not she posed a flight risk. Regarding the prospects of success, the critical issue in dispute was
whether it was possible for the right-handed deceased, in view of the nature and track of the fatal wound,
to shoot himself on the left of his neck as the appellant and her ballistics expert claimed. The appellant’s
version was that the deceased had been suicidal, and on the day of his death, had read a typed suicide
note to her before proceeding to shoot himself. The appellant alleged that she had wrestled with him in
order to obtain the firearm, but did not know how the fatal shot was inflicted because she had closed her
eyes when the firearm was discharged. In rebuttal of the appellant’s version, the state led the evidence of
the long-time doctor who had treated the deceased. Her evidence was that she had observed no
symptoms of any psychological disorder in the deceased. She also did not believe that he was the author
of the purported suicide note because it was littered with typographical errors which she said were
uncharacteristic of the deceased’s meticulous nature based on her experience from regular e-mail
correspondence with him. The state’s expert witnesses discounted any possibility that the fatal wound was
self-inflicted because of its position and track. Based on the evidence before it, the present Court could
not find the state’s case to be weak, and therefore could not describe the appellant’s prospects of success
as strong.
Regarding whether or not the appellant posed a flight risk, the Court shared the trial court’s concerns
about the lack of detail regarding the personal circumstances of the appellant. The burden of establishing
exceptional circumstances justifying her release on bail rested on the appellant. Yet, she adduced
insufficient facts regarding her financial affairs and her ties with South Africa. Very little was known about
her, and there was no guarantee that even stringent bail conditions would provide an adequate safeguard
against the risk of abscondment in the circumstances. Her appeal was accordingly dismissed.
26) BALANCE OF PROBABILITIES
Gomes v S
[2011] JOL 26792 (GNP)
56
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 827 / 09
15 / 12 / 2010
South Africa
High Court
North Gauteng, Pretoria
TM Makgoka J, PZ Ebersohn AJ
Keywords:
Criminal law – Murder – Conviction – Appeal
Mini Summary:
Convicted on a charge of murder, and sentenced to 15 years’ imprisonment, of which five years were
suspended on certain conditions, the appellant appealed against conviction only.
It was common cause that the deceased in the murder count died as a result of a gunshot fired from the
appellant's licensed fire-arm.
Held that the proper approach in determining the guilt of an accused, is to weigh all elements which point
towards the guilt of the accused against all those which are indicative of his innocence, taking proper
account of all inherent strengths and weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any
reasonable doubt about the accused's guilt. Even if the court subjectively disbelieved the appellant, it was
still required to consider whether there was a reasonable possibility of his version being true.
The court found that the appellant’s version could not reasonably possibly be true. The appeal was
dismissed.
27) BEYOND REASONABLE DOUBT
Shusha v S
[2011] JOL 27877 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
609 / 10
29 / 09 / 2011
South Africa
Supreme Court of Appeal
LV Theron, JA Heher, A Cachalia, JB Shongwe, SA Majiedt JJA
Keywords:
Criminal law – Rape – Appeal against conviction – Onus of proof – Trial court committing a fatal
misdirection in rejecting appellant’s version merely because it was improbable – An accused’s version can
only be rejected if the court is satisfied that it is false beyond reasonable doubt – Where evidence favours
either version, an accused is entitled to an acquittal
Mini Summary:
In the regional court, the appellant was convicted on one count of rape and was sentenced to eight years'
imprisonment, two of which were conditionally suspended. The matter was sent on special review in terms
of section 204(4) of the Criminal Procedure Act 51 of 1977 as the magistrate had not applied the relevant
minimum sentencing provisions of the Criminal Law Amendment Act 105 of 1997. On review, the sentence
was set aside and the matter remitted to the magistrate to impose sentence afresh. The appellant was
then sentenced to the prescribed minimum sentence of ten years’ imprisonment. On appeal, the high
court dismissed the appeal against conviction, but upheld the appeal against sentence to the extent that
the sentence of 10 years’ imprisonment was set aside and replaced with a sentence of eight years’
imprisonment, two of which were conditionally suspended.
The appeal to the present Court was against the conviction.
The appellant and the complainant worked together at a police station. The appellant had, on the day of
the incident, given the complainant and other colleagues, a lift home from the police station. After the
other colleagues had been dropped off, the appellant had according to the complainant, forcibly, and
against her will, had sexual intercourse with her. The appellant’s version was that the intercourse had
been consensual.
Held that the narrow issue on appeal was that of consent.
A perusal of the magistrate’s analysis of the evidence revealed that he had applied the incorrect standard
of proof. In appearing to have rejected the appellant’s version on the basis that it was improbable, the
magistrate committed a fatal misdirection. In criminal matters the state must prove its case beyond
reasonable doubt. An accused’s version can only be rejected if the court is satisfied that it is false beyond
57
reasonable doubt. An accused is entitled to an acquittal if there is a reasonable possibility that his or her
version may be true. A court is entitled to test an accused’s version against the improbabilities. However,
an accused’s version cannot be rejected merely because it is improbable. The magistrate, in his judgment,
did not point to any improbabilities in the appellant’s version, and the present Court was of the opinion
that there were none.
An examination of the facts and the probabilities led the Court to conclude that neither party’s version was
favoured. The facts did not assist with the determination of the narrow issue of consent. They did not
support either the state’s case or the appellant’s defence. In those circumstances, it could not be said that
there was proof beyond reasonable doubt and the appellant was therefore entitled to an acquittal.
The appeal was upheld, and the conviction and sentence were set aside.
28) BULLET REMOVAL
MINISTER OF SAFETY AND SECURITY + ANOTHER V GAQA
2002(1) SACR 654 (C)
DESAI J, ordered the surgical removal of a bullet from the leg of an accused for
purposes of ballistic tests. The SAPS had obtained a search warrant to search for the
bullet and it was ordered that they may use such reasonable force as was necessary,
inclusive of a surgical procedure. The accused had refused to consent to the surgical
procedure.
MINISTER OF SAFETY AND SECURITY + ANOTHER V XABA
2003(2) SACR 703 (D)
SOUTHWOOD AJ, in a case where the facts were identical to those above ruled the
police could not use an operation / surgical procedure to remove a bullet from an
unwilling accused. Since the SAPS could not delegate their powers to search in terms
of a warrant they could not ask a doctor to perform the search for them.
READ BOTH CASES CAREFULLY AND DECIDE FOR YOUSELF. I
LIKE GAQA DECISION. WHY NOT JUST GET A SAPS DOCTOR TO
DO OPERATION?
29) CASE LAW
Nontela v DPP, Umtata – 2003 (2) SACR 205 (TkD) – practitioner has duty to bring to
court’s attention any authority of which he is aware and is relevant to the determination
of the relevant dispute whether or not such authority is in his client’s favor or not.
30) CAUSATION
Van Aardt v S
[2008] JOL 22851 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
179 / 08
02 / 12 / 2008
South Africa
Supreme Court of Appeal
Mpati P, Combrinck JA, FD Kgomo AJA
Keywords:
Criminal law – Murder – Conviction and sentence – Appeal
58
Mini Summary:
Convicted of the murder of a 15-year-old boy, the appellant a farmer, was sentenced to 12 years'
imprisonment. He appealed to the present court.
According to the state, the appellant had assaulted the deceased on his farm, in consequence of which he
died of his injuries. It was further stated that after the assault, the appellant unlawfully and with the
intent to kill the deceased, failed to obtain medical treatment for him which failure resulted in his death,
alternatively accelerated his death. The state alleged that the cumulative effect of the assault and the
deprivation of medical treatment constituted the crime of murder.
Pleading not guilty to murder, the appellant pleaded guilty to common assault, alleging that he had hit the
deceased for having stolen about R350 from his vehicle. He denied that the deceased died as a
consequence of the assault and the resultant injuries, and further denied that a legal duty reposed on him
to seek any medical intervention for the deceased.
Held that the deceased had died as a result of brain damage. The question for determination was the
cause of such damage. The appellant suggested that the appellant must have been assaulted by other
persons after the appellant had assaulted him. However, the court dismissed that as fanciful, in light of
the evidence before it. It was satisfied that the appellant had inflicted all the injuries sustained by the
deceased and consequently caused the deceased's death.
The next question was whether the appellant was guilty of culpable homicide or murder with the direct
form of intent or dolus eventualis. The court was satisfied that the appellant subjectively foresaw the
possibility of his conduct causing the death of the deceased and was plainly reckless as to such result
ensuing. He was accordingly guilty of murder with dolus eventualis as the form of intent.
On the appeal against sentence, the court highlighted the aggravating circumstances, such as the
sustained and vicious attack of the appellant against the defenceless deceased. It was of the view that the
sentence imposed was on the lenient side, and declined to uphold the appeal.
S v Counter - 2003 (1) SACR 134 (SCA) – accused shot deceased who died later due to
complications in hospital. Dealt with novus actus. Still murder!
Brooks v Minister of Safety & Security
[2008] JOL 22817 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
036 / 08
27 / 11 / 2008
South Africa
Supreme Court of Appeal
Mpati P, VM Ponnan, Farlam JJA, Kgomo, Mhlantla AJJA
Keywords:
Delict – Claim for damages – Loss of support – Exception to claim – Wrongfulness – Element of Aquilian
liability
Mini Summary:
The appellant's father had been convicted of murder and sentenced to a lengthy term of imprisonment.
The incident underlying that conviction was a shooting of the appellant’s mother and sister by his father
whilst under the influence of alcohol.
Suing the respondent for damages, the appellant based his claim on the contention that the police were
negligent in failing to take the steps available to them in law to deprive the appellant's father of his
firearms. According to the appellant, had that been done, the tragedy regarding his family would not have
occurred.
Of the total amount claimed by the appellant, R168 000 related to loss of support from his father and
R2 400 000 to loss of a proper education opportunity as a result of loss of support.
In an exception to the claim, the respondent contended that no delict had been committed against the
appellant's breadwinner; that the respondent's servants had not acted wrongfully; and that there was no
causal nexus between the omission complained of and the loss suffered. The High Court upheld the second
contention, and dismissed the appellant's claim. That led to the present appeal.
Held that the exception raised the issue of wrongfulness, which is a sine qua non of Aquilian liability.
Negligent conduct giving rise to damage is not per se actionable. It is only actionable if the law recognises
it as wrongful.
A claim by a dependant for loss of support is available to a dependant against a person who has unlawfully
killed a breadwinner, who was legally liable to support the claimant. The action is available to third parties
59
who do not derive their rights through the deceased or his estate but rather from the fact that they have
been injured by the death of their breadwinner and that the defendant is in law responsible for such
death.
The appellant's action required the court to extend the common law action for damages for loss of support
to a person in the position of the appellant. The claim for loss of support was alleged to have occurred in
consequence of the incarceration of the breadwinner. The court pointed out that that cannot give rise to a
claim. The deprivation of the breadwinner's liberty, which rendered him incapable of supporting the
appellant, was a consequence of the law simply having taken its course.
The appeal was dismissed.
S v Counter - 2003 (1) SACR 134 (SCA) – accused shot deceased who died later due to
complications in hospital. Dealt with novus actus. Accused still guilty of murder. Still
murder!
31) CAUTIONARY RULES
JvS
[2011] JOL 26715 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 63 / 10
22 / 09 / 2010
South Africa
High Court
Eastern Cape, Grahamstown
E Revelas, C Plasket JJ
Keywords:
Criminal law – Rape – Conviction and sentence – Appeal
Mini Summary:
Convicted of the rape of his six-year-old daughter, the appellant appealed against his conviction and
sentence.
Held that there were various aspects which made the complainant’s evidence less than satisfactory. The
cumulative effect of those factors compromised the reliability of the complainant’s version. The evidence
relied upon by the magistrate in rejecting the appellant’s denial as false, was insufficient and his
application of the cautionary rules inadequate. Even though section 208 of the Criminal Procedure Act 51
of 1977 permits the conviction of an accused on the evidence of a single witness, who can be a child, it
does not mean that in matters where there are charges of a sexual nature and the single witness is a
child, convictions should follow with less caution. The evidence still has to be reliable and good enough to
discharge the onus of proof of guilt beyond reasonable doubt.
Upholding the appeal, the court set aside the conviction and sentence.
Ndzelu v S
[2008] JOL 21939 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 560 / 07
25 / 04 / 2008
South Africa
High Court
Cape of Good Hope Provincial
DH van Zyl, DM Davis JJ, WH van Staden AJ
Keywords:
Criminal law – Rape – Conviction and sentence – Appeal
Mini Summary:
The appellant was convicted of having raped an 11-year-old girl. He was sentenced to life imprisonment.
Subsequently, the present court set aside the conviction and sentence, and ordered the immediate release
of the appellant. It provided its reasons for that decision.
Held that a court of appeal will not interfere with a trial court's evaluation of the evidence placed before
it, unless there has been a serious error of judgment or misdirection. That would be the case where the
court has erred in finding that the State has proven the guilt of the appellant beyond reasonable doubt.
60
A court must have due regard to the fact that the evidence of a single and young witness must be
approached with caution. It must therefore be satisfied that such witness is able to distinguish between
the truth and a lie and must understand the dangers inherent in telling a lie.
The complainant's evidence in this case was highly unsatisfactory. It could not be said, based on her
testimony, that the State had proven the guilt of the appellant beyond reasonable doubt.
Consequently, the court made the order which it did.
32) CHARGE SHEET
Nedzamba v S
[2014] JOL 31694 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
911 / 2012
27 / 05 / 2013
South Africa
Supreme Court of Appeal
MS Navsa, FDJ Brand, ZLL Tshiqi, XM Petse JJA, Zondi AJA
Keywords:
Criminal procedure – Charge sheet – Consequence of charge sheet not containing reference to section 3 of
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 under which appellant
should have been charged – Charge sheets or indictments may be amended on appeal or review, the test
being whether the accused could not be prejudiced thereby – Criminal procedure – Rape trial –
Irregularities committed during trial resulting in justice not having been done, and the appellant not
having a fair trial, with result that appeal was upheld and convictions and sentence being set aside
Mini Summary:
The appellant was convicted on two counts of rape and was sentenced to two terms of life imprisonment,
which were to run concurrently. The present appeal was against the convictions and sentence.
In response to the allegation by the complainant, who was 13 years old at the time of the alleged offence,
that the appellant had raped her, the appellant raised an alibi defence. The trial court rejected his version,
without setting out its reasoning in much detail.
One of the grounds of appeal was that the appellant had been charged with the common law offence of
rape at a time when it had been abolished by the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 (“the Act”), and that consequently the convictions and related sentences
ought to be set aside.
Held that although the charge sheet made no mention of section 3 of the Act under which the appellant
should rightly have been charged, it clearly alleged that the appellant was guilty of the offence of rape.
The court found the omission not to be fatal. Section 86 of the Criminal Procedure Act 51 of 1977 (“the
CPA”) provides that, where a charge is defective for the want of any essential averment therein, or where
it appears that words or particulars that should have been inserted in the charge have been omitted
therefrom, a court may, at any time before judgment, if it considers that the making of the relevant
amendment will not prejudice the accused, order that the charge be amended insofar as is necessary. It is
generally accepted that charge sheets or indictments may be amended on appeal or review. The test is
whether the accused could not be prejudiced thereby. When application is made to amend a charge on
appeal, the Court must be satisfied that the defence would have remained the same if the charge had
originally contained the necessary averments.
The Court then highlighted the irregularities which occurred in the trial court. The first was that although
the complainant was a child witness, the trial court did nothing to ensure that she understood the import
of the oath. It was not determined at the outset whether the child knew what it meant to speak the truth.
No thought was given to the desirability or otherwise of receiving the complainant’s evidence through an
intermediary, nor was any consideration given to any other means to protect the child witness in a case
involving a sexual offence. To admit evidence of a child who does not understand what it means to tell the
truth undermines the accused’s right to a fair trial. Two other irregularities concerned the trial judge’s
unjustifiable entry into the arena, and his failure to intervene when he should have. He also wrongfully
prevented or restricted cross-examination at critical times. The appellant was denied the right to crossexamine fully. The present Court pointed out that an accused person has the fundamental right in term of
section 35(3)(i) of the Constitution to adduce and challenge evidence.
The irregularities referred to above, singularly or cumulatively were of such a nature that they resulted in
justice not having been done, and the appellant not having a fair trial.
The appeal was upheld and the convictions and sentence wet aside.
61
S v MASWANGANYI 2014 (1) SACR 622 (GP)
The appellant was convicted in a regional magistrates' court of rape and was
sentenced to life imprisonment. He appealed against both the conviction and
sentence. The court dismissed the appeal against conviction, as the evidence against
the appellant was unassailable. Counsel for the state conceded that, due to the fact
that the charge-sheet had incorrectly referred to s 51(2) of the Criminal Law
Amendment Act 105 of 1997, providing for a minimum sentence of 10 years'
imprisonment, instead of s 51(1), providing for a life sentence, the court a quo had
erred in imposing a life sentence. As regards sentence, it appeared that the appellant
was 19 years of age at the time the crime was committed, and that he suffered from
depression. He was a first offender. There was no evidence that showed that the
complainant had suffered any physical injury.
Held, that the concession by the state, that the incorrect citation of the applicable
statutory provision constituted a misdirection, was not consistent with the latest
state of the law. In the circumstances, where the magistrate had enquired of the
appellant's legal representative whether the minimum sentence provisions had been
explained to his client, and this was confirmed, there had been no prejudice to the
appellant. Furthermore, when his legal representative addressed the magistrate in
applying for bail, pending appeal, no mention had been made or objection taken to
the imposition of a life sentence. (Paragraphs [21] at 626i, [22] at 627a–d and [24]
at 627f.)
Held, further, as regards the sentence of life imprisonment, that the magistrate had
erred in not properly considering the issue of rehabilitation of the appellant,
especially in view of his age at the time the crime was committed. It seemed that
good prospects existed that he could be rehabilitated and accordingly the sentence of
life imprisonment was disproportionate in the circumstances. The sentence imposed
was substituted with a sentence of 20 years' imprisonment. (Paragraphs [30] at 628f
– g and [31] at 628g–h.)
Kolea v S
[2013] JOL 30790 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
157 / 12
30 / 11 / 2012
South Africa
Supreme Court of Appeal
L Mpati P, KK Mthiyane DP, FDJ Brand, JB Shongwe JJA, BH Mbha AJA
Keywords:
Criminal law – Rape – Appeal against conviction and sentence – Whether, on a charge of rape, a
sentencing court is precluded from imposing a life sentence – or from referring the matter to a higher
court for consideration of that sentence – solely on the basis that the charge sheet refers to section 51(2)
instead of section 51(1) of the Criminal Law Amendment Act 105 of 1997 – Where charge sheet expressly
recorded that the appellant was charged with the offence of rape, read together with the provisions of
section 51(2) of the Act, appellant was always aware of charge to be met and that the State intended to
rely on the minimum sentencing regime
Mini Summary:
After the appellant was convicted of rape in the Regional Court, the case was referred to the High Court
where the conviction was confirmed and a sentence of 15 years’ imprisonment was imposed. On appeal to
the full court, the conviction was again confirmed, and the sentence was increased to one of life
imprisonment. The further appeal against both conviction and sentence, was with the special leave of this
Court.
62
Held that the main issue on appeal was whether, on a charge of rape, a sentencing court is precluded
from imposing a life sentence – or from referring the matter to a higher court for consideration of that
sentence – solely on the basis that the charge sheet refers to section 51(2) instead of section 51(1) of the
Criminal Law Amendment Act 105 of 1997. Section 51(2) of the Act provides for the imposition of a
minimum sentence of 10 year’s imprisonment in respect of a first offender while section 51(1) prescribes a
minimum sentence of life imprisonment.
The appellant contended that as he was charged and convicted under section 51(2) of the Act, it was not
thereafter open to the respondent to invoke a completely different sub-section, ie section 51(1), which
provides for a more severe sentence. It was contended further that the Regional Court was competent to
impose a sentence in terms of section 51(2) of the Act, read with Part III of Schedule 2, and had no
authority to refer the matter to the High Court for sentencing. The Court pointed out that the accused’s
right to be informed of the charge he is facing, and for there to be sufficient detail to enable him to
answer it, is underpinned by section 35(3)(a) of the Constitution, which provides that every accused
person has a right to a fair trial. If the State intends to rely on the minimum sentencing regime created in
the Criminal Law Amendment Act, that should be brought to the attention of the accused at the outset of
the trial. In this case, the State’s intention to rely on and invoke the minimum sentencing provisions was
made clear from the outset. The charge sheet expressly recorded that the appellant was charged with the
offence of rape, read together with the provisions of section 51(2) of the Act. The Court was therefore
satisfied that the appellant, who was legally represented throughout the trial, well knew of the charge he
had to meet and that the State intended to rely on the minimum sentencing regime created in the Act.
In appealing the conviction, the appellant challenged his identification as one of the perpetrators of the
rape. However, the Court found the evidence to prove that the appellant had been properly identified.
There was also no merit found in the appeal against sentence. The full court was found to have correctly
considered all relevant factors in deciding on the issue of sentence.
The appeal was dismissed.
Daniels and others v S
[2012] JOL 29258 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
125 / 11
25 / 05 / 2012
South Africa
Supreme Court of Appeal
JA Heher, S Snyders, MJD Wallis JJA, McLaren, Southwood AJJA
Keywords:
Criminal law – Inclusion in charge sheet of statutory provisions which had been declared unconstitutional
– In terms of section 322(1) of the Criminal Procedure Act 51 of 1977, a court of appeal may allow the
appeal if it thinks that the judgment of the trial court should be set aside on the ground of a wrong
decision of any question of law or that on any ground there was a failure of justice – Test for a failure of
justice requires the appellate court to exclude from consideration all aspects of the trial that were affected
or influenced by the irregularity and to evaluate only the evidence that remains unsullied
Mini Summary:
Both applicants for leave to appeal in this case had been convicted of dealing in drugs in contravention of
section (b) of the Drugs and Drug Trafficking Act 140 of 1992 (“the Drugs Act”). The trial judge having
refused the applicants leave to appeal against their convictions, they applied to the present court. The
applicants’ submissions were that as the charges on which they were convicted contained reference to
sections of the Drugs Act (the reverse onus provisions) that had been declared unconstitutional, they
amounted to a nullity.
Held that the legal position is that section 322(1) of the Criminal Procedure Act 51 of 1977 sets the limits
of the powers of a court on appeal. A court of appeal may allow the appeal if it thinks that the judgment of
the trial court should be set aside on the ground of a wrong decision of any question of law or that on any
ground there was a failure of justice, provided that no conviction or sentence shall be set aside or altered
by reason of any irregularity or defect in the record or proceedings, unless it appears to the court of
appeal that a failure of justice has in fact resulted therefrom. The test for a failure of justice requires the
appellate court to exclude from consideration all aspects of the trial that were affected or influenced by
the irregularity and to evaluate only the evidence that remains unsullied. Section 322(1) therefore does
not permit approaching any irregularity or defect in the record or proceedings (including the charge or
indictment) as per se nullifying a conviction in a criminal trial. The appeal court must reassess the
evidence without the influence of the irregularity or defect in order to determine whether a conviction
must inevitably have followed.
63
In the present case, the inclusion in the charge sheet of a reference to the unconstitutional provisions did
not exercise an adverse influence on the conduct of the trial. The Court was not persuaded that the
irregularity occasioned by the unconstitutional reference to the reverse onus presumptions in the charges
caused the applicants to refrain from testifying in their own defence. The evidence of their guilt was
overwhelming and they knew that the state did not intend to rely on the invalid presumptions. The
inference drawn was that they decided to take a chance on escaping conviction by relying on the technical
irregularity.
Of the view that there was no prospects of success on the merits, the Court refused leave to appeal.
Daniels and others v S
[2012] JOL 29258 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
125 / 11
25 / 05 / 2012
South Africa
Supreme Court of Appeal
JA Heher, S Snyders, MJD Wallis JJA, McLaren, Southwood AJJA
Keywords:
Criminal law – Inclusion in charge sheet of statutory provisions which had been declared unconstitutional
– In terms of section 322(1) of the Criminal Procedure Act 51 of 1977, a court of appeal may allow the
appeal if it thinks that the judgment of the trial court should be set aside on the ground of a wrong
decision of any question of law or that on any ground there was a failure of justice – Test for a failure of
justice requires the appellate court to exclude from consideration all aspects of the trial that were affected
or influenced by the irregularity and to evaluate only the evidence that remains unsullied
Mini Summary:
Both applicants for leave to appeal in this case had been convicted of dealing in drugs in contravention of
section (b) of the Drugs and Drug Trafficking Act 140 of 1992 (“the Drugs Act”). The trial judge having
refused the applicants leave to appeal against their convictions, they applied to the present court. The
applicants’ submissions were that as the charges on which they were convicted contained reference to
sections of the Drugs Act (the reverse onus provisions) that had been declared unconstitutional, they
amounted to a nullity.
Held that the legal position is that section 322(1) of the Criminal Procedure Act 51 of 1977 sets the limits
of the powers of a court on appeal. A court of appeal may allow the appeal if it thinks that the judgment of
the trial court should be set aside on the ground of a wrong decision of any question of law or that on any
ground there was a failure of justice, provided that no conviction or sentence shall be set aside or altered
by reason of any irregularity or defect in the record or proceedings, unless it appears to the court of
appeal that a failure of justice has in fact resulted therefrom. The test for a failure of justice requires the
appellate court to exclude from consideration all aspects of the trial that were affected or influenced by
the irregularity and to evaluate only the evidence that remains unsullied. Section 322(1) therefore does
not permit approaching any irregularity or defect in the record or proceedings (including the charge or
indictment) as per se nullifying a conviction in a criminal trial. The appeal court must reassess the
evidence without the influence of the irregularity or defect in order to determine whether a conviction
must inevitably have followed.
In the present case, the inclusion in the charge sheet of a reference to the unconstitutional provisions did
not exercise an adverse influence on the conduct of the trial. The Court was not persuaded that the
irregularity occasioned by the unconstitutional reference to the reverse onus presumptions in the charges
caused the applicants to refrain from testifying in their own defence. The evidence of their guilt was
overwhelming and they knew that the state did not intend to rely on the invalid presumptions. The
inference drawn was that they decided to take a chance on escaping conviction by relying on the technical
irregularity.
Of the view that there was no prospects of success on the merits, the Court refused leave to appeal.
Mthimkhulu v S
[2012] JOL 28717 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
210 / 2011
29 / 09 / 2011
South Africa
Supreme Court of Appeal
JBZ Shongwe, KK Mthiyane, BJ van Heerden JJA
64
Keywords:
Criminal procedure – Charge sheet – Incorrect details of offence – Allegation of only a single count of rape
in a charge-sheet, where the evidence supported a multiplicity of counts, meant that the properly
convicted accused could be sentenced only as a single count offender – Criminal procedure – Sentence –
Prescribed minimum sentence – Section 51 of Criminal Law Amendment Act 105 of 1997 – Where accused
charged with single count of rape, correct minimum sentence is 10 years’ imprisonment
Mini Summary:
Upon his conviction on a charge of rape, the appellant was sentenced to 15 years’ imprisonment. Leave to
appeal was eventually obtained solely in respect of sentence. The high court then set aside the sentence,
and replaced it with a sentence of life imprisonment. The further appeal against sentence was with the
leave of the court below.
Due to the numerous errors on questions of law and procedure which occurred from the inception of the
case, at the hearing of the present appeal, both parties agreed that the appeal should succeed and that
the order made by the court below should be set aside.
Held that the first error was the reference in the charge sheet to only one count of rape when the
evidence of the complainant was that she had been raped more than once by the appellant and his two
companions. The consequence of the error was that the appellant was convicted and sentenced on the
basis of section 51(2)(b)(i) of the Criminal Law Amendment Act 105 of 1997 which imposes a prescribed
minimum sentence of 10 years’ imprisonment. Had the appellant been charged with and convicted of
raping the complainant more than once, as he should have been, the minimum sentence applicable to him
would have been life imprisonment in terms of section 51(1) of the Act, read together with the provisions
of Part 1 of Schedule 2. Highlighting the prejudice caused by a sloppy charge sheet, the court stated that
the administration of justice is potentially prejudiced because the allegation of only a single count of rape
in a charge-sheet, where the evidence supports a multiplicity of counts, means that the properly convicted
accused can be sentenced only as a single count offender.
The second error related to the court’s considering itself bound to impose a 15-year sentence or even to
refer the appellant to the high court for the imposition of life imprisonment. As the appellant was charged
and convicted of only a single count of rape, a sentence of life imprisonment was not applicable.
Furthermore, as pointed out above, the prescribed minimum sentence was not 15 years but 10 years’
imprisonment. A material misdirection on the part of the trial court had thus been committed.
When the matter went on appeal to the high court, that Court also failed to appreciate that the appellant
had been charged with and convicted of a single count of rape only. It correctly recognised that the trial
court had made an error in finding that the minimum sentence prescribed by law was 15 years. However,
it erred in finding that, in the present case, the minimum sentence was life imprisonment and in replacing
the sentence imposed by the trial court with a sentence of life imprisonment.
A further misdirection was the failure to warn the appellant timeously or at all that the state would be
relying on the provisions of the minimum sentence legislation. He was warned thereof for the first time
after conviction and only when the sentencing proceedings were underway. That was a material
irregularity.
The appeal was upheld and the sentence replaced with one of 10 years’ imprisonment
Mphukwa v S
[2012] JOL 29031 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 360 / 2004
16 / 02 / 2012
South Africa
High Court
Eastern Cape, Grahamstown
PW Tshiki, NG Beshe JJ
Keywords:
Criminal procedure – Charge – Error by court – Legal representation – Court’s duties
Mini Summary:
The appellant was convicted of housebreaking with intent to commit a crime unknown to the State and
one count of rape. He was sentenced to four years’ imprisonment in respect of count 1 and ten years’
imprisonment on count 2.
Held on appeal that it was apparent from the indictment that although the appellant was charged with
rape, the contents of the indictment revealed the commission of attempted rape. No rights to legal
representation were explained to the appellant immediately before and after the charge had been put to
him. Instead, before evidence was led the court repeated the explanation of the two charges. The error in
the charge resulted in the appellant being convicted of rape, a more serious offence, than that of
attempted rape to which he had pleaded at the beginning of the trial.
65
The right to legal representation is constitutionally guaranteed, and must be properly explained to the
accused by the court. In the present case, there was no evidence to suggest that the appellant was
encouraged to exercise his right to legal representation. The failure to inform an accused of his right to
legal representation and/or the availability of legal aid, does not necessarily have the effect of vitiating the
proceedings in a criminal trial. To constitute a fatal irregularity warranting the setting aside of the
proceedings there must be proof of substantial prejudice to the accused or a miscarriage of justice. It was
clear that a fatal irregularity had occurred in this case.
The conviction and sentence were set aside.
Frans v S
[2010] JOL 26340 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 229 / 09
17 / 05 / 2010
South Africa
High Court
Eastern Cape, Grahamstown
PW Tshiki, E Revelas JJ
Keywords:
Criminal procedure – Housebreaking with intent to assault – Assault with intent –– Common assault ––
Charge sheet –– Substitution of charges –– Irregularity –– Appeal
Mini Summary:
The appellant was convicted of housebreaking with intent to assault and assault with intent to do grievous
bodily harm, and was sentenced to three years’ imprisonment, one year of which was conditionally
suspended.
The charge sheet reflected the charges as housebreaking with intent to assault and assault. After the
appellant pleaded not guilty, the court enquired from the prosecutor whether the charge was
housebreaking with intent to assault and assault with intent to do grievous bodily harm, which the
prosecutor confirmed.
The present appeal was against conviction and sentence.
Held that the trial court’s substitution of the charge with a more serious one without seeking the views of
the appellant’s representative was an irregularity. The conviction on the more serious charge was set
aside and the conviction was replaced with one of common assault. The court went on to confirm the
correctness of such conviction, based on the evidence against the appellant.
Despite the amendment to the conviction, the court found the sentence to remain appropriate. The appeal
against sentence was thus dismissed.
Ngumbela v S
[2008] JOL 21934 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 163 / 07
04 / 04 / 2008
South Africa
High Court
Eastern Cape
AR Erasmus, D van Zyl JJ
Keywords:
Criminal procedure – Appeal against conviction – Incorrect charge – Amendment to charge – Permissibility
Mini Summary:
The appellant was convicted of unlawfully resisting or wilfully hindering or obstructing a police officer in
the exercise of his powers or the performance of his duties or functions, and assault. He appealed against
the convictions.
Held that the record showed that there was no evidence of the appellant committing the acts which
underlay the first charge. Faced with that hurdle, the State requested the court to amend the charge,
relying on section 86(1) of the Criminal Procedure Act 51 of 1977.
In terms of section 86(1), the amendment of a charge involves the exercise of a discretion on the part of
the trial court. Amendment on appeal is not simply a matter of this court substituting its discretion for that
of the magistrate. The court of appeal must effect the amendment to the charge which the magistrate
ought to have effected, but in quite different circumstances and with fewer procedural powers than the
magistrate had to abate the potential prejudice to the accused. The court refused the amendment.
As the second charge was linked to the first, the appeal was allowed in respect of that conviction also.
66
S v Ntshwence 2004(1) SACR 506 (TPD) – No formal charge sheet required in contempt
of court proceedings.
S v Cunningham 2004(1) SACR 16 (ECD) – if charge sheet does not mention reference
to potential minimum sentences then must look if accused had fair trial.
S v Kimberley – 2004(1) SACR 38 (ECD) – charge sheet never referred to minimum
sentences but accused represented by attorney therefore had fair trial. Minimum sentence
imposed.
Mbhense v S
[2008] JOL 21488 (N)
Case Number:
AR 236 / 04
Judgment Date:
05 / 02 / 2008
Country:
South Africa
Jurisdiction:
High Court
Division:
Natal Provincial
Bench:
Msimang, Pillay JJ
Keywords:
Criminal procedure – Robbery with aggravating circumstances – Conviction and sentence – Appeal –
Irregularities in trial
Mini Summary:
The appellant was convicted of the crime of robbery with aggravating circumstances, and was sentenced
to serve a term of 15 years' imprisonment.
Acting on a tip-off pursuant to an armed robbery at a private residence, the police found the appellant and
three others at the appellant's house, in the possession of the items stolen during the robbery.
Held, that the trial of the appellant was vitiated by a number of irregularities. The charge-sheet had not
warned the appellant that the State would rely on the minimum sentencing provision of the Criminal Law
Amendment Act 105 of 1997. The court could also not be satisfied that the appellant had properly been
apprised of the right to legal representation as the proceedings had not been properly recorded.
The appeal was allowed and the conviction and sentence set aside.
S v De Vries & others
[2008] JOL 21658 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
67 / 05
18 / 02 / 2008
South Africa
High Court
Cape of Good Hope Provincial
LJ Bozalek J
Keywords:
Criminal procedure – Trial– Charges – Validity
Mini Summary:
Eleven accuseds were facing 25 charges before the present court. After an adjournment in the
proceedings, the accused gave notice of an application to declare invalid and of no force and effect, the
authorisation issued by the National Director of Public Prosecutions purporting to authorise charges
against them in terms of section 2(4) of the Prevention of Organised Crime Act 21 of 1998. They further
sought an order declaring the charges brought against them to have been invalidly instituted and set
aside.
Held that the applicants were asking the court not to consider the merits of the evidence adduced by the
State and the accused, but to rule on technical points. Should the challenges prove successful the court
was being asked to disregard all of the evidence that had been led since the inception of the trial. It was
being asked to review the regularity of its own proceedings, which was not a power which the court could
arrogate to itself.
The only possible remedy that was available to the accused seeking, at such a late stage to challenge the
validity of the authorisation, without objection on the first day of trial, was to seek a special entry of
67
irregularity or illegality in terms of section 317 of the Criminal Procedure Act 51 of 1977. However, the
court found that they had not made out a case in that regard, and dismissed the application.
33) CHARACTER EVIDENCE
Hoho v S
[2008] JOL 22420 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
493 / 05
17 / 09 / 2008
South Africa
Supreme Court of Appeal
PE Streicher, Cachalia, Heher, Mlambo JJA, Kgomo AJA
Keywords:
Criminal law – Defamation – Criminal offence – Constitutionality
Mini Summary:
The appellant was convicted on 22 charges of criminal defamation and sentenced to 3 years' imprisonment
suspended for 5 years and, to 3 years' correctional supervision in terms of section 276(1)(h) of the
Criminal Procedure Act 51 of 1977. Leave to appeal was granted, with the court stipulating that that
argument would be required on the question whether the crime of defamation is still extant, and if so
whether it is consonant with the Constitution.
Held that the doctrine that law may be abrogated by disuse is well established in our law. It therefore had
to be determined whether the South African community tacitly consented that defamation should no
longer constitute a criminal offence. The court was unable to draw such a conclusion.
The crime of defamation consists of the unlawful and intentional publication of matter concerning another
which tends to injure his reputation. The court found that the crime of defamation is not inconsistent with
the Constitution.
The appeal was dismissed.
34) CHILD JUSTICE MATTERS
S v Goliath
[2015] JOL 32716 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 36 / 2014
17 / 02 / 2014
South Africa
High Court
Eastern Cape, Grahamstown
JD Pickering, JM Robinson JJ
Keywords:
Criminal procedure – Juvenile offenders – Sentence
Mini Summary:
The accused was convicted of 2 counts of rape in contravention of the provisions of section 3 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. He was 14 years old at
the time. He was sentenced to compulsory residence at a special child and youth care facility. As required
by section 85(1)(a) of the Child Justice Act 75 of 2008, the matter was sent for automatic review in terms
of section 304 of the Criminal Procedure Act 51 of 1977. The convictions and sentence were confirmed on
review.
Subsequent newspaper reports about the facility led to concerns that led to the resident magistrate at the
relevant justice centre investigating. The newspaper report stated that staff members at the facility had
been attacked, robbed and threatened with rape and that the children at the facility were a law unto
themselves. A visit to the facility by the magistrate confirmed that children were roaming around freely,
68
listening to music and not doing any schoolwork, the security guards were so afraid of the children that
they would lock themselves into a room at night, many of the children absconded nightly from the facility
and that the use of drugs was rampant. The buildings were being vandalised and broken windows, broken
doors, damaged light fittings, vandalised swimming pool pumps, damaged and destroyed furniture and
television sets, and broken security cameras were found. The main computer centre had been destroyed
and attempts had been made to set the building alight. The facility was closed down and the children
transferred to other facilities. However, it emerged that in making an order, the court did not did not
review and set aside the sentences which had previously been imposed upon the affected children.
Held that once a child sentenced to compulsory residence in a Child and Youth Care Centre has been
admitted thereto, the Child Justice Court which sentenced that child becomes functus officio, its
jurisdiction having been fully and finally exercised. The only basis therefore upon which that child’s
sentence could be interfered with would be by way of review or appeal. Absent that, the presiding officer
has no jurisdiction to impose an alternative sentence upon the child in question. In the light of the closure
of the relevant facility the sentence imposed upon the accused had to be set aside and the case remitted
to the regional magistrate for sentencing afresh.
S v Ngubeni
[2014] JOL 31539 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
57 / 2013
05 / 09 / 2013
South Africa
High Court
South Gauteng, Johannesburg
M Victor J, Nonyane AJ
Keywords:
Criminal procedure – Child accused – Diversion from criminal justice system
Mini Summary:
The accused was convicted of the theft of three bars of chocolate from a supermarket. During mitigation
of sentence, it was established that he was 16 years old. The magistrate set aside the conviction and
noted a plea of not guilty.
Held on review that at the commencement of the trial, there was an error in the age of the accused,
which error only became known after the conviction stage. In terms of the Child Justice Act 75 of 2008,
the child had to attend a preliminary enquiry to establish whether he could be diverted from the criminal
justice system.
All the proceedings held in the matter were set aside.
S v Sekoere
[2012] JOL 29358 (FB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
141 / 2012
14 / 06 / 2012
South Africa
High Court
Free State, Bloemfontein
LJ Lekale, MB Molemela JJ
Keywords:
Criminal procedure – Automatic review – Cases involving minor children
Mini Summary:
The accused, a 16-year old boy, pleaded guilty to housebreaking with intention to steal and theft. He was
sentenced in terms of section 76(1) of the Child Justice Act 75 of 2008 to three years’ compulsory
residence at a child and youth care centre providing a programme designed for the reception,
development and secure care of children as contemplated in section 191(2)(j) of the Children’s Act 38 of
2005. The matter came before the present Court on automatic review.
Held that the automatic review regime in our criminal justice system is limited, in its application, to cases
in which the accused was not legally represented at the proceedings which resulted in the sentences
envisaged in section 302(1) of the Criminal Procedure Act 51 of 1977. Any argument to the effect that an
interpretation which excludes a child who was legally assisted at the relevant trial from the purview of
section 302(1) as read with section 85(1) of the Child Justice Act defeats the clear intention of the
69
legislature to afford children additional protection, and loses sight of the fact that not all children in
conflict with the law are afforded additional protection in the form of automatic review.
The court pointed out that cases involving minor children sentenced in terms of the Child Justice Act, like
all other cases envisaged in section 302, are not automatically reviewable where the accused minor child
was legally represented. The present matter did not call for the exercise of the court’s inherent powers of
review.
S v Mazibuko
[2011] JOL 26689 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 243 / 10
22 / 09 / 2010
South Africa
High Court
Eastern Cape, Grahamstown
CT Sangoni JP, N Dambuza J
Keywords:
Criminal procedure – Accused – Age of accused – Minor
Mini Summary:
After the accused was convicted of theft, it emerged during sentencing that he was 16 years old and not
18 as indicated in the charge sheet. The magistrate referred the case on special review, with the request
that the conviction be set aside so that the accused could be dealt with in terms of the Child Justice Act 75
of 2008.
Held that the magistrate’s request was acceded to.
S v CS (ECP)
TSHIKI J and BESHE J
2012 MARCH 30
Juvenile offenders—Sentence—Committal to child- and youth-care centre—
Reviewability of sentence—Sentence subject to review, whether child legally represented
or not—Child Justice Act 75 of 2008, ss 76 and 85.
S v Z and four other cases – 1999(1) SACR 427 (ECPD) – gave an extensive exposition
of principles governing, and options available in sentencing juvenile offenders. Court
considered as juveniles, all persons under age of 21, not just 18. Is inappropriate to
impose imprisonment, including suspended imprisonment on juvenile unless a presentence (probation officers) report has been obtained.
35) CHILD WITNESSES
Nedzamba v S
[2014] JOL 31694 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
911 / 2012
27 / 05 / 2013
South Africa
Supreme Court of Appeal
MS Navsa, FDJ Brand, ZLL Tshiqi, XM Petse JJA, Zondi AJA
70
Criminal procedure – Charge sheet – Consequence of charge sheet not containing reference to section 3 of
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 under which appellant
should have been charged – Charge sheets or indictments may be amended on appeal or review, the test
being whether the accused could not be prejudiced thereby – Criminal procedure – Rape trial –
Irregularities committed during trial resulting in justice not having been done, and the appellant not
having a fair trial, with result that appeal was upheld and convictions and sentence being set aside
Mini Summary:
The appellant was convicted on two counts of rape and was sentenced to two terms of life imprisonment,
which were to run concurrently. The present appeal was against the convictions and sentence.
In response to the allegation by the complainant, who was 13 years old at the time of the alleged offence,
that the appellant had raped her, the appellant raised an alibi defence. The trial court rejected his version,
without setting out its reasoning in much detail.
One of the grounds of appeal was that the appellant had been charged with the common law offence of
rape at a time when it had been abolished by the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 (“the Act”), and that consequently the convictions and related sentences
ought to be set aside.
Held that although the charge sheet made no mention of section 3 of the Act under which the appellant
should rightly have been charged, it clearly alleged that the appellant was guilty of the offence of rape.
The court found the omission not to be fatal. Section 86 of the Criminal Procedure Act 51 of 1977 (“the
CPA”) provides that, where a charge is defective for the want of any essential averment therein, or where
it appears that words or particulars that should have been inserted in the charge have been omitted
therefrom, a court may, at any time before judgment, if it considers that the making of the relevant
amendment will not prejudice the accused, order that the charge be amended insofar as is necessary. It is
generally accepted that charge sheets or indictments may be amended on appeal or review. The test is
whether the accused could not be prejudiced thereby. When application is made to amend a charge on
appeal, the Court must be satisfied that the defence would have remained the same if the charge had
originally contained the necessary averments.
The Court then highlighted the irregularities which occurred in the trial court. The first was that although
the complainant was a child witness, the trial court did nothing to ensure that she understood the import
of the oath. It was not determined at the outset whether the child knew what it meant to speak the truth.
No thought was given to the desirability or otherwise of receiving the complainant’s evidence through an
intermediary, nor was any consideration given to any other means to protect the child witness in a case
involving a sexual offence. To admit evidence of a child who does not understand what it means to tell the
truth undermines the accused’s right to a fair trial. Two other irregularities concerned the trial judge’s
unjustifiable entry into the arena, and his failure to intervene when he should have. He also wrongfully
prevented or restricted cross-examination at critical times. The appellant was denied the right to crossexamine fully. The present Court pointed out that an accused person has the fundamental right in term of
section 35(3)(i) of the Constitution to adduce and challenge evidence.
The irregularities referred to above, singularly or cumulatively were of such a nature that they resulted in
justice not having been done, and the appellant not having a fair trial.
The appeal was upheld and the convictions and sentence wet aside.
In Kerkhoff v Minister of Justice and Constitutional Development &
others 2011 (2) SACR 109 (GNP) Southwood J, after referring to the judgment
in the Constitutional Court, had this to add (at [7]):
'It is clear that the enquiry has a narrow focus: to determine whether it is in the best
interests of the child that an intermediary be appointed. It is not concerned with
whether the child is competent to give evidence or whether the child's evidence is admissible,
credible or reliable. Those are issues which will arise in the trial and will be decided by the
court in the light of all the evidence. It is significant that s 170A makes provision for a single
procedure for the appointment of an intermediary and essential jurisdictional fact, ie when it
appears to the court that the relevant witness would be exposed to undue mental
stress and suffering; and that no provision is made for the accused to oppose the
appointment of an intermediary. While an accused must have a right to be heard on the
issue, it seems to me that, in the case of a witness of 10 or 11, it is very unlikely that a court
would conclude that it is not in the interests of the witness to appoint an intermediary. As
pointed out by the Constitutional Court, the appointment of an intermediary will
ensure that the trial is fair.'
71
The Constitutional Court, in Director of Public Prosecutions, Transvaal v
Minister of Justice and Constitutional Development & others 2009 (2) SACR
130 (CC); 2009 (4) SA 222 (CC),
1. S v RAGHUBAR 2013 (1) SACR 398 (SCA)
The accused was convicted in a magistrates' court of indecent assault and was
sentenced to 10 years' imprisonment. An appeal against the conviction and sentence
to the high court was dismissed. In a further appeal the court requested further
argument from the parties on the issue whether there had been proper compliance
with the provisions of s 163 read with the provisions of ss 162 and 164 of the
Criminal Procedure Act 51 of 1977. The issue arose concerning the evidence of the
complainant who was 14 years old at the time of the trial, but who was 8 years old
when the offence was allegedly committed. The record showed that the magistrate
merely asked the complainant how old he was; what the date of his birth was; and
what grade he was in, before asking the appellant's legal representative whether he
accepted that the complainant was a competent witness. When the legal
representative confirmed that the complainant was a competent witness the
magistrate proceeded to ask the complainant whether he believed in God and
whether he believed that he would be punished if he told lies after swearing to tell
the truth. The complainant answered in the affirmative to these questions and he
was then sworn in.
Held, that it could be accepted that the magistrate managed to determine merely
from such an elementary line of questioning pertaining to the complainant's age,
date of birth and level of education that the complainant was competent to testify.
Furthermore, the appellant's legal representative was not qualified to express an
opinion on the complainant's competency. It is not clear on what basis his opinion
was solicited by the magistrate, nor on what basis he expressed it. (Paragraph [7] at
402g–h.)
Held, further, that the leading, compound question posed by the court as to the
complainant's understanding of what it meant to tell the truth was also not helpful. It
was impossible to gather from it whether the complainant understood what it meant
to speak the truth; what the oath meant; and the difference between the truth and
falsehood, or the consequences if he did not speak the truth. All that the complainant
could say in response to the question was 'yes' or 'no'. The magistrate had felt
compelled to undertake an enquiry on seeing the child in the witness box and
entertaining certain doubts that caused her to embark upon that enquiry. What was
required of her in embarking upon that enquiry was not the knowledge on the part of
the witness about abstract concepts of truth and falsehood. The child may not know
the intellectual concepts of truth or falsehood, but would understand what it means
to be required to relate what happened, and nothing else. The manner in which the
child is questioned is crucial to the enquiry and is where the role of an intermediary
becomes vital. The intermediary would ensure that questions by the court to the
child are conveyed in a manner that the child can comprehend, and that the answers
given by the child are conveyed in a manner that the court would understand.
(Paragraph [8] at 403a–i.)
Held, accordingly, that, as the enquiry undertaken by the magistrate fell far short of
the requirements, it followed that no reliance could be placed on the evidence of the
complainant and the conviction could not stand. The appeal was upheld. (Paragraph
[9] at 404b.)
Case Information
72
Appeal from a decision on appeal in the KwaZulu-Natal High Court (Nicholson J and
Vahed AJ). The facts appear from the reasons for judgment.
Peter v S
[2011] JOL 26680 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 194 / 10
26 / 11 / 2010
South Africa
High Court
Eastern Cape, Grahamstown
D Van Zyl and B Sandi JJ
Keywords:
Criminal procedure – Murder – Conviction and sentence – Appeal
Mini Summary:
The appellant was convicted of murder and sentenced to 15 years’ imprisonment. The present appeal was
against conviction and sentence.
The state relied on the evidence of a 13-year-old girl who was an eye witness to the murder. She pointed
the appellant out to the police. Denying guilt, the appellant placed his identity as the perpetrator in issue.
Held that the eye witness had a good opportunity to observe the perpetrator. The court found that the
trial court had correctly accepted her identification of the appellant.
As regards sentence, the court found no grounds for departing from the sentence imposed by the trial
court.
The appeal was dismissed.
JvS
[2011] JOL 26715 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 63 / 10
22 / 09 / 2010
South Africa
High Court
Eastern Cape, Grahamstown
E Revelas, C Plasket JJ
Keywords:
Criminal law – Rape – Conviction and sentence – Appeal
Mini Summary:
Convicted of the rape of his six-year-old daughter, the appellant appealed against his conviction and
sentence.
Held that there were various aspects which made the complainant’s evidence less than satisfactory. The
cumulative effect of those factors compromised the reliability of the complainant’s version. The evidence
relied upon by the magistrate in rejecting the appellant’s denial as false, was insufficient and his
application of the cautionary rules inadequate. Even though section 208 of the Criminal Procedure Act 51
of 1977 permits the conviction of an accused on the evidence of a single witness, who can be a child, it
does not mean that in matters where there are charges of a sexual nature and the single witness is a
child, convictions should follow with less caution. The evidence still has to be reliable and good enough to
discharge the onus of proof of guilt beyond reasonable doubt.
Upholding the appeal, the court set aside the conviction and sentence.
Ngwebane v S
[2008] JOL 22054 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
A 2258 / 04
28 / 05 / 2008
South Africa
High Court
Transvaal Provincial
N Ranchod, M Motimele AJJ
73
Criminal procedure – Rape – Conviction – Appeal
Mini Summary:
Convicted on two counts of rape, the appellant was sentenced to 10 years' imprisonment on each count.
While the complainant alleged that she had been raped by a group of men, including the appellant, the
appellant alleged that he had had consensual intercourse with the complainant.
Held that the main argument of the appellant on appeal was that that the swearing-in of the complainant
was an irregularity and that the subsequent cross-examination did not comply with the provisions of the
law as she ought to have been admonished. A further submission was that when complainant was
admonished the magistrate did not warn her that if she told any untruths she would be punished.
The court set out the provisions of section 164 of the Criminal Procedure Act 51 of 1977, and held that the
requirements had been complied with.
The only ground on which the appeal was upheld, was on the failure of the magistrate to conduct an
inquiry to determine whether the complainant and another witness understood the distinction between
truth and fabrication.
Swartz v S
[2008] JOL 22396 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 299 / 07
17 / 04 / 2008
South Africa
High Court
Cape of Good Hope Provincial
MJ Hlophe JP; EJS Steyn AJ
Keywords:
Criminal procedure – Indecent assault – Child complainant – Competence as witness – Enquiry
Mini Summary:
The appellant was convicted of the indecent assault of a 4-year-old boy. He was sentenced to 3 years’
correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act 51 of 1977.
He appealed against his conviction.
Held that presiding officers are required, when dealing with young witnesses, to determine whether they
have the necessary competency to testify. In the present case, the regional magistrate was required to
determine whether the witness, a child of seven years of age at the time of the trial, was a competent
witness to give sworn evidence in terms of section 162 of the Act.
The trial court's conviction of the appellant based on the complainant's evidence without conducting the
enquiry referred to above or making a finding regarding the child's competency was an irregularity.
The appeal was upheld.
S v Mokoena; S v Phaswane
[2005] JOL 21960 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CC7 / 07; CC192 / 07
12 / 5 / 2008
South Africa
High Court
Transvaal Provincial
E Bertelsmann J
Keywords:
Criminal procedure – Criminal justice system – Cases involving children – Rights of children – Protection of
Mini Summary:
In two cases, which were consolidated for purposes of this judgment, the accused were convicted of
raping girls under the age of 16 years. The court raised certain constitutional issues mero motu.
Essentially the court questioned whether the present provisions of the Criminal Procedure Act 51 of 1977
that require child victims and child witnesses to testify under oath and in an adversarial procedure, were
compatible with the Constitution of the Republic of South Africa, 1996, which requires in section 28(2)
that the interests of children shall be paramount under any circumstances. The same question was raised
in respect of section 52(2) and 52(3)(d) and (e) of the Criminal Law Amendment Act 105 of 1997, the
application of which could require the child to testify more than once.
Held that the Constitution protects the rights of children and makes a child's best interests of paramount
importance in every matter concerning a child.
74
The court pointed out that the courts and court procedure are not designed to make testimony by children
an easy experience. In a detailed ruling, the court highlighted the various statutory provisions of our
criminal justice system which need be brought into line with the constitutional imperatives outlined above.
It was held that section 170A(1) of the Criminal Procedure Act 51 of 1977 was unconstitutional in that it
grants a discretion to the trial court to appoint or not to appoint an intermediary when a child witness is to
be called in a criminal trial. Sections 170A(7), 153(3), 158(5) and 164(1) were also declared
unconstitutional.
36) CHILDREN’S COURT MATTERS
Botha v Dreyer (now Möller)
[2008] JOL 22809 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
4421 / 08
19/ 11 /2008
South Africa
High Court
Transvaal Provincial
JR Murphy J
Keywords:
Children – Paternity testing – Best interest of child
Mini Summary:
The applicant sought an order directing the respondent and her minor daughter to subject themselves to
DNA tests for the purpose of determining whether the applicant was the child’s biological father.
Essentially, the applicant sought to exercise his parental rights if it were found that he was the child's
father.
Held that there is no legislation which specifically regulates the position of compulsory blood or DNA
testing in parental disputes. The court was of the view that such testing could play an important role in
establishing the truth. Just as courts deploy methods of compulsion to arrive at the truth in a variety of
causes, there should be no overriding reason in principle or policy impeding the exercise of their inherent
power and authority, as upper guardian or otherwise, to order scientific tests in the interests of
discovering the truth and doing complete justice to all parties involved in a suit.
The court found that the applicant did have a positive interest in establishing whether he was the child's
father. It then turned to consider whether it would be in the best interests of the child for her paternity to
be established with certainty. That question was answered in the affirmative. The application was thus
granted.
S v Mokoena; S v Phaswane
[2005] JOL 21960 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CC7 / 07; CC192 / 07
12 / 5 / 2008
South Africa
High Court
Transvaal Provincial
E Bertelsmann J
Keywords:
Criminal procedure – Criminal justice system – Cases involving children – Rights of children – Protection of
Mini Summary:
In two cases, which were consolidated for purposes of this judgment, the accused were convicted of
raping girls under the age of 16 years. The court raised certain constitutional issues mero motu.
Essentially the court questioned whether the present provisions of the Criminal Procedure Act 51 of 1977
that require child victims and child witnesses to testify under oath and in an adversarial procedure, were
compatible with the Constitution of the Republic of South Africa, 1996, which requires in section 28(2)
that the interests of children shall be paramount under any circumstances. The same question was raised
in respect of section 52(2) and 52(3)(d) and (e) of the Criminal Law Amendment Act 105 of 1997, the
application of which could require the child to testify more than once.
Held that the Constitution protects the rights of children and makes a child's best interests of paramount
importance in every matter concerning a child.
75
The court pointed out that the courts and court procedure are not designed to make testimony by children
an easy experience. In a detailed ruling, the court highlighted the various statutory provisions of our
criminal justice system which need be brought into line with the constitutional imperatives outlined above.
It was held that section 170A(1) of the Criminal Procedure Act 51 of 1977 was unconstitutional in that it
grants a discretion to the trial court to appoint or not to appoint an intermediary when a child witness is to
be called in a criminal trial. Sections 170A(7), 153(3), 158(5) and 164(1) were also declared
unconstitutional.
Visse v Visse 2008 JOL 21235 (C) – interpretation of court order. Unilateral departure
not permitted. Order to pay maintenance continued to be of force despite fact that
recipient 30 years old. Fact that retarded meant still dependant.
Gerber v Gerber & another
[2008] JOL 21304 (C)
Case Number:
12166 / 07
Judgment Date:
08 / 11 / 2007
Country:
South Africa
Jurisdiction:
High Court
Division:
Cape of Good Hope Provincial
Bench:
Ndita J
Keywords:
Family law – Parent and child – Maintenance – Attachment of money
Mini Summary:
The applicant and respondent had been married until their divorce in 2000. In terms of the divorce
settlement agreement, the applicant obtained sole custody of the child born of the marriage, and the
respondent was to pay maintenance in respect of the child.
Both parties had a drug addiction. While the applicant was on a rehabilitative programme, the
respondent's addiction had caused him to lose his job, and he was currently unemployed.
As a result of the above circumstances, the applicant sought to have the proceeds of the sale of property
attached for the payment of future maintenance payments due by the respondent.
Held that section 28(2) of the Constitution of the Republic of South Africa provides that the child's best
interests are of paramount importance in all matters concerning the child. The Maintenance Act 99 of 1998
has also put mechanisms in place to ensure the recovery of maintenance from recalcitrant parents.
Although the respondent showed a willingness to fulfil his maintenance obligations, the court found it to be
in the child's best interests for the application to be granted.
Hepburn v Miller
[2008] JOL 21354 (W)
Case Number:
15732 / 07
Judgment Date:
19 / 12 / 2007
Country:
South Africa
Jurisdiction:
High Court
Division:
Witwatersrand Local
Bench:
JCW van Rooyen AJ
Keywords:
Divorce – Child custody – Breach of order – Contempt of court
Mini Summary:
The parties herein were divorced in 2004, and the respondent was awarded custody of the minor child
born of the marriage. The respondent was granted access rights to the child. In the present application,
the applicant contended that the respondent was in breach of the divorce order in that she was not
allowing the applicant reasonable access to the child as she had not given him her telephone number. He
was also unhappy about a decision taken by the respondent, without his knowledge, to place the child in a
remedial school. He therefore sought an order of contempt of court against the respondent.
Held that the applicant was required to prove his case beyond a reasonable doubt. Once the prosecution
had established the existence of the order; its service on the accused; and non-compliance, if the accused
failed to furnish evidence raising a reasonable doubt whether non-compliance was wilful and mala fide, the
offence will be established beyond reasonable doubt.
The court found that the respondent had acted in breach of the court order, and that such conduct was
intentional. It imposed a fine of R20 000 which was suspended for five years subject to the condition that
respondent was not found by a court to have again been in contempt of any condition of the court order
during that time.
76
Botha v Botha
[2008] JOL 21900 (W)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2005 / 25726
09 / 06 / 2008
South Africa
High Court
Witwatersrand Local Division
Satchwell J
Keywords:
Marriage – Divorce – Maintenance – Entitlement to
Mini Summary:
In a divorce action between the parties, the issue in dispute was the interpretation and application of
section 7(2) of the Divorce Act, which confers a discretion upon the court to make a maintenance order in
favour of one spouse against the other.
Held that in terms of the clean-break and constitutional principles, there is no automatic right to
maintenance after divorce. Entitlement to maintenance must first be shown before a court determines the
quantum and duration thereof.
The payment of maintenance to a spouse upon divorce is the creation of statute. The Divorce Act permits
a court to make an award which it finds just for maintenance by one party of the other party.
Having regard to the facts of the case, particularly with regard to the marital regime governing the parties'
marriage, and their individual circumstances, the court found that the defendant did not establish an
entitlement to maintenance by the plaintiff.
37) CIRCUMSTANTIAL EVIDENCE
S v Modiba
[2014] JOL 31535 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
SS 122 / 12
05 / 02 / 2013
South Africa
High Court
South Gauteng, Johannesburg
Mudau AJ
Keywords:
Criminal law – Robbery with aggravating circumstances – Murder – Conviction – Sentence – Evidence –
Circumstantial evidence – Rules
Mini Summary:
Charged with eight offences, the accused pleaded not guilty on all counts. The charges consisted of
robbery with aggravating circumstances, unlawful possession of a firearm as well as ammunition in
contravention of the Firearms Control Act 60 of 2000, housebreaking with intent to rob and murder.
Held that the finger and palm prints of the accused were found at a number of the scenes of the relevant
crimes. In response to such evidence, the accused relied on a bare denial in respect of all the incidents.
He also asserted that all the fingerprint experts made wrong findings in linking him to the various crime
scenes. He contended further that he suspected police collusion in this regard as the fingerprints experts
worked together. The Court found no merit in any of the contentions of the accused, and found his
explanation to be unconvincing. Regard being had to the totality of the evidence, all the expert witnesses
testified satisfactorily in respect of the circumstances under which the fingerprints were lifted at each
scene. Based on circumstantial evidence, the inference that the accused was one of the perpetrators at
the various scenes was consistent with the fingerprint evidence.
On the evidence as a whole the dispute was a narrow one. It was whether the state had managed to
discharge the onus it had in proving the guilt of the accused beyond a reasonable doubt, regard being had
to the totality of the evidence.
An accused can be convicted of a crime based on circumstantial evidence. Two cardinal rules of logic apply
to such evidence. Firstly, the inference that the accused committed the various offences must be
77
consistent with all the proved facts. If not, the inference cannot be drawn. Secondly, the proved facts
should be such that they exclude every reasonable inference from them save that it was the accused who
was the perpetrator. Applying those principles, the Court found the accused guilty of all the charges
except for those of unlawful possession of a firearm and ammunition.
Turning to the task of imposing a sentence, the Court pointed out that the purpose of sentencing is aimed
at punishing the wrongdoer for his crimes, to deter the accused and other potential offenders from
committing offences as well as creating an environment for the offender to rehabilitate. In the
determination of an appropriate sentence, the Court must consider the accused’s personal circumstances;
the nature and gravity of the offence or offences committed; and the interest of society.
The offences of which the accused was convicted attracted prescribed minimum sentences as set out in
the Criminal Law Amendment Act 105 of 1997. The Court could only deviate if there were substantial and
compelling circumstances justifying the imposition of a sentence or sentences less than those prescribed.
Finding no substantial and compelling circumstances that justified the imposition of lesser sentences, the
Court sentenced the accused to an effective term of life imprisonment.
Mthembu v S
[2011] JOL 27847 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA 20 / 2011
16 / 09 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
M Makaula, R Pillay, J Eksteen JJ
Keywords:
Criminal law – Murder – Robbery with aggravating circumstances – Conviction and sentence – Appeal –
Evidence – Circumstantial evidence – Rules
Mini Summary:
The appellant was convicted of robbery with aggravating circumstances and murder, and was sentenced to
fifteen years’ imprisonment and life imprisonment respectively. The present appeal was granted on
petition.
The state’s case was premised on circumstantial evidence.
Held that the two cardinal rules in reasoning by inference are that the inference sought to be drawn must
be consistent with all the proved facts, and the proved facts should be such that they exclude every
reasonable inference from them save the one sought to be drawn.
It was common cause and apparent from the facts that items belonging to the deceased were found in the
possession of the appellant. The said items were in the possession of the deceased before he was found
dead. It could therefore be safely concluded that they were taken from the deceased or his house, before
or after or during his murder.
The evidence of the appellant was conflicting as to how he came into possession of the items.
The fundamental rule to be applied by a court of appeal is that while the appellant is entitled to a
rehearing, because otherwise the right of appeal becomes illusory, a court of appeal is not at liberty to
depart from the trial court’s findings of fact and credibility, unless, they are vitiated by irregularity, or
unless an examination of the record of evidence reveals that those findings are patently wrong. Those
principles are apposite to cases where circumstantial evidence is relied upon.
Unable to find any misdirection by the court in respect of the conviction or sentence, the present Court
dismissed the appeal.
Dladla v S
[2010] JOL 26105 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 80 / 08
10 / 09 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
HQ Msimang JP, S Gyanda, FE Mokgohloa JJ
Keywords:
Criminal procedure – Evidence – Circumstantial evidence
Mini Summary:
78
A robbery perpetrated on a municipality resulted in a person being fatally shot. The appellant was charged
with murder and robbery with aggravating circumstances. The state alleged that he had acted in concert
with certain others and in furtherance of the execution of a common purpose to commit the crimes. as
there was no direct evidence of such participation by the appellant, the respondent urged the court to
consider the circumstantial evidence tendered and to infer there from that there was such participation.
Held that one of the allegations the state must prove as a basis for criminal liability is that the accused
participated in the criminal activity giving rise to that criminal liability. The crucial requirement for the
finding that an accused person acted with a common purpose with one or more other offenders is that he
must have intended to commit such a crime.
It was found that the proven facts, which were supposed to form the basis for an inference, based on
circumstantial evidence, did not go far enough and could not reasonably sustain an inference of guilt on
the part of the accused.
38) COMMON PURPOSE
Scott & others v S
[2011] JOL 27685 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
473 / 10
31 / 08 / 2011
South Africa
Supreme Court of Appeal
MML Maya, JA Heher, SA Majiedt JJA
Keywords:
Criminal law – Doctrine of common purpose – Accused may be convicted on basis of common purpose if
they were present where the violence was being committed; they were aware of the offence; they
intended to make common cause with the perpetrator of the offence; they manifested their sharing of a
common purpose with the perpetrator by themselves performing some act of association with the conduct
of the perpetrator; and they had the requisite mens rea concerning the unlawful outcome at the time the
offence was committed – Criminal law – Murder – Appeal against conviction and sentence – First
appellant’s appeal failing in that guilt established beyond reasonable doubt by eye witnesses and medical
examiner – Criminal law – Sentence – Appeal against sentence – Cumulative effect of sentences rendering
it too severe – Ordering that the sentences run concurrently serving the objects of sentencing – Criminal
procedure – Application for postponement – Refusal of application – Whilst a court will generally be slow
to refuse a postponement because of the adverse consequences which might arise, a litigant who seeks
such indulgence must nonetheless satisfy the court fully that it should condone his non-preparedness –
Mini Summary:
Charged with murder and attempted murder, the appellants were all convicted as charged. The first
appellant was sentenced to 15 years’ imprisonment on the count of murder and seven years’
imprisonment on the count of attempted murder. The second and third appellants were sentenced to
undergo seven years’ imprisonment on each count. Their sentences were, however, ordered to run
concurrently.
The backgrounds facts were as follows. On 30 September 2001, the complainant on the attempted murder
charge (“Conrad”) had gone to the shop with his friend (hereinafter referred to as “the deceased”), his
mother and two other females. On their way home, they happened upon a confrontation between the
appellants and two others. The latter two were being pushed and insulted by the appellant’s group, some
of whom directed racial insults at Conrad’s party. In reaction, Conrad and the deceased crossed the road
and approached the group to confront them. The third appellant responded by swinging a bottle at the
deceased’s head. Conrad and his group then attempted to leave, but the appellants followed them, and a
tussle ensued. Conrad and the deceased were stabbed and both collapsed. The now deceased, died shortly
thereafter from a wound in the right ventricle of the heart. Conrad was conveyed to hospital where he was
treated in the Intensive Care Unit for four days.
The trial court applied the doctrine of common purpose and convicted the appellants and a co-accused for
the murder and attempted murder on that basis. In determining sentence the magistrate found that the
second and third appellants had played a lesser role in the commission of the offences and for that reason,
imposed more lenient sentences on them. On appeal, the court below found that the magistrate did not
misdirect himself in any way and confirmed the convictions and sentences. The issues raised in the
present appeal concerned the identity of the person who stabbed the deceased; whether the state
established the existence of a common purpose and intent to commit the offences; and the propriety of
the sentences imposed by the magistrate.
79
At the commencement of the present appeal hearing, the first appellant applied for a postponement of the
matter on the basis that he had not been able to raise sufficient funds to engage counsel of his choice to
represent him in court.
Held that the first appellant had been notified of the date of hearing about six weeks in advance and had
rejected his attorneys’ advice to apply for legal aid. More than two years had passed since leave to appeal
was granted, and no explanatory affidavit was forthcoming from the first appellant. Whilst a court will
generally be slow to refuse a postponement because of the adverse consequences which might arise, a
litigant who seeks such indulgence must nonetheless satisfy the court fully that it should condone his nonpreparedness. As the first appellant failed to satisfy the Court on any of those grounds, the Court refused
the application and ordered that the hearing proceed.
Although the appellants blamed the stabbing of the deceased on their co-accused, the first appellant was
implicated by a passerby who witnessed the incident, Conrad and Conrad’s mother, as the person who had
stabbed the deceased. The Court found no reason to disturb the credibility findings made by the
magistrate regarding the state eyewitnesses who implicated the first appellant and, on a consideration of
all the relevant evidence and the inherent probabilities, their evidence coupled with that given by the
medical examiner established beyond doubt that the co-accused did not stab the deceased. The nature of
the fatal wound itself left no doubt that whoever stabbed the deceased intended to kill him. The Court
accordingly confirmed the first appellant’s conviction for the deceased’s murder.
Turning to the issue of the appellants’ culpability for the attempt on Conrad’s life by their co-accused and
the second and third appellants’ guilt for both offences on the basis of the doctrine of common purpose,
the Court held that it was necessary to consider their individual conduct to determine whether there was a
sufficient basis for holding that each one of them was liable, on the ground of active participation in the
achievement of a common purpose that developed at the scene.
In the absence of proof of a prior agreement to commit the offences, the appellants could be convicted on
the basis of the doctrine of common purpose, if (a) they were present where the violence was being
committed; (b) they were aware of the assault on Conrad and the deceased; (c) they intended to make
common cause with the perpetrator(s) of the assault; (d) they manifested their sharing of a common
purpose with the perpetrator(s) of the assault by themselves performing some act of association with the
conduct of the perpetrator(s); and (e) they had the requisite mens rea concerning the unlawful outcome
at the time the offence was committed, ie they intended the criminal result or foresaw the possibility of
the criminal result ensuing and nevertheless actively associated themselves reckless as to whether the
result was to ensue.
Applying the said requirements, the Court found reason to confirm the first appellant’s conviction in
respect of the count of the attempted murder.
However, the case of the second and third appellants was different. Although they participated in the first
stage of the incident, involving mere fisticuffs, there was nothing in their actions thereafter that indicated
an intent to associate themselves with the stabbings. There was no basis to conclude that they intended
the stabbing of Conrad and the deceased and made common cause therewith. They should, therefore, not
have been convicted for those offences.
It remained for the Court to determine whether the sentences imposed by the magistrate on the first
appellant were appropriate. The Court took into account the fact that the magistrate had taken cognisance
of the first appellant’s youthful age and clean record and had cautioned himself against ever-emphasising
the sentencing element of deterrence. Against that was the fact that the deceased was robbed of his life in
a senseless incident. The Court agreed that the first appellant was convicted of very grave offences which
warranted the imposition of substantial custodial sentences.
While mindful that sentencing is pre-eminently a matter for the trial court’s discretion which is not to be
interfered with by a court of appeal unless unreasonably exercised, the Court considered the cumulative
effect of the sentences imposed by the magistrate disturbingly inappropriate and unduly severe in the
circumstances. Ordering that the sentences run concurrently would serve the objects of sentencing by
addressing the elements of retribution and deterrence whilst affording the first appellant some modicum of
mercy and an opportunity for rehabilitation. The Court accordingly ordered that the sentences on the two
charges run concurrently. Save for that, the first appellant’s appeal was dismissed.
The second and third appellants’ appeal was upheld, and they were found not guilty on both counts.
Kwanda v S
[2011] JOL 27171 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
592 / 10
30 / 03 / 2011
South Africa
Supreme Court of Appeal
80
Bench:
L Theron, PE Streicher, LO Bosielo JJA
Keywords:
Criminal law – Appeal against conviction – Unlawful possession of firearm – Whether state had established
that the appellant possessed the firearm jointly with the passenger who was found in possession thereof –
state had to prove that the appellant had the necessary mental intention (animus) to possess the firearm
– Court finding no facts from which it could be inferred that the appellant had the necessary intention to
exercise possession of the firearm through his passenger or that the latter had the intention to hold the
firearm on behalf of the appellant –
Mini Summary:
The appellant was convicted of conspiracy to commit armed robbery and various contraventions of the
Arms and Ammunition Act 75 of 1969. He was sentenced to 35 years’ imprisonment. On appeal, the high
court confirmed the convictions on three of the counts and set aside the remaining convictions. The
sentence was reduced to 25 years’ imprisonment.
In the present appeal, the appellant appealed against his conviction of unlawful possession of a firearm
and ammunition.
The evidence showed that members of the South African Police Service had received information about a
planned robbery at the bank. Before the robbery could be carried out, the appellant and his co-accused
were arrested. Immediately prior to his arrest, the appellant had been the driver of a vehicle and was
accompanied by two passengers. One of those passengers was in possession of the firearm which was the
subject matter of this appeal. It was common cause that the appellant at no stage had physical possession
of the firearm and its ammunition, and there was some dispute as to whether the appellant was aware of
the firearm in his passenger’s possession.
Held that the only question on appeal was whether the state had established that the appellant possessed
the firearm jointly with the passenger who was found in possession thereof. In that regard the state had
to prove that the appellant had the necessary mental intention (animus) to possess the firearm. The court
held that the fact that the appellant conspired with his co-accused to commit robbery, and even assuming
that he was aware that some of his co-accused possessed firearms for the purpose of committing the
robbery, did not lead to the inference that he possessed such firearms jointly with his co-accused. Such an
inference is only justified where the state has established facts from which it can properly be inferred that
the group had the intention (animus) to exercise possession of the guns through the actual detentor and,
the actual detentors had the intention to hold the guns on behalf of the group.
Applying the principles set out in case law, the court concluded that there were no facts from which it
could be inferred that the appellant had the necessary intention to exercise possession of the firearm
through his passenger or that the latter had the intention to hold the firearm on behalf of the appellant.
The conviction and sentence imposed in respect thereof were thus set aside.
S v Cele
[2013] JOL 30688 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
SS 220 / 12
22 / 03 / 2013
South Africa
High Court
South Gauteng, Johannesburg
TP Mudau AJ
Keywords:
Criminal law – Robbery with aggravating circumstances – Murder – Attempted murder – Conviction
Mini Summary:
The accused was charged with robbery with aggravating circumstances, murder and attempted murder.
The indictment explicitly stated that the provisions of sections 51(1) and 51(2) of the Criminal Law
Amendment Act 105 of 1997 (the minimum sentences legislation) applied to the robbery and murder
charges.
Held that central issue was whether the State had proved beyond a reasonable doubt that the accused
was one of the two men who robbed and killed the deceased, as well as making an attempt on the life of a
surviving victim.
The State bears the onus of proving the guilt of the accused beyond reasonable doubt. There is no reverse
onus on the part of the accused to prove his innocence. An accused is entitled to be acquitted if there
exists a reasonable possibility that he might be innocent regard being had to the totality of the evidence.
The evidence of the State included that of a witness who was convicted of crimes arising out of the same
incident. As an accomplice, that witness’ evidence had to be treated with caution. The cautionary rule in
the case of evidence by an accomplice is aimed at overcoming the danger of an accused being wrongly
81
convicted on the evidence of an accomplice who not only has a motive for telling lies but is, by his inside
knowledge of the crime, peculiarly equipped to convince the unwary that his lies are true. The evidence of
an accomplice and a police informer (as this witness was) requires corroboration.
The Court found that the evidence presented by the prosecution, justified an inference, in the absence of
an alternative explanation, that the accused and his accomplice associated in a common purpose to
commit the crimes. The accused was convicted on all charges.
Cele and others v State
[2012] JOL 29774 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 237 / 2001
01 / 01 / 2012
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Koen, Mokgohloa, Ploos van Amstel JJ
Keywords:
Criminal law – Robbery – Murder – Unlawful possession of firearm and ammunition – Conviction –
Sentence – Appeal
Mini Summary:
The appellants were convicted of conspiracy to commit robbery in contravention of section 18 (2) (a) of
the Riotous Assemblies Act 17 of 1956, murder, unlawful possession of a firearm and unlawful possession
of ammunition. The counts were all taken as one for the purposes of sentence. The first and third
appellants were sentenced to 20 years' imprisonment each, and the second appellant was sentenced to 15
years' imprisonment.
The second appellant was granted leave to appeal in respect of his conviction in counts 3 and 4, and to all
three appellants in respect of the sentences imposed. The first appellant indicated that he did not wish to
pursue the appeal.
Held that the conviction of the second appellant on the counts of unlawful possession of a firearm and
unlawful possession of ammunition was based on the doctrine of common purpose. The common purpose
to use the pistol and ammunition was a finding justified on the evidence supporting the conviction of
conspiracy to commit robbery and the murder. However the evidence did not exclude every reasonable
inference other than the inference that there was a joint intention to possess the firearm in question.
Accordingly the appeal by the second appellant in respect of the third and fourth counts succeeded and
the his conviction on those two counts set aside.
The sentence imposed by the trial court was the prescribed minimum sentence for the offence of robbery
with aggravating circumstances. As that offence had not been established, the sentence amounted to a
misdirection – which allowed the present Court to consider the issue of appropriate sentences afresh.
The appropriate category within which the murder fell was part 2 of Schedule 2 to the Criminal Law
Amendment Act 105 of 1997. In respect of first offenders, the prescribed minimum sentence was 15
years' imprisonment. The sentences imposed by the trial court were set aside and replaced with reduced
sentences.
S v Bacela & another
[2008] JOL 21998 (Ck)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
7 / 2008
17 / 6 / 2008
South Africa
High Court
Bisho
Y Ebrahim J
Keywords:
Criminal law – Murder – Housebreaking – Theft – Trial
Mini Summary:
The accused were charged with murder and housebreaking with intent to rob and robbery. They pleaded
not guilty.
Held that the evidence established that the accused committed the crime of housebreaking with intent to
steal and theft, and not a conviction of housebreaking with intent to rob and robbery or even of any
attempt to commit the offence of robbery. The evidence also established that the first accused stabbed the
deceased and inflicted three wounds to his chest. He stated he was aware that in stabbing the deceased in
82
the chest it would cause his death. The court was satisfied therefore that he had murdered the deceased.
As there was not evidence that the second accused knew what the first accused was going to do, he was
acquitted on the murder charge.
S v MWASE AND OTHERS 2011 (2) SACR 462 (FB)
The appellants had been convicted on various charges of fraud — premised on the J
doctrine of common purpose — for their involvement in a fraudulent scheme that
exploited the complainants by obtaining money from them against promises of securing
their health and wealth through the medium of ancestors. In an appeal against the
sentences imposed by the trial court, which ranged from 10 to five years of
imprisonment, the court, in dealing with the aspect of deterrence in the sentencing
process,
Held, that ancestor belief was a component of faith, which, like other aspects of faith, had
no tangible form and was predicated on an abiding and firm acceptance of its existence,
rooted deeply both in history and in culture. It could be a lethal cocktail for harm, injury
and disaster if preyed upon by persons seeking to exploit such beliefs and to callously
profit therefrom.
Held, that there had been no misdirection by the trial court and no improper exercise of
its discretion in the imposition of sentence. The circumstances of the case warranted the
imposition of a severe sentence. The appeal against the sentences was dismissed.
Case Information
Appeal from a sentence imposed in a magistrates' court. The facts F appear from the
reasons for judgment.
Mbanyaru & another v S
[2008] JOL 22295 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 271 / 07
11 / 08 / 2008
South Africa
High Court
Cape of Good Hope Provincial
E Moosa, L Bozalek, DV Dlodlo JJ
Keywords:
Criminal law – Murder – Common purpose – Requirements – Fleeing scene of shooting – Not conclusive
evidence of common purpose. Criminal procedure – Evidence – Incorrect finding of fact – Mistake by
truthful witness – Not fatal to State case
Mini Summary:
The appellants appealed against their convictions and sentences (18 and 14 years respectively) for murder
and attempted murder for shooting to death the driver of a motor vehicle and shooting and injuring the
person in the passenger seat.
Held that while the trial court correctly rejected the alibi defence of the appellants and accepted the
evidence of two state witnesses who saw both accused running away from the scene of the shooting, the
court erred in finding that both accused were armed. Only the 1st appellant was armed. There was,
however, no evidence that the second appellant had intended to make common cause with first appellant
or had manifested a common purpose by performing some act of association with the conduct of first
appellant or had the necessary mens rea. The only incriminating evidence against the second appellant
was that, after the shooting, he ran away with the first appellant, who was armed. The mere presence and
running away from the scene of the crime with the perpetrator, did not meet the requisites for common
purpose.
The convictions against the first appellant were upheld and the second appellant's appeal was allowed on
both counts.
83
There were substantial and compelling reasons for not imposing a sentence of life imprisonment on the
first appellant. The effective sentence of 18 years imprisonment was neither shocking inappropriate nor
based on an unreasonable exercise of discretion.
First appellant's appeal against conviction and sentence dismissed; second appellant's appeal against
conviction allowed.
S v Mbuli - 2003 (1) SACR 97 (SCA) – possession arms and ammo, more than one
accused can be in possession thro common purpose.
Sv Abduragham Thebus & Moegemat Adams - Aug. 2003 (CCT 36/02) –
Constitutional court found that common law doctrine of common purpose not
unconstitutional. Discussed principle in detail.
S v Toubie 2004(1) SACR 550 (WLD) – robbery & possession firearms. Accused all
doing different things in robbery. Intent the same. Ones act attributed to all. All guilty
robbery etc.
S v Mathobela – 2007 JOL 20620 (T) – recent possession of hijacked truck. Common
purpose in carrying out robbery. Defence of simply getting a lift rejected on probabilities.
S v Vuma – 2003 (1) SACR 597 (WLD) – where minimum sentences applicable court
must apply even if convicted accused on basis of dolus eventualis. Furtherance of a
common purpose part of facts to be considered.
39) COMPELABLE WITNESSES
40) COMPENSATION ORDERS (S300)
S v Mgabhi
[2008] JOL 21734 (D)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
DR 220 / 08
01 / 04 / 2008
South Africa
High Court
Durban & Coast Local
Swain J, Wallis AJ
Keywords:
Criminal procedure – Sentence – Review
Mini Summary:
The accused was convicted of the offences of driving a motor vehicle without a driver's licence and of
negligent driving. Before he was sentenced, the complainant indicated that he would like to apply for
compensation to be awarded in terms of the provisions of section 300 of the Criminal Procedure Act 51 of
1977.
The magistrate imposed a fine of R2 000 plus a further 3 years' imprisonment wholly suspended on
condition that the accused compensated the complainant in an amount of R30 000 at R1 000 per month.
Held on review that the term of 3 years' imprisonment should be replaced with one of 1 year's
imprisonment. The court was also dissatisfied with the terms upon which the magistrate suspended that
further period of imprisonment, namely the condition that the accused compensate the complainant in the
amount of R30 000 at a rate of R1 000 per month. It was clear that the accused was in no position to pay
such a compensatory amount, and that his father would have to pay the amount. The magistrate had no
power to make such an order against the father.
84
Secondly, it was impermissible to make the award of compensation subject in the alternative to a
sentence of imprisonment.
The court set aside the sentence and replaced it with a more appropriate one
41) COMPETENT REPRESENTATION
Rudman v Cooney NO & others
[2011] JOL 26912 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA 1404 / 08
03 / 12 / 2010
South Africa
High Court
Eastern Cape, Grahamstown
E Revelas, JD Pickering JJ
Keywords:
Criminal procedure – Criminal proceedings – Application for review
Mini Summary:
The applicant and the third respondent were charged with 28 counts of fraud, alternatively theft, and one
count of contravening certain provisions of the Bank Act 24 of 1990. The applicant was convicted on all
twenty eight counts of fraud and on the count pertaining to the Bank Act.
In the present application, the applicant sought the review and setting aside, in terms of section 24 of the
Supreme Court Act 59 of 1959, of the entire proceedings of the criminal trial. The basis of the application
was that the applicant’s attorney, whose mandate he had since terminated, and who had been appointed
by the Legal Aid Board, did not defend him competently and did not act in accordance with his mandate.
The applicant contended that as a result of the aforesaid he was deprived of a fair trial.
Held that the evidence against the applicant was overwhelming. The court found that no case of
incompetence has been made out against the applicant’s attorney, and the application was dismissed.
Mafu & others v S
[2008] JOL 21385 (W)
Case Number:
A 1105 / 05
Judgment Date:
14 / 02 / 2008
Country:
South Africa
Jurisdiction:
High Court
Division:
Witwatersrand Local
Bench:
CJ Claassen J, NF Kgomo AJ
Keywords:
Criminal procedure – Competence of legal representative – Robbery with aggravating circumstances –
Alibi defence – Not led in chief – Not put to prosecution witnesses – Gross irregularity – Irregular conduct
of presiding officer – Convictions set aside
Mini Summary:
The three appellants, who were Zimbabwean citizens, had been charged with robbery with aggravating
circumstances for assaulting their victim in a spaza shop where they robbed him of his cell phone and
passport. The defence that they were not in the spaza shop only came to light during the prosecutor's
cross-examination of them; their own legal representative had failed to lead this evidence during chief,
and he had failed to put this evidence to the state's witnesses during his cross-examination of them. The
appellants were convicted as charged and each sentenced to 13 years' imprisonment. In this appeal the
issue was the competence of their legal representative.
Held that a court is entitled to see and hear the reaction of state witnesses when they are told that the
accused, who they have identified as the perpetrators, were in fact elsewhere and could not have
committed the crime. It is also important for the court to know that the alibi defence will be raised
because the court will then know that the whole question of identification "comes acutely into the
foreground", and a cautionary rule becomes applicable. It is also important for the prosecution to know
that such a defence will be raised in order for the prosecution to verify the correctness of it. The failure of
the appellant's legal representative had been inexcusable and a breach of rudimentary duty. He never
disputed the fact that had been informed about this defence and had referred to it in his closing address.
His failure constituted a gross irregularity that went "to the very ethos of justice and notions of fairness".
The record also showed that the magistrate had been prejudiced against the appellants; the questions put
by the court had not been for purposes of clarification but for the purpose of pressurizing them into saying
things the court wanted them to say. They amounted to judicial harassment. The cumulative effect of the
85
two types of irregularities vitiated the proceedings in the court a quo. The convictions and sentences were
set aside.
S v Ntuli – 2003(1) SACR 613 (WLD) – practitioners must represent client properly.
Heads of argument in appeal case must be done properly and should not be simple
“notice”.
S v Stevens 2003(2) SACR 95 (TPD) – candidate attorney appears without right of
appearance. Proceedings irregular even if refused permission by principal to apply for
certificate. Matter sent on review and set aside.
S v Mafu + 2 Case no. A1105/2005 (WLD) – this was an appeal where the
representation on trial was pathetic. The court had no hesitation to find the representation
incompetent. The question that fell to be answered was whether such incompetence led to
a failure of justice. In this case it clearly did. The appeal succeeded. The presiding officer
also descended into the arena to such an extent that it rendered the trial per se unfair.
Mafu & others v S
[2008] JOL 21385 (W)
Case Number:
A 1105 / 05
Judgment Date:
14 / 02 / 2008
Country:
South Africa
Jurisdiction:
High Court
Division:
Witwatersrand Local
Bench:
CJ Claassen J, NF Kgomo AJ
Keywords:
Criminal procedure – Competence of legal representative – Robbery with aggravating circumstances –
Alibi defence – Not led in chief – Not put to prosecution witnesses – Gross irregularity – Irregular conduct
of presiding officer – Convictions set aside
Mini Summary:
The three appellants, who were Zimbabwean citizens, had been charged with robbery with aggravating
circumstances for assaulting their victim in a spaza shop where they robbed him of his cell phone and
passport. The defence that they were not in the spaza shop only came to light during the prosecutor's
cross-examination of them; their own legal representative had failed to lead this evidence during chief,
and he had failed to put this evidence to the state's witnesses during his cross-examination of them. The
appellants were convicted as charged and each sentenced to 13 years' imprisonment. In this appeal the
issue was the competence of their legal representative.
Held that a court is entitled to see and hear the reaction of state witnesses when they are told that the
accused, who they have identified as the perpetrators, were in fact elsewhere and could not have
committed the crime. It is also important for the court to know that the alibi defence will be raised
because the court will then know that the whole question of identification "comes acutely into the
foreground", and a cautionary rule becomes applicable. It is also important for the prosecution to know
that such a defence will be raised in order for the prosecution to verify the correctness of it. The failure of
the appellant's legal representative had been inexcusable and a breach of rudimentary duty. He never
disputed the fact that had been informed about this defence and had referred to it in his closing address.
His failure constituted a gross irregularity that went "to the very ethos of justice and notions of fairness".
The record also showed that the magistrate had been prejudiced against the appellants; the questions put
by the court had not been for purposes of clarification but for the purpose of pressurizing them into saying
things the court wanted them to say. They amounted to judicial harassment. The cumulative effect of the
two types of irregularities vitiated the proceedings in the court a quo. The convictions and sentences were
set aside.
42) COMPETENT VERDICTS
S v Malapane
[2011] JOL 27840 (GSJ)
Case Number:
Judgment Date:
Country:
186 / 2011
19 / 09 / 2011
South Africa
86
Jurisdiction:
Division:
Bench:
High Court
South Gauteng, Johannesburg
NP Willis, FHD van Oosten JJ
Keywords:
Criminal procedure – Conviction – Special review – Competent verdicts – Theft – Malicious injury to
property
Mini Summary:
The accused was charged with one count of assault with intent to do grievous bodily harm and another
count of theft. The trial magistrate convicted the accused on the count of assault but on the count of theft
convicted him not of theft but of malicious injury to property. The evidence supported the conviction of
assault. The reason for the magistrate not convicting on the count of theft was that the accused did not, in
fact, steal the property of the complainant but threw his merchandise, which consisted of vegetables, on
to the ground where it was trampled upon by the accused and passers-by. Some of the persons who were
passing by helped themselves to the merchandise on the ground.
During the course of a routine inspection, the senior magistrate came across the matter and doubted the
correctness of the conviction of malicious injury to property as a competent verdict on a count of theft.
The case was sent to the present court on special review, for clarity.
Held that malicious injury to property consists in the unlawful, intentional damaging of the property of
another. All those elements were present in the proven facts before the learned magistrate. However, the
question was what was the verdict competent in terms of section 270 of the Criminal Procedure Act.
Malicious injury to property does not appear as a competent verdict on a charge of theft. The relevant
question was whether there were essential elements of the offence of malicious injury to property included
in the offence of theft with which the accused was charged. In the crime of malicious injury to property
the intention is to damage property rather than to deprive the owner of ownership, as is the position in
the case of theft. Although both offences relate to property, the essential elements of malicious injury to
property, on the one hand and theft, on the other are different. The conviction of malicious injury to
property and the sentence imposed in respect thereof were thus reviewed and set aside.
Madonsela v S
[2012] JOL 29104 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 463 / 2011
19 / 04 / 2012
South Africa
High Court
South Gauteng, Johannesburg
FHD van Oosten J, TP Mudau AJ
Keywords:
Criminal law – Robbery with aggravating circumstances – Conviction and sentence – Appeal
Mini Summary:
The appellant was convicted on two counts of robbery with aggravating circumstances. The two counts
were taken together for purpose of sentence and he was sentenced to 15 years’ imprisonment and he was
declared unfit to possess a firearm. The present appeal was against conviction and sentence.
Held that the appellant’s conviction was solely based on the appellant’s possession of the robbed motor
vehicle, after the robbery. The police had found the vehicle on the appellant’s premises. The question on
appeal was whether the court a quo correctly invoked the doctrine of recent possession in convicting the
appellant of robbery. The Court examined the concept of recent possession in an attempt to establish
whether the appellant’s possession of the vehicle eight days after it was stolen fell within the ambit of the
concept. The Court concluded that the appellant was wrongly convicted of robbery. The facts, however,
did establish an offence under section 36 of the General Law Amendment Act 62 of 1955, which in terms
of section 260 (f) of the Criminal Procedure Act 51 of 1977, is a competent verdict on a charge of robbery.
The conviction of robbery with aggravating circumstances was thus substituted with a conviction of
contravention of section 36 of the Act 62 of 1955.
The sentence was amended accordingly.
S v Malapane
[2011] JOL 27840 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
186 / 2011
19 / 09 / 2011
South Africa
High Court
87
Division:
Bench:
South Gauteng, Johannesburg
NP Willis, FHD van Oosten JJ
Keywords:
Criminal procedure – Conviction – Special review – Competent verdicts – Theft – Malicious injury to
property
Mini Summary:
The accused was charged with one count of assault with intent to do grievous bodily harm and another
count of theft. The trial magistrate convicted the accused on the count of assault but on the count of theft
convicted him not of theft but of malicious injury to property. The evidence supported the conviction of
assault. The reason for the magistrate not convicting on the count of theft was that the accused did not, in
fact, steal the property of the complainant but threw his merchandise, which consisted of vegetables, on
to the ground where it was trampled upon by the accused and passers-by. Some of the persons who were
passing by helped themselves to the merchandise on the ground.
During the course of a routine inspection, the senior magistrate came across the matter and doubted the
correctness of the conviction of malicious injury to property as a competent verdict on a count of theft.
The case was sent to the present court on special review, for clarity.
Held that malicious injury to property consists in the unlawful, intentional damaging of the property of
another. All those elements were present in the proven facts before the learned magistrate. However, the
question was what was the verdict competent in terms of section 270 of the Criminal Procedure Act.
Malicious injury to property does not appear as a competent verdict on a charge of theft. The relevant
question was whether there were essential elements of the offence of malicious injury to property included
in the offence of theft with which the accused was charged. In the crime of malicious injury to property
the intention is to damage property rather than to deprive the owner of ownership, as is the position in
the case of theft. Although both offences relate to property, the essential elements of malicious injury to
property, on the one hand and theft, on the other are different. The conviction of malicious injury to
property and the sentence imposed in respect thereof were thus reviewed and set aside.
Johnson v S
[2008] JOL 22050 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 1008 / 06
12 / 05 / 2008
South Africa
High Court
Transvaal Provincial
BR du Plessis, JR Murphy JJ
Keywords:
Criminal procedure – Theft – Theft committed through false pretences – Conviction – Appeal
Mini Summary:
Having been convicted of theft and sentenced to 4 years' imprisonment, the appellant noted the present
appeal.
Held that the main question raised on appeal was whether a person charged with theft, can be convicted
thereof if the evidence establishes theft through false pretences. Examining case authority, the court
found that a person can be convicted of theft committed by way of false pretences where he has been
charged with theft, provided that he was not prejudiced by a lack of particularity.
The appeal was dismissed.
S v Msiza
[2008] JOL 22047 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1056 / 078
12 / 05 / 2008
South Africa
High Court
Transvaal Provincial
BR Southwood, E Bertelsmann JJ
Keywords:
Criminal law – Theft – Competent verdict of
Mini Summary:
88
The accused was found guilty of robbery and sentenced to 3 year's imprisonment in the magistrate's
court.
Held that the accused could be found guilty of theft despite not having being warned of the competent
verdict.
Held further that the conviction of theft warranted a heavy sentence in the light of the accused's previous
convictions of housebreaking with intent to steal and theft; three of theft and one of possession of
presumably stolen property
The conviction was set aside and substituted with a conviction of theft and the sentence of 3 years'
imprisonment was confirmed.
S v Nyanga – 2004(1) SACR 198 (CPD) – court should explain possible competent
verdicts to accused. Test if not done is whether would have conducted defense differently
in light of explanation.
S v Morake
[2008] JOL 21283 (E)
Case Number:
CA & R 252 / 07
Judgment Date:
11 / 10 / 2007
Country:
South Africa
Jurisdiction:
High Court
Division:
Eastern Cape
Bench:
RJW Jones J
Keywords:
Criminal procedure – Robbery – Competent verdict – Assault – Accused not warned beforehand –
Irregularity not prejudicial – Assault conviction confirmed Criminal procedure – Sentencing – Youth – No
pre-sentence report – Sentence set aside – Matter remitted for sentencing afresh
Mini Summary:
The accused had been charged on two counts: the first was for robbery and the second for housebreaking
with intent to steal and theft. On the first charge he was convicted of common assault and received a
sentence of fine of R200 or 40 days' imprisonment. On the second he was sentenced to eight months'
imprisonment.
On review, a magistrate had raised the question of whether it had been an irregularity to convict the
accused on the competent verdict of assault for the robbery charge without first advising the accused of
this possibility. On the second charge, the magistrate queried whether the evidence of the single witness
had provided proof beyond a reasonable doubt.
Held that the an irregularity had been committed in not advising the accused of the possibility that he
could be convicted of assault, but the magistrate had been correct in finding that the accused had not
been prejudiced by it. Secondly, the weaknesses in the evidence of the single witness were not sufficient
to justify going behind the magistrate's findings of fact. The convictions were confirmed but the sentences
were set aside because the accused was a scholar, and the magistrate had failed to call for a pre-sentence
report. The matter was remitted to the magistrate for sentencing afresh.
43) COMPETENT WITNESES
1. S v RAGHUBAR 2013 (1) SACR 398 (SCA)
The accused was convicted in a magistrates' court of indecent assault and was
sentenced to 10 years' imprisonment. An appeal against the conviction and sentence
to the high court was dismissed. In a further appeal the court requested further
argument from the parties on the issue whether there had been proper compliance
with the provisions of s 163 read with the provisions of ss 162 and 164 of the
Criminal Procedure Act 51 of 1977. The issue arose concerning the evidence of the
complainant who was 14 years old at the time of the trial, but who was 8 years old
when the offence was allegedly committed. The record showed that the magistrate
merely asked the complainant how old he was; what the date of his birth was; and
what grade he was in, before asking the appellant's legal representative whether he
accepted that the complainant was a competent witness. When the legal
89
representative confirmed that the complainant was a competent witness the
magistrate proceeded to ask the complainant whether he believed in God and
whether he believed that he would be punished if he told lies after swearing to tell
the truth. The complainant answered in the affirmative to these questions and he
was then sworn in.
Held, that it could be accepted that the magistrate managed to determine merely
from such an elementary line of questioning pertaining to the complainant's age,
date of birth and level of education that the complainant was competent to testify.
Furthermore, the appellant's legal representative was not qualified to express an
opinion on the complainant's competency. It is not clear on what basis his opinion
was solicited by the magistrate, nor on what basis he expressed it. (Paragraph [7] at
402g–h.)
Held, further, that the leading, compound question posed by the court as to the
complainant's understanding of what it meant to tell the truth was also not helpful. It
was impossible to gather from it whether the complainant understood what it meant
to speak the truth; what the oath meant; and the difference between the truth and
falsehood, or the consequences if he did not speak the truth. All that the complainant
could say in response to the question was 'yes' or 'no'. The magistrate had felt
compelled to undertake an enquiry on seeing the child in the witness box and
entertaining certain doubts that caused her to embark upon that enquiry. What was
required of her in embarking upon that enquiry was not the knowledge on the part of
the witness about abstract concepts of truth and falsehood. The child may not know
the intellectual concepts of truth or falsehood, but would understand what it means
to be required to relate what happened, and nothing else. The manner in which the
child is questioned is crucial to the enquiry and is where the role of an intermediary
becomes vital. The intermediary would ensure that questions by the court to the
child are conveyed in a manner that the child can comprehend, and that the answers
given by the child are conveyed in a manner that the court would understand.
(Paragraph [8] at 403a–i.)
Held, accordingly, that, as the enquiry undertaken by the magistrate fell far short of
the requirements, it followed that no reliance could be placed on the evidence of the
complainant and the conviction could not stand. The appeal was upheld. (Paragraph
[9] at 404b.)
Case Information
Appeal from a decision on appeal in the KwaZulu-Natal High Court (Nicholson J and
Vahed AJ). The facts appear from the reasons for judgment.
S v Dladla 2011 (1) SACR 80 (KZP)
The appellant was a nurse employed at a mental institution. He was convicted of assault
with intent to do grievous bodily harm, and sentenced to a fine of R1000 or 100 days'
imprisonment, half of which was suspended. The complainant had been an inmate of the
institution for five years. He testified that the appellant, together with a colleague, had
administered tablets to him, but when he had refused to take them they had hit, kicked
and attempted to strangle him. The magistrate found the complainant's evidence to be
true and correct, and rejected that of the appellant, on the grounds that the complainant
was sane, and that he had given a clear, full and consistent account of what had
happened. She also held that, in order for the appellant to succeed, he would have to
prove his innocence on a balance of probabilities. On appeal, the court was required to
decide whether the complainant, suffering from a mental illness and a schizophrenic, was
90
a competent witness; and whether the appellant had had to discharge any onus in order to
be acquitted.
Held , that mental illness could be permanent or temporary; in terms of s 194 of the
Criminal Procedure Act 51 of 1977, it was only while the mental disability continued that
the person was incompetent to give evidence. Whether a witness was suffering from a
mental illness or defect was to be determined with the aid of psychiatric evidence, but the
magistrate had held the complainant to be in a lucid interval, without hearing any expert
medical evidence. Without such evidence it could not have been established with
certainty that the complainant had not been afflicted with mental illness, or that he had
not been labouring under imbecility due to the medication he had been taking. It could
not be assumed from his behaviour in court that he had been in a sane interval.
Accordingly, the decision by the magistrate that the complainant had not been suffering
from any mental illness or mental disorder, amounted to a serious irregularity, on account
of which the conviction must be set aside.
Held , further, that it was a general principle of criminal law that an accused was not
obliged to convince or persuade a court of anything; the magistrate's suggestion to the
contrary was misplaced and she had misdirected herself in holding that the appellant had
borne an onus to discharge on a balance of probabilities. Appeal upheld. Conviction and
sentence set aside.
Case Information - Appeal against conviction and sentence. The facts appear from the
judgment of Madondo J, in which K Pillay J concurred.
Ngwebane v S
[2008] JOL 22054 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 2258 / 04
28 / 05 / 2008
South Africa
High Court
Transvaal Provincial
N Ranchod, M Motimele AJJ
Keywords:
Criminal procedure – Rape – Conviction – Appeal
Mini Summary:
Convicted on two counts of rape, the appellant was sentenced to 10 years' imprisonment on each count.
While the complainant alleged that she had been raped by a group of men, including the appellant, the
appellant alleged that he had had consensual intercourse with the complainant.
Held that the main argument of the appellant on appeal was that that the swearing-in of the complainant
was an irregularity and that the subsequent cross-examination did not comply with the provisions of the
law as she ought to have been admonished. A further submission was that when complainant was
admonished the magistrate did not warn her that if she told any untruths she would be punished.
The court set out the provisions of section 164 of the Criminal Procedure Act 51 of 1977, and held that the
requirements had been complied with.
The only ground on which the appeal was upheld, was on the failure of the magistrate to conduct an
inquiry to determine whether the complainant and
Swartz v S
[2008] JOL 22396 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
A 299 / 07
17 / 04 / 2008
South Africa
High Court
91
Division:
Bench:
Cape of Good Hope Provincial
MJ Hlophe JP; EJS Steyn AJ
Keywords:
Criminal procedure – Indecent assault – Child complainant – Competence as witness – Enquiry
Mini Summary:
The appellant was convicted of the indecent assault of a 4-year-old boy. He was sentenced to 3 years’
correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act 51 of 1977.
He appealed against his conviction.
Held that presiding officers are required, when dealing with young witnesses, to determine whether they
have the necessary competency to testify. In the present case, the regional magistrate was required to
determine whether the witness, a child of seven years of age at the time of the trial, was a competent
witness to give sworn evidence in terms of section 162 of the Act.
The trial court's conviction of the appellant based on the complainant's evidence without conducting the
enquiry referred to above or making a finding regarding the child's competency was an irregularity.
The appeal was upheld.
S v Mdali
[2008] JOL 22390 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
25 / 688 / 07
05 / 05 / 2008
South Africa
High Court
Cape of Good Hope Provincial
Le Grange, NC Erasmus JJ
Keywords:
Criminal procedure – Assault with intent – Conviction and sentence – Trial proceedings – Errors
Mini Summary:
The accused was convicted of assault with the intent to do grievous bodily harm, and sentenced to a term
of 6 months’ imprisonment which was wholly suspended for a period of 3 years on certain conditions.
Held on review that the rights of the accused to cross-examination were not properly explained. That was
conceded by the magistrate.
The magistrate also erred when she ruled that a person who was present during court proceedings cannot
be called as a witness. The magistrate confused the principles governing the admissibility of evidence with
the probative value of such evidence, if found to be admissible. This error, amounts to a serious
irregularity that vitiated the proceedings.
The court found that the accused’s constitutional right to a fair trial, and in particular his right to adduce
and challenge evidence, was grossly violated. The conviction and sentence were thus set aside.
44) COMPUTER GENERATED EVIDENCE
S v Harper - 1981(1) SA 88 (D) – Requirements for proving admissibility of documents
other than those covered by Section 212 is dealt with in detail. Dealt with microfilms and
computer print outs.
S v Fuhri – 1994(2) SACR 829 (A) – dealt with admissibility of photographs taken by
speed trap device. Court held device not a computer and photo not a print-out. Computer
Evidence Act 57 of 1983 thus not applicable.
Ex Parte Rosch – 1998(1) All SA 319 (W) – dealt with computer generated evidence.
Held as evidence generated automatically by a computer without assistance of any human
agency. Here there was printouts of telephone calls generated by computer.
92
45) C0NCEALMENT OF BIRTH
S v MOLEFE 2012(2) SACR 574 (GNP)
If an accused places the body of her child in a bucket at her house it is not
enough for a ‘disposal’ of a body of a child in a contravention of section
113(1)
of Act 46 of 1935.
“Rabie J :
1. The accused, an adult female, was convicted in the Magistrates' Court of
Bloemhof on a charge of contravention of section 113 (1) read with section 113
(2)
and (3) of the General Law Amendment Act 46 of 1935 in that she had unlawfully
and with the intent to conceal the fact of the birth of a child, attempted to dispose
of
the body of the said child.
2. The accused pleaded guilty and in a statement in terms of section 112 (2) of
the
Criminal Procedure Act, the accused stated the following:
1. I am voluntarily pleading guilty to the charge to me attempt to conceal birth,
Act 46
of 1935.
13
2. On or about 3-4 October 2009 at Bloemhof, district Bloemhof, I unlawfully with
intent to attempt to conceal the fact of the birth of a child denied to a sister at the
clinic that I had given birth to a dead child. I had not yet disposed of the dead
child's
body and when I was confronted by the police I went to show the police the body
in
a bucket at my house. The child was prematurely born and was dead at birth.
3. I know my actions were wrong and unlawful. I have remorse for my actions."
3. Before convicting the accused the Magistrate enquired from the prosecutor
whether the Director of Public Prosecutions had authorised the prosecution in
writing
as required by section 113(3) of the General Law Amendment Act, Act 46 of
1935
("the Act"). The matter stood down and was then postponed and on resumption
the
prosecutor informed the court that no written authorisation existed but that the
Director of Public Prosecutions had given verbal permission for the prosecution
to
proceed. The prosecutor submitted that verbal permission constitute compliance
with section 113 (3) of the Act. The Magistrate thereupon found the accused
guilty
but also referred the matter for special review regarding the issue as to whether
the
permission to prosecute can be verbal or whether it should be writing. The
93
Magistrate was not convinced of the validity of the prosecution.
2. Senior State Advocate A.J. Fourie wrote an opinion with which Deputy Director
of
Public Prosecutions, Advocate M van Vuuren, concurred. I am indebted to these
advocates for their assistance and since I agree with their opinion, I shall repeat
much of what is contained in the opinion.
3. Section 113 of the Act provides as follows: "Concealment of birth of newly born
child
(1) Any person who, without a lawful burial order, disposes of the body of any
newly
born child with intent to conceal the fact of its birth, whether the child died before,
during or after birth, shall be guilty of an offence and liable on conviction to a fine
or
to imprisonment for a period not exceeding three years.
(2) A person may be convicted under subsection (1) although it has not been
proved
that the child in question died before its body was disposed of.
(3) The institution of a prosecution under this section must be authorised in
writing
by the Director of Public Prosecutions having jurisdiction.” (my underlining)
4. The State Advocates were of the view that given the unequivocal requirement
that
the authorisation must be in writing, the mandatory prerequisite for the
prosecution
was not adhered to in casu. It was submitted that although it might be argued
that
failure to obtain written authorisation prior to a prosecution can be (or was in this
instance) ratified by the Director of Public Prosecutions, the conviction ought
nevertheless to be set aside not only as a result of the procedural omission but
also
for other reasons.
14
5. Regarding the issue of written authorisation it does not appear, even if it were
to
be possible, that there had, in casu, been a written authorisation ratifying the
institution of the prosecution prior to conviction. Consequently the accused could
not
have been prosecuted and the conviction should be set aside.
6. Regarding the aforesaid other reasons why the conviction should be set aside,
the
following may be referred to: Firstly, section 113 (1) of the Act makes it an
offence to
"... dispose of the body of a child..." with the intent to thereby conceal the birth of
a
child. According to the plea explanation quoted above, the accused, however,
only
94
admitted that she lied to a sister at the clinic about the fact that she gave birth.
She
specifically stated that "I had not yet disposed of the dead child's body and when
I
was confronted by the police, I went to show the police the body in a bucket at
my
house."
7. It was submitted that the essence of the offence is the "disposal" or "attempted
disposal" of the body of a child. In casu there was no admission by the accused
that
she either disposed or attempted to dispose of the body. The Magistrate could
therefore not have been satisfied that the accused admitted all the essential
elements of the offence. In this regard it was submitted that the act of "disposing"
calls for some act or measure of permanence and not just placement for all to
see.
In R v Dema 1947(1) SA 599 (E) Pittman JP found on the issue as follows:
"Now, the provision of the law, sec. 113 of the General Law Amendment Act 46
of
1935, which defines the crime with which accused stands charged, uses the
word
'disposes' to describe the act constituting it. And when it speaks of 'disposing' of
the
body we think it means an act involving some measure of permanence. Merely to
place a body on the floor or on a table or bed is not in the requisite sense to
'dispose' of it. The body to be 'disposed of must be put or placed in some place
where it is intended by the party placing or putting it there that it should remain.
Here
the evidence shows that accused put the child's dead body in the box; we are
satisfied that she did, but it, the evidence, does not convince us that doing so she
meant the body to remain there for any time. The box was fully exposed to view.
Anyone entering the room would see it, as the witness Nokampi did, and seeing
it
would in the circumstances be led to open it. The act relied upon as a disposition
of
the body is not in our view a disposition in the sense intended by the legislature.
In
the case relied upon by the Crown of Rex v Smith {1918 CPD 260) the facts went
far
more strongly to establish a disposition of the body. Here we are not satisfied
that
there was a disposition on accused's part and we find her not guilty."
8. It was submitted by the State Advocates that the admission by the accused
that
she had lied to the sister at the clinic does not allow for the inference that she
thereby attempted to dispose of the body. Reference was made to S v D 1967(2)
SA
95
537 (W) wherein it was remarked that it is notorious that many mothers of newly
15
born children are under considerable physical and mental stress and are unable
to
act with the calm and balanced judgement which the circumstances require.
9. I agree with all of the aforesaid but it goes further. The evidence before the
court,
which only consisted of the admissions by the accused, does not prove a
disposal of
the body nor of an attempt to do so. The accused may have formed an intention
to
dispose of the body of the child but her actions to that point do not constitute a
disposal or an attempt to do so. The lie which she told to the sister at the clinic
does
not, by itself, constitute a disposal of the body or an attempt to do so.
10. The second reason why the State Advocates do not support the conviction is
based on the fact that in order for a conviction to follow, there must be evidence,
which includes admissions in terms of section 112 (2) of the Criminal Procedure
Act,
that the child (fetus) have the potential of being born alive, in other words, being
a
viable child. See S v Jasi 1994(1) SACR 568 (ZH). That matter related to an
intrauterine
stillbirth fetus. In a well-researched judgement Adam J came to the
conclusion that A 'child' for the purposes of section 2 of the Concealment of Birth
Act
[Chapter 57] which applied in that case, and which is similar to its South African
counterpart, is one that has reached a stage of development, irrespective of the
duration of the pregnancy, which makes the child capable of being born alive,
i.e.,
after separation from its mother the child is able to breathe independently, either
naturally or with the aid of a ventilator. As such the court could not find that a
fetus
younger than 28 weeks was a viable child for purposes of the section.
11. In S v Manngo 1980 (3) SA 1041 (V) van Rhyn CJ was concerned with an
offence of concealment of birth in contravention of s 113 of Act 46 of 1935. The
accused testified that she had been three months pregnant when she "gave birth
to
the child". Van Rhyn CJ agreed with the statement in Milton and Fuller South
African
Criminal Law and Procedure vol 111 at 271, and the authorities cited by the
learned
authors, that the offence cannot be committed unless the child had arrived at that
stage of maturity at the time of birth that it might have been born a living child. He
found that in that instance it was clear that the foetus could not have been
96
considered a child in terms of the provisions of the Act and consequently set
aside
the conviction and sentence.
12. In S v Madombwe 1977 (3) SA 1008 (R) Whitaker J with whom Goldin J
concurred, found that for the purpose of an offence under the Concealment of
Birth
Act, Chapter 57 (R), a child must be regarded as one whose birth is required to
be
registered in terms of the Births and Deaths Registration Act, Chapter 30 (R). It
was
further found that a foetus of less than 28 weeks should not be regarded as a
child
within the provisions of the Concealment of Birth Act.
13. It was submitted by the State Advocates that in casu there was no evidence,
nor
was it admitted, that the fetus found by the police was indeed older than 28
weeks
16
and thus a viable child. Consequently, so it was submitted, the conviction can for
this
reason also not be sustained.
14. I agree with this submission. The Act refers to the disposal of the body of a
newly born "child". Consequently, in order to sustain a conviction, there has to be
evidence before the court that the fetus had arrived at that stage of maturity at
the
time of birth that it might have been born a living child. In casu there was no
evidence regarding the duration of the pregnancy nor of the viability of the
fetus/child. All that is known is that the "child" was in fact born prematurely and
was
dead at birth. For this reason alone it could not be found that the accused
disposed
of the body of a child and consequently the conviction and sentence should be
set
aside.”
46) CONCURRENT SENTENCES
Khubheka v S
[2014] JOL 32414 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
A38 / 2014
04 / 08 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
CJ Claassen, MA Makume JJ
97
Criminal law – Robbery with aggravating circumstances – Possession of suspected stolen property –
Unlawful possession of firearm and ammunition – Conviction and sentence – Appeal
Mini Summary:
The appellant was convicted of robbery with aggravating circumstances, possession of suspected stolen
property, possessing an unlicensed firearm, and unlawful possession of ammunition. He was sentenced to
an effective term of 20 years’ imprisonment. He appealed against both the convictions and the sentences.
Held that having regard to the evidence, the Court found no merit in the appeal against the convictions.
As far as sentence was concerned, it was found that the court a quo took into account all relevant factors
and did not commit any misdirection, material or otherwise, in sentencing the appellant on the first count.
However, as counts 2, 3 and 4 all arose from the same set of facts, the court a quo should have ordered
the sentences on those counts to run concurrently. Its failure to do so amounted to a misdirection,
entitling the court of appeal to interfere with a portion of the order on sentence imposed by the court a
quo. The effective sentence thereafter was one of 15 years’ imprisonment.
Nyawuza v S
[2014] JOL 32320 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 262 / 13
16 / 09 / 2014
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Koen, Olsen, Chili JJ
Keywords:
Criminal law – Murder – Robbery with aggravating circumstances – Sentence – Appeal
Mini Summary:
The appellant was convicted of murder and robbery with aggravating circumstances. In respect of the
robbery with aggravating circumstances he was sentenced to 15 years’ imprisonment. It was ordered that
5 years of the sentence on the robbery count run concurrently with the sentence of 25 years, thus
resulting in an effective term of 35 years imprisonment. The underlying incident was the murder of a
policeman by the appellant and the taking of his service pistol.
In appealing against his sentence, the appellant contended that the Court had erred in failing to take into
account the fact that the appellant had just been sentenced to a lengthy sentence in another case when
he was sentenced in the present matter.
Held that in the absence of a direction that the sentences run concurrently, the sentences imposed would,
in terms of section 280(2) of the Criminal Procedure Act 51 of 1977, run consecutively. The effect thereof
was that the appellant was required to serve an effective 50 years’ imprisonment.
The infliction of punishment is pre-eminently a matter for the discretion of the trial court. In determining
an appropriate sentence, regard must be had to the well-known triad factors, namely the seriousness of
the crime, the offender’s personal circumstances, as well as the interests of society. Equally important is
the aspect of mercy which is a concomitant of justice. Each sentence must be individualised to be dealt
with on its own peculiar facts. A court of appeal does not have an unfettered discretion to interfere with
the sentence imposed by a trial court. It is only where it is clear that the discretion of the trial court was
not exercised judicially or reasonably that a court of appeal will be entitled to interfere. Where there is no
clear misdirection, the remaining question is whether there exists such a striking disparity between the
sentences imposed by the trial court and the sentences the appeal court would have imposed, as to
warrant interference.
Deeming 50 years’ imprisonment to be unacceptable, the Court upheld the appeal and adjusted the
running of the sentences.
Mabunda v S
[2014] JOL 31589 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
765 / 12
27 / 03 / 2013
South Africa
Supreme Court of Appeal
LE Leach, CH Lewis JJA, NC Erasmus AJA
98
Criminal law – Robbery with aggravating circumstances – Appeal against sentence – Failure to order
sentences to run concurrently resulting in sentence which was shockingly inappropriate – Interests of
justice requiring concurrency of portions of sentences imposed on two counts
Mini Summary:
The appellant was convicted on two counts of robbery with aggravating circumstances and was sentenced
to 15 years’ imprisonment on each count. The present appeal was solely against sentence.
The two counts related to two separate incidents which occurred on the same night. In both cases, the
complainants were threatened with firearms and robbed.
Held that in section 51(2)(a)(i) of the Criminal Law Amendment Act 105 of 1997, the legislature has
provided a prescribed minimum sentence of 15 years’ imprisonment for a first offender who commits the
offence of robbery with aggravating circumstances. The court a quo was therefore obliged to impose at
least that sentence on each count unless there were substantial and compelling circumstances as
envisaged by section 53 of the Act, which justified a lesser sentence. It concluded that there were no such
circumstances and imposed the prescribed minimum sentence on each count. During argument, the
appellant’s counsel conceded that there were no substantial and compelling circumstances which justified
a sentence less than that prescribed for each count, and limited his argument to the contention that even
if the prescribed sentences should stand, the failure to order them to run concurrently to any extent
rendered the cumulative effect thereof shockingly inappropriate and too severe.
The present Court highlighted the aggravating factors of the case, and agreed that punishment and
deterrence are factors that come to the fore in determining an appropriate sentence. However, neither of
the incidents constituted the most violent type of robbery which would warrant an effective sentence of 30
years’ imprisonment. The effective sentence of 30 years’ imprisonment was therefore regarded as
shockingly inappropriate. It was concluded that the interests of justice would be served by ordering 12
years of the sentences imposed on each count to run concurrently. That would oblige the appellant to
serve an effective 18 years’ imprisonment. The appeal was upheld to that extent alone.
47) CONDONATION
S v SENKHANE 2011 (2) SACR 493 (SCA)
In terms of established case law the appellant has an automatic right of appeal to D the
Supreme Court of Appeal against the refusal of an application for condonation by a High
Court, sitting as a court of appeal, relating to the appeal before it. However, the time has
come for the Supreme Court of Appeal to exercise its inherent jurisdiction and to lay
down that leave to appeal should first be sought from the High Court against such refusal.
In doing so the SCA will be regulating — in terms of s 20(1) and s 21(1) of the Supreme
Court Act 59 of 1959 read with s 35(3)(o) and s 173 of the Constitution, 1996 — the
procedure to be followed for appeals to be heard by it. The High Court, constituted as a
court of appeal, provides its reasons for its refusal to grant condonation, and when faced
with an application for leave to appeal against such refusal, will deal with it on its merits.
If that is refused, an accused person will have further recourse to the SCA by way of
petition.
Case Information
B Appeal from a decision in the Free State High Court (Ebrahim J and Jordaan J)
refusing an application for condonation for the late prosecution of an appeal against
convictions and Supreme Court of Appeal to exercise its inherent jurisdiction and to lay
down that leave to appeal should first be sought from the High Court against such refusal.
In doing so the SCA will be regulating — in terms of s 20(1) and s 21(1) of the Supreme
Court Act 59 of 1959 read with s 35(3)(o) and s 173 of the Constitution, 1996 — the
procedure to be followed for appeals to be heard by it. The High Court, constituted as a
court of appeal, provides its reasons for its refusal to grant condonation, and when faced
99
with an application for leave to appeal against such refusal, will deal with it on its merits.
If that is refused, an accused person will have further recourse to the SCA by way of
petition.
Case Information
B Appeal from a decision in the Free State High Court (Ebrahim J and Jordaan J)
refusing an application for condonation for the late prosecution of an appeal against
convictions and sentences in a regional magistrates' court. The facts appear from the
judgment of Navsa JA.
P du P Greyling for the appellant.
Alam v S
[2011] JOL 27255 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 354 / 10
13 / 05 / 2011
South Africa
High Court
Western Cape, Cape Town
Bozalek J, Cloete AJ
Keywords:
Criminal procedure – Appeal – Right to appeal – Rape – Conviction and sentence
Mini Summary:
The appellant was convicted on one count of abduction and five counts of rape and was sentenced to 1
year's imprisonment for the abduction and five terms of life imprisonment for the rapes, with all of the
sentences to run concurrently.
The record of the proceedings in the Regional Court showed that although the appellant had filed an
application for leave to appeal against both his convictions and sentence, together with an application for
condonation for the late filing thereof, there was no indication whether those applications were ever heard
by that court.
Held that the first issue to be addressed was whether the appeal was properly before the present court.
The effect of an amendment of 1 April 2010 to section 309(1)(a) of the Criminal Procedure Act 51 of 1977
was that persons sentenced to life imprisonment by a regional court no longer have an automatic right of
appeal unless, at the time of commission of the alleged offence, such person was under the age of 16
years; or 16 years or older but under the age of 18 years and sentenced to any form of imprisonment that
was not wholly suspended. The appellant was convicted and sentenced after section 309(1)(a) was
amended by the Criminal Law (Sentencing) Amendment Act (which came into effect on 31 December
2007) but before the amendment to section 309(1)(a) by section 99(1) of the Child Justice Act (which
came into effect on 1 April 2010). The amendment of 1 April 2010 is not retrospective and the appellant
thus fell squarely within the "window period" in which a person sentenced to life imprisonment by a
regional court was entitled to note an appeal against both conviction and sentence without having to apply
for leave to appeal to the lower court which convicted and sentenced him. The appeal was therefore
properly before the Court.
On the merits, the Court found that the state had proved its case on all but one of the counts. It had failed
to prove beyond a reasonable doubt that the appellant had raped the complainant twice in the hut in
which the offences occurred. The appeal was upheld only in respect of the single count.
In respect of sentence, the Court found that the magistrate misdirected himself in attaching no weight at
all to the appellant's personal circumstances and the fact that he was a first offender for rape. Those,
together with the appellant's youth, were clearly mitigating factors and, notwithstanding the seriousness
of the offences, constituted substantial and compelling circumstances. The magistrate did not consider at
all the possibility that the appellant could be rehabilitated. The sentences which he imposed for the rapes
were the heaviest permitted by law. Taking into account the mitigating factors, the five sentences of life
imprisonment imposed by the magistrate for the rapes were disturbingly inappropriate.
The Court deemed an effective sentence of 18 years' imprisonment in respect of each of the four counts of
rape to be appropriate, subject to the sentences running concurrently.
48) CONFESSIONS
100
S v Mkhize
[2010] JOL 26109 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CC 157 / 10
13 /09 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
Govindasamy AJ
Keywords:
Criminal law – Murder – Confession – Admissibility
Mini Summary:
The accused was charged with two counts of murder. He pleaded not guilty and alleged that he was not
present in the area of the crimes when they were committed.
None of the three witnesses for the State had actually seen the accused at the scene of the crime.
However, the State sought to prove an alleged confession made by the accused to a police officer within
the meaning of section 217(1) of the Criminal Procedure Act 51 of 1977. The accused objected to the
reception of the confession on the basis that it was inadmissible, in that he was assaulted and threatened
to make a statement.
Held that the court had to consider whether or not the alleged confession was admissible. The onus was
on the state to prove beyond a reasonable doubt that the confession was made freely and voluntarily and
without any undue influence by the accused whilst in his sound and sober senses. That onus was not
discharged in this case. The court was not satisfied that the confession was made freely and voluntarily by
the accused and without any undue influence. The prosecution had failed to prove beyond a reasonable
doubt that a confession was made in terms of the requirements of section 217(1) of the Criminal
Procedure Act. The confession was therefore inadmissible.
The court went on to find that the remaining evidence was insufficient to prove the guilt of the accused
beyond a reasonable doubt. The accused was found not guilty and discharged.
S v Mangena and Another 2012 (2) 170 (SG) – a confession made by an accused
which refers to his co-accused is per se inadmissible by reason of s 219 and if it falls
short of a confession will only be admissible under common law against co-accused if
uttered or written in furtherance of their common purpose, but not otherwise
Nzama & another v S
[2009] JOL 23401 (KZN)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR480 / 07
04 / 2009
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Kruger J
Keywords:
Criminal procedure – Murder – Housebreaking – Robbery with aggravating circumstances – Conviction –
Appeal – Confession – Admissibility
Mini Summary:
The appellants were convicted of housebreaking with intent to rob, robbery with aggravating
circumstances, and murder. They each received an effective sentence of life imprisonment.
Each of the accused made a confession in which he implicated himself in the commission of the crimes in
question. That was the only evidence against them. At the conclusion of a trial-within-a-trial, the court a
quo found both confessions admissible and accordingly convicted the accused on the strength thereof.
The appeal against the convictions was based on the correctness of the above finding.
Held that the admissibility of confessions is governed by section 217 of the Criminal Procedure Act 51 of
1997. The onus of proof rests on the State to prove beyond a reasonable doubt that a confession was
freely and voluntarily made by the accused, in his sober senses and in the absence of undue influence.
Having regard to the evidence, the court was not satisfied that the State had proved, beyond a reasonable
doubt, that the accused were not unduly influenced to make the confessions.
Allowing the appeal, the court set aside the convictions.
101
Molimi v S
[2008] JOL 21324 (CC)
Case Number: CCT 10 / 07
Judgment
04 / 03 / 2008
Date:
Country:
South Africa
Jurisdiction:
Constitutional Court
Division:
Bench:
Langa CJ, Moseneke DCJ, Nkabinde, Madala, Ngcobo, Sachs, Skweyiya, Van der
Westhuizen, Yacoob JJ, Mpati AJ
Keywords:
Criminal procedure – Extra-curial statements – Admissibility against co-accused
Mini Summary:
The admissibility of extra-curial statements of an accused against a co-accused in a criminal trial was the
issue for determination in this case. The court was required to consider the rules governing the
admissibility of hearsay evidence under the provisions of the Law of Evidence Amendment Act 45 of 1988
in the context of the right to a fair trial and the need to prevent procedural abuse.
The Supreme Court of Appeal had dismissed the applicant's appeal against his convictions. He therefore
approached the Constitutional Court for leave to appeal against that decision.
The charges against the applicant arose out of an armed robbery at a store at which he was the manager.
A shootout resulted in one of the group of robbers being killed, and two others surrendering. Those two
implicated the applicant in the robbery in a statement made to the police.
Held, that the admissibility of the above-mentioned statement was in issue.
One of the objections raised by the applicant was that the statements should have been recognised as
confessions and that a confession of an accused cannot be used as evidence against a co-accused. The
court agreed with that submission and held that the Supreme Court of Appeal and the trial court had erred
in admitting the confession as evidence against the applicant.
The court went on to hold that the late admission of hearsay evidence against the applicant was
prejudicial to him and not in the interests of justice.
Leave to appeal was granted.
S v Makeba & Ntambela - (510/2002) (SCA) – confession of co-accused can be used as
corroboration for accomplices evidence.
49) CONFLICT OF INTERESTS
50) CONTEMPT OF COURT
S v Juries - 2003 (2) SACR 52 (CPD) – what constitutes contempt and when summary
procedure to be adopted (be very careful).
S v Sonpra – 2004(1) SACR 278 (TPD) – accused forgot to switch off cell phone. Not
held to be required intent for contempt conviction.
S v Ntshwence 2004(1) SACR 506 (TPD) – accused has all rights as if normal trial i.e.
right to legal representation. No formal charge sheet required.
Hepburn v Miller
[2008] JOL 21354 (W)
Case Number:
Judgment Date:
Country:
Jurisdiction:
15732 / 07
19 / 12 / 2007
South Africa
High Court
102
Division:
Witwatersrand Local
Bench:
JCW van Rooyen AJ
Keywords:
Divorce – Child custody – Breach of order – Contempt of court
Mini Summary:
The parties herein were divorced in 2004, and the respondent was awarded custody of the minor child
born of the marriage. The respondent was granted access rights to the child. In the present application,
the applicant contended that the respondent was in breach of the divorce order in that she was not
allowing the applicant reasonable access to the child as she had not given him her telephone number. He
was also unhappy about a decision taken by the respondent, without his knowledge, to place the child in a
remedial school. He therefore sought an order of contempt of court against the respondent.
Held that the applicant was required to prove his case beyond a reasonable doubt. Once the prosecution
had established the existence of the order; its service on the accused; and non-compliance, if the accused
failed to furnish evidence raising a reasonable doubt whether non-compliance was wilful and mala fide, the
offence will be established beyond reasonable doubt.
The court found that the respondent had acted in breach of the court order, and that such conduct was
intentional. It imposed a fine of R20 000 which was suspended for five years subject to the condition that
respondent was not found by a court to have again been in contempt of any condition of the court order
during that time.
51) CONSENT
Lehong v S
[2009] JOL 22915 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 126 / 07
11 / 12 / 2008
South Africa
High Court
Transvaal Provincial
C Botha J, K Makhafola, SP Mothle AJJ
Keywords:
Criminal law – Rape – Sentence – Appeal
Mini Summary:
The appellant was convicted of raping his step-daughter. He pleaded not guilty, alleging that she had
consented to sexual intercourse. The trial court found that the complainant was mentally retarded and
could not provide proper consent, and moreover, that according to her, she had been afraid of the
appellant.
As the complainant had been raped on numerous occasions, the case was referred to the high court for
sentence. He was sentenced to the prescribed minimum sentence of life imprisonment.
Held on appeal that the question was whether the conclusion that there were no substantial and
compelling circumstances justifying a lesser sentence was correct.
From the court a quo's own assessment, the crime was not so serious as to warrant the ultimate penalty
that a court can impose. The court replaced the sentence with one of 20 years' imprisonment.
52) CORRECTION OF SENTENCE / JUDGMENT
S v Tengwa & another
[2011] JOL 27805 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 155 / 2011
10 / 06 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
JM Roberson, NG Beshe JJ
Keywords:
Criminal procedure – Sentence – Error – Special review
Mini Summary:
103
The accused were charged with assault with intent to do grievous bodily harm. The second accused was
also charged with malicious damage to property. The first accused was convicted as charged, while the
second accused was convicted of common assault.
In sending the case on special review, the magistrate explained that she had intended to sentence both
accused to six months’ imprisonment on the first count, and to sentence the second accused to a R2 000
fine or six months’ imprisonment, conditionally suspended on the second count. However, she had mixed
up the charges in sentencing.
Held that for the sake of clarity, the sentences were altered on review, to reflect the magistrate’s
intention.
S v MATSHIBA (ECG)
EASTERN CAPE HIGH COURT, GRAHAMSTOWN
REVELAS J and TSHIKI J
2011 APRIL 28; MAY 17
Sentence—Correction of—Amendment of in terms of s 298 of Criminal Procedure Act
51 of 1977—Amendment not permissible where original sentence not wrong—Not
permissible to alter sentence 20 days after sentence imposed.
Housebreaking with intent to steal and theft—Sentence—Lengthy term of
imprisonment—Accused convicted on six counts and sentenced to ten years’
imprisonment on each count—Although offence serious and prevalent in division, court
overemphasised the seriousness of the offence—Sentence replaced with sentence of three
years’ imprisonment on each count, to run concurrently.
S v Stefane
[2011] JOL 27803 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 164 / 2011
13 / 06 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
F Kroon, JJ Nepgen JJ
Keywords:
Criminal procedure – Drug offence – Possession of drugs – Conviction and sentence – Review
Mini Summary:
The accused was charged with possession of drugs, namely Mandrax.
After conviction and sentence, the magistrate referred the case on review, with advice that the accused
had been charged and convicted under the wrong section of Act 140 of 1992.
Held that while an amendment of the charge sheet might be proper on review, it would not be proper for
the case to be remitted as that would prejudice the accused. The state was afforded an opportunity to
present its case and should not be given two bites at the cherry.
The conviction and sentence were set aside.
S v Tengwa & another
[2011] JOL 27805 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 155 / 2011
10 / 06 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
JM Roberson, NG Beshe JJ
Keywords:
Criminal procedure – Sentence – Error – Special review
104
Mini Summary:
The accused were charged with assault with intent to do grievous bodily harm. The second accused was
also charged with malicious damage to property. The first accused was convicted as charged, while the
second accused was convicted of common assault.
In sending the case on special review, the magistrate explained that she had intended to sentence both
accused to six months’ imprisonment on the first count, and to sentence the second accused to a R2 000
fine or six months’ imprisonment, conditionally suspended on the second count. However, she had mixed
up the charges in sentencing.
Held that for the sake of clarity, the sentences were altered on review, to reflect the magistrate’s
intention.
Matshiba v S
[2010] JOL 26341 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 276 / 09
17 / 05 / 2010
South Africa
High Court
Eastern Cape, Grahamstown
PW Tshiki, E Revelas JJ
Keywords:
Criminal procedure – Housebreaking with intent to steal – Theft – Sentence – Amendment to sentence –
Appeal
Mini Summary:
Based on his plea of guilty, the appellant was convicted on six counts of housebreaking with intent to steal
and theft. The effective sentence was 62 years’ imprisonment. Twenty two days later, the magistrate
recalled the case and amended the sentence so that parts thereof ran concurrently. The effective sentence
was thus 22 years’ imprisonment.
The present appeal was against the severity of the sentence, and the amendment thereto.
Held that it appeared that in amending the sentence, the magistrate purported to rely on section 298 of
the Criminal Procedure Act 51 of 1977. The section provides that if a wrong sentence is passed by
mistake, the court may before or immediately after the sentence is recorded, amend the sentence.
The general rule is that where a sentence has been imposed, a court is functus officio, and ordinarily the
sentence cannot be changed. Before a sentence can be amended, it must be clear that it is wrong by
reason of the fact that it was imposed by mistake. A sentence is wrong if it is incompetent or irregular and
should not have been imposed by the court. More importantly, the amendment must be imposed before or
immediately after the sentence is recorded.
The amendment in this case had the effect of imposing additional terms to the sentence. The sentence
was not shown to be wrong, and the time for amendment in terms of section 298, had passed.
The amendment was set aside. The court deemed the rest of the sentence to be too severe. It therefore
replaced it with one of four years’ imprisonment.
53) CORRECTIONAL SUPERVISION
Masango v S
[2009] JOL 23381 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A166 / 08
03 / 04 / 2009
South Africa
High Court
North Gauteng, Pretoria
BR Du Plessis J, S Saphire AJ
Keywords:
Criminal law – Fraud – Sentence – Appeal
Mini Summary:
Having pleaded guilty, the appellant was convicted of fraud and sentenced to five years' imprisonment of
which three years were suspended on appropriate conditions. He appealed against his sentence.
105
Held that the offence of fraud was a serious one. However, the court noted the appellant's co-operative
attitude and the fact that he had immediately pleaded guilty. Taking into account the personal
circumstances of the appellant, the court deemed it desirable that he not be exposed to direct
imprisonment.
Upholding the appeal, the court set aside the sentence and remitted the case to the trial court to consider
the issue of correctional supervision as a sentencing option.
S v Felix
[2009] JOL 22955 (SE)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1491 / 08
17 / 11 / 2008
South Africa
High Court
South Eastern Cape
HJ Liebenberg J, JCH Jansen J
Keywords:
Criminal procedure – Correctional supervision – Sentencing
Mini Summary:
On convicting the accused of fraud, the magistrate sentenced him to undergo correctional supervision for
six months.
Held on automatic review, that the magistrate had failed to determine and prescribe the components of
the correctional supervision and the conditions attached thereto.
The sentence was set aside and the matter referred back to the magistrate to pass sentence afresh and to
comply with the requirements when imposing a sentence of correctional supervision in terms of section
276(1)(h) of the Criminal Procedure Act 51 of 1977.
S v De Villiers – 2008 JOL 21233 (C) SS 223/05 – accused pleaded guilty to murder
after setting his daughter’s home alight with her inside. Court looked at grounds
constituting substantial and compelling circumstances. Court held correctional
supervision appropriate sentence.
54) CORRUPTION
Lephowane v S
[2011] JOL 27963 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 9 / 2010
27 / 10 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
Griffiths, Van Zyl JJ
Keywords:
Criminal law – Corruption – Appeal against conviction
Mini Summary:
The appellant was a traffic officer who was convicted of contravening section 4 (1) (b) (iv) of the
Prevention and Combating of Corrupt Activities Act 12 of 2004. The present appeal was against such
conviction.
In 2002, an investigation was launched into driving licence centres. A forensic investigator testified that
the appellant had initiated a meeting with him, via a driving instructor, and had discussed the possibility
of the investigator making the investigation into the appellant disappear in exchange for payment. The
appellant then paid the investigator R10 000, which the investigator handed over to the police. Two
subsequent meetings between the appellant and the investigator were recorded by the police through
devices concealed on the person of the investigator. The appellant was later arrested.
106
According to the appellant, he had met with the investigator solely for the purpose of discussing the
investigations and in particular the investigation regarding those officers under his jurisdiction. He denied
that money had exchanged hands at the meetings or that he had entered into any form of corrupt dealing.
Held that the trial court’s judgment showed that the magistrate had rejected the evidence of the
appellant on the basis that the appellant’s version was so inherently improbable that it fell to be rejected
as being false beyond doubt.
The Court could not fault the magistrate’s approach to the evidence. He evaluated the evidence of all the
witnesses thoroughly and with a critical eye. The manner in which he examined the evidence of the state
witnesses was applied equally in his evaluation of the evidence of the appellant. He stated that he could
not find any material contradictions in the evidence of the appellant and did not comment directly on his
demeanour, but found his version to be improbable.
Finding that the magistrate did not misdirect himself, the appeal could only succeed if the Court was
satisfied that the magistrate was wrong in concluding that the evidence established the guilt of the
appellant beyond a reasonable doubt. In doing so, due regard had to be given to the fact that the
magistrate had the decided advantage of observing the witnesses in court. The Court could not make such
a finding, and the appeal was thus dismissed.
Mogale v S
[2011] JOL 26771 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 1526 / 04
03 / 12 / 2010
South Africa
High Court
North Gauteng, Pretoria
RJ Tolmay, NM Mavundla JJ
Keywords:
Criminal law – Corruption – Conviction and sentence – Appeal
Mini Summary:
Convicted of corruption, the appellant was sentenced to 15 years’ imprisonment.
The charge related to the appellant and a co-accused (both police officers) having received R2 000 as a
bribe.
Held that the present court could only interfere if it was found that the trial court misdirected itself.
Consequently the appellant had to convince the court that the trial court erred in accepting the evidence
of the state witnesses. On an evaluation of the evidence there is no indication that the magistrate
misdirected himself.
With regard to both conviction and sentence, the magistrate properly applied the correct approach. The
appeal was thus dismissed.
Clarke & another v S
[2009] JOL 23391 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 404 / 05
08 / 07 / 2008
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Findlay, Moosa AJJ
Keywords:
Criminal law – Corruption – Conviction – Appeal
Mini Summary:
The appellants were convicted of corruption, and the first appellant was sentenced to a fine of R12 000 or
18 months' imprisonment and the second appellant to a fine of R5 000 or 10 months' imprisonment. They
were granted leave to appeal against the conviction.
Held that the present case involved the concept of trapping or entrapment. The court set out the
principles involved in such cases. It then found that the magistrate in this case had erred in formulating
the test applicable to entrapment cases. A further error was committed when the magistrate appeared to
transfer the onus of proof from the state to the appellants.
107
The court found that the state had not discharged the onus of proof in respect of the first appellant, and
his appeal was upheld.
As the case of the second appellant might be different from that of the first appellant, the court adjourned
his appeal to a later date.
Shaik & others v S
[2008] JOL 21807 (CC)
Case Number:
Judgment
Date:
Country:
Jurisdiction:
Division:
Bench:
CCT 86 / 06
29 / 05 / 2008
South Africa
Constitutional Court
Langa CJ, O'Regan ADCJ, Madala, Mokgoro, Nkabinde, Skweyiya, Van der Westhuizen,
Jacoob JJ, Jafta, Kroon AJJ
Keywords:
Criminal law– Corruption– Confiscation order– Appeal
Mini Summary:
The appellants were convicted of corruption and the state obtained an order from the High Court requiring
the appellants to pay to the State the value of three benefits which the High Court held to constitute
proceeds of crime, as contemplated by the Prevention of Organised Crime Act 121 of 1998 ("the Act").
That order formed the subject of the present appeal – the appellants contesting the validity of the
confiscation order.
Held that chapter 5 of the Act confers a power on a criminal court to make a confiscation order against a
person who has been convicted of a crime where the court has found that the person has benefited from
the crime. Chapter 5 of the Act aims to ensure that no person benefits from his wrongdoing.
The court found that the benefits were received by the appellants as a result of their corrupt relationship,
and thus constituted proceeds of unlawful activities and was subject to confiscation under the Act.
Analysing the arguments of the appellants, the court found that they had failed to show either that the
High Court had acted unjudicially or that the order it made was disturbingly inappropriate. The appeal was
thus dismissed.
55) COSTS
DPP (KZN) v Henry & others
[2008] JOL 21802 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
305 / 07
29 / 05 / 2008
South Africa
Supreme Court of Appeal
DG Scott, Cloete, Mlambo, Mthiyane JJA, Mhlanthla AJA
Keywords:
Civil procedure– Costs order– Appeal
Mini Summary:
During therapy conducted by the second respondent, the third respondent let the former know that when
she was 10, she had been raped by the second respondent. That led to charges being laid against the first
respondent.
Prior to the trial, the first respondent requested a list of witnesses intended to be called by the State. It
was specifically asked whether the second respondent was to be called. The State's answer led to the first
respondent requesting copies of the records of the counselling sessions. That issue went to trial. It then
emerged that the State was not going to call the second respondent at the main trial. The court ordered
the appellant to pay the costs of the first respondent. The present appeal was directed at the costs order.
Held that in awarding costs, a court of first instance exercises a judicial discretion and a court of appeal
will interfere only if the exercise of that discretion is vitiated by misdirection or irregularity, or if there are
no grounds on which a court, acting reasonably, could have made the order in question.
108
In the present matter, the State should have made its intentions clear from the outset. Its failure to do so
had misled the first respondent, and therefore the costs order was justified.
The appeal was dismissed.
56) COUNTERFEIT MONEY / GOODS
Minnies and others v S
[2012] JOL 29188 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
881 / 2011
01 / 06 / 2012
South Africa
Supreme Court of Appeal
KK Mthiyane DP, LE Leach, ZLL Tshiqi JJA, XM Petse, Ndita AJJA
Keywords:
Criminal law – Tender of counterfeit banknotes – Contravention of section 34(1)(b) of South African
Reserve Bank Act 90 of 1989 – Whether offering to sell counterfeit banknotes where all parties were
aware that notes were counterfeit, amounted to an unlawful “tendering” as envisaged by section 34(1)(b)
– As the word “tender in section 34(1)(b) must be construed as an action whereby counterfeit money is
offered as genuine currency, there was no unlawful tender as envisaged by section 34(1)(b) – Words and
phrases – “Tender” – Section 34(1)(b) of South African Reserve Bank Act 90 of 1989 – Tender in the latter
section must be construed as an action whereby counterfeit money is offered as genuine currency
Mini Summary:
The appellants were convicted and sentenced on charges of unlawfully tendering counterfeit money in
contravention of section 34(1)(b) of the South African Reserve Bank Act 90 of 1989 (“the Act”). They
appealed against their convictions and sentence. Although the high court dismissed their appeal, leave to
appeal was granted to appeal solely against conviction in the present Court.
The principal state witness was an acquaintance (“Laidlaw”) of the first appellant. He testified that he was
contacted by the appellant, who told him that he was looking for a buyer for counterfeit money. At a
subsequent meeting between Laidlaw and the first, third and fourth appellants Laidlaw was shown a
counterfeit bank note, and an offer was made to sell a large quantity of similar counterfeit bank notes at
50% of their face value. Laidlaw then contacted the police who decided to set a trap. Laidlaw,
accompanied by a police agent who was posing as a potential purchaser accordingly met with the
appellants who showed them a sports bag containing a considerable number of R100 counterfeit notes.
However, before the transaction could be concluded, the appellants spotted a police vehicle, and fled. As a
result, the counterfeit banknotes which the appellants were wishing to sell were not handed over to
Laidlaw and his companion but had merely been offered to them. The state contended that that was
sufficient to constitute an offence under section 34(1)(b) of the Act which provides that any person who
“utters, tenders or accepts any note which has been forged, altered or unlawfully issued, knowing it to be
forged, altered or unlawfully issued” commits an offence. The state argued that it was necessary to read
the words “utters”, “tenders or accepts” in section 34(1)(b) disjunctively and to thereby ascribe a different
meaning to each. Accordingly, while accepting that a crime of uttering in the context of counterfeit
banknotes connotes intentionally passing off the false notes by representing them as genuine to the actual
potential prejudice of another, it was contended that this was not necessarily the case with tendering.
Held that although the charge was poorly drafted, the parties were agreed that it should be construed as
merely alleging that the appellants had unlawfully tendered counterfeit banknotes in contravention of
section 34(1)(b) despite the evidence clearly establishing that when the offer to sell the counterfeit money
in question was made and the money shown to Laidlaw and his companion, all concerned knew that the
banknotes were counterfeit and not genuine.
The critical legal issue for determination was whether offering to sell the counterfeit banknotes in the
above circumstances amounted to an unlawful “tendering” as envisaged by the section. Due to the close
relationship between uttering and tendering, in many instances the act of uttering will involve the tender
of money. There accordingly appeared to be no reason for the legislature to have intended to draw any
material distinction between the two in respect of the criminal intent required to commit the offence.
Similar to uttering, in the context of currency the ordinary use of the word “tender” is to offer money in
payment. Section 17(1) of the Act provides that a tender of a banknote “shall be a legal tender of
payment of an amount equal to the amount specified on the note”. There being no reason to draw any
distinction between a tender as envisaged in section 17 and a tender envisaged in section 34(1)(b),
tender in the latter section must be construed as an action whereby counterfeit money is offered as
genuine currency. Consequently, as all relevant parties in the present case were aware that the appellants
were attempting to sell counterfeit money, the charge levied against the appellants was not proven. There
109
being no unlawful tender as envisaged by section 34(1)(b), the appellants should not have been
convicted.
57) COURT ORDERS
Visse v Visse 2008 JOL 21235 (C) – interpretation of court order. Unilateral departure
not permitted. Order to pay maintenance continued to be of force despite fact that
recipient 30 years old. Fact that retarded meant still dependant.
Gerber v Gerber & another
[2008] JOL 21304 (C)
Case Number:
12166 / 07
Judgment Date:
08 / 11 / 2007
Country:
South Africa
Jurisdiction:
High Court
Division:
Cape of Good Hope Provincial
Bench:
Ndita J
Keywords:
Family law – Parent and child – Maintenance – Attachment of money
Mini Summary:
The applicant and respondent had been married until their divorce in 2000. In terms of the divorce
settlement agreement, the applicant obtained sole custody of the child born of the marriage, and the
respondent was to pay maintenance in respect of the child.
Both parties had a drug addiction. While the applicant was on a rehabilitative programme, the
respondent's addiction had caused him to lose his job, and he was currently unemployed.
As a result of the above circumstances, the applicant sought to have the proceeds of the sale of property
attached for the payment of future maintenance payments due by the respondent.
Held that section 28(2) of the Constitution of the Republic of South Africa provides that the child's best
interests are of paramount importance in all matters concerning the child. The Maintenance Act 99 of 1998
has also put mechanisms in place to ensure the recovery of maintenance from recalcitrant parents.
Although the respondent showed a willingness to fulfil his maintenance obligations, the court found it to be
in the child's best interests for the application to be granted.
58) COURT RECORD
William v S
[2014] JOL 32143 (GP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 333 / 2013
06 / 08 / 2014
South Africa
High Court
Gauteng Division, Pretoria
DS Molefe, HJ Fabricius JJ, S Strauss AJ
Keywords:
Criminal law – Murder – Conviction and sentence – Appeal – Reconstruction of record
Mini Summary:
Upon being convicted of murder, the appellant was sentenced to 18 years’ imprisonment. He appealed
against his conviction and sentence.
The appellant obtained leave to appeal against both conviction and sentence after it was discovered that
the record of the trial proceedings was unavailable and the Court ordered that all the relevant parties
should reconstruct the portion of the record where the personal circumstances and mitigating factors were
placed on record. Reconstruction turned out not to be possible, and it was agreed that the conviction and
sentence should be set aside and the trial should start de novo. The appellant contended that the
conviction and sentence should be set aside as the reconstruction of the record could not be effected.
110
Held that it was highly opportunistic of the appellant to take advantage of the unavailability of the record
of the proceedings and to submit that the conviction be set aside. The appellant was not prejudiced by the
irregularity occasioned by the failure to comply with the reconstruction of the record and the conviction
had to be confirmed.
There was a reconstructed record in respect of the sentence. Such record was available to the appeal
court to enable the Court to dispense justice through a fair trial. The appeal was proceeded with on the
reconstructed record and there was no failure of justice. The defects in the record were not so serious that
a proper consideration of the appeal was not possible. However, the Court found no merit in the appeal
against sentence.
The appeal was dismissed.
Sengama v S
[2013] JOL 30694 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
306 / 13
23 / 08 / 2013
South Africa
Supreme Court of Appeal
MJD Wallis, FDJ Brand, LE Leach JJA
Keywords:
Criminal procedure – Petition for leave to appeal – Disposal of petition by court – Requirement that full
record of trial be received – Criminal Procedure Amendment Act 8 of 2013 amended section 316(10)(c) of
the Criminal Procedure Act so that the registrar of a High Court who receives notice of a petition is no
longer automatically obliged to forward the record of the trial to this court except in certain circumstances
Mini Summary:
Pursuant to his conviction on a charge of murder, the applicant was sentenced in the High Court to life
imprisonment. Leave to appeal against his conviction and sentence having been refused, the applicant
now approached the present Court for such leave.
Held that the only issue at the trial was whether the applicant and his co-accused were two of three men
who abducted a young woman and murdered her. A co-accused of the applicant admitted his own
participation in the incident, but denied that the applicant had been involved. However, that was
outweighed by the evidence of identification of the applicant by the deceased’s boyfriend and another
witness and the fact that the gun used to kill the deceased was found in the applicant’s possession.
Although the applicant claimed to have been in bed with his girlfriend at the time, she was not called as a
witness, and no explanation was offered to explain that failure. That satisfied the Court that there was no
merit in the petition for leave to appeal.
The Court pointed out that until the recent amendment of section 316(10) of the Criminal Procedure Act
51 of 1977, it could not have disposed of the petition until it had received the full record of the trial. The
consequence of that requirement was considerable delays in dealing with petitions and the incurring of
substantial costs in preparing and lodging records with the Court. According to the Court, it is unnecessary
for records to be lodged before disposing of petitions as applicants are obliged in terms of
section 316(4)(a) of the Criminal Procedure Act to set out clearly and specifically the grounds upon which
leave to appeal is sought. The rules of this Court also require petitioners to set out the grounds upon
which they submit that leave to appeal should be granted and to identify any relevant passages in the
records that need consideration in the determination of the petition. The Criminal Procedure Amendment
Act 8 of 2013 amended section 316(10)(c) of the Criminal Procedure Act so that the registrar of a High
Court who receives notice of a petition is no longer automatically obliged to forward the record of the trial
to this Court except in certain circumstances. Thus, a registrar must furnish the record of proceedings to
this Court on receiving notice of a petition in cases where leave is being sought to appeal against
conviction and the applicant was not legally represented at the trial; or leave is being sought to appeal
against conviction and the applicant is not legally represented for the purposes of the petition.
In the present case, it was not necessary for the Court to await the furnishing of the record of proceedings
in the High Court before disposing of the petition. The application was dismissed.
S v Felix
[2011] JOL 27807 (ECP)
Case Number:
Judgment Date:
Country:
153 / 2011
08 / 06 / 2011
South Africa
111
Jurisdiction:
Division:
Bench:
High Court
Eastern Cape, Port Elizabeth
D Chetty, I Schoeman JJ
Keywords:
Criminal procedure – Record of proceedings – Missing record – Special review
Mini Summary:
The accused was charged with murder, and after the state had adduced a portion of its evidence, the case
was postponed. A number of problems then arose, the most significant of which was that the entire record
of proceedings went missing. The case was thus sent on special review with the request that the
proceedings be set aside and the matter ordered to commence de novo before another magistrate.
Held that the requested order was appropriate in the circumstances and the request was accordingly
complied with.
S v NCUBE AND OTHERS 2011 (2) SACR 471 (GSJ)
The appellants were convicted of robbery with aggravating circumstances on the strength
of expert evidence identifying them as the persons photographed committing a bank
robbery. In an appeal against their convictions and sentences of 12 years' imprisonment
each, the court of appeal was confronted with the complication that the trial court's record
of the proceedings relating to sentence was incomplete. Only one of the three appellants
could recall evidence led at the trial and therefore participate in reconstruction of the
record.
Held, that the court was entitled to receive evidence in terms of the enabling statutes, ss
304(2)(b) read with s 309B(3) of the Criminal Procedure Act 51 of 1977, and s 22 of the
Supreme Court Act 59 of 1959 and then only in exceptional circumstances. The
circumstances in the present matter were exceptional: the appellants were present, legally
represented, agreeable to leading fresh evidence, and it was a relatively simple matter for
the mitigating circumstances to be placed before this court, those circumstances not
having been disputed by the State. If this procedure were not followed, it would result in
a remittal of the matter to the magistrates' court — with the need to summons the
appellants (from the various prisons in which they were resident) with the view to hearing
precisely the same evidence, which would be a substantial waste of time and costs. It was
accordingly ruled that the evidence of the second appellant (who could assist the
appellate court with reconstruction) was to be received in the form of reconstruction of
the record and in the form of fresh evidence, while the evidence of the other two
appellants (who could not assist the appellate A court with reconstruction) was also to be
received, as fresh evidence.
Held, further, that in dealing with expert evidence, the expert's function was not to decide
the case but provide the court with the tools to assist it in deciding the case — here only
insofar as the court required assistance with the skills it used in comparing the pictures
with the appellants. The extent to which the opinions advanced by an expert were to be
accepted would depend upon whether, in the judgment of the court, those opinions were
founded on logical reasoning or were otherwise valid. It was furthermore important to
bear in mind the distinction between scientific and judicial measures of proof.
Held, further, that because robbery with aggravating circumstances, was a prevalent
offence in the present society, steps had been taken to stamp it out, hence the minimum
sentence legislation and the serious efforts made by the police force of this country to
arrest, detain and deal with perpetrators. The effect of a lengthy period of imprisonment
also had the added salutary purpose of removing such persons from society, thereby
112
preventing them from committing further crimes. At the same time one had to have
regard to the need of not becoming enraged by the activities of the offenders, instead
considering the punishment to be imposed with measured control and a degree of mercy.
Case Information
Appeal from convictions and sentences in a magistrates' court. The facts appear from the
reasons for judgment.
S v Zenzile 2009(2) SACR 407
It was held that such reconstruction must be done in open court,
with all the parties, including the original legal representative and
prosecutor being present to express on record that the
reconstruction accords with their recollection or notes of the
evidence tendered at the trial.
(See also S v Gora 2010 (1) SACR 159.)
Moremoholo v S
[2011] JOL 27762 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 100 / 2008
26 / 08 / 2011
South Africa
High Court
South Gauteng, Johannesburg
FHD van Oosten J, L Windell AJ
Keywords:
Criminal procedure – Bail application – Transcript of – Loss of transcript – Effect on appeal
Mini Summary:
The appellant was convicted of robbery with aggravating circumstances and sentenced to 15 years’
imprisonment. He appealed against both conviction and sentence with leave of the court, granted on
petition.
The appeal concerned the powers of the court on appeal, in regard to a lost transcript of bail proceedings
which was handed in at the trial as an exhibit, containing the only evidence linking the appellant to the
commission of the crime of which he had been convicted.
Held that the only evidence linking the appellant to the robbery consisted of his earlier evidence given in
an application for bail after his arrest pending trial, which the prosecutor presented to the court a quo by
way of a certified transcript of those proceedings. In his evidence in the bail proceedings the appellant,
inter alia, admitted that he had been in possession of and driving a certain vehicle on the day of the
incident. The vehicle it became common cause at the trial, was involved in the robbery.
The court of appeal is endowed with wide powers in the consideration of an appeal. The loss of the
transcript was nothing but a technicality which in the interests of justice, had to be remedied. The original
recording of the evidence presented at the bail proceedings was still available and had again been
transcribed. The Court remitted the case to the trial court to allow the state to prove the content of the
bail proceedings.
Ncube & another v S
[2010] JOL 26504 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
A211 / 09
04 / 11 / 2010
South Africa
High Court
South Gauteng, Johannesburg
Makume and CG Lamont JJ
113
Criminal procedure – Robbery with aggravating circumstances – Conviction and sentence – Appeal –
Reconstruction of record
Mini Summary:
The appellants were convicted on a charge of robbery with aggravating circumstances, and were each
sentenced to 12 years’ imprisonment.
When the matter came before the court on appeal, the record was incomplete as to the proceedings on
sentence. The appellants were informed that they were entitled to participate in the reconstruction of the
record concerning the sentence.
Attempts made by the state to reconstruct the record including the attempts to access secondary evidence
as to what the record was, proved unsuccessful, and the only options open to the court were to obtain
evidence from the appellants as to what the evidence which had been submitted to the magistrate at the
time, was.
Held that the court is entitled to receive evidence in exceptional circumstances. The circumstances which
served before the court in the present matter were exceptional. The court therefore received the evidence
(adduced by the second appellant only) as part of the reconstruction process.
In the appeal against conviction, the only question was whether or not the appellants were the persons
who perpetrated the crime. The principle basis upon which the conviction rested was the production at the
trial of pictures of the three perpetrators of the crime. After considering expert evidence, the court agreed
with the trial court that the appellants had been correctly identified.
Turning to the appeal against sentence, the court held that the personal circumstances of the appellants
had to be weighed against the needs of society to impose deterrents for persons who might commit
crimes of this nature as well as the nature of the crime. Applying that approach, the court dismissed the
appeal.
S v Abrahams
[2008] JOL 22126 (SE)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 123 / 08
21 / 05 / 2008
South Africa
High Court
South Eastern Cape Local
AR Erasmus, JCH Jansen JJ
Keywords:
Criminal procedure – Trial proceedings – Review – Absence of record
Mini Summary:
Convicted of assault with intent to do grievous bodily harm, the accused was sentenced to 3 years'
imprisonment. This case, together with others, were referred for review with the recommendation that the
conviction and sentence be set aside on review and that the matter be tried de novo should the
prosecution decide to do so.
Held that the problem lay with the inability to have the record typed. In the absence of the record, the
court could not confirm the proceedings as being in accordance with justice. The conviction and sentence
were set aside.
S v Waluwalu
[2008] JOL 21698 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 18 / 08
24 / 01 / 2008
South Africa
High Court
Eastern Cape
B Sandi J
Keywords:
Criminal procedure – Conviction and sentence – Review – Missing record
Mini Summary:
The accused was convicted and sentenced on a charge of assault with the intent to do grievous bodily
harm. When the matter went on automatic review, the record was missing.
114
Held that the magistrate was unable to reconstruct the record, with the result that the review court could
not properly review the case. The conviction and sentence were set aside.
59) COURT WITNESSES
S v Gabaaltholwe - 2003(1) SACR 313 (SCA) – court can call witnesses when essential
and just and needed for fair administration of justice.
60) CREDIBILITY
Nyabo v S
[2008] JOL 22823 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
327 / 07
27 / 11 / 2008
South Africa
Supreme Court of Appeal
JA Heher JA, Combrinck, Cachalia JJA
Keywords:
Criminal law – Robbery – Rape – Conviction – Appeal – Assessment of evidence
Mini Summary:
The appellant noted the present appeal against his convictions on charges of rape and robbery.
According to the complainant, she had been abducted by two men, and was taken to a shack where she
was raped by both men. One then left, and she was left with the other, who again raped her. She
identified him as the appellant.
The central issue was the identification of the appellant as the perpetrator of the offences.
Held that while the trial court purported to endorse the correct legal approach to assessing evidence in
such cases, it in fact, was guilty of misdirection in its assessment.
The complainant's testimony on the identity of the appellant as the perpetrator was adduced by leading
questions to which neither the court nor the appellant's counsel raised objection. The complainant was
found to have been prompted by the prosecution.
The court also took issue with the trial court's findings that the lighting in the shack was good, and that
the complainant had ample opportunity to see the appellant. That was shown not to be true. The shack
was actually in darkness and the complainant's opportunity to view the perpetrator at a time when she
was under emotional pressure was open to doubt. While her evidence of identification might have been
true and reliable, a much more careful and detailed investigation was necessary before arriving at that
conclusion.
The misdirections of the trial court meant that the present court was free to reconsider the strength of the
case against the appellant. It was pointed out that the appellant's version was not shown to have been not
reasonably possibly true. In the circumstances, the states' case had to fail unless the evidence of the
complainant was of itself so clear and unanswerable as to justify the conclusion that the appellant's
version was, although without apparent flaw on the face of it, nevertheless false beyond a reasonable
doubt.
The appeal was upheld and the two convictions set aside.
S v Mafalandiso – 2003(1) SACR 583 (SCA) – court dealt in depth with purpose of
witness statements taken by police and evaluation of discrepancies in evidence of
witnesses in court verse their statements. Court must note statement not taken subject to
cross-examination and should have regard to language and cultural differences between
witness and person taking statement. VERY IMPORTANT CASE IN NUMEROUS
RESPECTS
115
Morgan v S
[2008] JOL 22838 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
271 / 08
27 / 11 / 2008
South Africa
Supreme Court of Appeal
KK Mthiyane, Heher, Ponnan JJA
Keywords:
Criminal law– Murder– Attempted murder– Appeal against conviction– Assessment of evidence– Where no
credibility findings were made by the trial court, the appeal court is not precluded from making its own
assessment of the evidence, with due regard to the probabilities
Mini Summary:
Charged with murder, attempted murder, unlawful possession of a firearm and unlawful possession of
ammunition in contravention of sections 2 and 36 of the Arms & Ammunition Act 75 of 1969, the appellant
was convicted and sentenced to an effective term of imprisonment of 16 years and 6 months.
The charges related to an incident in which one person was fatally shot and shots were fired at another
person. The appellant denied involvement in the incident, relying on an alibi defence. However, the trial
court rejected the alibi defence in favour of the evidence of state witnesses who placed the appellant at
the scene of the crime. An appeal resulted in his sentence being reduced to an effective term of
imprisonment of 15 years.
The present court granted the appellant special leave to appeal against the conviction.
Held that in its assessment of the evidence the trial judge made no credibility findings and the present
court was therefore not precluded from making its own assessment of the evidence, with due regard to
the probabilities.
Assessing the evidence of the state witnesses, the court agreed with the appellant that the state witnesses
contradicted themselves in certain respects. However, the trial court and the court a quo were alive to
that fact in their assessment of the evidence. What was important was that despite the contradictions, the
witnesses' testimony on the crucial question of whether the appellant was at the scene and whether he
shot at and killed the deceased remained unshaken. The court also rejected the possibility of false
incrimination of the appellant.
The court highlighted the very convincing eye-witness account of one of the witnesses, and found that
testimony to be persuasive. It was also significant that the appellant was well-known to the witnesses who
identified him as having been present at the crime scene.
On a consideration of the evidence in its totality and in the light of the probabilities the case against the
appellant was found to have been proved beyond reasonable doubt.
The appeal was accordingly dismissed.
Robiyana & others v S
[2008] JOL 22402 (Ck)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CC 55 / 01
27 / 06 / 2008
South Africa
High Court
Bisho
Dhlodhlo ADJP, Greenland, Darwood AJJ
Keywords:
Criminal law – Murder – Attempted murder – Convictions – Sentence – Appeal
Mini Summary:
The appellants faced 30 counts involving, inter alia, murder, attempted murder, racketeering and unlawful
possession of firearms all arising out of a turf war between rival taxi associations.
Held that one of the grounds of appeal was that the trial court, having made no specific adverse findings
based on credibility of the appellants, should not have rejected their evidence. The present court held that
the fact that the trial court did not articulate or particularise demeanour findings as regards the appellants
was of no great significance and did not constitute misdirection.
116
Ultimately, the appeal turned on the correctness of the trial court's acceptance of the evidence of an
accomplice who was the primary source of incrimination. The appeal court could not fault the lower court
in its assessment of the evidence.
As with the appeal against conviction, the appeal against sentence was found to be without merit.
The appeal was thus dismissed.
Swartz v S
[2008] JOL 22396 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 299 / 07
17 / 04 / 2008
South Africa
High Court
Cape of Good Hope Provincial
MJ Hlophe JP; EJS Steyn AJ
Keywords:
Criminal procedure – Indecent assault – Child complainant – Competence as witness – Enquiry
Mini Summary:
The appellant was convicted of the indecent assault of a 4-year-old boy. He was sentenced to 3 years’
correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act 51 of 1977.
He appealed against his conviction.
Held that presiding officers are required, when dealing with young witnesses, to determine whether they
have the necessary competency to testify. In the present case, the regional magistrate was required to
determine whether the witness, a child of seven years of age at the time of the trial, was a competent
witness to give sworn evidence in terms of section 162 of the Act.
The trial court's conviction of the appellant based on the complainant's evidence without conducting the
enquiry referred to above or making a finding regarding the child's competency was an irregularity.
The appeal was upheld.
S v Bruiners – 1998(2) SACR 432 (SEC) – in order to discredit state witness on basis of
his affidavit, is necessary that there be a material deviation from his affidavit before any
negative inference can be drawn.
Sani v S
[2008] JOL 21275 (E)
Case Number:
CA & R 93 / 2007
Judgment Date:
15 / 11 / 2007
Country:
South Africa
Jurisdiction:
High Court
Division:
Eastern Cape
Bench:
C Plasket J, J Smith AJ
Keywords:
Criminal procedure – Rape – Conflicting versions – Magistrate's judgment – No credibility finding –
Procedure on appeal – Appellant's version – Reasonably possibly true – Conviction set aside
Mini Summary:
The appellant, who had been convicted of raping a woman, had denied the charge: he testified that
intercourse had been with her consent. One of the appellant's companions corroborated his version and
the medico-legal report was inconclusive. The regional magistrate's court sentenced the appellant to the
minimum sentence of ten years' imprisonment in terms of the Criminal Law Amendment Act 105 of 1997.
He appealed against conviction and sentence.
Held that the appellant's version had been corroborated in all material respects. The magistrate's
judgment lacked analytical content and she had failed to make any credibility findings. In these
circumstances an appeal court has to "do its best on the material on record" and it cannot proceed on the
assumption, inter alia, that there was no misdirection in the process of reaching the decision that was
reached, or that the court a quo had cogent reasons for accepting the witnesses who implicated the
appellant. An extract from the transcript showed that in some respects the complainant's evidence was
fundamentally incompatible with material aspects of her own version of the events that took place that
night. The appellant's version was reasonably possibly true, and it was more probable than the
complainant's version. The conviction and sentence were set aside.
117
61) CRIMEN INJURIA
Prinsloo v S
[2014] JOL 32033 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
534 / 13
15 / 07 / 2014
South Africa
Supreme Court of Appeal
LO Bosielo, HK Saldulker JJA, RS Mathopo AJA
Keywords:
Criminal law – Crimen iniuria and assault – Appeal against conviction – Onus of proof – Where appellant’s
version was not found to be reasonably possibly true,the appeal against conviction was dismissed
Mini Summary:
An altercation between the appellant and the complainants in February 2010, led to the appellant’s being
charged and convicted of crimen iniuria and assault. He was sentenced to payment of a R6 000 fine, or 12
months’ imprisonment, wholly suspended on certain conditions. His appeal before this Court was directed
at his conviction.
The incident underlying the charges occurred in the parking area outside a female residence at the
University of the Free State. A female student who was to be housed at the residence had arrived with her
mother (the complainant) and sister, and due to the unavailability of empty parking bays, her mother had
parked in a non-designated spot to off-load her daughter’s luggage. According to the complainant, she
was accosted by the appellant who rudely confronted her about where she had parked, and on her
reprimanding him, he grabbed her on the chest and threatened to beat her. She alleged that he had also
referred to her and her daughters in racially derogatory terms. The complainant’s daughters’ testimony
was to the same effect.
On the other hand, the appellant denied being aggressive or rude. He alleged that he had politely told the
complainant that she could not park where she had, and that she had reacted aggressively. The two
women who were accompanying the appellant at the time of the incident, corroborated his version.
On appeal, the main thrust of the appellant’s contention was that the Magistrate misdirected herself in
that she failed to specifically mention in her judgement that she had considered the credibility of each of
the witnesses. It was contended that in so doing she had adopted a piecemeal approach to the evaluation
of the evidence.
Held that the appellant’s contention was misplaced. Although the magistrate did not explicitly state that
she had considered the credibility of each of the witnesses, it was clear from her judgment as a whole,
that in arriving at her conclusion, she had had regard to the credibility of the witnesses. The record
revealed that the magistrate made a proper assessment and analysis of all the evidence by, amongst
other things, weighing the strength and the weaknesses of the state’s case vis-à-vis that of the appellant,
including the probabilities and improbabilities of both versions of events.
The State bore the onus to prove the guilt of the appellant beyond reasonable doubt and that there was
no duty on the appellant to convince the Court of the truthfulness of any explanation which he gave. If his
explanation was found to be reasonably possibly true, the Court would have no reason to reject it. The
Court was not impressed with the appellant’s testimony, finding him to be less than honest in presenting
his version of events. His witnesses were also shown to be lacking in partiality in their recounting of the
incident. The Court confirmed that the trial court was correct in finding that the appellant uttered the
words allegedly used, and further that he had intended to and did in fact humiliate, denigrate and injure
the dignity of the complainants.
The appeal was dismissed.
S v VAN DER MERWE AND OTHERS 2011 (2) SACR 509 (FB)
The appellants had been convicted in a magistrates' court on charges of crimen injuria
and each sentenced to a fine of R20 000 or 12 months' imprisonment, plus a further six
months' imprisonment conditionally suspended for five years. The charges arose out of a
video recording they had made to express their opposition to the policy, of the university
118
they attended, of promoting racial integration of the university students' residence in
which they resided. It featured an initiation ritual in which the complainants — black
staff members at same university — appeared to be forced by the appellants into
ingesting a concocted brew and thereafter vomiting. The appellants also appeared to have
urinated into the brew and, during the episode, referred to the complainants as 'whores'.
The facts as pleaded in appellants' plea explanation in terms of s 112(2) were accepted by
the State and supported the contention that the urination, ingestion and vomiting were all
simulated. No formal admissions were made in the appellants' plea explanations
admitting to the averments in the charge-sheet that the iniuria was racially motivated.
The State alleged that what appeared in the video recording was real — that the
complainants were depicted as inferior and unintelligent human beings, thereby impairing
not only their human dignity but also 'extensively and tacitly' that of blacks in general
and/or the black students and personnel of the university in particular.
The grounds of appeal were that — (a) the sentence was disproportionate to the offence
in the context and relevant circumstances; (b) the fine exceeded the court's jurisdiction;
(c) the use of a newspaper article to reflect the convictions of the community was not
competent ; (d) the plea and the facts upon which it rested were not based on racial insult
— the behaviour to which was pleaded guilty impugned the dignity of the complainants
as human beings; and (e) a sentence of suspended imprisonment was not appropriate and,
in particular, linking the condition of suspension thereof to s 21 of Act 4 of 2000 was not
appropriate or permissible.
Held, that, where an accused person pleaded guilty and handed in a written statement in
terms of s 112(2) of the Criminal Procedure Act 51 of 1977, detailing the facts on which
his plea was premised, and the prosecution accepted the plea, the plea so explained and
accepted constituted the essential factual matrix on the strength of which sentence should
be considered and imposed. Such an essential factual matrix could not be extended or
varied in a manner that adversely impacted on the measure of punishment as regards the
offender. The facts, as pleaded and accepted, supported the contention that the urination,
ingestion and vomiting were all simulated. Simulated offensive conduct towards the
complainants was, without their consent, made to look real. In that secret depiction lay
the iniuria — indeed the video was not evidence of the iniuria, it was iniuria. It has to be
accepted that the two groups were performing, in other words, play-acting. To the extent
that the court a quo found otherwise, it materially erred.
Held, further, that, in the circumstances, the court a quo could not have approached the
matter of sentence anyhow save on those facts plus the undisputed facts whereby those
facts were amplified by the prosecution and defence during the course of closing
arguments. It was however clear from the original as well as supplementary reasons for
judgment that the court a quo did not approach the sentencing on such factual premise;
instead reckoning that, because the appellants had not expressly taken issue with the
racial averments embodied in the charge-sheet, such averments were tacitly admitted and
thus constituted facts on which sentence could be validly premised. This reasoning was
materially flawed and the finding relative to racism, which the court a quo regarded as a
strongly aggravating factor, was a monumental misdirection.
Held, further, that the reliance placed by the sentencing court upon the contents of the
press article — handed in by the defence in order to demonstrate how the accused were
119
portrayed in the press and public media as extremely loathsome persons who deserved
very severe punishment — as being true and conveying a true reflection of the legal
convictions of the community, had adversely influenced the determination of a balanced
sentence. It was unfair to the accused for those views to have been taken into account in
such a manner, given the specific purpose for which the article was handed in. It was also
unfair to have accentuated the punitive aspects of the public opinion so expressed without
affording the defence an opportunity of dealing therewith.
Held, further, that the linking of future rulings by the Equality Court [as suspensive
conditions to sentences of imprisonment imposed against the appellants] appeared
undesirable. The Equality Court proceedings — the quantum of proof and the ultimate
rulings and remedies — were essentiall civil in nature. Allowing a suspended criminal
sentence to be triggered and put into operation on the strength of a civil wrong or
transgression could lead to absurd repercussions. Our domestic jurisdiction had not yet
developed that far. The appeal was allowed and the sentences of the first and third
appellants altered to one of a fine of R10 000 each and the sentences of the second and
fourth appellants altered to a fine of R15 000 each. It was further ordered that the
appellants had to appear before the court on a stated date should they fail to pay the fines,
so that the court could impose a sentence of imprisonment.
Case Information
Appeal from sentences imposed in a magistrates' court. The facts appear from the reasons
for judgment.
Raliphaswa v Mugivhi & others
[2008] JOL 21570 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
236 / 07
27 / 03 / 2008
South Africa
Supreme Court of Appeal
Cameron, Combrinck JJA, S Snyders AJA
Keywords:
Delict – Iniuria – Claim for damages
Mini Summary:
His claim for damages having been dismissed by the court a quo, the appellant launched the present
appeal.
The factual background was as follows. The appellant was accosted by the first two respondents, acting in
the course of their duty as police officials, who proceeded to search him. He alleged that in the course of
the search, he was humiliated by the words and actions of the policemen. The therefore sued the
respondents for damages.
Held that in the absence of consent or a search warrant, police officers are entitled to search an individual
only in circumstances authorised by section 22(b) of the Criminal Procedure Act 51 of 1977, namely when
it is believed, on reasonable grounds, that a warrant will be issued if applied for and that the delay in
applying for a warrant would defeat the object of the search.
In the present case, the appellant was subjected to an invasive and humiliating search which amounted to
an iniuria, without probable cause. The court upheld the appeal, and awarded the appellant R25 000 as
damages.
Hoho v S
[2008] JOL 22420 (SCA)
Case Number:
493 / 05
120
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
17 / 09 / 2008
South Africa
Supreme Court of Appeal
PE Streicher, Cachalia, Heher, Mlambo JJA, Kgomo AJA
Keywords:
Criminal law – Defamation – Criminal offence – Constitutionality
Mini Summary:
The appellant was convicted on 22 charges of criminal defamation and sentenced to 3 years' imprisonment
suspended for 5 years and, to 3 years' correctional supervision in terms of section 276(1)(h) of the
Criminal Procedure Act 51 of 1977. Leave to appeal was granted, with the court stipulating that that
argument would be required on the question whether the crime of defamation is still extant, and if so
whether it is consonant with the Constitution.
Held that the doctrine that law may be abrogated by disuse is well established in our law. It therefore had
to be determined whether the South African community tacitly consented that defamation should no
longer constitute a criminal offence. The court was unable to draw such a conclusion.
The crime of defamation consists of the unlawful and intentional publication of matter concerning another
which tends to injure his reputation. The court found that the crime of defamation is not inconsistent with
the Constitution.
The appeal was dismissed.
S v SEWEYA 2004 (1) SACR 387 (T)
2004 (1) SACR p387
Citation
2004 (1) SACR 387 (T)
Case No
Review case No 806/2003
Court
Transvaal Provincial Division
Judge
Webster J and Shongwe J
Heard
January 6, 2004
Judgment
January 6, 2004
Annotations
Link to Case Annotations
E
Flynote : Sleutelwoorde
Crimen injuria - What constitutes - Serious violation of dignitas - Element validly subject to
criticism F that it is nebulous - Courts nonetheless obliged to make considered valuejudgments, from case to case, to determine when insult sufficiently serious to amount to
offence.
Crimen injuria - What constitutes - Accused asserting that complainant (a man) spoke 'like
three months' pregnant woman' - Constitution of Republic of South Africa Act 108 of 1996
forbidding any act, custom or view denigrating G citizens - Court not to allow complainant's
idiosyncratic view about sexual superiority of men to be exercised in manner inconsistent with
Constitution - Although remark possibly personally offensive to complainant, it didn't
constitute offence. H
Headnote : Kopnota
121
The definition of crimen injuria entails that the violation of the dignitas of the
complainant must be 'serious' or 'not of a trifling nature'. This element has been
criticised on the basis that, as a test, it is so nebulous as to lead to arbitrariness in
its application. Although the problem thus identified is a real one, it is not likely to be
resolved easily in a multi-cultural society such as South Africa's, where there will
always I be differences in defining what is acceptable language and what is not. It is
inevitable that what is objectionable, meriting censure and criminal prosecution, will
be forever in flux. The Courts will have to continue making considered, objective
value-judgments, to determine whether the offence has been committed.
(Paragraphs [8], [17], [18], [19] and [20] at 389 d - g , 391 b - c , 391 e and 391 h
- 392 a .) J
2004 (1) SACR p388
The Constitution of the Republic of South Africa Act 108 of 1996 enshrines and
affirms the democratic values of human dignity, equality A and freedom. It is
regrettable that some members of society still cling to stereotyping people, or
harbour idiosyncrasies of sexual superiority or inferiority, or believe in some form of
domination or quaint local, unwritten rules or cultural practices. These, however,
cannot be exercised in a manner that is inconsistent with any provision of the B Bill of
Rights. Accordingly, a statement attributing to a complainant a characteristic, on the
basis of which the Bill of Rights forbids the denigration of its citizens ( in casu , an
assertion that the complainant, a man, spoke 'like a three months' pregnant
woman'), although it may be personally offensive to the complainant by reason of
such beliefs, cannot be elevated to the offence of crimen injuria . (Paragraphs [22]
and [23] at 392 g - j .) C
S v Seweya – 2004(1) SACR 387 (TPD) - violation of dignitas must be of serious nature
and not of a trifling nature.
62) CRIMINAL CAPACTY
De Vos NO and another v Minister of Justice and Constitutional Development and others (Down
Syndrome South Africa and another as amici curiae); Snyders and another v Minister of Justice
and Constitutional Development and others
[2014] JOL 32345 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
4502 / 10; 5825 / 14
05 / 09 / 2014
South Africa
High Court
Western Cape, Cape Town
BM Griesel J
Keywords:
Constitutional law – Criminal proceedings – Mentally impaired accused – Mental capacity –
Section 77(6)(a) of the Criminal Procedure Act 51 of 1977 – Constitutionality
Mini Summary:
Two applications were consolidated and heard together in the light of the similarity in the relief claimed as
well as the applicable legal principles on which the claims were based.
Both applications concerned persons with mental disabilities facing charges of murder and rape
respectively. They were represented by their mothers as well as the curators ad litem appointed for them
by the Court.
In both applications, an order was sought declaring section 77(6)(a) of the Criminal Procedure Act 51 of
1977 (“the Act”) to be un-constitutional. At issue was the fate of persons who, by reason of mental illness
or mental defect, are unfit to be tried.
122
Held that the issues of mental illness and criminal responsibility are regulated in Chapter 13, in
sections 77–79 of the Act. Section 77 deals with an accused person’s fitness to stand trial. The criterion
for an accused’s fitness to stand trial, as expressed in section 77(1), is whether the accused by reason of
mental illness or mental defect is not capable of understanding the proceedings so as to make a proper
defence. If it appears to the court at any stage in the proceedings that the accused may be unable to
understand the proceedings due to a mental ill-ness or defect, the court must direct that the accused be
referred for observation in terms of section 79. Section 78 deals with the situation where the accused is
found, by reason of mental illness or mental defect, not to be criminally liable for an act or omission which
would otherwise have been punishable as a crime. The most conspicuous difference between
sections 77(6) and 78(6) is that in terms of the latter provision, the court has a fairly wide discretion as to
a range of orders that can be made, whereas the court under the former provision has no discretion.
The effect of section 77(6)(a)(i) is that where an accused person is found by virtue of his or her mental
condition to be incapable of understanding the proceedings so as to make a proper defence; and on a
balance of probabilities, to have committed the act (ie actus reus) of murder, culpable homicide, rape or
compelled rape, or an offence involving serious violence, then the court is obliged, automatically and in
every case, to order that the accused be detained in a psychiatric hospital or prison for an indefinite period
until otherwise directed by a judge in chambers.
The Court held that section 77(6)(a), in limiting or threatening the rights to freedom of the person and the
rights of children, was unconstitutional and could not be saved by the limitations clause. Insofar as an
accused person with a mental disability may be detained for an indefinite period in unwarranted
circumstances, the impugned provisions fell to be declared inconsistent with the Constitution and invalid.
S v Pedro
[2014] JOL 32061 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
14228
09 / 07 / 2014
South Africa
High Court
Western Cape, Cape Town
Rogers, Binns-Ward JJ
Keywords:
Criminal procedure – Criminal capacity – Observation of accused – Mental state
Mini Summary:
The accused was charged with culpable homicide on the ground that the accused’s negligent driving of a
vehicle caused the death of a young child. He was referred for assessment and report in terms of
section 79(1)(b) of the Criminal Procedure Act 51 of 1977. The report of two state psychiatrists concluded
that the accused did not have the capacity to understand the proceedings as contemplated in section 77 of
the Act and that at the time of committing the alleged offence he was incapable of appreciating the
wrongfulness of the alleged offence and of acting accordingly. It was recommended that he be retained as
a state patient. Consequently, the Magistrate found the accused not guilty in terms of section 78(6)(a)
and ordered, in terms of section 77(6)(a)(ii), that the accused be admitted to and detained in VBH as if he
were an involuntary mental health care user contemplated in section 37 of the Mental Health Care Act 17
of 2002.
The matter was referred to the present Court on the ground that the accused had never pleaded to the
charge of culpable homicide and that a finding of not guilty should not have been made in terms of
section 78(6)(a). The review judge was requested to set aside the acquittal but to confirm the order made
in terms of section 77(6)(a)(ii).
The present Court requested oral arguments on whether the second psychiatrist on the assessment panel
should have been a psychiatrist expressly appointed by the court for the accused; whether, in the absence
of any request and direction to the contrary, the Magistrate was required to appoint a private psychiatrist
as a third psychiatrist on the panel; whether, in view of the finding of the psychiatrists that the accused
was not fit to stand trial, the entering of a not guilty verdict was correct; and whether, given that the
accused was charged with culpable homicide, the detention order should have been in terms of subparagraph (i) rather than sub-paragraph (ii) of section 77(6)(a).
Held that three psychiatrists, including a private psychiatrist, must be appointed when the case falls
within section 79(1)(b) unless the court, upon application by the prosecutor, directs that a private
psychiatrist need not be appointed, in which case there must be two psychiatrists. In either event, the
court may appoint a clinical psychologist. In the present case, the prosecutor did not request the trial
court to dispense with the appointment of a private psychiatrist. A private psychiatrist should thus have
been appointed by the court.
123
Finding that the relevant legislative provisions were not complied with in this case, the Court set out what
the proper procedure would be, set aside the proceedings and remitted the case to the court a quo to be
dealt with in accordance with the legal principles set out in this judgment.
63) CROSS-EXAMINATION
Herricks v S
[2014] JOL 31318 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA & R 144 / 2012
06 / 12 / 2012
South Africa
High Court
Eastern Cape, Grahamstown
B Sandi, P Tshiki JJ
Keywords:
Criminal Law – Attempted murder – State witness disappeared during cross-examination – Evidence
disregarded – Gangsters – Shotgun
Mini Summary:
The appellant was convicted on three counts of attempted murder by shooting at complainants with a
firearm. He was also convicted of possession of a firearm and possession of ammunition. All counts were
taken as one for the purposes of sentencing. He was sentenced to seven years’ imprisonment. The state
failed to prove the elements of the possession charges and they were thus dropped.
The appellant had challenged the magistrate’s judgment on the grounds that the state witness,
Louwskieter, had disappeared during cross-examination. Louwskieter had been steadfast in his
identification of the appellant as the person who fired the shots. In light of the fact that Louwskieter was
not thoroughly cross-examined, the appeal court decided to disregard his evidence.
Held that the only evidence relevant to the identification of the appellant was that of Solomon and De
Klerk.
The Magistrate found the evidence of Solomon and De Klerk to be reliable and that there was no
misdirection on the part of the trial court. However, the sentence was amended to six years’
imprisonment.
Larry v S
[2014] JOL 31966 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 573 / 2013
13 / 06 / 2014
South Africa
High Court
Western Cape, Cape Town
LJ Bozalek J, CTS Cossie AJ
Keywords:
Criminal law – Sexual assault – Conviction – Appeal
Mini Summary:
The appellant was convicted of contravening section 5(1) of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007 and was sentenced to three years’ imprisonment wholly
suspended for a period of five years. He appealed against his conviction.
Held that on appeal, the appellant alleged that the trial court had prevented his attorney from properly
conducting his defence. A reading of the record showed that the magistrate at times kept a tight rein on
the appellant’s attorney’s cross-examination but nevertheless gave him a full opportunity to crossexamine the complainant and her witness, including cross-examination on alleged discrepancies between
the complainant’s statement to the police and her viva voce evidence. It could not be found that there was
a material irregularity in the trial.
The remaining grounds of appeal were that the magistrate erroneously found that the evidence of the
complainant was sufficiently satisfactory and credible to secure a conviction and that she failed to take
proper cognisance of the value of the evidence of the appellant’s witness, that she over-emphasised the
discrepancies in the evidence of the appellant and failed to properly apply the onus that rested on the
state. The Court found no merit in any of the said contentions, and dismissed the appeal.
124
S v Mdali
[2008] JOL 22390 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
25 / 688 / 07
05 / 05 / 2008
South Africa
High Court
Cape of Good Hope Provincial
Le Grange, NC Erasmus JJ
Keywords:
Criminal procedure – Assault with intent – Conviction and sentence – Trial proceedings – Errors
Mini Summary:
The accused was convicted of assault with the intent to do grievous bodily harm, and sentenced to a term
of 6 months’ imprisonment which was wholly suspended for a period of 3 years on certain conditions.
Held on review that the rights of the accused to cross-examination were not properly explained. That was
conceded by the magistrate.
The magistrate also erred when she ruled that a person who was present during court proceedings cannot
be called as a witness. The magistrate confused the principles governing the admissibility of evidence with
the probative value of such evidence, if found to be admissible. This error, amounts to a serious
irregularity that vitiated the proceedings.
The court found that the accused’s constitutional right to a fair trial, and in particular his right to adduce
and challenge evidence, was grossly violated. The conviction and sentence were thus set aside.
S v Khumalo
[2012] JOL 29355 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
110 / 12
22 / 08 / 2012
South Africa
High Court
South Gauteng, Johannesburg
WL Wepener, PA Meyer JJ
Keywords:
Criminal procedure – Rights of accused – Right to cross-examination – Failure to complete crossexamination – Irregularity – Review
Mini Summary:
The accused was found guilty of robbery, and sentencing was postponed after the regional magistrate
noticed that after the complainant gave her evidence in chief, the witness was cross examined by the
defence attorney. The postponement was to allow further cross examination of the complainant by the
accused’s legal representative. On the subsequent trial date the complainant failed to attend court and the
State case was closed without the further cross examination of the witness. The accused applied for the
discharge of the accused pursuant to the provisions of section 174 of the Criminal Procedure Act 51 of
1977 by virtue of the fact that the accused’s right to cross examine was infringed and that such an
infringement was fatal to the state’s case. The district magistrate, however, refused such a discharge and
the accused thereafter closed his case without leading further evidence.
Held that the present Court had to decide whether the right to cross examination is so fundamental that a
failure to complete cross examination of a witness leads to a failure of justice entitling the conviction to be
quashed, the matter is reviewable having regard to the fact that the accused enjoyed legal representation.
The question was whether the failure to complete the cross examination of the state witness fell into the
category of matters which result in a pointless exercise of going through the motion of imposing sentence
only for the conviction to be set aside later. In other words, the question was whether the irregularity
which occurred was of so gross a nature as to vitiate the proceedings before the magistrate. The Court
found that the irregularity (failure to finalise the cross-examination of the witness) was of such a nature
that the accused’s right to a fair trial had been infringed. The infringement of a right which is guaranteed
in the Constitution leads to the proceedings being tainted by an irregularity and it falls to be set aside.
S v Masakale & another
[2008] JOL 21853 (W)
Case Number:
Judgment Date:
CC 280 / 05
23 / 08 / 2007
125
Country:
Jurisdiction:
Division:
Bench:
South Africa
High Court
Witwatersrand Local
Labe J
Keywords:
Criminal procedure – Cross-examination – Witness – Trial-within-trial
Mini Summary:
The question facing the court in the present case was whether a witness who testified on the merits, may
be cross-examined on what he had said during a trial-within-a-trial.
Held that evidence given on behalf of the accused at a trial-within-a-trial should not be referred to in the
main trial. However, where a defence witness gives evidence in a trial-within-a-trial, and then in the
evidence which he gives on the merits, refers to matters on which he testified in the trial-within-a-trial, he
may be cross-examined in relation to inconsistencies between his evidence in the trial-within-a-trial and
the evidence given by him on the merits.
The court held that in the present case it would be unjust were the State not to be able to cross-examine
the witness on discrepancies between the evidence given by him in the trial-within-the-trial and the
evidence given by him in the main trial.
64) CULPA
Bramwell v S
[2015] JOL 32688 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
196 / 2013
24 / 02 / 2014
South Africa
High Court
Eksteen J
Keywords:
Criminal law – Culpable homicide – Conviction and sentence – Appeal
Mini Summary:
The appellant was convicted on a charge of culpable homicide and was sentenced to undergo nine months’
correctional supervision coupled with various conditions and additionally, to a fine of R10 000 (or ten
months’ imprisonment) which was conditionally suspended for a period of four years. He appealed against
his conviction and sentence.
The charge related to an accident in which the appellant was the driver of a motor vehicle which hit a
pedestrian, causing the pedestrian’s death.
Held that the magistrate’s acceptance of the testimony of a witness as expert evidence constituted a
misdirection. The magistrate considered the witness to be an expert in motor vehicle accident
reconstruction, despite argument on behalf of the defence that the witness was not an expert in that field.
Culpable homicide consists of unlawfully and negligently causing of the death of another person. The state
will bear the onus of proving not only that the appellant was negligent but also that such negligence
caused the death of the deceased.
Accepting that upon seeing a pedestrian start to cross the road a reasonable motorists would foresee that
he could cause the death of the pedestrian if he came into collision with him, the question was what steps
a reasonable motorist would take to guard against that result. There was no evidence as to whether the
deceased looked in the direction of the approaching traffic, whether he stopped at the white lines dividing
the lanes or whether he hesitated upon approaching the line. There was thus no evidence produced by the
State which would indicate that the appellant had deviated from those steps which the reasonable man
would have taken.
The appeal therefore succeeded and the conviction and sentence imposed were set aside.
65) CULPABLE HOMICIDE
Bramwell v S
[2015] JOL 32688 (ECG)
126
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
196 / 2013
24 / 02 / 2014
South Africa
High Court
Eksteen J
Keywords:
Criminal law – Culpable homicide – Conviction and sentence – Appeal
Mini Summary:
The appellant was convicted on a charge of culpable homicide and was sentenced to undergo nine months’
correctional supervision coupled with various conditions and additionally, to a fine of R10 000 (or ten
months’ imprisonment) which was conditionally suspended for a period of four years. He appealed against
his conviction and sentence.
The charge related to an accident in which the appellant was the driver of a motor vehicle which hit a
pedestrian, causing the pedestrian’s death.
Held that the magistrate’s acceptance of the testimony of a witness as expert evidence constituted a
misdirection. The magistrate considered the witness to be an expert in motor vehicle accident
reconstruction, despite argument on behalf of the defence that the witness was not an expert in that field.
Culpable homicide consists of unlawfully and negligently causing of the death of another person. The state
will bear the onus of proving not only that the appellant was negligent but also that such negligence
caused the death of the deceased.
Accepting that upon seeing a pedestrian start to cross the road a reasonable motorists would foresee that
he could cause the death of the pedestrian if he came into collision with him, the question was what steps
a reasonable motorist would take to guard against that result. There was no evidence as to whether the
deceased looked in the direction of the approaching traffic, whether he stopped at the white lines dividing
the lanes or whether he hesitated upon approaching the line. There was thus no evidence produced by the
State which would indicate that the appellant had deviated from those steps which the reasonable man
would have taken.
The appeal therefore succeeded and the conviction and sentence imposed were set aside.
S v Naidoo 2003 (1) SACR 347 (SCA) - accused can be found guilty of more than one
charge of culpable homicide when multiple deaths occur but only one act of negligence.
Philander v S
[2012] JOL 28944 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 30 / 2011
02 / 09 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
D van Zyl, R Griffiths JJ
Keywords:
Criminal law – Culpable homicide – Sentence – Appeal
Mini Summary:
The appellant was charged with culpable homicide after injuries which he inflicted on his partner led to her
death. He pleaded guilty to the charge and was convicted and sentenced to seven years’ imprisonment.
The present appeal was against sentence. The appellant essentially advanced two submissions on appeal.
The first was that the magistrate had misdirected himself by attributing all the injuries reflected in the
post mortem report to have been inflicted by the appellant when he assaulted the deceased. According to
the appellant, the deceased had fallen several times on her way home. The second submission was that in
the circumstances of the case, a sentence of seven years imprisonment was unduly harsh and induced a
sense of shock.
Held that the Court was not convinced that the magistrate had misdirected himself as contended by the
appellant. The nature of the injuries referred to by the magistrate in his reasons for sentence, were
therefore consistent with the manner in which the appellant admitted he had assaulted the deceased. To
suggest that the injuries were sustained when the deceased fell would amount to nothing more than
speculation and would be inconsistent with the admissions contained in the plea explanation.
127
In deciding upon sentence, the magistrate considered a submission that the appellant be subjected to
correctional supervision, but decided that direct imprisonment was the only appropriate sanction.
In determining an appropriate sentence in the case of culpable homicide, a court must have regard to the
degree of culpability or blameworthiness exhibited by the accused in committing the negligent act. The
consequence of the appellant’s negligence in the present case was extremely serious, in that it led to the
death of the deceased, and deprived her children of a mother. The Court emphasised the nature of the
unlawful assault perpetrated by the appellant. Finding no grounds upon which to interfere with sentence,
the Court dismissed the appeal.
S v Dougherty 2003 (2) SACR 36 (WLD) – difference between dolus and culpa –
liability when accused thinks wrongly that in danger and how that excludes dolus but can
still be culpa.
66) CUSTOM
Mogaramedi v S
[2015] JOL 32784 (GP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 165 / 2013
15 / 08 / 2014
South Africa
High Court
Gauteng Division, Pretoria
N Kollapen J, D Dosio, SA Thobane AJJ
Keywords:
Criminal law – Murder – Sentence – Life imprisonment – Appeal
Mini Summary:
Having pleaded guilty, the appellant was convicted of murder and sentenced to life imprisonment. He
obtained leave to appeal against his sentence.
Held that in an appeal against sentence, the court of appeal should be guided by the principle that
punishment is pre-eminently a matter for the discretion of the trial court and the court of appeal should be
careful not to erode that discretion. A sentence imposed by a lower court should only be altered if an
irregularity took place during the trial or sentencing stage; the trial court misdirected itself in respect of
the imposition of the sentence; or the sentence imposed by the trial court could be described as
disturbingly or shockingly inappropriate.
In terms of section 51(1) of the Criminal Law Amendment Act 105 of 1997, the crime of murder attracts a
sentence of life imprisonment if it was planned or premeditated.
In the present case, the appellant had been practising to become a traditional healer, and as part of his
final initiation, he had to obtain the genital organ of a close female relative. To that end, he had lured his
younger sister to his home, where he hit her over the head with an axe, stabbed her in the chest, and
waited for her to die. He then cut off her genital organ with an axe. The court acknowledged that in South
Africa, cultural practices pertaining to a belief in witchcraft and muti killings prevail. However, it referred
to evidence that the use of human body parts as an ingredient for traditional medicine is practised only by
a minority of traditional healers, who are condemned by the majority. The appellant’s religious beliefs and
convictions could not supersede the deceased’s right to life. Although everyone has a right to practice
their belief, as soon as that belief leads to an action which falls within the bounds of illegality, then in
terms of section 31(2) of the Bill of Rights it can no longer be condoned or protected.
The Court found no grounds upon which to interfere with the sentence, and dismissed the appeal.
67) DAGGA: POSSESSION AND DEALING
128
S v MBATHA 2012 (2) SACR 551 (KZP)
An accused who has cultivated dagga (even if it was only for his personal
use) is guilty of dealing in dagga in contravention of section 5(b) of Act 140
of 1992.
“Gyanda J
[1] In this matter, the accused, Selby Nhlanhla Mbatha, was charged in the
Magistrates’ Court for the District of Dundee on the main count of dealing in
dagga in contravention of the provisions of Section 5(b) read with Sections 1,
13(f), 17(e), 18, 19, 25 and 64 of the Drugs and Drug Trafficking Act, No. 140 of
1992, in that on or about 14 January 2011 and at or near Dlamini Village in the
District of Dundee, he did wrongfully and unlawfully deal in an undesirable
dependence producing substance, to wit Cannabis (Dagga) in the quantity of
3.45 kg; 6.50 grams and 15.5 grams. In the alternative the accused was charged
with contravening Section 4(b) read with Sections 1, 13(d), 17(d), 18, 19, 25 and
64 of the Drugs and Drug Trafficking Act, No. 140 of 1992 for unlawful
possession of dagga in that on or about 14 January 2011 and at or near Dlamini
Village in the District of Dundee, the accused did wrongfully and unlawfully have
use or have in his possession an undesirable dependence-producing substance,
to wit Cannabis (Dagga), in the quantity of 3.45 kg; 6.50 grams and 15.5 grams.
[2] The accused, who was unrepresented, pleaded not guilty to the main count
but pleaded guilty to possession of the dagga because he smoked it. The State
did not accept the plea of the accused on the alternative count and proceeded to
trial on the main count. The State called the evidence of Sonesh Singh, a
Warrant Officer in the South African Police Services, stationed at the Glencoe
Dog Unit, who testified that on 4 January 2011, he proceeded to the home of the
accused in the company of one Constable Ndima as a result of information
received. They proceeded to the home of the accused armed with a warrant to
search the premises. 8 [3] On searching the premises of the accused,
subsequent to obtaining his permission to search the said premises, the police
found a parcel of loose dagga in a clear plastic wrapping alongside the bed. On
proceeding with their search outside the premises alongside the house, a clear
bread plastic packet containing dagga seeds were found. In addition, they also
found a newspaper bundle with a few loose dagga in it. On further searching the
yard of the premises next to the house, they found a fully grown dagga tree.
[4] According to the evidence of Warrant Officer Singh, one could see that the
tree had been taken care of as it was cleaned and maintained and there were no
weeds in the yard. Moreover, the yard was well fenced and there is an access
gate allowing access into the premises. The accused was taken with the dagga
found, to a pharmacy where the dagga was weighed and thereafter to the offices
of the South African Police Services at Dundee where the dagga was handed
into evidence into the SAP13 register.
[5] The evidence led by the State in this regard was not challenged at all by the
accused in cross-examination in spite of his rights thereto having being
adequately explained to him. At the close of the State case and upon his rights to
129
testify or call witnesses being explained to him, the accused elected to remain
silent and stated that he wished to leave everything to the Court.
[6] The Trial Magistrate, as he was obliged to do, applied the meaning accorded
to the word “cultivate” in the decision of S v Van Zyl 1975 (2) SA 489 (N), R v
Potgieter 1951(1) SA 750 (N) and S v Buthelezi 1968 (2) SA 750 (N) as
contained in the definition of “deal in” in Section 1(1) of Act, No. 140 of 1992, and
convicted the accused on the main count of dealing in dagga. The definition of
“deal in” in the Drugs and Drug Trafficking Act, No. 140 of 1992 reads:“deal in”, in relation to a drug, includes performing any act in connection with a
transhipment, importation, cultivation, collection, manufacture, supply,
prescription, administration, sale, transmission or exportation of the Drug.”
The accused was sentenced to 18 [eighteen] months imprisonment wholly
suspended for a period of 3 [three] years on condition that he is not again
convicted of contravening Sections 5(b) or 4(b) of Act, No. 140 of 1992
committed during the period os suspension and in addition he was ordered to
pay a fine of R1 000-00 [one thousand rand] or in default thereof to undergo 6
[six] months imprisonment. The dagga was declared forfeited to the State.
The case of the accused was thereafter referred on Automatic Review to Wallis,
J (as he then was), who, in a Judgment dated 31 March 2011 opined that the
meaning accorded to the word “cultivate” was not the ordinary meaning of the
word “cultivate” which in relation to ground is essentially an agrarian term, and
relates to an activity associated with agriculture, relying on the decision in HTF
Developers (Pty) Ltd v 9 Minister of Environmental Affairs and Tourism and
Others 2007(5) SA 438 (SCA) para7, Wallis, J stated that:“If the more conventional meaning is applied, the conviction would fall to be set
aside.” He accordingly referred the matter for Argument before the Full Court in
relation to the meaning of the word “cultivation” in the definition of “deal in” in
Section 1 of the Drugs and Drug Trafficking Act, No. 140 of 1992.
[8] The definition of the term “cultivate” as contained in the forerunner to the
existing Act, namely Act, No. 41 of 1971, was dealt with by the Transvaal
Provincial Division consisting of, Cillié, JP and Bekker, J in the case of S v
Kgupane en Andere 1975 (2) SA 73 (T) at 75H in the Judgment of Bekker, J,
where he stated:- “Na my mening geld die volgende: Dat ń kweker van dagga
skuldig is aan “handeldryf” is nie te betwyfel nie. Hy word regstreeks getref en val
binne die trefwydte van die statutêre omskrywing van “handeldryf” wat werskyn in
art. 1 van die Wet. Kweek van dagga is handeldryf. Die afleiding wat gemaak
moet word uit hoofde van die omskrywing van “handeldryf” gesien in die lig van
die voorgeskrewe vonnis, is dat dit die bedoeling van die Wetgewer is om die
nekslag toe te dien aan kweek van dagga al sou dit deur die kweker vir eie
gebruik bestem wees. Met ander woorder, soos ek die artikel vertolk is die
verbod gemik op die kweek van die plant ongeag vir watter doel dit ook al
bestem is. Natuurlik is dit terselfdertyd dan ook so dat die kweker “in besit” van
die daggaplant is en dat ń pas ontkiemde plant minder as 115 gram kan weeg.
Dit egter, gesien in die lig van die omskrywing van “handeldryf” bied hom geen
uitkoms nie. Die klem val nie op die woord “besit” nie maar op “kweek” van
dagga, wat hom dan binne die trefwydte van handeldryf insleep.”
130
In this particular case the Court had been dealing with a number of review cases
inter alia the review case of the State v Isaak Mashinini who, like the accused in
the present matter under consideration was found in possession of a solitary
dagga plant and based on a similar definition of “deal in” in the 1971 Act, he was
convicted of dealing in dagga and his conviction and sentence were confirmed.
The Provincial Division had to deal with the selfsame query as in the case under
consideration, namely whether or not the possession of one dagga plant
amounted to dealing in the substance which the Transvaal Provincial Division
answered in the affirmative and confirmed the conviction and sentence. It is
indeed instructive that the headnote in S v Kgupane en Andere reads:“Cultivation of dagga is dealing in dagga. It is directly hit by, and falls within the
scope of, the statutory definition of “dealing in” which appears in Section 1 of Act
41of 1971. The inference must be drawn from the definition of “dealing in”, seen
in the light of the prescribed sentence, is that the intention of the Legislature to
put an end 10 to the cultivation of dagga even though it was intended by the
cultivator for his own use. (my underlining). The prescribed sentence must then
be imposed. The escape which Section 10 (1)(b) offers the accused is, for
example, the possibility of persuading the Court that he was not in fact the
cultivator of dagga.” [9] In this regard, counsel for the State also referred us to
the decision in State v Guess 1976 (4) SA 715(A), a decision of the Appellate
Division (as it then was) , a decision of Joubert, AJA, in which Holmes, JA and
Trollip, JA concurred, where the Appeal Court had to deal with the definition of
the word “cultivate” or “cultivation” as they appeared in the preceding Act, namely
Act, No. 41 of 1971 as amended. In his Judgment at page 717, Joubert, AJA
stated:- In cases dealing with “cultivation” of dagga plants, our Courts have
accepted the word, “cultivate” as ordinarily meaning “to promote or stimulate or
foster the growth of a plant by any person”.
The learned Judge of appeal thereafter referred to various decisions in which this
definition was accepted and applied.
[10] In the matter of State v Guess, however, the Court questioned whether the
State succeeded in establishing beyond a reasonable doubt, the factual premises
so as to give rise to the presumption contained in Section 10(1)(b) that the
appellant dealt in 85 dagga plants in contravention of Section 2(a) of the Act and,
if so, whether the appellant succeeded in rebutting the presumption by proving
on the balance of probabilities that he did not cultivate the dagga plants. The
Court concluded that the State proved beyond a reasonable doubt that the
appellant was in possession of the dagga plants and therefore the Court a quo
ought to have properly convicted him of the alternative charge under Section 2(b)
of having being in possession of 85 dagga plants and not of dealing therein.
[11] In the light of the aforegoing it must be presumed, therefore, on the so called
“Barras” Principle, that the legislature, when they enacted current Drugs and
Drug Trafficking Act, No. 140 of 1992 must have been aware of the definition
accorded to the word “cultivate” in the decisions referred to above, more
especially the decision of the Appellate Division in S v Guess and, therefore, they
must have accepted that that definition would apply to the word “cultivation” as it
appears in Section 1(1) of the present Act or they would have stated otherwise.
131
The “Barras” Principle, as it has become to be known, is the decision in the
House of Lords and the Privy Council in the case of Barras v The Aberdeen
Steam Trawling and Fishing Company, Limited, as reported in the 1933 English
Law Reports, Appeal Cases at pages 402 where the Court dealing with the
definition of the word “wreck” stated that:11
“… on the ground of the word “wreck” having being used in the Act of 1894 and
having received a judicial interpretation must, when used in the same context in
the Act of 1925, bear that interpretation unless a contrary meaning is indicated
…”
The principle of interpretation in the Barras decision, (although it was not
specifically referred to), was followed by the Appellate Division (as it then was) in
the matter of The Minister van Justisie v Alexander 1975 (4) SA 530 (A) at 550 in
the Judgment of Corbett JA where he stated:“It is one of the canons of statutory interpretation that the Legislature is presumed
to know the existing state of the law: and from this presumption arises the rule
that a statute must be interpreted in the light of the existing law (see Steyn, op.
cit., pp. 105, 139, xliv; Craies on Statute Law, 7th ed., pp. 96 – 8.”
[12] I am of the view therefore, that in spite of the sympathy that may be felt for a
user of dagga planting a single dagga plant for his own use to be convicted of
dealing in dagga rather than possession thereof, as stated by Bekker, J, in S v
Kgupane en Andere it is quite clear that the intention of the Legislature was that
in its pursuit of the sharks that unfortunately some minnows may be caught in the
same net. [13] It is instructive, in this regard, that the State of Maine in the United
States in it’s statutory definition of “cultivation” defines it as:“to grow a seed; to grow, raise or tend to a plant; to harvest a plant; or to
knowingly possess a plant.” (No. 10 – 1281. – McGuire v Holder – US First
Circuit as quoted in Findlaw for English Professionals.”
In view of the foregoing and in spite of the definition accorded to “cultivate” by
Combrink, JA in HTF Developers (Pty) Ltd v Minister of Environmental Affairs
and Tourism and Others where he stated:“ ‘Cultivate’ in relation to ground is essentially an agrarian term and relates to an
activity associated with agriculture. There is no reason why the primary meaning
should not be applied considering that the Act makes serious inroads on the
rights of owners.”
That definition in my view, is not applicable to the present case as it clearly
applied in a different context to the present case wherein the word “cultivate” has,
as already been seen been dealt with and defined by our Courts directly on point
in relation to its applicability to the Drugs and Drug Trafficking Act more
especially dealing therein.
[14] It has been argued that a proper interpretation to be attached to the word
“cultivate” would be the Oxford dictionary one, meaning:“raise or grow (plants) especially on a large scale for commercial purpose”
12 on the basis that such a definition would do justice to the case of a dagga user
who grew a solitary plant to satisfy his own needs and cannot really be deemed a
dealer.
132
This in my view, is merely based on the sympathy felt for a user who is not in
actual fact a dealer. To put into perspective this attitude one would have to, in
due course, extend this “extended definition” to the situation of a manufacturer of
mandrax or cocaine who has a laboratory at home and manufactures small
amounts for his own consumption. This could definitely never have been the
intention of the Legislature. It is abundantly clear that the intention of the
legislature was to stop the production and supply of drugs when it enacted Act
No. 140 of 1992 and defined “deal in” as it did in Section (1) of the Act.
The circumstances in relation to drug users found in the position of the accused
herein are factors that may be relevant only to the question of the sentences to
be imposed.
[15] I am of the view, in all the circumstances, that this Court cannot come to the
assistance of a user of dagga who cultivates a dagga plant for his own personal
use, in the light of the definition of “dealing in” to say that in as much as he did
not cultivate it for the purposes of dealing in the substance but for his own use
and possession, he should therefore not be convicted of dealing in dagga.
[16] In my view, would be wrong as his act of cultivation falls full square within
the definition of the phrase “dealing in” in the Act and he has, in my view,
correctly been convicted of dealing in dagga.”
68) DANGEROUS WEAPONS
69) DEADLY FORCE IN ARREST
MONDLANE AND OTHERS v MINISTER OF SAFETY AND SECURITY 2011 (2) SACR 425
(GNP)
The first and second plaintiffs claimed damages from the defendant, inter alia, for
gunshot wounds they had sustained when a police officer in defendant's employ had, in
attempting their arrest, fired shots at them while they were allegedly fleeing from the
scene of a crime. Defendant's counsel purported to place the police officer's conduct
within the ambit of the proviso in s 49(2), read with s 49(2)(b), which renders the use of
deadly force justified if the arrestor believed — at the time of using such deadly force and
on reasonable grounds — that, if arrest were to be delayed, there would be a substantial
risk of the suspect causing imminent or future death or grievous bodily harm. The police
officer/arrestor, however, never testified that he had held such a belief.
Held, that, to have successfully relied on s 49(2)(b) of the Criminal Procedure Act 51 of
1977 in defending a claim that the arrestor acted unlawfully or was unjustified in having
used deadly force in effecting an arrest on a suspect, it had to be established as a fact that
the arrestor held the belief contemplated in the proviso in s 49(2) read with s 49(2)(b). In
other words, it was a jurisdictional requirement that had to be proved; if not, the use of
force would fall outside the ambit of the proviso in s 49(2) and would then have been
unlawful.
Held, further, that the establishment of the fact that the arrestor held the belief referred to
in the proviso in s 49(2) was a separate enquiry from another requirement stipulated by
133
the provision, namely that the arrestor's belief had to be based on reasonable grounds.
This meant that, if it were shown that the arrestor held the belief contemplated in the
proviso in s 49(2), but it were not shown that there were reasonable grounds for that
belief, the use of force will also have been outside the ambit of s 49 and, therefore,
unlawful. However, if there were no evidence that the arrestor subjectively held the belief
contemplated in the proviso, then the enquiry as to whether there were reasonable
grounds was not even proceed to, but fell away.
Held, further, that, in this case, the defendant had failed to lead evidence that the arrestor
held the belief which the proviso in s 49(2) required the arrestor to have held before
deadly force could be used on a suspect. Accordingly, the arrestor's conduct — firing
shots at the car in which the plaintiffs were travelling, and wounding the first and second
plaintiffs — fell outside the ambit of s 49(2) and was unjustified and unlawful.
Case Information
Civil trial in an action for damages for unlawful arrest and detention, malicious
prosecution and injuries caused by the unlawful wounding of the plaintiffs. Portion of the
judgment not material to this report has G been omitted.
70) DEFAMATION
Raliphaswa v Mugivhi & others
[2008] JOL 21570 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
236 / 07
27 / 03 / 2008
South Africa
Supreme Court of Appeal
Cameron, Combrinck JJA, S Snyders AJA
Keywords:
Delict – Iniuria – Claim for damages
Mini Summary:
His claim for damages having been dismissed by the court a quo, the appellant launched the present
appeal.
The factual background was as follows. The appellant was accosted by the first two respondents, acting in
the course of their duty as police officials, who proceeded to search him. He alleged that in the course of
the search, he was humiliated by the words and actions of the policemen. The therefore sued the
respondents for damages.
Held that in the absence of consent or a search warrant, police officers are entitled to search an individual
only in circumstances authorised by section 22(b) of the Criminal Procedure Act 51 of 1977, namely when
it is believed, on reasonable grounds, that a warrant will be issued if applied for and that the delay in
applying for a warrant would defeat the object of the search.
In the present case, the appellant was subjected to an invasive and humiliating search which amounted to
an iniuria, without probable cause. The court upheld the appeal, and awarded the appellant R25 000 as
damages.
Hoho v S
[2008] JOL 22420 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
493 / 05
17 / 09 / 2008
South Africa
Supreme Court of Appeal
PE Streicher, Cachalia, Heher, Mlambo JJA, Kgomo AJA
134
Keywords:
Criminal law – Defamation – Criminal offence – Constitutionality
Mini Summary:
The appellant was convicted on 22 charges of criminal defamation and sentenced to 3 years' imprisonment
suspended for 5 years and, to 3 years' correctional supervision in terms of section 276(1)(h) of the
Criminal Procedure Act 51 of 1977. Leave to appeal was granted, with the court stipulating that that
argument would be required on the question whether the crime of defamation is still extant, and if so
whether it is consonant with the Constitution.
Held that the doctrine that law may be abrogated by disuse is well established in our law. It therefore had
to be determined whether the South African community tacitly consented that defamation should no
longer constitute a criminal offence. The court was unable to draw such a conclusion.
The crime of defamation consists of the unlawful and intentional publication of matter concerning another
which tends to injure his reputation. The court found that the crime of defamation is not inconsistent with
the Constitution.
The appeal was dismissed.
71) DEFENCE WITNESSES
In S v Selemana 1975 (4) SA 908 (T) it was stated (at 909A–B) that:
The magistrate must be exceptionally careful when refusing to allow an accused
to call a witness. In particular, when the accused is unrepresented, the
magistrate, before refusing such a request, should make certain that such a
witness cannot possibly give relevant evidence. If the court is not careful to
observe this obligation, a miscarriage of justice may result: S v Tembani 1970 (4)
SA 395) (E). Indeed, the denial of such an opportunity is in itself a gross
irregularity in the proceedings: District Commandant, South African Police, and
Another v Murray 1924 AD 13 at 18; S v Vezi 1963 (1) SA 9 (N) at 12.
72) DIAMOND AND GOLD DEALING / POSSESSION
Van der Berg & another v S
[2008] JOL 21925 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 116 / 04
06 / 06 / 2008
South Africa
High Court
Cape of Good Hope Provincial
NC Erasmus J, Engers AJ
Keywords:
Criminal procedure – Illicit diamond buying – Police trap – Lawfulness – Admissibility of evidence
Mini Summary:
The appellants were convicted of illicit diamond buying.
Having been caught in an undercover trap, the appellants contended that the police had gone further than
permitted in terms of the statute; that the trapping operation did not accord with the guidelines applicable
to such traps; and that the evidence arising from the trap ought to have been excluded by the trial court.
Held that the question on appeal related to the application of section 252A of the Criminal Procedure Act
51 of 1977 which deals with traps and undercover operations.
Section 252A must be viewed against the right to a fair trial provisions of section 35 of the Constitution of
the Republic of South Africa, 1996. Section 252A(1) provides that evidence of a trap or undercover
operation is admissible unless the trap goes further than providing an opportunity to commit an offence,
and if it does, then the court has a discretion to admit such evidence.
135
A number of factors suggested that the police operation went further than merely providing an opportunity
to commit the offence in the present case. On the basis that the appellants' right to a fair trial was
jeopardised, the court found that the evidence obtained through the police trap was inadmissible.
The appeal was upheld.
73) DISCREDITING WITNESSES
S v Dolo 1975 (1) SA 641 (Tk)
Where the following was stated by Munnik CJ, as he then was, at 643G – H:
“If the witness denies having made the statement, or any part thereof
put to him, the prosecutor is entitled, in terms of the section, and must,
in order to succeed in his purpose, namely that of discrediting the
witness, call the person who took the statement. The prosecutor’s
failure to do so in these circumstances, would mean that the State is
bound by the witness’ denial and therefore the making of the previous
statement inconsistent with the present testimony has not been proved.
(See R v Nyede 1951 (3) SA 151 (T))”
S v Bruiners – 1998(2) SACR 432 (SEC) – in order to discredit state witness on basis of
his affidavit, is necessary that there be a material deviation from his affidavit before any
negative inference can be drawn.
74) DISPUTES OF FACT
Perumal & others v National Director of Public Prosecutions
[2012] JOL 29088 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
356 / 11
29 / 03 / 2012
South Africa
Supreme Court of Appeal
L Mpati P, S Snyders, JA Heher, SA Majiedt JJA, C Plasket AJA
Keywords:
Civil procedure – Resolution of dispute of fact in application proceedings – Application of principles set out
in Plascon-Evans Paints Limited v Van Riebeeck Paints (Pty) Ltd – Whether the trial court correctly
concluded that the undisputed allegations in the Founding Affidavit, taken with the appellants’ allegations
in the answering affidavits that were not clearly untenable, established, on a balance of probability, that
the first appellant was a drug dealer and that he acquired identified assets from the proceeds of his drug
dealing activities – Respondent failing to establish case on balance of probabilities – Criminal Law –
Organised crime – Application for forfeiture order – Section 48 of the Prevention of Organised Crime Act
121 of 1998 – Section 48(1) requires a court to find, on a balance of probabilities, that the property
concerned is either an instrumentality of an offence or the proceeds of unlawful activities
Mini Summary:
In terms of section 38 of the Prevention of Organised Crime Act 121 of 1998 (“the Act”), the respondent
brought an ex parte application for a preservation order in respect of property belonging to the appellants.
Upon obtaining the order, the respondent then approached the court, on essentially the same founding
papers, for an order in terms of section 48 of the Act for the forfeiture of the property seized under the
Preservation Order. The present appeal was directed at the granting of the forfeiture order.
According to the respondent, all of the assets belonged to the first appellant, despite being registered in
the names of his various family members, and were either the proceeds of unlawful activities, or an
instrumentality of crime. It was alleged that the first appellant was one of Durban’s biggest drug dealers.
136
Held that an application for forfeiture of assets in terms of section 48(1) requires a court to find, on a
balance of probabilities, that the property concerned is either an instrumentality of an offence or the
proceeds of unlawful activities. For the respondent to establish its allegations against the first appellant in
application proceedings, its case had to comply with the well-known principles established in PlasconEvans Paints Limited v Van Riebeeck Paints (Pty) Ltd. Consequently, the issue on appeal was whether the
trial court correctly concluded that the undisputed allegations in the Founding Affidavit, taken with the
appellants’ allegations in the answering affidavits that were not clearly untenable, established, on a
balance of probability, that the first appellant was indeed a drug dealer and that he acquired the identified
assets from the proceeds of his drug dealing activities.
The Respondent’s Founding Affidavit stated that the first appellant had been under investigation by
various members of the then Directorate of Special Operations for drug-related offences for almost 20
years. Several of the investigators deposed to the affidavits that constituted the founding papers against
the appellants. Despite the extensive investigation, the most that the respondent’s case amounted to was
the raising of suspicion. All the affidavits relied upon by the respondent fell short of the basic principles
that pertain to evidence on affidavit.
The Court described the case which the appellants had to meet as a poor one. The first appellant denied
any involvement in any form of drug dealing, and denied that any of the property of the other appellants
was his. The lack of detail in that response did not assist the respondent’s case. There was very little to
support the respondent’s allegations against the first appellant. The respondent had therefore failed to
establish his case on a balance of probabilities, and the court below came to an incorrect conclusion on the
application of the principles set out in Plascon-Evans.
Before concluding, the Court commented on the judgment of the court a quo. The judgment contained no
evaluation of the evidence, no application of legal principles and no reasoning that sustained the
conclusion reached. It therefore fell short of the principles repeatedly stated by the courts.
The appeal was upheld and the respondent’s application for a forfeiture order was dismissed.
75) DOCUMENTARY EVIDENCE
S v Harper - 1981(1) SA 88 (D) – Requirements for proving admissibility of documents
other than those covered by Section 212 is dealt with in detail. Dealt with microfilms and
computer print outs.
S v Tshabalala -1999 (1) SACR 412 (C)
Manday v Protea Assurance – 1976(1) Sa 565 (EC) – set out criteria for admissibility
of evidence by way of affidavit or certificate in terms of Section 212.
76) DOLUS EVENTUALIS
Combrink v S
[2012] JOL 29356 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
471 / 2010
23 / 06 / 2011
South Africa
Supreme Court of Appeal
JB Shongwe, FDJ Brand, VM Ponnan JJA
Keywords:
Criminal law – Murder – Intention – Dolus eventualis – In firing at deceased, in face of foreseeable
possibility that bullet might strike him, appellant was guilty of murder – Criminal law – Onus of proof –
State must prove its case beyond reasonable doubt and no onus rests on an accused person to prove his
137
innocence – Criminal law – Sentence – Appeal – Misdirection by trial court, in court focusing exclusively on
the mitigating factors instead of balancing them with the aggravating factors – Appeal court justified in
interfering with sentence
Mini Summary:
The appellant was convicted of murder and sentenced to 15 years’ imprisonment, five years of which was
suspended for five years on the usual conditions. His appeal to the full court of the High Court against
both conviction and sentence was partialy successful. The majority of the court dismissed the appeal
against conviction and upheld the appeal against sentence. The sentence imposed by the trial court was
set aside and substituted with a sentence of 10 years’ imprisonment. The present appeal was against the
majority judgment of the full court.
The charges against the appellant were brought as a result of an incident in which he fatally shot and
killed another person (“the deceased”). The evidence showed that the deceased was walking on the farm
where he was employed, when the appellant spotted him. According to the appellant, he did not recognise
the person he had spotted, and had called out to him repeatedly, but the person did not respond. He
alleged that he had fired two shots to get the person’s attention. After the second shot, the person fell to
the ground, and only then did the appellant realise that he was an employee.
Held that the State must prove its case beyond reasonable doubt and no onus rests on an accused person
to prove his innocence. The State led the evidence of another farm worker who was in the vicintiy at the
time, and witnessed the shooting. The version of the witness differed from that of the appellant in that
whereas the appellant claimed to have fired the first shot some 80m away from the deceased, the witness
testified that the shot landed near the deceased’s feet. The Court found the witness to be an honest
witness, whose evidence was reliable, and sufficient to sustain a conviction.
The Court found that the situation facing the appellant at the time did not call for the use of any firearm,
let alone one as powerful as a hunting rifle. The deceased was walking innocently on the property of his
employer, and posed no danger to the appellant or to anyone else. The appellant was an experienced
hunter and a very good marksman. He said he aimed the second shot at the same place as the first. When
doing so, he must have foreseen the possibility that a bullet might strike the deceased. On the undisputed
evidence he plainly shot at the deceased. Regardless of that foreseeable possibility that the bullet could
ricochet after striking a stone or some other object and in the process strike the deceased, he went on to
shoot. In firing the second shot knowing that the bullet might fatally strike the deceased, the appellant
was guilty of murder, the intention being dolus eventualis.
The trial court made certain credibility findings in arriving at its conclusion. The present Court was not at
liberty to interfere with such findings.
On the issue of sentence, the Court confirmed that sentencing or punishment is pre-eminently a matter of
discretion of the trial court. The prescribed minimum sentence provisions of the Criminal Law Amendment
Act 105 of 1997 applied in this case. The trial court found substantial and compelling circumstances to
exist, warranting a sentence less that the prescribed minimum one. An appeal court should be slow to
interfere with the trial court’s discretion. An appeal court may interfere provided the discretion has not
been judicially and properly exercised and the sentence is vitiated by irregularity, misdirection or is
disturbingly inappropriate. In this case, it was found that the trial court focused exclusively on the
mitigating factors instead of balancing them with the aggravating factors. The trial court erred in finding
that substantial and compelling circumstances existed. The appeal against conviction and sentence was
dismissed, and the court set aside the sentence and imposed a sentence of 15 years’ imprisonment.
Makatu v S
[2013] JOL 30951 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
612 / 2012
25 / 10 / 2013
South Africa
Supreme Court of Appeal
MS Navsa ADP, LO Bosielo, MML Maya, Pillay JJA, Meyer AJA
Keywords:
Criminal law – Murder – Intention – Evidence establishing that accused was guilty of murder on the basis
of dolus eventualis as he foresaw that his victim might die from strangulation but recklessly persisted with
his conduct – Criminal law – Sentence – Appeal – Misdirections committed by trial court resulting in
sentences being interfered with on appeal
Mini Summary:
Charged with murder, rape and robbery, the appellant pleaded not guilty to murder, guilty to rape and
guilty to theft. He was convicted based on his plea, and was sentenced to life imprisonment on the murder
138
count, 20 years’ imprisonment on the rape count and 6 months’ imprisonment on the theft count. The
present appeal was against conviction and sentence.
In the appeal against conviction, the appellant contended that the statement in terms of section 112(2) of
the Criminal Procedure Act 51 of 1977 did not contain the requisite details. As far as the murder count
was concerned, the appellant argued that the offence was not established as the State had failed to lead
evidence to prove intent.
Held that while the medical evidence established that the deceased had probably died of strangulation
with a rope, the trial judge inadvertently omitted to indicate whether the murder conviction was based on
direct intent or dolus eventualis. The present Court was unable to conclude that it was proved beyond a
reasonable doubt that the appellant had planned to kill the deceased. However, the conclusion that he
foresaw that she might die from strangulation and that he recklessly persisted with his conduct was
inescapable and reasonable. The appellant was therefore guilty of murder on the basis of dolus eventualis.
Turning to the conviction of rape, the Court noted that the appellant’s main attack against the conviction
of rape was that the section 112(2) statement was a mere regurgitation of the indictment and that it did
not provide the necessary details to constitute the offence. The appellant admitted that the sexual
intercourse was without the victim’s consent and that he knew that it was wrong. To argue as he did that
he did not understand what sexual intercourse meant, thus implying that he pleaded guilty under a
misapprehension of the proper charge was described as disingenuous.
The appeal against conviction on all three counts was dismissed.
However, it was found that the sentences imposed were not sustainable. The trial judge was guilty of a
number of misdirections which were so gross that they vitiated the sentences imposed. Firstly, the trial
court stated that the murder was committed under circumstances where the offence justified the sentence
prescribed under Schedule 2 of Part 1 of the Criminal Law Amendment Act 105 of 1997, but the
indictment never made mention of the section or the Act. Secondly, no evidence was led to bring the
murder within the purview of the section. Consequently, the sentence of life imprisonment was wrongly
imposed. The court set aside the sentence and replaced it with one of 15 years’ imprisonment.
The sentence of 20 years’ imprisonment on the rape count was described in the indictment as falling
under section 51(1)(a) of the Criminal Law Amendment Act. That could not be correct as there is no such
section. The only part of the Act that might be relevant was section 51(2)(b) which refers to Part III of the
Schedule. That section prescribes a sentence of not less than 10 years for a first offender unless there are
substantial and compelling circumstances to justify a lesser sentence as contemplated in section 51(3) of
the Act. The disparity between 10 years and 20 years was highlighted by the court, which set the
sentence aside, finding no justification for the disparity. The sentence was replaced with one of 10 years’
imprisonment.
The Court ended by commenting on the unacceptable delays in the prosecution of criminal appeals in the
High Court from which this matter came. However, the Court’s reference to systemic delays was
controverted in a dissenting judgment.
S v QEQE (EC)
GROGAN AJ
2011 JUNE 8
Murder—Mensrea—Intention to kill—Doluseventualis—What constitutes—Accused, as
driver of motor vehicle, executing dangerous manoeuvre, fully aware and reckless of
danger it posed to those in vicinity in general and in particular to those killed when
vehicle struck them—Accused can in legal sense be said to have ‘consented’ or
‘reconciled himself’ to or ‘taken into the bargain’ fact that persons in vicinity might be
struck by vehicle and killed—State of mind of accused in such circumstances amounting
to doluseventualis—Accused guilty of murder of those struck and killed by vehicle.
S v Bacela & another
[2008] JOL 21998 (Ck)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
7 / 2008
17 / 6 / 2008
South Africa
High Court
Bisho
139
Bench:
Y Ebrahim J
Keywords:
Criminal law – Murder – Housebreaking – Theft – Trial
Mini Summary:
The accused were charged with murder and housebreaking with intent to rob and robbery. They pleaded
not guilty.
Held that the evidence established that the accused committed the crime of housebreaking with intent to
steal and theft, and not a conviction of housebreaking with intent to rob and robbery or even of any
attempt to commit the offence of robbery. The evidence also established that the first accused stabbed the
deceased and inflicted three wounds to his chest. He stated he was aware that in stabbing the deceased in
the chest it would cause his death. The court was satisfied therefore that he had murdered the deceased.
As there was not evidence that the second accused knew what the first accused was going to do, he was
acquitted on the murder charge.
77) DOMESTIC VIOLENCE
S v Ngubeni
[2008] JOL 22245 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 459 / 08
17 / 06 / 2008
South Africa
High Court
Transvaal Provincial
JNM Poswa, NM Mavundla JJ
Keywords:
Criminal procedure – Assault – Domestic violence – Sentence – Review
Mini Summary:
The accused was convicted of assault and sentenced to 12 months' imprisonment, conditionally suspended
for 5 years. On review, the court asked whether the sentence was not excessive considering the fact that
the accused was a first offender, and that the complainant (his wife) sustained no injuries.
Held that the magistrate's reasoning in sentencing the accused was open to question.
The present court emphasised that while domestic violence is a serious offence which must be deterred, it
is important to also mark the distinction between actual domestic violence and normal assault (which
might occur in the domestic environment).
Whilst confirming the conviction on a charge of common assault, the court replaced the sentence with one
of a fine of R10 000 or imprisonment for a period of three months, wholly suspended for a period of three
years on condition that the accused person was not convicted of assault within the period of suspension.
S v Bangani
[2008] JOL 21277 (E)
Case Number:
CA & R 255 / 07
Judgment Date:
17 / 10 / 2007
Country:
South Africa
Jurisdiction:
High Court
Division:
Eastern Cape
Bench:
RJW Jones J
Keywords:
Criminal Procedure – Domestic violence – Contravention of protection order – Plea of guilty –
Unrepresented accused – Original order not produced – Conviction not vitiated – Conviction and sentence
confirmed
Mini Summary:
The accused, who had assaulted his 74-year-old mother with an iron rod for refusing to hand over her
pension money, pleaded guilty to a charge of contravening a protection order which had been issued
under the provisions of the Domestic Violence Act 17 of 1998. At the trial, the original protection order
was not produced. However, the magistrate had questioned the accused under section 112(1)(b) of the
Criminal Procedure Act 51 of 1977 in terms of his plea and, after conviction, had sentenced him to 18
months' imprisonment, of which 9 months were conditionally suspended.
140
Held that in the case of an unrepresented accused it is salutary practice to require the production of the
original protection order during the questioning in terms of section 112(1)(b). However, the failure to
produce one does not constitute an irregularity which vitiates the conviction. In the circumstances, the
sentence was not excessive and both the conviction and sentence were confirmed.
78) DPP AND NDPP AUTHORISATIONS
NDPP v Moodley & others
[2008] JOL 22808 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
263 / 08
26 / 11 / 2008
South Africa
Supreme Court of Appeal
DG Scott, Maya, Combrinck, Cachalia JJA, Mhlantla AJA
Keywords:
Criminal procedure – Prosecution – Authorisation of National Director of Prosecutions
Mini Summary:
The respondents were the accused in a pending criminal trial in which they faced drug-related charges.
The matter was postponed to enable the state to investigate the possibility of preferring racketeering
charges against the respondents. Subsequent thereto, the prosecutor handed the respondent's attorney a
charge sheet containing fourteen counts of which three related to racketeering. The charge sheet was
given to the attorney in an envelope marked "Draft Charge Sheet" and was not lodged with the clerk of
the court.
Some time later, the respondents' attorney wrote to the prosecutor requesting a copy of the appellant's
written authorisation in terms of section 2(4) of the Prevention of Organised Crime Act 121 of 1998. Such
authorisation was provided, but the date of the authorisation post-dated the charging of the respondents.
The respondents then applied to court for an order declaring the first three counts unlawful and setting
them aside on the basis that they had been charged prior to the written authorisation by the appellant
being obtained. The High Court upheld the application and set aside the three racketeering counts. Its
grounds for doing so however, had nothing to do with the grounds relied on by the respondents.
The appeal centred on the meaning of section 2(4) of the Act.
Held that section 2(4) provides that a person shall only be charged with committing an offence
contemplated in subsection (1) if a prosecution is authorised in writing by the national director.
The court agreed with the appellant that once the prosecution is authorised in writing by the national
director there can be no reason, provided the accused has not pleaded, why the further prosecution of the
accused on racketeering charges would not be lawful, even if the earlier proceedings were to be regarded
as invalid for want of written authorisation. Thus, once the written authorisation to prosecute was granted,
the prosecution was lawful in terms of section 2(4) of the Act.
The appeal was upheld.
S v Molefe
[2012] JOL 29212 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 240 / 12
03 / 04 / 2012
South Africa
High Court
North Gauteng, Pretoria
CP Rabie, E Jordaan JJ
Keywords:
Criminal law – Disposal of body of foetus – Conviction – Review
Mini Summary:
The accused was convicted on a charge of contravention of section 113(1) read with section 113 (2) and
(3) of the General Law Amendment Act 46 of 1935 in that she had unlawfully and with the intent to
conceal the fact of the birth of a child, attempted to dispose of the body of the said child.
141
Before convicting the accused the magistrate enquired from the prosecutor whether the Director of Public
Prosecutions had authorised the prosecution in writing as required by section 113(3) of the General Law
Amendment Act. The matter stood down and was then postponed and on resumption the prosecutor
informed the Court that no written authorisation existed, but that the Director of Public Prosecutions had
given verbal permission for the prosecution to proceed. The prosecutor submitted that verbal permission
constitutes compliance with section 113(3) of the Act. The magistrate found the accused guilty but also
referred the matter for special review regarding the issue of whether the permission to prosecute can be
verbal or whether it should be writing.
Held that section 113(3) expressly states that the institution of a prosecution under the section must be
authorised in writing by the Director of Public Prosecutions having jurisdiction. No written authorisation
having been obtained in this case, the accused could not have been prosecuted and the conviction should
be set aside.
On the merits of the conviction, the Court stated that the Act refers to the disposal of the body of a newly
born "child". Consequently, in order to sustain a conviction, there has to be evidence before the Court that
the foetus had arrived at that stage of maturity at the time of birth that it might have been born a living
child. There was no evidence regarding the duration of the pregnancy nor of the viability of the
foetus/child in this case.
The conviction was accordingly set aside.
79) DRAGGER MACHINE
S v Jason
[2011] JOL 26902 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 36 / 11
09 / 02 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
JW Eksteen, F Kroon JJ
Keywords:
Criminal procedure – Drunken driving – Sentence – Review
Mini Summary:
The accused was convicted of driving under the influence of intoxicating liquor. He was sentenced to pay a
R3 000 fine or to serve six months’ imprisonment, plus a further six months’ imprisonment which was
wholly suspended on certain conditions.
Held that it has been held in case law that it is not competent to impose a fine and a further period of
imprisonment which is suspended. The sentence of the R3 000 fine or six months’ imprisonment was
confirmed, while the remainder of the sentence was set aside.
80) DRIVERS LICENCE
1. S v BOTHA 2013 (1) SACR 353 (ECP)
Where an accused person is convicted of contravening any of the specified offences
of the National Road Traffic Act 93 of 1996 (the Act), that trigger the automatic
suspension of the licence or permit in the case of a holder thereof, or, where the
person drove without a licence, the disqualification from obtaining one, as the case
may be, only persuasive facts which are adduced by way of evidence under oath may
persuade the court from granting an order in terms of the provisions of s 35(1) or
(2) of the Act. Thus in the present case, where the accused was convicted of a
contravention of s 65(2)(a) of the Act, but elected not to testify under oath and the
magistrate ordered that circumstances existed which justified a departure from the
provisions of s 35(1) of the Act, the court held on review that the hearing of
submissions from the bar did not permit the magistrate to make a finding that
circumstances existed to allow the accused to retain her licence. The court
142
accordingly suspended the licence for a period of six
356c–d.)
months. (Paragraph [6] at
Case Information
Review.
S v Vekeni
[2011] JOL 28000 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 248 / 2011
12 / 09 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
JM Roberson, JJ Nepgen JJ
Keywords:
Criminal procedure – Traffic violation – Conviction and sentence – Review
Mini Summary:
The accused was convicted of driving a motor vehicle on a public road when the concentration of alcohol in
his blood was not less than 0,05 gram per 100 millitres of blood, specifically 0,29 gram, just short of six
times the legal limit. He was sentenced to two years’ imprisonment in terms of section 276 (1)(i) of the
Criminal Procedure Act 51 of 1977. The magistrate further ordered that in terms of section 34(1)(c) of the
National Road Traffic Act 93 of 1996 (“the Act”), the accused was disqualified from obtaining a licence or a
permit for a period of 10 years from date of sentence.
Held that section 34 of the Act provides that a court convicting a person of any offence in terms of the Act
may order the suspension or cancellation of a licence or permit, or disqualify a person from obtaining a
licence or permit. Section 34 is however expressly subject to section 35 of the Act.
It was not clear that the accused was aware of the power of the court to order that suspension or
disqualification should not take effect, or should be for a shorter period than that prescribed. Had section
35(3) been explained, he might have elected to give evidence under oath and request that suspension or
disqualification not take effect. Because of the apparent omission to explain the provisions of section
35(3), the proceedings in relation to the provisions of section 35 of the Act were not in accordance with
justice.
The order made in respect of section 34 was set aside and the matter was remitted to the magistrate to
ascertain whether or not the accused had a driving licence, to explain the provisions of section 35 (2) (if
applicable) and section 35(3) to the accused, and thereafter to make such order as he considered
appropriate.
S v TSHABALALA 2011 (2) SACR 505 (KZP)
Section 35 of the National Road Traffic Act 93 of 1996 places a duty on courts to
suspend the driving licence of a person or disqualify a person from obtaining a driving
licence, as the case may be, who is convicted of one of the offences listed in s 35(1)(a) to
(c) thereof — in the present case, driving under the influence of intoxicating liquor in
contravention of s 65(1)(a) of G the Act — unless the court is satisfied that the
circumstances justify an order that the suspension or disqualification shall not take effect.
The court can invoke s 35 mero motu.
Case Information
Review. J
81) DRUGS AND DRUG TRAFFICKING
143
Keyser v S
[2012] JOL 29392 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
634 / 11
25 / 05 / 2012
South Africa
Supreme Court of Appeal
JA Heher, S Snyders, MJD Wallis JJA, McLaren, BR Southwood AJJA
Keywords:
Criminal law – Drug trafficking – Conveying of cocaine into country – Appeal against conviction and
sentence dismissed – Criminal procedure – Inclusion in charge sheet of statutory provisions which
contained unconstitutional presumptions – Whether trial rendered unfair as a result – A criminal conviction
can only be set aside on the ground of irregularity after consideration of the whole record in order to
determine whether a failure of justice or an unfair trial has resulted from that irregularity – Mere inclusion
in charge sheet of references to statutory provisions that have been declared unconstitutional, whilst
irregular, does not per se mean that there has been a failure of justice or an unfair trial
Mini Summary:
The appellant was arrested at Johannesburg International Airport on 10 December 2004. He was later
convicted of dealing in cocaine in contravention of section 5(b) of the Drugs and Drug Trafficking Act 140
of 1992, and sentenced to 20 years’ imprisonment. The present appeal was against conviction and
sentence.
The basis of the appeal was that the charge sheet to which he had pleaded had informed him that the
State would rely on sections 20 and 21 of the Act, which sections contained reverse onus provisions that
were declared unconstitutional in various cases.
Held that a criminal conviction can only be set aside on the ground of irregularity after consideration of
the whole record in order to determine whether a failure of justice or an unfair trial has resulted from that
irregularity. The mere inclusion in a charge sheet of references to statutory provisions that have been
declared unconstitutional, whilst irregular, does not per se mean that there has been a failure of justice or
an unfair trial. In the present case, the appellant did not allege that reference to the unconstitutional
reverse onuses influenced the conduct of the prosecution or his own response in any way. The magistrate
also had no resort to the impugned provisions in arriving at his judgment. The technical point raised by
the appellant was rejected, as the appellant was deprived of a fair trial.
A further argument raised by the appellant was that the State had failed to prove its case beyond a
reasonable doubt. However, the Court was not convinced in that regard. The appellant was arrested on his
return from a trip to Brazil, where he had supposedly been seeking work. The Court was sceptical of the
fact that he spoke none of the languages applicable to Brazil, that his flight had been subsidised by a
person whose interest in assisting him remained unexplained, and that the details of the interviews for
which he had gone were sketchy. Similarly unconvincing was the appellant’s explanation for the bag
containing the cocaine, which he had brought into the country.
While it was uncontested that the appellant had brought the drugs into South Africa, whether he had
knowingly done so had to be established, in this case through a process of inferential reasoning.
Examining the various aspects of the appellant’s evidence, the Court concluded that his bona fides was
undermined by the inherent improbabilities attached thereto. It was held that the gross weight of
improbability was sufficient to leave no reasonable doubt that the appellant was a willing and informed
participant in the scheme for importing the drugs into South Africa. The appeal against conviction was
therefore dismissed.
In considering the appeal against sentence, the Court acknowledged that the sentence of 20 years’
imprisonment was a heavy one. However, the quantity of the drugs conveyed by the appellant and the
number of lives potentially affected by the abuse of the drug were indicative of the disregard which the
appellant had for the negative repercussions of his actions. The sentence was therefore not an
inappropriate one, and the appeal was dismissed.
Mbatha v S
[2013] JOL 30652A (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
AR 265 / 11
23 / 02 / 2012
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Gyanda, Ntshangase JJ
144
The dissenting judgment in this matter, which was handed down by Madondo J has been reported under
the following citation: Mbatha v S [2013] JOL 30652B (KZP) – Ed. Criminal law – Dealing in drugs – What
constitutes – Includes cultivation of drug – Statutes – Interpretation – Barras principle – Presumption that
legislature is aware of the existing state of law – Words and phrases – “cultivate” – Definition of “dealing”
in drugs – Drugs and Drug Trafficking Act 140 of 1992 – Includes cultivation of drug
Mini Summary:
On the main charge of dealing in dagga, the appellant pleaded not guilty. However, he pleaded guilty to
the alternative charge of unlawful possession of dagga. The State did not accept the plea on the
alternative count and proceeded to trial on the main count. The trial court convicted the appellant on the
main charge, relying on the definition of “dealing” in the Drugs and Drug Trafficking Act 140 of 1992. In
terms of the definition, dealing in a drug includes performing any act in connection with a transhipment,
importation, cultivation, collection, manufacture, supply, prescription, administration, sale, transmission or
exportation of the drug. The police officer who searched the appellant’s property found dagga seeds, and a
dagga tree growing on the property.
On review, the High Court opined that the meaning accorded to the word “cultivate” was not the ordinary
meaning of the word. The review court referred the matter for argument before the full court in relation to
the meaning of the word “cultivation” in the definition of “deal in” in section 1 of the Drugs and Drug
Trafficking Act.
Held that at the time the legislature enacted the current Drugs and Drug Trafficking Act, the definition of
the word “cultivate” or “cultivation” as they appeared in the preceding Act (the Abuse of Dependenceproducing Substances and Rehabilitation Centres Act 41 of 1971) had been the subject of numerous court
decisions. In particular, the courts had dealt with the question of whether the possession of one dagga
plant amounted to dealing in the substance. Based on the so called “Barras” principle, it therefore had to
be presumed that the legislature, when they enacted current Act, must have been aware of the definition
accorded to the word “cultivate” in the decisions in question, and must have accepted that that definition
would apply to the word “cultivation” as it appears in section 1(1) of the present Act or they would have
stated otherwise. The principle of interpretation embodied in the Barras principle is that the legislature is
presumed to know the existing state of the law - and from that presumption arises the rule that a statute
must be interpreted in the light of the existing law. Consequently, in terms of the definition of dealing, the
appellant’s cultivation of a single dagga tree brought him within the definition.
The conviction and sentence were confirmed.
SEE DISSENTING JUDGMENT BELOW
Mbatha v S
[2013] JOL 30652B (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 265 / 11
23 / 02 / 2012
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Madondo J
Keywords:
Criminal law – Dealing in drugs – Definition of dealing – Includes cultivation – Proof of intention
Mini Summary:
This was the dissenting judgment in the matter of Mbatha v S [2013] JOL 30652A (KZP) where the
appellant was convicted of dealing in dagga after a police search disclosed a dagga tree growing on the
appellant’s property.
Held that there was nothing in the charge sheet which indicated that the accused cultivated the dagga
plant in question and that by such cultivation he dealt in dagga. Nor was the accused warned that should
the evidence establish that he was guilty of cultivating the dagga plant in question, he could on that
ground alone be convicted of dealing in dagga since in terms of the Act cultivation of dagga constitutes
dealing in dagga. Therefore, it could not be said that the charge of dealing in dagga embodied cultivation
of the dagga plant. Despite evidence that the dagga plant had been tended and from which it could
reasonably be inferred that it was cultivated, it was still incumbent upon the State to prove beyond a
reasonable doubt that the accused had cultivated the dagga plant.
Addressing the definition of “cultivate”, the judge noted that conviction of dealing in dagga automatically
follows upon mere proof beyond a reasonable doubt of the proscribed cultivation of the drug. As
cultivation of dagga per se constitutes dealing in it without proof of intention to do so, the State is
required to prove neither mens rea nor negligence. The principle that a person should not be convicted
unless he has some degree of mens rea is fundamental to our law. However, in the interpretive approach
adopted by certain old decided cases the accused is convicted on the mere proof of the commission of the
145
prescribed Act without reference to the culpability of the accused’s conduct. The shifting of the onus onto
the accused to prove his innocence is unconstitutional. On that basis, the dissenting judge was of the view
that the appeal against conviction should succeed.
S v Stefane
[2011] JOL 27803 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 164 / 2011
13 / 06 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
F Kroon, JJ Nepgen JJ
Keywords:
Criminal procedure – Drug offence – Possession of drugs – Conviction and sentence – Review
Mini Summary:
The accused was charged with possession of drugs, namely Mandrax.
After conviction and sentence, the magistrate referred the case on review, with advice that the accused
had been charged and convicted under the wrong section of Act 140 of 1992.
Held that while an amendment of the charge sheet might be proper on review, it would not be proper for
the case to be remitted as that would prejudice the accused. The state was afforded an opportunity to
present its case and should not be given two bites at the cherry.
The conviction and sentence were set aside.
S v Scheepers
[2012] JOL 28853 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
359 / 2011
07 / 12 / 2011
South Africa
High Court
Eastern Cape, Port Elizabeth
NG Beshe, PW Tshiki JJ
Keywords:
Criminal law – Drug offence – Possession of drugs – Duplication of convictions – Review
Mini Summary:
The accused was convicted of two counts of contravention of the Drugs and Drug Trafficking Act 140 of
1992. After sentencing, the magistrate formed the view that the two substances found in the accused’s
possession were listed in the same Schedule to the Act, and therefore should not have founded two
separate convictions. The case was sent on review.
Held that the magistrate was correct in stating that there had been a duplication of convictions. The
convictions were set aside and replaced with one count of possession of drugs.
S v Gcoba
[2010] JOL 26518 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
R 952 / 10
18 / 11 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Madondo J
Keywords:
Criminal procedure – Dealing in drugs – Sentence – Review
Mini Summary:
The accused was convicted of dealing in dagga and was sentenced to five years’ imprisonment. The senior
magistrate was of the view that the sentence was incompetent and raised the matter with the magistrate
who had passed the sentence.
The matter came before the present court on review.
146
Held that for dealing in dagga in contravention of section 5(b) of the Drugs and Drug Trafficking Act 140
of 1992, the penalty clause makes the imposition of the term of imprisonment mandatory. Though the
section also makes provision for a fine, it must be imposed in addition to the sentence of imprisonment
not in substitution thereof.
In the present case, when imposing the sentence of imprisonment without the option of a fine with an
alternative further sentence of imprisonment in default of payment of the fine the magistrate acted within
the ambit of the provisions of section 17(e) of the Act. He duly complied with the provisions of section
17(e) and no legitimate criticism could be levelled against the propriety of the sentence imposed.
However, the same cannot be said of its cumulative effect.
Deeming the sentence too severe, the court replaced it with a less onerous one.
S v Dlamini
[2008] JOL 22251 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 626 / 08
01 / 08 / 2008
South Africa
High Court
Transvaal Provincial
LM Molopa J, K Makhafola AJ
Keywords:
Criminal procedure – Drug offence – Possession of dagga – Plea if guilty – Review
Mini Summary:
The accused had pleaded guilty to a drug offence.
Held on review that it was evident from the questioning of the accused that he was unaware that the
possession of dagga was illegal in South Africa. He had therefore not admitted all the elements of the
offence. The conviction and sentence were set aside, and the matter was remitted to the court a quo for
further proceedings.
S v Jabulani Sithole - Sept. 2004 (SCA) – minimum sentences applied for large quantity
of dagga. Court held State must prove value and can’t simply assume value but must hear
evidence of realistic market related value as vary in value depending on various factors.
Okafor v S
[2008] JOL 21708 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 292 / 07
10 / 03 / 2008
South Africa
High Court
Eastern Cape
LE Leach, AR Erasmus JJ
Keywords:
Criminal law – Drug offence – Dealing in cocaine – Conviction and sentence – Appeal
Mini Summary:
Convicted of dealing in cocaine, the appellant was sentenced to 12 years' imprisonment. He appealed
against his conviction and sentence.
The appellant had been found in possession of cocaine, hidden in a box of biscuits. He alleged that the box
did not belong to him, and that the police had falsely implicated him.
Held that the appellant's version was improbable. There was no reason to believe that the police officer in
question would wish to falsely accuse him of the offence. The appeal against conviction was dismissed.
Regarding the appeal against sentence, the court pointed out that leave to appeal had been granted solely
against the appellant's conviction. An appeal may be limited by the court of first instance granting leave
on only certain issues. However, in appropriate cases, the present court may exercise its inherent review
powers to interfere with any criminal sentence in a lower court which is not in accordance with justice.
In the present case, the sentence imposed by the trial court was found to be inappropriate warranting
interference on appeal. The sentence was set aside and replaced with one of 6 years' imprisonment.
147
S v Jimenez – 2003(1) SACR 507 (SCA) – court dealt with factors to be considered
when imposing minimum sentences for drug related offences.
S v Hammond – 2008 JOL 21168 (SCA) – use of SAP trap. Consideration of S252A
requirements. SAP making false statements relating to trap. Assessment of fairness of the
trial. Admission by accused of involvement.
Tshiakale v S
[2008] JOL 21710 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 128 / 07
29 / 02 / 2008
South Africa
High Court
Eastern Cape
LE Leach, AR Erasmus JJ
Keywords:
Criminal law– Drug offence– Dealing in cocaine– Conviction– Appeal
Mini Summary:
Convicted of dealing in cocaine, the appellant was sentenced to 9 years' imprisonment, part of which was
conditionally suspended. She appealed against her conviction.
The appellant had been found in possession of cocaine, hidden in four jars of cream. She alleged that she
had been unaware that the cocaine was hidden in the jars.
Held that the appellant's version was improbable. The trial court's finding that the appellant must have
been aware of the contents of the jars was unassailable.
It was also accepted that the cocaine was intended for resale.
The appeal was dismissed.
82) DRUNKEN DRIVING
S v Vekeni
[2011] JOL 28000 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 248 / 2011
12 / 09 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
JM Roberson, JJ Nepgen JJ
Keywords:
Criminal procedure – Traffic violation – Conviction and sentence – Review
Mini Summary:
The accused was convicted of driving a motor vehicle on a public road when the concentration of alcohol in
his blood was not less than 0,05 gram per 100 millitres of blood, specifically 0,29 gram, just short of six
times the legal limit. He was sentenced to two years’ imprisonment in terms of section 276 (1)(i) of the
Criminal Procedure Act 51 of 1977. The magistrate further ordered that in terms of section 34(1)(c) of the
National Road Traffic Act 93 of 1996 (“the Act”), the accused was disqualified from obtaining a licence or a
permit for a period of 10 years from date of sentence.
Held that section 34 of the Act provides that a court convicting a person of any offence in terms of the Act
may order the suspension or cancellation of a licence or permit, or disqualify a person from obtaining a
licence or permit. Section 34 is however expressly subject to section 35 of the Act.
It was not clear that the accused was aware of the power of the court to order that suspension or
disqualification should not take effect, or should be for a shorter period than that prescribed. Had section
35(3) been explained, he might have elected to give evidence under oath and request that suspension or
disqualification not take effect. Because of the apparent omission to explain the provisions of section
148
35(3), the proceedings in relation to the provisions of section 35 of the Act were not in accordance with
justice.
The order made in respect of section 34 was set aside and the matter was remitted to the magistrate to
ascertain whether or not the accused had a driving licence, to explain the provisions of section 35 (2) (if
applicable) and section 35(3) to the accused, and thereafter to make such order as he considered
appropriate.
S v TSHABALALA 2011 (2) SACR 505 (KZP)
Section 35 of the National Road Traffic Act 93 of 1996 places a duty on courts to
suspend the driving licence of a person or disqualify a person from obtaining a driving
licence, as the case may be, who is convicted of one of the offences listed in s 35(1)(a) to
(c) thereof — in the present case, driving under the influence of intoxicating liquor in
contravention of s 65(1)(a) of G the Act — unless the court is satisfied that the
circumstances justify an order that the suspension or disqualification shall not take effect.
The court can invoke s 35 mero motu.
Case Information Review. J
S v Jason
[2011] JOL 26902 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 36 / 11
09 / 02 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
JW Eksteen, F Kroon JJ
Keywords:
Criminal procedure – Drunken driving – Sentence – Review
Mini Summary:
The accused was convicted of driving under the influence of intoxicating liquor. He was sentenced to pay a
R3 000 fine or to serve six months’ imprisonment, plus a further six months’ imprisonment which was
wholly suspended on certain conditions.
Held that it has been held in case law that it is not competent to impose a fine and a further period of
imprisonment which is suspended. The sentence of the R3 000 fine or six months’ imprisonment was
confirmed, while the remainder of the sentence was set aside.
S v Vela
[2011] JOL 26903 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 34 / 11
09 / 02 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
JM Roberson, JD Pickering JJ
Keywords:
Criminal procedure – Drunken driving – Sentence – Review
Mini Summary:
Having pleaded guilty, the accused was convicted of driving a motor vehicle while the concentration of
alcohol in his blood exceeded the legal limit. He was sentenced to pay a R2 000 fine or to serve six
months’ imprisonment, half of which was suspended on certain conditions.
Held that although the magistrate indicated that section 35 of the National Road Traffic Act 93 of 1996
would not take effect, he had conducted no enquiry prior to making that decision. The section deals with
the suspension of the driver’s licence of the accused.
The conviction was confirmed and the case was remitted to the magistrate so that the required enquiry
could be held.
149
Ngcawana v S
[2011] JOL 26699 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 303 / 09
13 / 09 / 2010
South Africa
High Court
Eastern Cape, Grahamstown
C Plasket, E Revelas JJ
Keywords:
Criminal law – Drunken driving – Conviction – Appeal
Mini Summary:
The appellant was convicted of driving a motor vehicle on a public road while the concentration of alcohol
in his blood was in excess of 0.05 grams per 100 millilitres, in contravention of section 65(2)(a) of the
National Road Traffic Act 93 of 1996. He was sentenced to a fine of R1000 or three months’ imprisonment,
suspended conditionally for five years.
In appealing against the convictions, the appellant contended that he had not consumed any alcohol on
the day in question, and that the blood samples were drawn two hours after he was arrested.
During testimony, the appellant deviated from his plea explanation to the extent that he admitted that he
had consumed one beer during an evening spent at a casino, and that he had consumed a second beer in
his vehicle when he left the casino. He had consumed part of a third beer when he was stopped at the
road block.
The only defence that remained in issue was whether the blood sample had been taken from him within
two hours of him driving his vehicle, thus activating the presumption regarding the two hour rule created
by section 63(3) of the National Road Traffic Act.
Held that the version of the appellant, while open to criticism in some respects, could not be said to be so
improbable that it could be rejected as false beyond reasonable doubt. As a result, it should not have been
rejected by the magistrate.
Upholding the appeal, the court set aside the conviction.
S v Maharaj
[2009] JOL 22956 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
396 / 08
19 / 11 / 2008
South Africa
High Court
Eastern Cape
B Sandi J, N Dambuza
Keywords:
Criminal procedure – Guilty plea – Conviction – Review
Mini Summary:
Based on his plea of guilty, the accused was convicted of driving a motor vehicle on a public road whilst
the concentration of alcohol in his blood was not less that 0,05 grams per 100 millilitres of blood.
The case was sent on review after the magistrate realised that the accused had not admitted that a blood
sample was taken from him within two (2) hours of the driving of the vehicle.
Held on review that the statement was tendered by the accused with the assistance of his legal
representative who was aware of the provisions of section 65(3) of the National Road Traffic Act 93 of
1996, namely that the blood had to be taken within two hours of the driving of the vehicle.
The proceedings were confirmed as being in accordance with justice.
NDPP v Lewis & another
[2008] JOL 22389 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
2459 / 05
03 / 12 / 2007
South Africa
High Court
150
Division:
Bench:
Cape of Good Hope Provincial
Davis J
Keywords:
Criminal procedure – Forfeiture order – Prevention of Organised Crime Act 121 of 1998 – Applicability
Mini Summary:
The applicant sought a forfeiture order in terms of chapter 6 of the Prevention of Organised Crime Act 121
of 1998 ("the Act"), in respect of a motor vehicle. The applicant contended that the vehicle constituted an
instrumentality of the offence of driving a motor vehicle while under the influence of alcohol, alternatively
driving a motor vehicle whilst the concentration of alcohol in the driver's blood was more than 0,05 /
100m1.
Held that the Act may not be used as a substitute for criminal sanctions where no provision is made
therefor. The applicant was unable to explain why the existing law was inadequate. There was also no
evidence provided to the court as to why a long term of imprisonment of first respondent would not have
been sufficient to meet the objectives as set out by applicant in its papers.
The application was accordingly dismissed.
NDPP v Vermaak – 2008 JOL 21197 (SCA) – deals with scope and purpose of forfeiture
orders. Deals with concept of “instrumentality” in commission of the offence. Forfeiture
most appropriate where crime has become a business. Not suitable sanction to forfeit
motor vehicle in drunken driving cases.
S v Sithole - 2003 (1) SACR 326 (SCA) – court held addiction to alcohol no excuse in
Mahlamuza and another v S
[2015] JOL 32606 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
20288 / 14
01 / 12 / 2014
South Africa
Supreme Court of Appeal
Brand, Willis JJA, Meyer AJA
Keywords:
Criminal law – Whether, in case of armed robbery, excessive violence exceeding the limits and bounds of
robbery was used, justifying the accused being charged with separate offences of attempted murder and
robbery – Whether it was proved beyond reasonable doubt that the accused also had the intention to kill
and not merely to use force aimed at temporarily incapacitating the victim – Evidence showing that
excessive force was not used, and that no intention to kill was present – Conviction and sentence on two
charges of attempted murder set aside
Mini Summary:
The appellants were amongst a group of people who went to the home of an elderly couple, where they
assaulted and robbed the couple. Arising from the incident, the appellants were convicted on one count of
robbery with aggravating circumstances and two counts of attempted murder. They were found to have
acted with a common purpose in committing the crimes. In addition, the first appellant was convicted of
attempting to murder a police officer who had arrived at the farm and gave chase to some of the
suspects. The first appellant was sentenced to an effective period of 48 years’ imprisonment, and the
second appellant was sentenced to an effective period of 33 years’ imprisonment.
Although their appeal against sentence was dismissed by the high court, that court granted leave to
appeal to the present Court against their convictions on the second and third counts and the sentences
imposed upon them on all three counts. The appellants contended that separate convictions of robbery
with aggravating circumstances and of attempted murder amounted to an impermissible duplication or
splitting of convictions.
Held that it has been ruled in case law that where attempted murder is committed in connection with a
robbery the state is entitled, according to the circumstances, to charge the accused with robbery and with
attempted murder and the court is entitled to find him guilty on the two separate offences provided that
the robber used excessive violence that exceeded the limits and bounds of robbery, and it was proved
beyond reasonable doubt that the accused also had the intention to kill and not merely to use force aimed
at temporarily incapacitating the victim. The trial court’s finding and that of the high court to the effect
that the acts of violence committed against the complainants in robbing them exceeded the limits or
bounds of the robbery, was unsustained on the facts. The evidence established that the complainants
151
sustained relatively minor injuries only. It could therefore, not be concluded that the violence committed
against them endangered their lives so as to qualify as excessive force that exceeded the bounds of
robbery. The totality of the evidence also did not prove beyond a reasonable doubt, that the appellants
had the further intention to kill the complainants. All the acts of violence used against the complainants
formed part of the robbery. Therefore, the convictions of the appellants on the two charges of attempted
murder and the sentences on those counts had to be set aside.
In sentencing the appellants on the count of robbery with aggravating circumstances, the trial court
imposed the minimum sentences prescribed by section 51(2) of the Criminal Law Amendment Act 105 of
1997. The present Court confirmed the trial court’s finding that there existed no substantial and
compelling circumstances which justified the imposition of lesser sentences than the minimum prescribed
ones. The Court was found to have exercised its sentencing discretion properly, and the appeal against the
sentence on the first conviction was dismissed.
83) DUPLICATION OF CONVICTIONS
Maneli v S
[2008] JOL 21610 (SCA)
Case Number:
494 / 07
Judgment Date:
01 / 04 / 2008
Country:
South Africa
Jurisdiction:
Supreme Court of Appeal
Division:
Bench:
PE Streicher, Heher JJA, Kgomo AJA
Keywords:
Criminal Law – Robbery – Duplication of convictions – Tests for – Two acts with single intent – One
continuous criminal act – Second conviction set aside
Mini Summary:
The appellant and his accomplices had robbed the office and house on a farm. To do this they had
threatened employees at gunpoint, tied them up and assaulted them. He was convicted on two counts of
robbery, one for the theft from the office and the other for the theft from the house. For each conviction
he was sentenced to 10 years' imprisonment with 5 years of the sentence for count 2 to run consecutively
with the sentence for count 1. His appeal to the High Court was unsuccessful, which led to this appeal to
the Supreme Court of Appeal. The issue before the court was whether there had been an improper
duplication of convictions.
Held that one of the tests for whether there has been an improper duplication of convictions is whether
two or more acts were done with a single intent and whether they constitute one continuous criminal
transaction. Another is to ask whether the evidence necessary to establish one crime involves proving
another crime. In the present case, it was probable that the theft of the money from the office and from
the house by the use of violence to induce submission was done with a single intent and constituted one
continuous criminal transaction. Therefore, the robbery involving the theft of the money from the office
and the theft of goods from the house constituted one offence. The conviction in respect of count 2 was
set aside.
1. S v NYUMBEKA 2012 (2) SACR 367 (WCC)
Where the evidence indicates that an accused assaulted the complainant in order to effect
his escape from custody, ie that the accused formed an intention to escape from custody
and not to assault the complainant, an application of the 'evidence' test and the 'single
intent' test leads to the conclusion that it would be a duplication of convictions to convict
the accused of both escaping from custody in contravention of s 117 of the Correctional
Services Act 111 of 1998 and of assault. Conviction of assault set aside. (Paragraph [8]
read with para [11] and [5] at 369i, 370f and 369f.)
When imposing a sentence which is subject to automatic review, magistrates should
check: (i) that it had been entered into the review register; (ii) that the full record had
been properly typed, where it had been handwritten, and transcribed, where there was a
152
mechanical recording of the proceedings; (iii) that all the evidence presented at the trial
is included and, where it is not available, try and reconstruct such evidence from the
handwritten notes, with the assistance of all the parties concerned; (iv) that all documents
and annexures are attached to the record; (v) that no incomplete or incorrect record
should be sent on review, because this will lead to delays, as has happened in the present
matter. Should this happen, the magistrate would be clearly negligent in executing his/her
duties and functions imposed by the law, especially s 303 of the Criminal Procedure Act
51 of 1977. Whilst the preparation of a record for a review and an appeal is primarily a
function of the clerk of the court, it is ultimately the function of the magistrate to see to it
that a proper record is sent to the high court. The clerk of the court should see to it that
this is done timeously and within the periods prescribed by law.
[zCIz]Case Information
Automatic review.
S v DLAMINI (SCA)
FARLAM JA, VAN HEERDEN JA, CACHALIA JA, SNYDERS JA and MAJIEDT JA
2012 FEBRUARY 17; MARCH 27
Indictment and charge—Duplication of convictions—Robbery—Accused charged with
and convicted on three counts of robbery—Accused one of three perpetrators, one of
whom was armed and threatened a group of three women—Robbers took their
property and departed—Separate intent by robbers to rob each woman—No
duplication of convictions.
S v Mzileni
[2012] JOL 28971 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 212 / 2011
17 / 08 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
N Dambuza, JW Eksteen JJ
Keywords:
Criminal procedure – Special review – Duplication of proceedings
Mini Summary:
Charged with possession of stolen property, the accused pleaded guilty. However, not satisfied with the
answers to the questions posed in respect of the plea, the magistrate entered a plea of not guilty. The
matter was then postponed. On the next date, the case came before another magistrate, and by then a
different prosecutor was assigned to the case. That prosecutor added a charge of theft to the charge
sheet. The accused pleaded not guilty, and the matter proceeded to trial. It was only after that, that the
magistrate discovered the record of the proceedings before the first magistrate. She then referred the
case for special review.
Held that the high court is vested with inherent powers to correct errors in proceedings before lower
courts. In the present case, it had to be determined whether it would be in the interests of justice for the
trial before the second magistrate to proceed.
In criminal proceedings, a plea marks the commencement of a trial. The accused is then entitled to be
acquitted or convicted on that plea. Therefore, the commencement of a second trial on the same facts as
those relevant to the first proceedings could not be in the interests of justice. That was particularly the
case where the prosecutor had added another (more serious) charge.
The second proceedings were set aside and the matter was to resume before the first magistrate.
153
S v Scheepers
[2012] JOL 28853 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
359 / 2011
07 / 12 / 2011
South Africa
High Court
Eastern Cape, Port Elizabeth
NG Beshe, PW Tshiki JJ
Keywords:
Criminal law – Drug offence – Possession of drugs – Duplication of convictions – Review
Mini Summary:
The accused was convicted of two counts of contravention of the Drugs and Drug Trafficking Act 140 of
1992. After sentencing, the magistrate formed the view that the two substances found in the accused’s
possession were listed in the same Schedule to the Act, and therefore should not have founded two
separate convictions. The case was sent on review.
Held that the magistrate was correct in stating that there had been a duplication of convictions. The
convictions were set aside and replaced with one count of possession of drugs.
Kotze v S
[2008] JOL 21644 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 866 / 07
04 / 04 / 2008
South Africa
High Court
Transvaal Provincial
K Makhafola, Vilikazi AJJ
Keywords:
Criminal procedure – Robbery with aggravating circumstances – Sentence – Appeal
Mini Summary:
Having pleaded guilty to a charge of robbery with aggravating circumstances, the appellant was convicted
as charged.
Held that the record showed that the appellant had been convicted twice on the same set of facts. The
present court held that the magistrate had become functus officio after the first conviction, and that
conviction was therefore confirmed.
The court went on to rule that the application of the prescribed minimum sentence in this case was
incorrect. The personal and mitigating circumstances of the appellant led the court to conclude that a
sentence less than the prescribed minimum one was appropriate.
The appellant was sentenced to 6 years' imprisonment.
84) DUPLICATION OF TRIALS
S v Tomose
[2008] JOL 22300 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
24 / 493 / 04
19 / 08 / 2008
South Africa
High Court
Cape of Good Hope Provincial
Dlodlo, Louw JJ
Keywords:
Criminal procedure – Duplication of trials – Second trial irregular – Declared a nullity
Mini Summary:
After the accused had elected to give evidence in his defence after the closure of the State case, it was
discovered that the same matter had been partly heard before another magistrate.
Held that once an accused had been charged and has pleaded to a charge in a criminal Court which had
been properly constituted, that court and no other was seized with the trial and was obliged to try him.
154
Such court must conduct the trial to its conclusion, unless that became impossible in the event of the
death, recusal, unavoidable and prolonged absence or incapacity of the judicial officer. Subject only to
that, an accused was entitled to be tried by the court before which he had pleaded to the charge and no
other court was competent to hear the matter.
The case was not a review covered by the provisions of section 304 of the Criminal Procedure Act 51 of
1977. This Court derived its power to intervene from section 24 of the Supreme Court Act 59 of 1959. The
Court's powers also emanated from the fact that South Africa was governed by constitutional supremacy
and the rule of law. It would result in grave injustice to subject the accused to two trials for the same
offence. The Court hearing the second trial had no jurisdiction to entertain the matter. It would also be
Constitutionally wrong to charge an accused person twice with one and the same offence. The proceedings
in the second trial constituted a grave irregularity.
The second "trial" was declared a nullity and set aside. It was ordered that the earlier trial be proceeded
with.
85) DUTIES OF OFFICER’S OF COURT
Larry v S
[2014] JOL 31966 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 573 / 2013
13 / 06 / 2014
South Africa
High Court
Western Cape, Cape Town
LJ Bozalek J, CTS Cossie AJ
Keywords:
Criminal law – Sexual assault – Conviction – Appeal
Mini Summary:
The appellant was convicted of contravening section 5(1) of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007 and was sentenced to three years’ imprisonment wholly
suspended for a period of five years. He appealed against his conviction.
Held that on appeal, the appellant alleged that the trial court had prevented his attorney from properly
conducting his defence. A reading of the record showed that the magistrate at times kept a tight rein on
the appellant’s attorney’s cross-examination but nevertheless gave him a full opportunity to crossexamine the complainant and her witness, including cross-examination on alleged discrepancies between
the complainant’s statement to the police and her viva voce evidence. It could not be found that there was
a material irregularity in the trial.
The remaining grounds of appeal were that the magistrate erroneously found that the evidence of the
complainant was sufficiently satisfactory and credible to secure a conviction and that she failed to take
proper cognisance of the value of the evidence of the appellant’s witness, that she over-emphasised the
discrepancies in the evidence of the appellant and failed to properly apply the onus that rested on the
state. The Court found no merit in any of the said contentions, and dismissed the appeal.
Nyabo v S
[2008] JOL 22823 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
327 / 07
27 / 11 / 2008
South Africa
Supreme Court of Appeal
JA Heher JA, Combrinck, Cachalia JJA
Keywords:
Criminal law – Robbery – Rape – Conviction – Appeal – Assessment of evidence
Mini Summary:
The appellant noted the present appeal against his convictions on charges of rape and robbery.
155
According to the complainant, she had been abducted by two men, and was taken to a shack where she
was raped by both men. One then left, and she was left with the other, who again raped her. She
identified him as the appellant.
The central issue was the identification of the appellant as the perpetrator of the offences.
Held that while the trial court purported to endorse the correct legal approach to assessing evidence in
such cases, it in fact, was guilty of misdirection in its assessment.
The complainant's testimony on the identity of the appellant as the perpetrator was adduced by leading
questions to which neither the court nor the appellant's counsel raised objection. The complainant was
found to have been prompted by the prosecution.
The court also took issue with the trial court's findings that the lighting in the shack was good, and that
the complainant had ample opportunity to see the appellant. That was shown not to be true. The shack
was actually in darkness and the complainant's opportunity to view the perpetrator at a time when she
was under emotional pressure was open to doubt. While her evidence of identification might have been
true and reliable, a much more careful and detailed investigation was necessary before arriving at that
conclusion.
The misdirections of the trial court meant that the present court was free to reconsider the strength of the
case against the appellant. It was pointed out that the appellant's version was not shown to have been not
reasonably possibly true. In the circumstances, the states' case had to fail unless the evidence of the
complainant was of itself so clear and unanswerable as to justify the conclusion that the appellant's
version was, although without apparent flaw on the face of it, nevertheless false beyond a reasonable
doubt.
The appeal was upheld and the two convictions set aside.
Swartz v S
[2008] JOL 22396 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 299 / 07
17 / 04 / 2008
South Africa
High Court
Cape of Good Hope Provincial
MJ Hlophe JP; EJS Steyn AJ
Keywords:
Criminal procedure – Indecent assault – Child complainant – Competence as witness – Enquiry
Mini Summary:
The appellant was convicted of the indecent assault of a 4-year-old boy. He was sentenced to 3 years’
correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act 51 of 1977.
He appealed against his conviction.
Held that presiding officers are required, when dealing with young witnesses, to determine whether they
have the necessary competency to testify. In the present case, the regional magistrate was required to
determine whether the witness, a child of seven years of age at the time of the trial, was a competent
witness to give sworn evidence in terms of section 162 of the Act.
The trial court's conviction of the appellant based on the complainant's evidence without conducting the
enquiry referred to above or making a finding regarding the child's competency was an irregularity.
The appeal was upheld.
R v Riekert -1954 (4) SA 254 (SWA) – prosecutor not only represents the interests of
the State but has a duty towards an accused to see that an innocent person is not
convicted.
S v Choguguduza -1996 (1) SACR 477 (ZS) – prosecutor’s duty to uphold the hold and
by their conduct set example of impeccable honesty and integrity.
S v Majuva – 1994 (2) SACR 265 (CK) – purpose of criminal prosecution is not to
obtain a conviction it is to ensure all credible and available evidence and facts be placed
before the court even if detrimental to the State.
156
S v Bothma – 1971 (1) SA 332 (C) – office of prosecutor is an independent position and
in no way subservient to the bench, The bench has no right to give any instruction to a
prosecutor. Where the bench is wrong it must be resisted.
Nontela v DPP, Umtata – 2003 (2) SACR 205 (TkD) – practitioner has duty to bring to
court’s attention any authority of which he is aware and is relevant to the determination
of the relevant dispute whether or not such authority is in his client’s favor or not.
S v Van Rensburg – 1963 (2) SA 343 (N) - prosecutor has duty to bring to notice of the
court information in his possession which may be favorable to an accused.
86) ENTRAPEMENT
Matsabu v S
[2008] JOL 22847 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
186 / 08
27 / 11 / 2008
South Africa
Supreme Court of Appeal
JA Heher, Combrinck, Cachalia JJA
Keywords:
Criminal procedure – Entrapment – Evidence – Admissibility
Mini Summary:
Having been arrested during an anti-corruption operation, the appellant, a law enforcement officer
employed by the traffic department, was charged with a contravention of section 1(1)(b) of the Corruption
Act 94 of 1992. He was alleged to have accepted an amount of R300 as a bribe from a certain police
inspector as an inducement not to issue a traffic summons to her. He was convicted as charged and
sentenced to two years' imprisonment in terms of section 276(1)(i) of the Criminal Procedure Act 51 of
1977.
It was common cause that the appellant had been ensnared in a trap used to detect, investigate or
uncover the commission of an offence within the ambit of section 252A(1) of the Act. The appellant’s
argument was that as the complainant's conduct had gone beyond the provision of an opportunity to
commit the offence of corruption, the evidence obtained by way of the entrapment should have been ruled
inadmissible at the trial. it was further contended that the use of and reliance on such evidence resulted in
the appellant not receiving the fair trial which was his constitutional entitlement.
Held that while a trial-within-a-trial will usually be appropriate to decide admissibility under section 252A,
section 252A(7) provides implied legislative sanction for a trial court to exercise a judicial discretion on
whether to try admissibility as a separate issue. The court found that no misdirection occurred in this
case, as a result of the failure to hold such a hearing.
In considering whether the appellant had been unfairly trapped, the court asked whether the acceptance
of the evidence was unfair to the appellant, and whether the conduct of the trap had the effect of inducing
the appellant to act in a manner that he would otherwise have not. A trap may usefully be employed to
set up a situation of which a corruptly-inclined official may take advantage. The provision of an attractive
opportunity is the essence of a successful trap. Only conduct which lays a bait for the unsuspecting official
by encouraging the commission of a crime is prohibited. The complainant was not guilty of such conduct.
The appeal was dismissed.
87) ENVIROMENTAL LAW
157
Fisher & another v President of the RSA & another
[2008] JOL 21552 (C)
Case Number:
15572 / 07
Judgment Date:
20 / 03 / 2008
Country:
South Africa
Jurisdiction:
High Court
Division:
Cape of Good Hope
Bench:
LJ Bozalek J
Keywords:
Administrative law – Environmental law – Administrative decision – Review
Mini Summary:
Purporting to act in terms of section 16 of the Marine Sources Act 18 of 1998, the second respondent
("the Minister") had announced the complete suspension of the commercial fishing of wild abalone. The
applicants were rights holders in the industry. They sought the review of the Minister's decision.
Held that the recommendation and decision-making process was thorough, sequential and regular and
there was no evidence of the decision reached being justified by reports or recommendations produced ex
post facto as alleged by the applicants. The ultimate test on review was whether the decision taken by the
Minister was one which a reasonable decision-maker could take. The court found that it was, and
dismissed the application.
S v I Maluleke and two others - Case Number: RP 101/11, Phalaborwa Regional
Court (Prosecutor J Manzini)
Whilst on patrol, game rangers found a freshly dehorned rhino carcass. They followed footprints found near
the crime scene and heard shots
being fired, after which they found and arrested four people lying underneath some bushes. The arrested
persons had in their possession rhino
horns, two rifles, ammunition and two axes. One of the arrested persons later died. The remaining three
accused all pleaded guilty on the
following four counts: hunting of rhino (count 1), possession of a prohibited firearm, being an AK47 (count
2), possession of a rifle (count 3), and
possession of ammunition (count 4). They were all sentenced to 10 years imprisonment or R100 000 fine on
count 1, 15 years imprisonment on
count 2, 8 years imprisonment on count 3 and 15 years imprisonment on count 4, with counts 2 and 4 to run
concurrently.
S v ES Sigauque – Case Number: SH 45/2010, Mokopane Regional Court
(Prosecutor D Lamminga)
After hearing a gunshot early in the morning, a Limpopo farm manager and trackers found a dehorned rhino,
which had been shot with
an R5 firearm. They found footprints and tracked them for approximately 5km, where they found 4/5 persons
sitting down to eat. Having
been disturbed by the trackers, they all split up and ran into the mountains. An axe was later found, which
DNA analysis later confirmed
had carried blood from a white rhino. One person was later found and was shot in the hip. The evidence of
the tracker, who testified
that he matched the shoes which the accused was wearing at the time of his arrest to the tracks at the crime
scene, formed the crux of
the case. Having denied that the shoe belonged to him, the accused’s’ foot was cast and the shoe sent for
forensic analysis to make the
necessary comparison, after which it was confirmed that the shoe was in fact that which was worn by the
accused. The accused was
charged and convicted in terms of the Limpopo Environmental Management Act for illegal hunting of a rhino
(count 1) and for
trespassing (count 2). Upon conviction, Col. Jooste testified in aggravation of sentence, which contributed
significantly to the accused
158
being sentenced to 12 years imprisonment on count 1 and 1 year imprisonment on count 2, with both counts
to run concurrently.
S v Els - Case Number: 1067A/2010, Musina Regional Court (Prosecutor A
Weideman)
A game trader in Thabazimbi pleaded guilty to the illegal buying, possession and conveyance of 30 rhino
horns (count 1), which he bought from
a now deceased acquaintance. The seller was the manager of Maremani Nature Reserve, owned by a
Danish consortium, where rhino were
dehorned and sold to the game trader. The game trader also dehorned 8 of his own rhino (count 2). He was
sentenced to 10 years
imprisonment, 2 of which were suspended for 5 years in respect of count 1, and to 4 years imprisonment,
wholly suspended in respect of count
2. He was further ordered to pay R100 000 per month over a ten month period to the National Wildlife Crime
Reaction Unit to assist in rhino research.
S v D Mathebula and two others - Case Number: 230/11, Mokopane District Court
(Prosecutor E Nel)
A member of the public driving past the veld saw something that resembled a torch light. Aware of the cycad
thefts in the area, he reported a
suspicious red bakkie to the authorities. Four accused were later arrested, having been found in possession
of one cycad, with another pointed
out at the location where it had been hidden. The value of the two cycads was estimated at R18 250.00, and
both could not be saved. The
accused were later charged in terms of Section 57(1) of the Biodiversity Act. For their varying roles in
carrying out the offence, Accused 1 and 3
were sentenced to 30 months imprisonment, Accused 2 sentenced to 4 years imprisonment, and Accused 4
sentenced to 2 years imprisonment,
suspended for 5 years.
Compiled by Z Hassam and H van Schalkwyk
88) ETHICS
R v Riekert -1954 (4) SA 254 (SWA) – prosecutor not only represents the interests of
the State but has a duty towards an accused to see that an innocent person is not
convicted.
S v Choguguduza -1996 (1) SACR 477 (ZS) – prosecutor’s duty to uphold the hold and
by their conduct set example of impeccable honesty and integrity.
S v Majuva – 1994 (2) SACR 265 (CK) – purpose of criminal prosecution is not to
obtain a conviction it is to ensure all credible and available evidence and facts be placed
before the court even if detrimental to the State.
S v Bothma – 1971 (1) SA 332 (C) – office of prosecutor is an independent position and
in no way subservient to the bench, The bench has no right to give any instruction to a
prosecutor. Where the bench is wrong it must be resisted.
159
Nontela v DPP, Umtata – 2003 (2) SACR 205 (TkD) – practitioner has duty to bring to
court’s attention any authority of which he is aware and is relevant to the determination
of the relevant dispute whether or not such authority is in his client’s favor or not.
S v Van Rensburg – 1963 (2) SA 343 (N) - prosecutor has duty to bring to notice of the
court information in his possession which may be favorable to an accused.
89) EVIDENCE
S v Mtsweni 1985 (1) SA 590 (AD),
Untruthful evidence does not always justify the conclusion that the accused is
guilty.The weight to be attached thereto must be related to the circumstances of
each case.
Molimi v S
[2008] JOL 21324 (CC)
Case Number: CCT 10 / 07
Judgment
04 / 03 / 2008
Date:
Country:
South Africa
Jurisdiction:
Constitutional Court
Division:
Bench:
Langa CJ, Moseneke DCJ, Nkabinde, Madala, Ngcobo, Sachs, Skweyiya, Van der
Westhuizen, Yacoob JJ, Mpati AJ
Keywords:
Criminal procedure – Extra-curial statements – Admissibility against co-accused
Mini Summary:
The admissibility of extra-curial statements of an accused against a co-accused in a criminal trial was the
issue for determination in this case. The court was required to consider the rules governing the
admissibility of hearsay evidence under the provisions of the Law of Evidence Amendment Act 45 of 1988
in the context of the right to a fair trial and the need to prevent procedural abuse.
The Supreme Court of Appeal had dismissed the applicant's appeal against his convictions. He therefore
approached the Constitutional Court for leave to appeal against that decision.
The charges against the applicant arose out of an armed robbery at a store at which he was the manager.
A shootout resulted in one of the group of robbers being killed, and two others surrendering. Those two
implicated the applicant in the robbery in a statement made to the police.
Held, that the admissibility of the above-mentioned statement was in issue.
One of the objections raised by the applicant was that the statements should have been recognised as
confessions and that a confession of an accused cannot be used as evidence against a co-accused. The
court agreed with that submission and held that the Supreme Court of Appeal and the trial court had erred
in admitting the confession as evidence against the applicant.
The court went on to hold that the late admission of hearsay evidence against the applicant was
prejudicial to him and not in the interests of justice.
Leave to appeal was granted.
S v Dolo 1975 (1) SA 641 (Tk)
Where the following was stated by Munnik CJ, as he then was, at 643G – H:
“If the witness denies having made the statement, or any part thereof
put to him, the prosecutor is entitled, in terms of the section, and must,
in order to succeed in his purpose, namely that of discrediting the
witness, call the person who took the statement. The prosecutor’s
failure to do so in these circumstances, would mean that the State is
bound by the witness’ denial and therefore the making of the previous
160
statement inconsistent with the present testimony has not been proved.
(See R v Nyede 1951 (3) SA 151 (T))”
S v Qhinga & others
[2008] JOL 21743 (Ck)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CC 35 / 2007
28 / 1 / 2008
South Africa
High Court
Bisho
AEB Dhlodhlo ADJP
Keywords:
Criminal procedure – Evidence – Statement by accused – Admissibility
Mini Summary:
In a trial-within-a-trial, the court had to decide on the admissibility of a statement made by the second
accused before a magistrate. The second accused opposed the introduction of the statement into
evidence, alleging that he had not made it voluntarily.
Held after considering the facts, that the statement in question was made by the second accused freely
and voluntarily while he was in his sound and sober senses and without having been unduly influenced
thereto. The statement was admissible as evidence.
S v Nzama & another
[2008] JOL 21476 (N)
Case Number:
180 / 06
Judgment Date:
25 / 01 / 2008
Country:
South Africa
Jurisdiction:
High Court
Division:
Natal Provincial
Bench:
Padayachee AJ
Keywords:
Criminal law – Robbery with aggravating circumstances – Accomplice evidence – Conviction – Sentence
Mini Summary:
Based on information provided by an accomplice of the accused, they were charged in connection with a
hijacking of a taxi.
Held, that in accepting the evidence of an accomplice witness, it is not necessary that his evidence be
true in all that he says. His testimony would suffice if it is to a large extent truthful and sufficient
corroboration thereof exists. The court also referred to the need to exercise extreme caution in the
examination of the veracity of an accomplice's evidence given the accomplice's peculiar position and
knowledge. It decided that the accomplice's evidence in this case was reliable.
Assessing the evidence and the defences raised by the accused, the court convicted them both on the first
two counts against them, and convicted the second accused on a third count. The first accused was
sentenced to 15 years' imprisonment, and the second accused to 20 years' imprisonment.
90) EXCEPTIONAL CIRCUMSTANCES
Sewnarain v S
[2014] JOL 31611 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
877 / 12
25 / 03 / 2013
South Africa
Supreme Court of Appeal
FR Malan, LV Theron JJA, CHG van der Merwe AJA
Keywords:
Criminal law – Bail – Refusal of – Appeal against refusal of bail – In terms of section 60(11)(a) of the
Criminal Procedure Act 51 of 1977, appellant required to satisfy the court that exceptional circumstances
161
existed which in the interests of justice permitted his release on bail – In absence of exceptional
circumstances, appeal dismissed
Mini Summary:
Having confessed to arranging for his wife to be murdered in 2010, the appellant was convicted of murder
and sentenced to life imprisonment. Approximately a year later, he applied to have the conviction and
sentence reviewed and set aside, alleging that he was assaulted, threatened and unduly influenced by the
investigation officer, as a result of which neither the confession nor the plea of guilty was made freely and
voluntarily. He alleged further that he had admitted to doing that which he had not actually done as a
result of the combined effect of medication, exhaustion and bereavement. He applied to the court a quo
for his release on bail pending the outcome of the review application. The dismissal of that application led
to the present appeal.
Held that section 60(11)(a) of the Criminal Procedure Act 51 of 1977 being applicable, the appellant had
to satisfy the court a quo that exceptional circumstances existed which in the interests of justice permitted
his release on bail. The court a quo found that a reasonable prospect of success in the review application
is an indispensable criterion which the appellant failed to show, and that in any event the appellant did not
show exceptional circumstances as contemplated in section 60(11)(a).
The present Court held that a reasonable prospect of success on appeal or review in itself does not entitle
an applicant to bail. The question therefore was whether the court a quo erred in finding that the appellant
did not prove exceptional circumstances. The only circumstance relied upon by the appellant that could
possibly be regarded as exceptional, was the allegation that because his financial resources had been
exhausted he would only be able to retain his present legal team and expert witnesses in order to conduct
the review application properly, if he was allowed to recommence his bus building and repair business in
order to generate income and that he would be able to do so almost immediately after his release.
However, there was no evidence to support that allegation. In fact, the available evidence suggested the
contrary.
As a result, the appeal was dismissed.
Mooi v S
[2012] JOL 29148 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
162 / 12
30 / 05 / 2012
South Africa
Supreme Court of Appeal
S Snyders, MS Navsa, BJ van Heerden JJA
Keywords:
Criminal law – Bail – Refusal of bail – Appeal – Section 60(11)(a) of the Criminal Procedure Act 51 of 1977
– Appellant had to adduce evidence that satisfied the court that exceptional circumstances existed which
in the interests of justice permitted his release – Unexplained delay by state in concluding its case taken
together with weakness of State’s case constituting exceptional circumstances which in the interests of
justice permitted the release of accused on bail
Mini Summary:
The appellant was standing trial on several counts of robbery with aggravating circumstances, attempted
robbery with aggravating circumstances, attempted murder and the unlawful possession of a firearm and
ammunition relating to an armed robbery of a petrol station. The appellant was arrested on the day of the
robbery, namely 24 December 2008 and had been in custody ever since. The trial commenced on 12
November 2009 and the state had not yet concluded its evidence. During March 2011 the appellant
applied to be released on bail. Bail was refused and an appeal to the high court was dismissed. That led to
the present appeal.
The parties were in agreement that the bail application fell under section 60(11)(a) of the Criminal
Procedure Act 51 of 1977 and therefore the appellant had to adduce evidence that satisfied the Court that
exceptional circumstances existed which in the interests of justice permitted his release. In terms of
section 65(4) the appellant had to persuade the Court that the decision to refuse bail was wrong.
The magistrate refused bail on the ground that there was evidence linking the accused to the offence and
therefore that it would not be in the interests of justice to grant bail. In the present Court it was accepted
that in the circumstances the determining factor whether to grant or refuse bail was the strength of the
state’s case against the appellant.
Held that section 60(4) lists several grounds which, if shown to exist, would have the effect that the
interests of justice would not permit the release of an accused. In considering whether the grounds stated
in section (4)(b), namely the likelihood of an accused evading his trial, have been established, the Court
162
may take into account a number of factors as set out in section 60(6). Those include the emotional and
occupational ties of the accused; his assets and where they are situated; his means of travel and available
travel documents; whether he can afford to forfeit the amount of money paid in relation to bail; prospects
of extradition; the nature and gravity of the offences charged with; the strength of the case against him;
the nature and gravity of the likely punishment in the event of the accused being convicted; the binding
effect of possible bail conditions and the ease with which they could be breached, and any other factor
which in the opinion of the Court should be taken into account.
The state’s case, whilst described by it as a strong one, was not shown to be so before the Court. The
state had not managed, in a period of two and a half years, to complete the evidence of their alleged
strong case in the trial court. The inordinate delay in presenting the asserted strong case on behalf of the
state was unexplained. In the circumstances, the delay since the trial started in November 2009 was
significant and called for an explanation that had not been forthcoming.
There was no indication that the appellant would not stand trial. Instead, the evidence suggested the
contrary. In the premises, the Court below was wrong in not concluding that the appellant had succeeded
in showing that exceptional circumstances were present that, in the interests of justice, permitted his
release.
The appeal was upheld and the appellant released on bail of R5 000 subject to certain conditions.
1. S v NAJOE 2012 (2) SACR 395 (ECP)
The applicant was one of four accused charged with robbery with aggravating
circumstances, kidnapping, unlawful possession of a firearm, unlawful possession of
ammunition and two counts of murder. The applicant was being held in custody and had
been for over a year. The offences in question were offences mentioned in sch 6 of the
Criminal Procedure Act 51 of 1977 and the onus was on the applicant to satisfy the court
that 'exceptional circumstances' existed which in the interests of justice permitted his
release. The applicant did not give oral evidence but filed an affidavit in which he set out
his personal circumstances and the reasons he should be released E on bail. He was 23
years old and lived with his parents. He was employed as a cashier and had one previous
conviction of assault with intent to do grievous bodily harm, for which he was sentenced
to 18 months' correctional supervision. The applicant contended that, because he was a
person of good character who had a traceable address, held a steady job and whose family
and relatives resided in Port Elizabeth, he was not likely to sabotage the administration
of justice by absconding or not standing trial. He contended further that he was only
implicated in the offence of robbery with aggravating circumstances and kidnapping (the
latter not being a sch 6 offence). This was denied by the investigating officer. The court
held that the interests of justice would best be served if those factors favourable to the
applicant were weighed against those that were not. It was not the court's duty to make a
provisional finding of guilt or innocence, but the strength of the evidence relating to his
alleged implication in the robbery was no small matter in the consideration of the
interests of justice. The court could not ignore the fact that the state had presented oral
evidence through the investigating officer. In all, it was not persuaded that the applicant
had discharged the onus on him to prove, on a balance of probabilities, that the interests
of justice permitted his release on bail. (Paragraphs [13] and [14] at 398g–i and 399c.)
[zCIz]Case Information
A Application for bail. The facts appear from the reasons for judgment.
Mbangeni & another v S
[2011] JOL 27207 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
57 / 11
18 / 03 / 2011
South Africa
High Court
163
Division:
Bench:
Eastern Cape, Grahamstown
A Andrews AJ
Keywords:
Criminal procedure – Bail – Refusal of – Appeal
Mini Summary:
The appellants were arrested on charges of robbery with aggravating circumstances and theft, arising out
of the armed robbery of a business. They applied to be released on bail but were refused. The present
appeal was noted against the judgment refusing them bail.
Section 60(11)(a) of the Criminal Procedure Act 55 of 1971 is applicable to bail applications.
Held that the appellants attempted to satisfy the court that the state’s case against them was weak,
entitling them to be released on bail. The Court found that neither of the appellants had discharged the
onus of proving that on a balance of probabilities they would be acquitted of the charges against them.
They therefore failed to prove that the state’s case was weak to the extent that constituted exceptional
circumstances, which in the interests of justice permitted their release.
The appeal was dismissed.
91) EXPLANATION OF RIGHTS
Machongo v S
[2015] JOL 32552 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
20344/14
21 / 11 / 2014
South Africa
Supreme Court of Appeal
Shongwe JA, Mathopo, Gorven AJJA
Keywords:
Criminal procedure – Rights of accused – Failure to forewarn or to mention the applicability of the
minimum sentence is a fatal irregularity resulting in an unfair trial in respect of sentence – Appeal court
free to consider sentence afresh in face of such irregularity – Court must adjudicate afresh the issue of
sentence as if not considered before
Mini Summary:
The appellant was convicted of murder and robbery with aggravating circumstances. He was sentenced to
life imprisonment on the murder count and 20 years’ imprisonment on the remaining count. Special leave
was obtained, to appeal against sentence only. The main ground of appeal to the full court was that the
trial court erred in relying on the provisions of section 51(1) of the Criminal Law Amendment Act 105 of
1997 (“the Act”) because no mention was made in the indictment to inform the appellant of the
applicability of the Act, nor did the trial judge warn the appellant of its applicability. In granting leave to
the full court, the trial judge acknowledged that he erred in applying the provisions of the Criminal Law
Amendment Act. The appellant contended that failure to mention and to warn him of those provisions ipso
facto resulted in a miscarriage of justice.
The facts underlying the charges involved the appellant and two others robbing the owner of a vehicle in
order to steal the vehicle and use it for spare parts. They overpowered the vehicle’s owner and
dispossessed him of his firearm. The appellant took the firearm and a shot was fired, killing the deceased.
Held that failure to forewarn or to mention the applicability of the minimum sentence is a fatal irregularity
resulting in an unfair trial in respect of sentence. The appeal court must then consider sentence afresh. In
this matter, the full court applied the incorrect test in holding that a court of appeal will only interfere
when the sentence imposed by the trial court is vitiated by an irregularity or misdirection or when the
sentence is shockingly severe, disturbingly inappropriate and totally out of proportion to the offence
committed. Considering a sentence afresh must mean, setting aside of the sentence of the trial court,
inter alia, and conducting an inquiry on sentence as if it had not been considered before. In other words,
the appeal court must disabuse itself of what the trial court said in respect of sentence – it must
interrogate and adjudicate afresh the triad in respect of sentence. What the full court did was not
considering the sentence afresh, but comparing what it had in mind with what was imposed.
As the trial court had erred and misdirected itself in respect of sentence as the appellant had not been
forewarned of the applicability of the Act, and the full court erred in its approach by using an incorrect test
when sentencing the appellant afresh, the present Court was free to consider the sentence as if it had not
been considered before.
164
The Court considered the personal circumstances of the appellant, and the nature of the offence. It was
noted that the appellant was a first offender, but had master-minded the plan to rob and steal vehicles
with an intention to strip the vehicles and sell the parts. The agreement with his fellow perpetrators was
that if they could not steal it they would take it by using force – so violence was envisaged. The offence of
murder is a serious one. The Court was clear that the interests of society need to be protected. The
sentence to be imposed had to be balanced without over-emphasising one part of the triad over another.
The objects of punishment – retribution, rehabilitation and deterrence also must be balanced.
Finding that the aggravating factors far outweighed the mitigating factors, the Court imposed a sentence
of 25 years’ imprisonment on the murder charge and 15 years’ imprisonment on the robbery charge. The
sentences were to run concurrently.
Ramaite v S
[2014] JOL 32361 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
958 / 2013
26 / 09 / 2014
South Africa
Supreme Court of Appeal
NP Willis, A Cachalia JJA, I Schoeman AJA
Keywords:
Criminal procedure – Trial – Rights of accused – Explanation of rights – Duty of presiding officer to
properly explain right to legal representation – Failure to properly explain right amounting to irregularity
which tainted conviction and prejudiced accused, resulting in conviction and sentence being set aside on
appeal
Mini Summary:
The appellant was convicted of the rape of an 11-year-old girl. As the complainant was under the age of
sixteen years, section 51 of the Criminal Law Amendment Act 105 of 1997 applied, with life imprisonment
being the prescribed minimum sentence. The prescribed minimum sentence having been imposed, the
appellant appealed against his conviction and sentence.
Several grounds of appeal were raised mainly relating to the irregular conduct of the trial. It was
contended that the regional court magistrate had failed to apprise the appellant of his right to legal
representation before the trial commenced; properly to explain his right to cross-examination; and to
assist the appellant when it was clear that the appellant did not know how to cross-examine the
witnesses.
Held that the record reflected that before the trial commenced the prosecutor informed the magistrate
that the appellant had previously indicated that he wished to conduct his own defence. Although the
magistrate confirmed that that was still the case, he neither informed the appellant what the
consequences of proceeding with the trial without the assistance of a legal representative were, nor
encouraged him to obtain the services of a legal representative, before he was made to plead to the
charge. Although the magistrate explained to the appellant after he had pleaded that if convicted, the
matter would be transferred to the High Court and he could face a prescribed minimum sentence of life
imprisonment, that was merely communicated to the appellant as a matter of fact, and not with a view to
encourage him to obtain legal representation owing to the seriousness of the charge and the
consequences that would ensue in the event of him being convicted. The right to legal representation is
entrenched in the Constitution, which includes the right to choose and be represented by a legal
practitioner; and to have a legal practitioner assigned to the accused person by the State and at State
expense if substantial injustice would otherwise result, and to be informed of these rights promptly. Even
if a judicial officer believes that an accused is aware of his rights, the right to legal representation must
nevertheless be properly explained to him, in open court. If the accused chooses not to have legal
representation in serious cases, it is incumbent on the presiding officer to inform an accused of the
seriousness of the charges and advise him to make use of a legal representative. Finding that the
magistrate failed in his duty to properly inform the appellant of his rights in respect of legal representation
and the consequences of not exercising those rights, the court held that such failure constituted a material
irregularity.
Turning to consider the legal effect of the irregularity, the court pointed out that failure by a presiding
judicial officer to inform an unrepresented accused of his right to legal representation, if found to be an
irregularity, does not per se result in an unfair trial necessitating the setting aside of the conviction on
appeal. It must be shown that the irregularity tainted the conviction and that the appellant had been
prejudiced thereby. The court therefore examined the further conduct of the trial to evaluate how it was
conducted in the absence of legal representation for the defence. It was noted that the appellant was an
unsophisticated person with no understanding of the law or the legal processes. That showed in his
attempts to conduct cross-examination. A presiding officer is not merely an observer but has a duty to
165
prevent unfair questioning of an accused. He is required to stop a prosecutor from asking unfair questions
and putting incorrect statements to an accused, especially if there is no legal representative to object on
behalf of an accused. The court found that in this case, proper legal representation might have made a
difference in the presentation of the appellant’s defence.
On the ground that the irregularity in the conducting of the trial was fatal to the conviction, the court
upheld the appeal and set aside the conviction and sentence.
In a minority judgment, a contrary view was expressed. The judge did not agree that the trial court had
committed any irregularities such that would vitiate the conviction.
1. S v RAMULIFHO 2013 (1) SACR 388 (SCA)
The appellant was convicted in a regional court of rape and was sentenced by the
high court to life imprisonment in 2002. He was granted leave to appeal in 2010 and,
after hearing argument at the hearing of the appeal in November 2012, the court
upheld the appeal and ordered the immediate release of the appellant. It appeared
that the appellant was approximately 16 years old at the time of the offence and 18
years old when he eventually stood trial after having been in custody for two years.
His correct age was never properly ascertained by the police or prosecution. By the
time the trial commenced he had been arrested, interrogated, detained for almost
two years, and been forced to make admissions or a confession, all without the
assistance of a legal representative or the advice of his parents or guardian. It
appeared furthermore that the regional magistrate did not inform the appellant of his
right to legal representation; he did not properly explain to the appellant how to
cross-examine, and when the appellant showed, through his questions, that he did
not understand how to cross-examine, he did not assist the appellant to put
questions; he allowed the prosecutor to ask obviously leading questions on the
material issues and to lead inadmissible evidence; and he did not properly explain to
the appellant his rights in respect of the medico legal report and he clearly did not
read it, or, if he did, he did not understand its import. Eventually, when he gave
judgment he did not properly consider all the evidence. With regard to the
complainant, he did not remind himself about the dangers inherent in dealing with a
child's evidence and there is no suggestion that he carefully considered her evidence
to determine whether it could be found to be reliable. He dealt with the defence
evidence in two or three lines, and what he said did not properly reflect the
substance of what the witnesses said, and he did not consider their evidence in the
light of the medico legal report which obviously indicated that they were telling the
truth. The conduct of the trial showed that a lack of legal representation prejudiced
the appellant.
The court held that, even if it were accepted that all the evidence was properly
before the court, it did not prove beyond a reasonable doubt that the appellant was
guilty, and he should have been acquitted. (Paragraph [13] at 395g–396a.)
As regards the delay in the matter coming before the court on appeal, it appeared
that these delays were caused by (1) the failure of the appellant's advocate to inform
him, immediately after sentence, of his right to apply for leave to appeal and his
right to appeal; (2) the failure of the Legal Aid officer who consulted with the
appellant in August 2003 to appoint an attorney to represent the appellant and order
a transcript of the proceedings to enable the appellant to apply for leave to appeal;
(3) the failure of the appellant to follow up his instructions to ascertain what
progress his attorney was making (which was probably due to the appellant's lack of
education and means); and (4) the failure of the Legal Aid officer or attorney
appointed by the Legal Aid Board to expeditiously obtain the record (81 pages in
extent) for the purpose of the application for leave to appeal and the appeal itself.
Held, that delays of this nature, in the prosecution of a criminal appeal when the
appellant was serving a prison sentence, were not acceptable and ran contrary to the
166
ethic which should prevail in the administration of the criminal-justice system. Where
a convicted person who is serving a prison sentence wishes to appeal, every person
involved in the process must ensure that he or she does, with the utmost expedition,
what he or she is required to do. The judge or magistrate must hear the application
for leave to appeal without delay, the registrar or clerk of the court must have the
record transcribed and prepare the record of proceedings, and transmit and file all
necessary documents without delay, and the attorney representing the accused must
ensure that everyone involved expeditiously does what is required. And that is
because the freedom of the individual is involved and must be safeguarded within
the limits of the law. It is an egregious violation of individual freedom to detain a
person in prison, and it is the solemn duty of every judicial officer, official involved in
the administration of justice, and the legal practitioner representing the accused, to
ensure that it will happen only with the full authority of the legal process. The judicial
officer and every other official involved in the legal process whereby a person is
deprived of his freedom are obliged to ensure that that process obtains the full
stamp of approval of the law as quickly as possible, and the impression must never
be created that our courts and judicial officials are indifferent to the freedom of the
individual. (Paragraph [17] at 397e–h.)
Case Information
Appeal from a conviction of rape in a regional court and the imposition of a sentence
of life imprisonment in the Venda High Court (Hetisani J). The facts appear from the
reasons for judgment.
Mphukwa v S
[2012] JOL 29031 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 360 / 2004
16 / 02 / 2012
South Africa
High Court
Eastern Cape, Grahamstown
PW Tshiki, NG Beshe JJ
Keywords:
Criminal procedure – Charge – Error by court – Legal representation – Court’s duties
Mini Summary:
The appellant was convicted of housebreaking with intent to commit a crime unknown to the State and
one count of rape. He was sentenced to four years’ imprisonment in respect of count 1 and ten years’
imprisonment on count 2.
Held on appeal that it was apparent from the indictment that although the appellant was charged with
rape, the contents of the indictment revealed the commission of attempted rape. No rights to legal
representation were explained to the appellant immediately before and after the charge had been put to
him. Instead, before evidence was led the court repeated the explanation of the two charges. The error in
the charge resulted in the appellant being convicted of rape, a more serious offence, than that of
attempted rape to which he had pleaded at the beginning of the trial.
The right to legal representation is constitutionally guaranteed, and must be properly explained to the
accused by the court. In the present case, there was no evidence to suggest that the appellant was
encouraged to exercise his right to legal representation. The failure to inform an accused of his right to
legal representation and/or the availability of legal aid, does not necessarily have the effect of vitiating the
proceedings in a criminal trial. To constitute a fatal irregularity warranting the setting aside of the
proceedings there must be proof of substantial prejudice to the accused or a miscarriage of justice. It was
clear that a fatal irregularity had occurred in this case.
The conviction and sentence were set aside.
92) EXTRADITION
167
Geuking v President of RSA 2003(1) SACR 404 (CC) – court dealt with principles
applicable and in particular President’s consent i.t.o. S3(2) of Extradition Act 67 of 1962.
Harksen v Minister of Justice 2003(1) SACR 489 (CPD) – dealt with application for
order and duties of Minister to consider application.
Siyabonga and another v S
[2012] JOL 29310 (NWM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA 12 / 2012
19 / 07 / 2012
South Africa
High Court
North West, Mafikeng
AA Landman, RD Hendricks JJ
Keywords:
Criminal law – Extradition order – Appeal
Mini Summary:
The first appellant was a Zimbabwean national and the second appellant a South African. After a robbery
in Gabarone, Botswana, they were arrested at a border post, allegedly in possession of firearms and
suspected stolen goods. Exhibits which were seized were handed to the Botswana authorities and charges
were withdrawn in South Africa. A Botswana magistrate issued a warrant of arrest for the appellants and
the South African authorities received a request for the extradition of the appellants.
The present appeal was against the finding that the appellants were extraditable to Botswana.
Held that the first ground of appeal was that the magistrate had erred in finding that Botswana was a
foreign State as envisaged in the Extradition Act 67 of 1962 (“the Act”), as opposed to an associated
State. Examining case law, the Court found that Botswana is a foreign State and that the magistrate had
correctly heard the matter in terms of section 10 of the Act.
The second ground was that the Court erred in finding that the appellants were extraditable to Botswana,
a country where the offence of robbery attracts the sanction of corporal punishment. The Court pointed
out in that regard, that this complaint was not one which the magistrate was entitled to entertain in terms
of the section 10 enquiry.
The third and fourth grounds of appeal were considered together. The third ground was that the
appellants’ constitutional right to access to medical care would be violated if extradited to Botswana
(particularly as the first appellant was HIV positive) and that their right to legal representation at State
expense would be compromised. The Court referred to case authority for the fact that a magistrate
conducting an enquiry under section 10 has no power to consider whether the constitutional rights of the
person might be infringed upon extradition.
Concluding that no grounds existed for interfering with the magistrate’s order, the Court dismissed the
appeal.
93) EXPERT EVIDENCE
S v NCUBE AND OTHERS 2011 (2) SACR 471 (GSJ)
The appellants were convicted of robbery with aggravating circumstances on the strength
of expert evidence identifying them as the persons photographed committing a bank
robbery. In an appeal against their convictions and sentences of 12 years' imprisonment
each, the court of appeal was confronted with the complication that the trial court's record
of the proceedings relating to sentence was incomplete. Only one of the three appellants
could recall evidence led at the trial and therefore participate in reconstruction of the
record.
168
Held, that the court was entitled to receive evidence in terms of the enabling statutes, ss
304(2)(b) read with s 309B(3) of the Criminal Procedure Act 51 of 1977, and s 22 of the
Supreme Court Act 59 of 1959 and then only in exceptional circumstances. The
circumstances in the present matter were exceptional: the appellants were present, legally
represented, agreeable to leading fresh evidence, and it was a relatively simple matter for
the mitigating circumstances to be placed before this court, those circumstances not
having been disputed by the State. If this procedure were not followed, it would result in
a remittal of the matter to the magistrates' court — with the need to summons the
appellants (from the various prisons in which they were resident) with the view to hearing
precisely the same evidence, which would be a substantial waste of time and costs. It was
accordingly ruled that the evidence of the second appellant (who could assist the
appellate court with reconstruction) was to be received in the form of reconstruction of
the record and in the form of fresh evidence, while the evidence of the other two
appellants (who could not assist the appellate A court with reconstruction) was also to be
received, as fresh evidence.
Held, further, that in dealing with expert evidence, the expert's function was not to decide
the case but provide the court with the tools to assist it in deciding the case — here only
insofar as the court required assistance with the skills it used in comparing the pictures
with the appellants. The extent to which the opinions advanced by an expert were to be
accepted would depend upon whether, in the judgment of the court, those opinions were
founded on logical reasoning or were otherwise valid. It was furthermore important to
bear in mind the distinction between scientific and judicial measures of proof.
Held, further, that because robbery with aggravating circumstances, was a prevalent
offence in the present society, steps had been taken to stamp it out, hence the minimum
sentence legislation and the serious efforts made by the police force of this country to
arrest, detain and deal with perpetrators. The effect of a lengthy period of imprisonment
also had the added salutary purpose of removing such persons from society, thereby
preventing them from committing further crimes. At the same time one had to have
regard to the need of not becoming enraged by the activities of the offenders, instead
considering the punishment to be imposed with measured control and a degree of mercy.
Case Information
Appeal from convictions and sentences in a magistrates' court. The facts appear from the
reasons for judgment.
Makhubu v S
[2012] JOL 29143 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 475 / 2011
10 / 05 / 2012
South Africa
High Court
South Gauteng, Johannesburg
CJ Claassen, R Mokgoatlheng, Z Carelse JJ
Keywords:
Criminal law – Armed robbery – Murder – Attempted murder – Conviction and sentence– Appeal –
Fingerprint evidence
Mini Summary:
In March 1999, a cash-in-transit vehicle was robbed in an armed robbery. A shootout erupted between the
robbers and the security guards, during which one of the security guards and one of the attackers were
169
killed. The appellant was one of five men charged with various offences arising from the incident. He was
convicted in the court a quo on counts of murder, attempted murder, robbery with aggravating
circumstances, unlawful possession of forearms and unlawful possession of ammunition. He was
sentenced to an effective term of life imprisonment. He appealed against his convictions and sentences.
The single question for decision was whether or not the court a quo was correct in finding that the
appellant was one of the attackers on the day of the armed robbery. The appellant raised an alibi as a
defence. That defence was rejected largely on the basis of evidence that fingerprints belonging to the
appellant were found on the getaway vehicles.
Held that the appellant did not deny that the fingerprints found were his, and offered no explanation for
the presence of the prints on the vehicle. Since the appeal against the conviction of the appellant centred
around the evidence of fingerprints exclusively, the court a quo was justified in finding that the
fingerprints of the appellant were found on the armoured vehicle on the day of the incident. The appeal
against conviction was dismissed.
In the appeal against sentence, the Court found no grounds to interfere with the sentences imposed.
The appeal was thus dismissed.
S v Jones 2004 (1) SACR 420 (CPD) – expert evidence – opinions expressed in text
books are hearsay unless confirmed by expert under oath ie. “battered woman syndrome”.
S v Gouws – 1967(4) SA 527 (C) – defined expert witness and value of evidence. Expert
is witness who possess knowledge in a specialized field.
S v September – 1996(1) SACR 325 (A) – courts should not blindly accept and act on
evidence of expert.
94) EXPLOSIVES
95) EXTRADITION
Tsebe & another v Minister of Home Affairs & others
[2011] JOL 27911 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
27682 / 10
22 / 09 / 2011
South Africa
High Court
South Gauteng High Court, Johannesburg
PM Mojapelo DJP, CJ Claassen J, G Bizos AJ
Keywords:
Public international law – Extradition – Extradition treaty – Death penalty
Mini Summary:
In each of two applications before the court, the issue was the obligation of the South African State under
the Constitution, read with international law, regarding the extradition or deportation of a foreign national
who is also a fugitive of justice to a State where he is at risk of being subjected to the death penalty. The
applicants contended that under the Constitution no removal of any sort may occur in such circumstances,
while the respondents contended the contrary.
Held that the matter concerns the relationship between two African states, South Africa as the requested
state and Botswana as the requesting state. The dispute required an interpretation of the extradition
treaty in existence between the two states as well as their respective constitutions and domestic laws
coupled with an appropriate application of international law.
Extradition matters are a combination of national and international law. On the one hand, extradition itself
occurs between two nations and extradition agreements or treaties usually exist between the nations
concerned (as with South Africa and Botswana). On the other hand, the actual decision whether to
170
extradite and to enforce such extradition is performed in terms of the national law of the country
requested to extradite the person concerned.
Section 233 of our Constitution states that international law binds South Africa insofar as it is not in
conflict with the Constitution. Because the death penalty is absolutely outlawed in South Africa, any
limitations in international law to the right to life are immediately in conflict with our Constitution.
Therefore, any international law principles that may seek to justify the imposition of the death penalty by
Botswana are not binding on this court and any attempt to satisfy them would be unconstitutional.
Therefore, there can be no international law obligations on South Africa to extradite anyone to their
possible deaths at the hand of the executive of another state as it would be contrary to our Constitution
and invalid.
96) FACTUAL FINDINGS
Mnisi v S
[2014] JOL 31298 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
531 / 2012
28 / 03 / 2013
South Africa
Supreme Court of Appeal
L Mpati P, ZLL Tshiqi, Pillay JJA, Southwood, BH Mbha AJJA
Keywords:
Criminal law – Factual findings – Powers of appeal court – An appeal court can only interfere with the
factual findings of a trial court where it finds that the trial court misdirected itself on questions of facts –
Criminal law – Sentence – Failure of trial court to warn accused that he was liable upon conviction to be
sentenced in terms of the Criminal Law Amendment Act 105 of 1997 – Where no reference was made to
the Act either in the charge sheet or at the commencement of the trial, that on its own did not render the
trial or the sentencing part thereof, unfair – The ultimate test was whether or not the accused had had a
fair trial
Mini Summary:
Convicted of murder, the appellant was sentenced to 15 years’ imprisonment. His appeal to the high court
failed, but leave was granted to appeal to the present Court against conviction and sentence.
The appellant had fired a single shot at a person at a taxi rank, killing him. The question was whether the
appellant was acting in self-defence, as alleged by him. Two state witnesses provided insight into the
circumstances surrounding the shooting. One of them was an eye-witness to the shooting, and testified
that the appellant had approached the deceased and when he was approximately three metres from him,
produced a pistol from his waist, pointed it at the deceased who was then facing him, and shot him. The
witness disputed the appellant’s contention that the deceased had produced a firearm which he pointed at
the appellant shortly before the latter produced his and shot the deceased. He therefore disputed the
appellant was acting in self-defence. The second witness did not witness the actual shooting, but testified
that the appellant had followed the deceased to the back of the vehicle from which they just alighted. The
witness then heard a gunshot and when he went to investigate, he saw the body of the deceased on the
ground. Immediately after the shooting he saw the appellant run away from the scene whilst being chased
by a crowd of people consisting mainly of other taxi drivers and owners.
Held that the appellant’s version of events was unsatisfactory. He contradicted himself and gave different
versions on the important aspect about when exactly did the deceased produce his firearm. He could not
furnish any reasons as to why he followed the deceased to the back of the vehicle after the deceased had
allegedly threatened to kill him whilst they were still inside the vehicle.
An appeal court can only interfere with the factual findings of a trial court where it finds that the trial court
misdirected itself on questions of facts. The Court was unable to fault the trial court’s finding and
conclusion. The trial court correctly accepted the state witness’ evidence as both truthful and reliable. The
appellant’s version that the deceased had produced a firearm which he pointed at him could therefore not
reasonably possibly be true. It was in fact false beyond reasonable doubt. His defence of self-defence was
accordingly rejected, and the appeal against conviction failed.
In the appeal against sentence, the appellant did not pursue the point raised in his heads of argument,
but raised a completely new ground of appeal. That ground was that the trial court never warned the
appellant adequately, or at all, that he was liable upon conviction to be sentenced in terms of the Criminal
Law Amendment Act 105 of 1997. The charge of murder did fall within the purview of the section 52(2) of
the act, which prescribes a minimum sentence of 15 years’ imprisonment for a first offender, unless there
were substantial and compelling circumstances justifying the imposition of a lesser sentence. While no
171
reference was made to the act either in the charge sheet or at the commencement of the trial, that on its
own did not render the trial or the sentencing part thereof, unfair. The ultimate test was whether or not
the accused had had a fair trial. In the present case, even if it were to be held that the act was not
applicable, the sentence of 15 years’ imprisonment was within the ordinary jurisdiction of the trial court
and was not shockingly inappropriate in light of the relevant facts and circumstances of this case. An
appeal court cannot, in the absence of a material misdirection by the trial court, approach the question of
sentence as if it were the trial court and then substitute the sentence arrived at simply because it prefers
to do so. To do so, so the Court held, would be to usurp the sentencing discretion of the trial court.
The appeal was thus dismissed.
97) FAILURE TO APPEAR IN COURT
S v Mkhavele
[2008] JOL 22248 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 623 / 08
01 / 08 / 2008
South Africa
High Court
Transvaal Provincial
BR Southwood, BR du Plessis JJ
Keywords:
Criminal procedure – Assault with intent – Failure to appear in court – Conviction and sentence – Review
Mini Summary:
Convicted of assault with intent to do grievous bodily harm, the accused was sentenced to pay a R4 000
fine or undergo 16 months' imprisonment. Before the trial commenced the accused was also convicted of
a contravention of section 72(2)(a) of the Criminal Procedure Act 51 of 1977 (failing to appear in court)
and was sentenced to a R1 500 fine or 3 months' imprisonment.
Held that the magistrate had not complied with the duties required of him in enquiring into the
contravention of section 72(2)(a). The court set out the relevant requirements, and held that the
summary enquiry conducted by the presiding magistrate was not conducted in accordance with those
principles and was not fair. The conviction and sentence were set aside.
On the main case, the court found that the conviction should be confirmed, but the sentence was
excessive. A more appropriate sentence was substituted.
98) FAILURE TO TESTIFY
Naude & another v S
[2010] JOL 26421 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
488 / 10
16 /11 / 2010
South Africa
Supreme Court of Appeal
MS Navsa, RW Nugent JJA, K Pillay AJA
Keywords:
Criminal procedure – Murder and attempted murder – Appeal against conviction – Proper test is that an
accused is bound to be convicted if the evidence establishes his guilt beyond reasonable doubt, and must
be acquitted if it is reasonably possible that he might be innocent –Evidence – Assessment of – Failure by
accused to testify in circumstances calling for an answer – Where evidence is credible and calls for an
answer, the decision of the accused not to testify strengthens the prosecution’s caseS v Van der Meyden
1999 (1) SACR 447 (W) – FollowedS v Van Aswegen 2001 (2) SACR 97 (SCA) – Referred toS v Trainor
2003 (1) SACR 35 (SCA) – Referred toS v Crossberg 2008 (2) SACR 317 (SCA) – Referred toS v Chabalala
2003 (1) SACR 134 (SCA) – Referred toS v Boesak 2001 (1) SACR 1 (CC) – Referred toMapande v S
(046/10) [2010] ZASCA 119 (29 September 2010) – Referred to
Mini Summary:
172
In May 2004, an attack on a house left four dead and one survivor sustaining 25 gunshot wounds. The
survivor (“the complainant”) identified one of the assailants (“Moosa”), and he and the two appellants
were subsequently convicted of four counts of murder and one of attempted murder. The first appellant
was sentenced to an effective 20 years’ imprisonment, while the second appellant was effectively
sentenced to life imprisonment.
Both appellants appealed against their convictions on the basis of the insufficiency of the evidence against
them, and the first appellant also appealed against his sentence.
The state led evidence that Moosa’s friendship with the complainant’s brother (who was one of the victims
of the attack) had soured and that Moosa had planted the notion in the second appellant’s head, that the
latter’s girlfriend was romantically involved with the complainant’s brother.
An important part of the state’s case against Moosa and the appellants was the testimony of the first
appellant’s girlfriend, who testified that the appellants had left her home at approximately midnight of the
night preceding the morning of the shooting. When they did not return as she had expected them to, she
called the second appellant on his cellular phone. She testified that the appellants and second appellant’s
girlfriend returned to her home between 5am and 5:30am in the morning.
The testimony of the second appellant’s girlfriend differed from that of the first appellant’s girlfriend in
certain material respects. While she did not account for the presence of Moosa and the first appellant at
the times material to the case, she alleged that the second appellant had been asleep throughout, thereby
providing an alibi for him.
Other evidence adduced by the prosecution included a neighbour’s account of what she heard on the
morning in question, and a third party’s testimony that the second appellant had told him that he had
committed a massacre.
In the face of all the evidence adduced by the state, the appellants and Moosa had decided not to testify
in their own defence.
Held that in order to determine the correctness of the convictions and the sentence imposed, it was
necessary to have regard to the material parts of the evidence adduced by the state and to the factors
associated with sentencing.
As set out in case law, the proper test is that an accused is bound to be convicted if the evidence
establishes his guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is
reasonably possible that he might be innocent. It was found that in assessing the evidence before it, the
trial court had correctly considered the totality of evidence and left none of the material evidence out of
account.
The court pointed to improbabilities in the evidence of the second appellant’s girlfriend. It noted that she
was still in a relationship with the second appellant and had a child by him. She was clearly an interested
party with a motive to lie.
On the other hand, the testimony of the first appellant’s girlfriend was found to be credible. Even the
second appellant was unable to submit that her evidence was untruthful. He was constrained to argue only
that it was reasonably possible that she might have been mistaken. The court rejected that submission.
All the evidence set out above was considered by the court below and it was careful in its detailed
evaluation. The court below was very aware that it was dealing with a number of witnesses who
themselves were implicated in offences in respect of which they were required to be warned in terms of
section 204 of the Criminal Procedure Act 51 of 1977. The court was conscious of the need to be cautious
in evaluating the evidence of a single witness, particularly one seeking indemnity.
It was submitted on behalf of the appellants that because of the conflict in the evidence of the appellants’
respective girlfriends, both of whom were state witnesses, a successful prosecution was precluded. The
submission was held to be fallacious. The second appellant’s girlfriend’s evidence was rightly rejected.
The present court agreed with the trial court that the state had produced weighty evidence against the
appellants, which called for an answer. The appellants had been in the company of Moosa, against whom
the evidence was damning. On the evidence before the court, the inference was irresistible, in the absence
of an explanation from them, that they were with him at all relevant times. The evidence against the
appellants established their association with Mr Moosa in the perpetration of the murders. It undoubtedly
called for an answer, which was not forthcoming. Consequently, both appeals against convictions had to
fail.
The first appellant’s appeal against his sentence was also dismissed, the court going as far as to suggest
that the trial court may have been too generous with him.
S v Mahlangu and another
[2012] JOL 29277 (WC)
Case Number:
Judgment Date:
CC 70 / 2010
22 / 05 / 2012
173
Country:
Jurisdiction:
Division:
Bench:
South Africa
High Court
Western Circuit
JP Horn J
Keywords:
Criminal law – Rights of accused – Right to remain silent – Adverse inference – Evidence – Court’s
assessment of – Approach to be adopted
Mini Summary:
The accused were charged with housebreaking with intent to rob and robbery with aggravating
circumstances, murder and attempted robbery with aggravating circumstances, in a highly publicised
case. The victim (“the deceased”) was a public figure as a result of his close connections with the
Afrikaanse Weerstandsbeweging. The accused were employed by the deceased.
Held after considering the evidence adduced by the parties, that in assessing the evidence, the court
looks at all the evidence, ie the evidence presented by the state on the one hand and the evidence by the
accused on the other hand. The probabilities will also be important. Should the Court, after considering all
the evidence, be satisfied that the state proved its case beyond a reasonable doubt, only then will the
Court be in a position to issue its verdict.
The state’s evidence against the first accused was formidable. Faced with the overwhelming body of
evidence, the first accused failed to give any explanation. While it is an accused’s constitutional right to
remain silent, where the evidence against an accused is so overwhelming, an accused’s failure to answer
those allegations can be a factor that may weigh against the accused when the Court considers his guilt or
innocence. The first accused’s failure to proffer any explanation led to the conclusion that he committed
the crimes attributed to him.
The Court then gave its reasons for rulings made on the admissibility of pointings out made by the
accused. Only those made by the first accused were admissible.
Regarding the charges against the second accused, the Court found that he did not take any real or active
part in the assault on the deceased. The only reasonable inference to be drawn from the evidence, was
that the second accused, on the day in question, broke into the house of the deceased with the intention
to steal from him.
Therefore, while the first accused was convicted as charged, the second accused was acquitted of all
charges other than housebreaking with intent to rob and robbery.
Ndinayo v S
[2012] JOL 29124 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 330 / 2010
27 / 07 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
PT Mageza AJ & R Pillay J
Keywords:
Criminal law – Sentence – Appeal – Severity of sentence – Evidence – Fingerprint evidence – Probative
value
Mini Summary:
The appellant was convicted of housebreaking with to steal and theft and was sentenced to five years’
imprisonment.
Hand and finger prints lifted from the scene of the crime led the police to the appellant. On appeal, the
defence argued that insofar as the only evidence relied upon was the fingerprints, the state had not
proved its case beyond a reasonable doubt.
Held that at issue in the appeal was the probative value of fingerprint evidence and the sufficiency thereof
where an accused elects not to testify. The principles governing inferences are that the inference sought
to be drawn must be consistent with all the proven facts, and it must be the only inference which
reasonably be drawn from the facts. In assessing circumstantial evidence, the Court must guard against
approaching such evidence on a piece-meal basis.
In not explaining the presence of his finger-print in the property broken into, the appellant ran the risk of
the only evidence before the Court being his finger-print linking him to the crime. Any suggestion that
there must be another explanation must be based on acceptable evidence. In the absence of such
evidence, the suggestion would be mere speculation. The Court found that the only evidence before it
place the appellant at the scene of the crime. The appeal against conviction was thus dismissed.
174
Setting out the established principles applicable to the imposition of sentence, the Court found the
sentence of five years’ imprisonment to be too harsh. The sentence was set aside and a sentence of five
years’ imprisonment was imposed in its stead.
Mlimo v S
[2008] JOL 21505 (SCA)
Case Number:
454 / 2007
Judgment Date:
18 / 3/ 2008
Country:
South Africa
Jurisdiction:
Supreme Court of Appeal
Division:
Bench:
Farlam, Mthiyane JJA, Kgomo AJA
Keywords:
Criminal law – Murder – Attempted murder – Conviction and sentence – Appeal
Mini Summary:
The appellant was convicted of murder and attempted murder and sentenced to life imprisonment for
murder and twelve years' imprisonment for attempted murder. He appealed against his convictions and
sentences.
Held that the evidence adduced by the State established that the complainant was shot and her husband
killed, with a firearm registered in the appellant's name. The appellant opted not to testify, and there was
therefore nothing to counter the evidence linking him to the incident.
The appeal was dismissed.
99) FAIR TRIAL
Machongo v S
[2015] JOL 32552 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
20344/14
21 / 11 / 2014
South Africa
Supreme Court of Appeal
Shongwe JA, Mathopo, Gorven AJJA
Keywords:
Criminal procedure – Rights of accused – Failure to forewarn or to mention the applicability of the
minimum sentence is a fatal irregularity resulting in an unfair trial in respect of sentence – Appeal court
free to consider sentence afresh in face of such irregularity – Court must adjudicate afresh the issue of
sentence as if not considered before
Mini Summary:
The appellant was convicted of murder and robbery with aggravating circumstances. He was sentenced to
life imprisonment on the murder count and 20 years’ imprisonment on the remaining count. Special leave
was obtained, to appeal against sentence only. The main ground of appeal to the full court was that the
trial court erred in relying on the provisions of section 51(1) of the Criminal Law Amendment Act 105 of
1997 (“the Act”) because no mention was made in the indictment to inform the appellant of the
applicability of the Act, nor did the trial judge warn the appellant of its applicability. In granting leave to
the full court, the trial judge acknowledged that he erred in applying the provisions of the Criminal Law
Amendment Act. The appellant contended that failure to mention and to warn him of those provisions ipso
facto resulted in a miscarriage of justice.
The facts underlying the charges involved the appellant and two others robbing the owner of a vehicle in
order to steal the vehicle and use it for spare parts. They overpowered the vehicle’s owner and
dispossessed him of his firearm. The appellant took the firearm and a shot was fired, killing the deceased.
Held that failure to forewarn or to mention the applicability of the minimum sentence is a fatal irregularity
resulting in an unfair trial in respect of sentence. The appeal court must then consider sentence afresh. In
this matter, the full court applied the incorrect test in holding that a court of appeal will only interfere
when the sentence imposed by the trial court is vitiated by an irregularity or misdirection or when the
sentence is shockingly severe, disturbingly inappropriate and totally out of proportion to the offence
committed. Considering a sentence afresh must mean, setting aside of the sentence of the trial court,
inter alia, and conducting an inquiry on sentence as if it had not been considered before. In other words,
the appeal court must disabuse itself of what the trial court said in respect of sentence – it must
175
interrogate and adjudicate afresh the triad in respect of sentence. What the full court did was not
considering the sentence afresh, but comparing what it had in mind with what was imposed.
As the trial court had erred and misdirected itself in respect of sentence as the appellant had not been
forewarned of the applicability of the Act, and the full court erred in its approach by using an incorrect test
when sentencing the appellant afresh, the present Court was free to consider the sentence as if it had not
been considered before.
The Court considered the personal circumstances of the appellant, and the nature of the offence. It was
noted that the appellant was a first offender, but had master-minded the plan to rob and steal vehicles
with an intention to strip the vehicles and sell the parts. The agreement with his fellow perpetrators was
that if they could not steal it they would take it by using force – so violence was envisaged. The offence of
murder is a serious one. The Court was clear that the interests of society need to be protected. The
sentence to be imposed had to be balanced without over-emphasising one part of the triad over another.
The objects of punishment – retribution, rehabilitation and deterrence also must be balanced.
Finding that the aggravating factors far outweighed the mitigating factors, the Court imposed a sentence
of 25 years’ imprisonment on the murder charge and 15 years’ imprisonment on the robbery charge. The
sentences were to run concurrently.
Ramaite v S
[2014] JOL 32361 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
958 / 2013
26 / 09 / 2014
South Africa
Supreme Court of Appeal
NP Willis, A Cachalia JJA, I Schoeman AJA
Keywords:
Criminal procedure – Trial – Rights of accused – Explanation of rights – Duty of presiding officer to
properly explain right to legal representation – Failure to properly explain right amounting to irregularity
which tainted conviction and prejudiced accused, resulting in conviction and sentence being set aside on
appeal
Mini Summary:
The appellant was convicted of the rape of an 11-year-old girl. As the complainant was under the age of
sixteen years, section 51 of the Criminal Law Amendment Act 105 of 1997 applied, with life imprisonment
being the prescribed minimum sentence. The prescribed minimum sentence having been imposed, the
appellant appealed against his conviction and sentence.
Several grounds of appeal were raised mainly relating to the irregular conduct of the trial. It was
contended that the regional court magistrate had failed to apprise the appellant of his right to legal
representation before the trial commenced; properly to explain his right to cross-examination; and to
assist the appellant when it was clear that the appellant did not know how to cross-examine the
witnesses.
Held that the record reflected that before the trial commenced the prosecutor informed the magistrate
that the appellant had previously indicated that he wished to conduct his own defence. Although the
magistrate confirmed that that was still the case, he neither informed the appellant what the
consequences of proceeding with the trial without the assistance of a legal representative were, nor
encouraged him to obtain the services of a legal representative, before he was made to plead to the
charge. Although the magistrate explained to the appellant after he had pleaded that if convicted, the
matter would be transferred to the High Court and he could face a prescribed minimum sentence of life
imprisonment, that was merely communicated to the appellant as a matter of fact, and not with a view to
encourage him to obtain legal representation owing to the seriousness of the charge and the
consequences that would ensue in the event of him being convicted. The right to legal representation is
entrenched in the Constitution, which includes the right to choose and be represented by a legal
practitioner; and to have a legal practitioner assigned to the accused person by the State and at State
expense if substantial injustice would otherwise result, and to be informed of these rights promptly. Even
if a judicial officer believes that an accused is aware of his rights, the right to legal representation must
nevertheless be properly explained to him, in open court. If the accused chooses not to have legal
representation in serious cases, it is incumbent on the presiding officer to inform an accused of the
seriousness of the charges and advise him to make use of a legal representative. Finding that the
magistrate failed in his duty to properly inform the appellant of his rights in respect of legal representation
and the consequences of not exercising those rights, the court held that such failure constituted a material
irregularity.
176
Turning to consider the legal effect of the irregularity, the court pointed out that failure by a presiding
judicial officer to inform an unrepresented accused of his right to legal representation, if found to be an
irregularity, does not per se result in an unfair trial necessitating the setting aside of the conviction on
appeal. It must be shown that the irregularity tainted the conviction and that the appellant had been
prejudiced thereby. The court therefore examined the further conduct of the trial to evaluate how it was
conducted in the absence of legal representation for the defence. It was noted that the appellant was an
unsophisticated person with no understanding of the law or the legal processes. That showed in his
attempts to conduct cross-examination. A presiding officer is not merely an observer but has a duty to
prevent unfair questioning of an accused. He is required to stop a prosecutor from asking unfair questions
and putting incorrect statements to an accused, especially if there is no legal representative to object on
behalf of an accused. The court found that in this case, proper legal representation might have made a
difference in the presentation of the appellant’s defence.
On the ground that the irregularity in the conducting of the trial was fatal to the conviction, the court
upheld the appeal and set aside the conviction and sentence.
In a minority judgment, a contrary view was expressed. The judge did not agree that the trial court had
committed any irregularities such that would vitiate the conviction.
S v Raisi
[2014] JOL 32330 (FB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
133 / 2014 (B)
14 / 08 / 2014
South Africa
High Court
Free State, Bloemfontein
A Kruger J, IMM Motloung AJ
Keywords:
Criminal procedure – Criminal proceedings – Irregularities – Review
Mini Summary:
The accused was charged with robbery, and was subsequently convicted and sentenced after a plea of
guilty was entered. The matter was sent on special review by the senior magistrate.
Held that the senior magistrate correctly found that veracious irregularities occurred during the
proceedings. At no stage was the charge ever put to the accused and he was not asked whether he
understood the charge. It was also clear that the accused disclosed a defence during his plea. At no stage
were the rights of the accused before sentence explained to him. He was not given an opportunity to
address the court before sentence.
The number, nature and extent of the irregularities were such that the conviction and sentence had to be
set aside. The rights of the accused were disregarded at a number of stages, and the accused should not
have been convicted or sentenced without being afforded a fair trial.
Larry v S
[2014] JOL 31966 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 573 / 2013
13 / 06 / 2014
South Africa
High Court
Western Cape, Cape Town
LJ Bozalek J, CTS Cossie AJ
Keywords:
Criminal law – Sexual assault – Conviction – Appeal
Mini Summary:
The appellant was convicted of contravening section 5(1) of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007 and was sentenced to three years’ imprisonment wholly
suspended for a period of five years. He appealed against his conviction.
Held that on appeal, the appellant alleged that the trial court had prevented his attorney from properly
conducting his defence. A reading of the record showed that the magistrate at times kept a tight rein on
the appellant’s attorney’s cross-examination but nevertheless gave him a full opportunity to crossexamine the complainant and her witness, including cross-examination on alleged discrepancies between
the complainant’s statement to the police and her viva voce evidence. It could not be found that there was
a material irregularity in the trial.
177
The remaining grounds of appeal were that the magistrate erroneously found that the evidence of the
complainant was sufficiently satisfactory and credible to secure a conviction and that she failed to take
proper cognisance of the value of the evidence of the appellant’s witness, that she over-emphasised the
discrepancies in the evidence of the appellant and failed to properly apply the onus that rested on the
state. The Court found no merit in any of the said contentions, and dismissed the appeal.
In S v Selemana 1975 (4) SA 908 (T) it was stated (at 909A–B) that:
The magistrate must be exceptionally careful when refusing to allow an
accused to call a witness. In particular, when the accused is
unrepresented, the magistrate, before refusing such a request, should
make certain that such a witness cannot possibly give relevant evidence.
If the court is not careful to observe this obligation, a miscarriage of
justice may result: S v Tembani 1970 (4) SA 395) (E). Indeed, the denial
of such an opportunity is in itself a gross irregularity in the proceedings:
District Commandant, South African Police, and Another v Murray 1924
AD 13 at 18; S v Vezi 1963 (1) SA 9 (N) at 12.
Mthimkhulu v S
[2014] JOL 31366 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
547 / 12
04 / 04 / 2013
South Africa
Supreme Court of Appeal
XM Petse, LE Leach, MML Maya, JB Shongwe JJA, Mbha AJA
Keywords:
Criminal law – Rights of accused – Right to fair trial – Whether accused should have been heard before the
High Court invoked section 276B(2) of the Criminal Procedure Act 51 of 1977 – Parties entitled to be
heard on whether or not to fix a non-parole period and the length of such period – Criminal law –
Sentence – Fixing of non-parole period of imprisonment – Whether section 276B(2) of the Criminal
Procedure Act 51 of 1977 impels a court which sentences a person to imprisonment, following a conviction
for two or more offences where the sentences of imprisonment are ordered to run concurrently, to fix a
non-parole period in respect of the effective period of imprisonment – Section 276B(2), properly
construed, does not oblige a sentencing court to fix a non-parole period in respect of the effective period
of imprisonment as a matter of routine whenever it has ordered two or more sentences imposed on a
convicted person to run concurrently, but does enjoin a sentencing court, once it has exercised its
discretion under section 276B(1)(a) against the convicted person, to then fix the non-parole period in
respect of the effective period of imprisonment taking cognisance of the provisions of section 276B(1)(b) –
Statutes – Interpretation of – Purposive and contextual approach confirmed – Courts must also adopt a
construction that is consistent with the Constitution, and in the context of a criminal trial courts are dutybound to prefer an interpretation that promotes the accused’s right to a fair trial –
Mini Summary:
The appellant was convicted on one count of murder, possession of a fully automatic firearm without a
licence to possess such firearm and possession of five rounds of live without the required licence. He was
sentenced to 20 years’ imprisonment on the murder count and five years for both unlawful possession of a
prohibited firearm and ammunition. The High Court directed that the term of five years’ imprisonment in
respect of the latter two counts run concurrently with the 20 years’ imprisonment imposed in respect of
the murder count. It then proceeded to fix a non-parole period of 13 years. With leave of the court below,
the appellant appealed against that order.
Held that the starting point in the present enquiry had to be the provisions of section 276B of the Criminal
Procedure Act 51 of 1977. The principal issue for determination was whether section 276B(2) impels a
court which sentences a person to imprisonment, following a conviction for two or more offences where
the sentences of imprisonment are ordered to run concurrently, to fix a non-parole period in respect of the
effective period of imprisonment. The subsidiary issue was whether or not the appellant had a right to be
heard before the court below invoked section 276B(2) of the Act.
178
The High Court felt itself bound to fix a non-parole period in respect of the effective term of 20 years’
imprisonment imposed on the appellant, because it had ordered the sentences to run concurrently and
believed that the use of the word “shall” in section 276B(2) made the fixing of a non-parole period
peremptory. The question was whether the language of subsection 2, viewed in the context of section
276B, can sustain the meaning attributable to it by the court below. That entailed undertaking a proper
interpretation of the section.
Referring to case authority, the court confirmed that, in interpreting statutory provisions, the purpose of
the Act and contextual considerations may be looked at. Moreover, courts must adopt a construction that
is consistent with the Constitution. And in the context of a criminal trial courts are duty-bound to prefer an
interpretation that promotes the accused’s right to a fair trial. The approach to be adopted is thus to study
the terms of the statutory provision, examine what led to the enactment to ascertain the object it was
intended to achieve, and to draw logical inference from the context of the whole of the section. In this
case, the latter step involved examining section 276B as a whole and the use, in section 276B(2) of the
definite article “the”’, in the phrase “fix the non-parole period” - which can only denote the non-parole
period determined in terms of section 276B(1)(a) of the Act. That made it clear that the legislature did not
intend to fetter the discretion conferred on a sentencing court by section 276B(1)(a) of the Act in the way
that the court below postulated. Section 276B(2), properly construed, does not oblige a sentencing court
to fix a non-parole period in respect of the effective period of imprisonment as a matter of routine
whenever it has ordered two or more sentences imposed on a convicted person to run concurrently. What
the section does is to enjoin a sentencing court, once it has exercised its discretion under section
276B(1)(a) against the convicted person, to then fix the non-parole period in respect of the effective
period of imprisonment taking cognisance of the provisions of section 276B(1)(b).
The court then addressed the question of whether the appellant should have been heard first on at least
two interrelated issues before the High Court invoked section 276B(2) of the Act. It was common cause
that the parties were not afforded the opportunity to be heard in regard to the non-parole period. A court
should only exercise its discretion to impose a non-parole period in exceptional cases, and in this case
there were numerous factors which operated against the exercise of the discretion against the appellant.
There were no exceptional circumstances present which would justify the High Court exercising its
discretion under section 276B(1)(a) to fix a non-parole period.
The appeal was upheld and the order of the court below fixing a non-parole period of 13 years was set
aside.
Mapule v S
[2012] JOL 29242 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
817 / 11
30 / 05 / 2012
South Africa
Supreme Court of Appeal
S Snyders, FDJ Brand, NZ Mhlantla JJA, BR Southwood, XM Petse AJJA
Keywords:
Constitutional law – Right to fair trial – Section 35 of Constitution – Fairness demands that the accused be
informed right at the outset of the trial, of the charge faced – Criminal law – Sentence – Minimum
sentence provisions in Criminal Law Amendment Act 105 of 1997 – Applicability – Where complainant not
proved beyond reasonable doubt to have been under the age of 16 years at the time of the incident, and
State did not prosecute appellant for rape of a girl under the age of 16 years in terms of section 51(1)
read with Part I Schedule 2 of the minimum sentence legislation, such legislation not applicable
Mini Summary:
After the appellant was convicted of rape, the case was referred to the high court in terms of the minimum
sentence provisions of the Criminal Law Amendment Act 105 of 1997, the Court sentenced the appellant
to life imprisonment. Although leave to appeal was initially granted only against the conviction, a
subsequent application for leave to appeal against sentence was granted. After the appeal was heard, an
order was made dismissing the appeal against conviction, but upholding the appeal against sentence.
Reasons for that order were now furnished by the Court.
Held that the charge sheet made no mention of the complainant’s age or the provisions of the minimum
sentence legislation. The obvious hearsay and unreliable evidence by the complainant that she was 12
years old at the time of the incident, was gainsaid by the doctor who examined her. The state failed to
tender reliable evidence to resolve the uncertainty regarding the complainant’s age. Thus, when,
subsequent to conviction, the magistrate advised the appellant of his rights and said that because the
complainant was 12 years old at the time of the incident, the provisions of the minimum sentence
legislation compelling the imposition of life imprisonment had to be applied, he erred in two respects.
First, the complainant was not proved beyond reasonable doubt to have been under the age of 16 years at
179
the time of the incident. Second, the state did not prosecute the appellant for the rape of a girl under the
age of 16 years in terms of section 51(1) read with Part I Schedule 2 of the minimum sentence legislation.
The high court erred in the same respects.
The wording of the minimum sentence legislation makes it clear that it applies to persons convicted of the
offences listed in the schedules. The particular crime a person is convicted of is therefore a jurisdictional
fact essential to the application of the various sentences prescribed in the minimum sentence legislation.
As the appellant was not charged with nor convicted of the rape of a girl under the age of 16, the
minimum sentence of life imprisonment did not apply.
The right to a fair trial is entrenched in section 35 of the Constitution. At no stage prior to his conviction
was it brought to the appellant’s attention that he could be sentenced by the high court or that he could
be sentenced to life imprisonment. To be informed, right at the outset of the trial, of the charge faced, is
one of the demands of fairness.
As a result of the failure referred to above, the appellant could only be convicted of rape (and not rape of
a girl under the age of 16). In terms of section 51(2)(b) of the of the Criminal Law Amendment Act, such
a conviction attracts a minimum sentence of 10 years’ imprisonment in the absence of substantial and
compelling circumstances. Even if no regard was had to the minimum sentence legislation, the court was
of the view that a discretionary sentence of 10 years’ imprisonment would be appropriate in the
circumstances. That led to the reduction of sentence on appeal.
S v Didloff
[2011] JOL 27817 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 136 / 2011
27 / 05 / 2011
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen, N Dambuza JJ
Keywords:
Criminal procedure – Murder trial – Assessors – Election of accused
Mini Summary:
The accused was charged with assault with intent to do grievous bodily harm and murder. The trial
proceeded in the regional court and the accused was convicted as charged. Subsequent to the conviction
and prior to sentencing, the presiding magistrate passed away and another magistrate was designated to
proceed with the trial to its conclusion. That magistrate found from a perusal of the record, that an
irregularity had occurred in the proceedings.
Held that section 93ter(1) of the Magistrate’s Court Act 32 of 1944 required the magistrate to summons
the assistance of two assessors as the accused was charged with murder. That provision is subject to the
right to the right of the accused to expressly elect to proceed without the assessors. The peremptory
requirement was not followed b the magistrate in this case.
The consequence of the irregularity has given rise to divergent views. However, the Court found that there
was nothing preventing the accused from now making the election regarding whether or not to proceed
without assessors. There was therefore nothing preventing the matter proceeding to finality.
Frans v S
[2010] JOL 26340 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 229 / 09
17 / 05 / 2010
South Africa
High Court
Eastern Cape, Grahamstown
PW Tshiki, E Revelas JJ
Keywords:
Criminal procedure – Housebreaking with intent to assault – Assault with intent –– Common assault ––
Charge sheet –– Substitution of charges –– Irregularity –– Appeal
Mini Summary:
The appellant was convicted of housebreaking with intent to assault and assault with intent to do grievous
bodily harm, and was sentenced to three years’ imprisonment, one year of which was conditionally
suspended.
180
The charge sheet reflected the charges as housebreaking with intent to assault and assault. After the
appellant pleaded not guilty, the court enquired from the prosecutor whether the charge was
housebreaking with intent to assault and assault with intent to do grievous bodily harm, which the
prosecutor confirmed.
The present appeal was against conviction and sentence.
Held that the trial court’s substitution of the charge with a more serious one without seeking the views of
the appellant’s representative was an irregularity. The conviction on the more serious charge was set
aside and the conviction was replaced with one of common assault. The court went on to confirm the
correctness of such conviction, based on the evidence against the appellant.
Despite the amendment to the conviction, the court found the sentence to remain appropriate. The appeal
against sentence was thus dismissed.
S v Tsukulu & others
[2010] JOL 26357 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
99 / 10
10 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Theron J, Ngwenya AJ
Keywords:
Criminal procedure – Protected plants – Unlawful possession – Conviction and sentence– Review
Mini Summary:
The accused were charged in terms of the provisions of the Natal Conservation Ordinance 15 of 1974, and
the Trespass Act 6 of 1959. The specific offences with which they were charged were the unlawful
gathering of specially protected indigenous plants; unlawful possession of specially protected indigenous
plants; trespassing on land to gather specially protected indigenous, plants alternatively; and the unlawful
gathering of indigenous plants on a public road.
Despite the court exhorting the first accused to obtain legal representation, he refused to do so. He stated
that he would disclose the basis of his defence, provided the plants for which he was charged were
produced in court as evidence. Stating that the exhibits had been replanted, the magistrate refused the
request.
Held on review that the proceedings were not in accordance with justice, and neither the conviction nor
sentence could stand.
In the face of the demand by the accused that he see the exhibits of the plants, it was a misdirection on
the part of the trial court to rule that the plants should not be produced in court simply because they had
been replanted. A second misdirection, related to the inadequate proof of the offence. The court
highlighted the breaks in the evidence adduced regarding whether the plants found were properly
identified and if so, whether they were adequately proved to be specially protected.
The third misdirection by the magistrate pertaining to accused number one relates to the refusal by the
magistrate to allow him to lead evidence in his defence. The court showed annoyance with the first
accused’s refrain that he had evidence to lead but could only do so once the exhibits were brought to
court. In adopting the stance it did, the trial court denied the accused the right enshrined in the
Constitution. Section 25(d) of the Constitution provides that every accused person has a right to a fair
trial, which shall include the right to adduce and challenge evidence.
The conviction and sentence were set aside.
Tsebe & another v Minister of Home Affairs & others
[2011] JOL 27911 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
27682 / 10
22 / 09 / 2011
South Africa
High Court
South Gauteng High Court, Johannesburg
PM Mojapelo DJP, CJ Claassen J, G Bizos AJ
Keywords:
Public international law – Extradition – Extradition treaty – Death penalty
Mini Summary:
181
In each of two applications before the court, the issue was the obligation of the South African State under
the Constitution, read with international law, regarding the extradition or deportation of a foreign national
who is also a fugitive of justice to a State where he is at risk of being subjected to the death penalty. The
applicants contended that under the Constitution no removal of any sort may occur in such circumstances,
while the respondents contended the contrary.
Held that the matter concerns the relationship between two African states, South Africa as the requested
state and Botswana as the requesting state. The dispute required an interpretation of the extradition
treaty in existence between the two states as well as their respective constitutions and domestic laws
coupled with an appropriate application of international law.
Extradition matters are a combination of national and international law. On the one hand, extradition itself
occurs between two nations and extradition agreements or treaties usually exist between the nations
concerned (as with South Africa and Botswana). On the other hand, the actual decision whether to
extradite and to enforce such extradition is performed in terms of the national law of the country
requested to extradite the person concerned.
Section 233 of our Constitution states that international law binds South Africa insofar as it is not in
conflict with the Constitution. Because the death penalty is absolutely outlawed in South Africa, any
limitations in international law to the right to life are immediately in conflict with our Constitution.
Therefore, any international law principles that may seek to justify the imposition of the death penalty by
Botswana are not binding on this court and any attempt to satisfy them would be unconstitutional.
Therefore, there can be no international law obligations on South Africa to extradite anyone to their
possible deaths at the hand of the executive of another state as it would be contrary to our Constitution
and invalid.
Mosesi v S
[2009] JOL 23068 (W)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 994 / 04
04 / 02 / 2009
South Africa
High Court
Witwatersrand Local
M Jajbhay J, DI Berger AJ
Keywords:
Criminal procedure – Attempted extortion – Conviction – Appeal – Trial proceedings – Irregularity – Bias
of magistrate
Mini Summary:
The appellant was convicted of attempted extortion and was sentenced to pay a fine of R10 000 or
undergo three months' imprisonment.
In appealing against the conviction, the appellant contended that the magistrate had unfairly descended
into the arena and assisted the respondent with its case.
Held that every accused has a constitutional right to a fair trial. The trial court may intervene at any time
to elucidate a point, but should not take over the examination or put leading questions to support the
state case before the parties have finished their examination of the witness.
The magistrate in this case had interrupted the prosecution in the presence of a key witness, and had
engaged with a discussion, before the prosecution was done with its case, on whether the key elements of
the offence were proved. His conduct alerted the parties and in particular the state as to what the
deficiency in their case at that point in time was. This constituted a gross irregularity in the proceedings. A
court's enquiry or examination should be aimed at elucidating any points that may be obscure after
examination of the parties. In order to give the accused a fair trial a judicial officer must not only be
impartial, but be seen to be impartial.
The court concluded that the accused did not enjoy a fair trial. The conviction and sentence were thus set
aside.
Owies & another v S
[2008] JOL 22626 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
A 611 / 07
30 / 09 / 2008
South Africa
High Court
Cape of Good Hope
182
Bench:
Motala J, MI Samela AJ
Keywords:
Criminal procedure – Trial – Conduct of – Rights of accused – Violation of
Mini Summary:
The appellants were convicted of attempted robbery, murder and attempted murder, and were each
sentenced to an effective 24 years' imprisonment. They appealed against their convictions and sentence.
The grounds of appeal related to the excessive questioning of the appellants by the magistrate, and the
failure to advise the first appellant of his right to legal representation after his representative withdrew.
Held that the constitutional right to a fair trial includes the right to have a legal representative appointed
at State expense is necessary. That right is of critical importance.
The court also explained the process of questioning of the accused. In this case, the magistrate was found
to have descended into the arena and taken over the role of the prosecution.
Finding the rights of the appellants to have been violated, the court set aside the convictions and
sentences.
S v Goeieman
[2008] JOL 21997 (NC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
648 / 07
20 / 06 / 2008
South Africa
High Court
Northern Cape
LO Bosielo AJP, FE Mokgohloa AJ
Keywords:
Criminal procedure – Assault with intent – Conviction and sentence – Review
Mini Summary:
Convicted of assault with intent to cause grievous bodily harm, the accused was sentenced to
imprisonment for 6 months, wholly suspended on suitable conditions.
Held, on review that the trial proceedings were tainted by three irregularities. Two of those related to the
failure of the court to assist the accused with his plea explanation, and with his cross-examination of
witnesses. Finally, at the close of the defence case, the magistrate proceeded to give judgment without
having given either the State or the accused the opportunity to address the court on the merits of the
case.
The effect of the irregularities was that the trial was rendered unfair. The conviction and sentence were
accordingly set aside.
Broome v DPP, Cape Town and others – 2007 JOL 21012 (C) – deals with refusal of
court to grant a stay of prosecution due to unreasonably long delay in pre-conviction
stage. Question to be answered is whether accused suffered irreparable trial prejudice due
to delay.
Mbhense v S
[2008] JOL 21488 (N)
Case Number:
AR 236 / 04
Judgment Date:
05 / 02 / 2008
Country:
South Africa
Jurisdiction:
High Court
Division:
Natal Provincial
Bench:
Msimang, Pillay JJ
Keywords:
Criminal procedure – Robbery with aggravating circumstances – Conviction and sentence – Appeal –
Irregularities in trial
Mini Summary:
The appellant was convicted of the crime of robbery with aggravating circumstances, and was sentenced
to serve a term of 15 years' imprisonment.
Acting on a tip-off pursuant to an armed robbery at a private residence, the police found the appellant and
three others at the appellant's house, in the possession of the items stolen during the robbery.
183
Held, that the trial of the appellant was vitiated by a number of irregularities. The charge-sheet had not
warned the appellant that the State would rely on the minimum sentencing provision of the Criminal Law
Amendment Act 105 of 1997. The court could also not be satisfied that the appellant had properly been
apprised of the right to legal representation as the proceedings had not been properly recorded.
The appeal was allowed and the conviction and sentence set aside.
100) FAMILY VIOLENCE
S v Mazomba
[2009] JOL 23402 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R2 / 09
31 / 03 / 2009
South Africa
High Court
Eastern Cape, Bhisho
PHS Zilwa AJ, AEB Dhlodhlo ADJP
Keywords:
Criminal law – Assault with intent to do grievous bodily harm – Conviction and sentence– Review
Mini Summary:
The accused was convicted of assault with intent to do grievous bodily harm and was sentenced to pay a
fine of R3 000 or in default of payment to undergo two years' imprisonment. He was further declared unfit
to possess a firearm in terms of section 103(1) of Act 60 of 2000.
The acting senior magistrate submitted the case on special review on the grounds that the verdict of the
magistrate was incompetent in that the essential elements of the crime of assault with intent to do
grievous bodily harm were not included in the offence of contravention of a protection order which the
accused had been charged with; and that the alternative of two years' imprisonment was disproportionate
to the amount of the fine imposed.
Held that having gone through the record of proceedings and having considered the magistrate's
submissions, the court agreed that the magistrate had indeed erred in convicting the accused of assault
with intent to do grievous bodily harm in the circumstances of the case. The evidence proved the offence
of common assault rather than assault with intent.
Setting aside the conviction and sentence, the court ruled that the accused was convicted of common
assault and sentenced to pay a fine of R3 000 or in default of payment to undergo six months'
imprisonment.
Stuurman v S
[2008] JOL 21937 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 323 / 07
26 / 03 / 2008
South Africa
High Court
Eastern Cape
RJW Jones, N Dambuza JJ
Keywords:
Criminal procedure – Protection order – Violation of – Sentence – Appeal
Mini Summary:
Having been convicted of violating a protection order granted in terms of the Domestic Violence Act 116 of
1998, the appellant was sentenced to 6 months' imprisonment. He appealed against his sentence.
Held that an appeal court's power to interfere with the sentence imposed by a trial court is limited.
Having regard to the circumstances of the present case, the court was of the opinion that the magistrate
should have given greater weight to the petty nature of the assault. That, together with the appellant's
age and his clean record, should have induced her to consider a non-custodial sentence. The court
suggested that correctional supervision might be appropriate in this matter.
The magistrate's sentence of 6 months' imprisonment was set aside and the matter remitted to the
magistrate to enable her to call for such reports as might be necessary and to impose sentence afresh.
184
101) FINES
S v Maluleke
[2008] JOL 22046 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 364 / 08
12 / 05 / 2008
South Africa
High Court
Transvaal Provincial
E Bertelsmann, DA Basson JJ
Keywords:
Criminal procedure – Sentencing – Imposition of fine – Ability to pay – Review
Mini Summary:
Pursuant to his conviction, the accused was sentenced to pay a fine of R2 500, or to serve 24 months'
imprisonment. Although the accused had stated that he could not afford to pay the fine, he was not
questioned in that regard. On review, that fact was called into question.
Held that the trial court had not informed the accused that it disbelieved his allegation about his ability to
afford the fine. It based its view on its experience in other cases and not on anything which the present
accused had said. The magistrate's failure to inform the accused of his view that the accused was lying
was irregular.
The court set aside the sentence, and replaced it with an appropriate one.
S v Mathonsi – 2003(1) SACR 625 (TPD) – when sentencing court must make proper
enquiry into financial means of accused before imposing a fine.
S v Hlulela 2003(1) SACR 642 (TPD) – fine must be realistic so that there is reasonable
chance accused can pay it.
102) FINGER PRINT/ PALM PRINT/ FOOT PRINTS
Makhubu v S
[2012] JOL 29143 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 475 / 2011
10 / 05 / 2012
South Africa
High Court
South Gauteng, Johannesburg
CJ Claassen, R Mokgoatlheng, Z Carelse JJ
Keywords:
Criminal law – Armed robbery – Murder – Attempted murder – Conviction and sentence– Appeal –
Fingerprint evidence
Mini Summary:
In March 1999, a cash-in-transit vehicle was robbed in an armed robbery. A shootout erupted between the
robbers and the security guards, during which one of the security guards and one of the attackers were
killed. The appellant was one of five men charged with various offences arising from the incident. He was
convicted in the court a quo on counts of murder, attempted murder, robbery with aggravating
circumstances, unlawful possession of forearms and unlawful possession of ammunition. He was
sentenced to an effective term of life imprisonment. He appealed against his convictions and sentences.
The single question for decision was whether or not the court a quo was correct in finding that the
appellant was one of the attackers on the day of the armed robbery. The appellant raised an alibi as a
defence. That defence was rejected largely on the basis of evidence that fingerprints belonging to the
appellant were found on the getaway vehicles.
Held that the appellant did not deny that the fingerprints found were his, and offered no explanation for
the presence of the prints on the vehicle. Since the appeal against the conviction of the appellant centred
around the evidence of fingerprints exclusively, the court a quo was justified in finding that the
185
fingerprints of the appellant were found on the armoured vehicle on the day of the incident. The appeal
against conviction was dismissed.
In the appeal against sentence, the Court found no grounds to interfere with the sentences imposed.
The appeal was thus dismissed.
Ndinayo v S
[2012] JOL 29124 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 330 / 2010
27 / 07 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
PT Mageza AJ & R Pillay J
Keywords:
Criminal law – Sentence – Appeal – Severity of sentence – Evidence – Fingerprint evidence – Probative
value
Mini Summary:
The appellant was convicted of housebreaking with to steal and theft and was sentenced to five years’
imprisonment.
Hand and finger prints lifted from the scene of the crime led the police to the appellant. On appeal, the
defence argued that insofar as the only evidence relied upon was the fingerprints, the state had not
proved its case beyond a reasonable doubt.
Held that at issue in the appeal was the probative value of fingerprint evidence and the sufficiency thereof
where an accused elects not to testify. The principles governing inferences are that the inference sought
to be drawn must be consistent with all the proven facts, and it must be the only inference which
reasonably be drawn from the facts. In assessing circumstantial evidence, the Court must guard against
approaching such evidence on a piece-meal basis.
In not explaining the presence of his finger-print in the property broken into, the appellant ran the risk of
the only evidence before the Court being his finger-print linking him to the crime. Any suggestion that
there must be another explanation must be based on acceptable evidence. In the absence of such
evidence, the suggestion would be mere speculation. The Court found that the only evidence before it
place the appellant at the scene of the crime. The appeal against conviction was thus dismissed.
Setting out the established principles applicable to the imposition of sentence, the Court found the
sentence of five years’ imprisonment to be too harsh. The sentence was set aside and a sentence of five
years’ imprisonment was imposed in its stead.
S v Maphumulo – 1996(2) SACR 84 (N) – dealt with admissibility of finger-prints etc.
and in particular the taking of prints by force from a reluctant accused or suspect.
103) FIREARMS
Nevhutalu v S
[2014] JOL 31561 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
692 / 12
28 / 03 / 2013
South Africa
Supreme Court of Appeal
SA Majiedt, VM Ponnan, ZLL Tshiqi, R Pillay, XM Petse JJA
Keywords:
Criminal law – Pointing of firearm – Appeal against sentence – Custodial sentence found to be
disproportionate to the facts and circumstances relating to the offence in this case – Court replacing
sentence with serious non-custodial sentence
Mini Summary:
Having been found guilty of contravention of the provisions of section 39 (1) (i) of the Arms and
Ammunition Act 75 of 1969, the appellant was sentenced to six months’ imprisonment. In addition to the
186
sentence of six months’ imprisonment, the appellant’s firearm was declared forfeited to the state in terms
of section 39(3)(a) of the act and he was declared unfit to possess a firearm in terms of section 12(1)
thereof. The present appeal was against sentence.
Held that the maximum competent sentence for the offence in question, in terms of section 39(1)(i), read
with section 39(2)(d) of the act, at that time was a fine not exceeding R4 000 or one year’s imprisonment
or both such fine and imprisonment.
The trial court misdirected itself on sentence by referring to the Criminal Law Amendment Act 105 of
1997. Whilst the Court did not specifically invoke its provisions, it appeared to have been influenced by it
in his approach during the sentencing process. Secondly, the magistrate took the appellant’s lack of
remorse into account as an aggravating circumstance, although the record did not bear that out. The
misdirections were material, entitling the present Court to consider the sentence afresh.
The penal provisions in the present Firearms Control Act 60 of 2000 have been increased substantially in
respect of this particular offence, compared to those in the Arms and Ammunition Act. Section 121 of the
present Act, read with section 120 and Schedule 4 thereof, provides for a maximum sentence of ten years’
imprisonment.
The appellant’s personal circumstances were strongly mitigating. The trial court appeared to proceed from
the premise that a custodial sentence was the only suitable sentence. He gave no consideration
whatsoever to alternative non-custodial sentencing options. It could not be seen what useful purpose a
short term of imprisonment would serve in this case. The Court held that it would only cause the appellant
grave jeopardy in his work and family situation. Imprisonment should generally be imposed in instances
where there is a need to remove the offender from society. A custodial sentence was held to be grossly
disproportionate to the facts and circumstances relating to the offence. But a severe non-custodial
sentence was considered necessary to convey clearly the message that conduct such as that of the
appellant, particularly from a member of the armed forces, will not be tolerated. A sentence of six months’
imprisonment, wholly suspended on appropriate conditions, would meet the well-established sentencing
objectives.
Thembalethu v S
[2008] JOL 21512 (SCA)
Case Number:
343 / 07
Judgment Date:
20 / 03 / 2008
Country:
South Africa
Jurisdiction:
Supreme Court of Appeal
Division:
Bench:
Mthiyane JA, FD Kgomo, Malan AJJA
Keywords:
Criminal procedure – Unlawful possession of firearm – Sentence – Minimum sentence provisions –
Applicability
Mini Summary:
The appellant was convicted of, inter alia, robbery with aggravating circumstances, unlawful possession of
a firearm and attempted murder. He was sentenced to an effective 25 years' imprisonment. He appealed
against the sentence of 15 years' imprisonment on the charge of unlawful possession of a firearm. The
basis of the appeal was that the prescribed minimum sentence provisions of section 51(2)(a) read with
Part II of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 were inapplicable.
Held, that the appellant's argument was that there was no offence for possession of a semi-automatic
firearm and that the minimum sentence provisions were not applicable. He argued further that the
regional court was wrong to have sentenced him to 15 years' imprisonment instead of no more than 3
years' imprisonment as provided for in the now repealed Arms & Ammunition Act 75 of 1969.
The court held that that in providing for increased penal jurisdiction for the possession of a semiautomatic firearm the Legislature had not created a new offence, but merely enhanced the penal
jurisdiction of the court in respect of an existing offence. Offences relating to the possession of a semiautomatic or automatic firearm were offences in respect of which the court acquired an enhanced penal
jurisdiction.
The appeal was dismissed.
Cele and others v State
[2012] JOL 29774 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 237 / 2001
01 / 01 / 2012
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Koen, Mokgohloa, Ploos van Amstel JJ
187
Keywords:
Criminal law – Robbery – Murder – Unlawful possession of firearm and ammunition – Conviction –
Sentence – Appeal
Mini Summary:
The appellants were convicted of conspiracy to commit robbery in contravention of section 18 (2) (a) of
the Riotous Assemblies Act 17 of 1956, murder, unlawful possession of a firearm and unlawful possession
of ammunition. The counts were all taken as one for the purposes of sentence. The first and third
appellants were sentenced to 20 years' imprisonment each, and the second appellant was sentenced to 15
years' imprisonment.
The second appellant was granted leave to appeal in respect of his conviction in counts 3 and 4, and to all
three appellants in respect of the sentences imposed. The first appellant indicated that he did not wish to
pursue the appeal.
Held that the conviction of the second appellant on the counts of unlawful possession of a firearm and
unlawful possession of ammunition was based on the doctrine of common purpose. The common purpose
to use the pistol and ammunition was a finding justified on the evidence supporting the conviction of
conspiracy to commit robbery and the murder. However the evidence did not exclude every reasonable
inference other than the inference that there was a joint intention to possess the firearm in question.
Accordingly the appeal by the second appellant in respect of the third and fourth counts succeeded and
the his conviction on those two counts set aside.
The sentence imposed by the trial court was the prescribed minimum sentence for the offence of robbery
with aggravating circumstances. As that offence had not been established, the sentence amounted to a
misdirection – which allowed the present Court to consider the issue of appropriate sentences afresh.
The appropriate category within which the murder fell was part 2 of Schedule 2 to the Criminal Law
Amendment Act 105 of 1997. In respect of first offenders, the prescribed minimum sentence was 15
years' imprisonment. The sentences imposed by the trial court were set aside and replaced with reduced
sentences.
Guleni v S
[2008] JOL 22908 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
100 / 05
11 / 12 / 2008
South Africa
High Court
Eastern Cape, Mthatha
Miller J, Ndengezi AJ
Keywords:
Criminal procedure – Murder – Unlawful possession of firearm and ammunition – Conviction – Sentence –
Appeal
Mini Summary:
Convicted of one count of murder, one count of unlawfully possessing an R4 automatic rifle and one count
of unlawfully possessing ammunition, the appellant was sentenced to an effective eight years'
imprisonment.
Held that the evidence established that the appellant's actions in the underlying incident were caused by
an imminent attack. The court therefore found that the trial court had erred in not finding that the
appellant was acting in self defence when he fired the shots and that his action in doing so was
accordingly justified.
The court also deemed the sentence on the second and third counts to be too severe. A reduced sentence
was substituted for that imposed by the trial court.
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No: 608/10
In the matter between:
MANDLA XABENDLINI
Appellant
188
and
THE STATE
Respondent
Neutral citation: Xabendlini v State (608/10) [2011] ZASCA 86
(27 May 2011).
Coram: HARMS DP, MALAN and THERON JJA
Heard:
24 May 2011
Delivered: 27 May 2011
Summary: Arms and Ammunition – Pointing a firearm in
contravention of s 39(1)(i) of the Arms and Ammunition
Act 75 of 1969 – Pointing - What constitutes – Wider
interpretation that offence not only committed when
firearm is pointing directly at person concerned is preferred
as it accords with the intention of the legislature.
Kwanda v S
[2011] JOL 27171 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
592 / 10
30 / 03 / 2011
South Africa
Supreme Court of Appeal
L Theron, PE Streicher, LO Bosielo JJA
Keywords:
Criminal law – Appeal against conviction – Unlawful possession of firearm – Whether state had established
that the appellant possessed the firearm jointly with the passenger who was found in possession thereof –
state had to prove that the appellant had the necessary mental intention (animus) to possess the firearm
– Court finding no facts from which it could be inferred that the appellant had the necessary intention to
exercise possession of the firearm through his passenger or that the latter had the intention to hold the
firearm on behalf of the appellant –
Mini Summary:
The appellant was convicted of conspiracy to commit armed robbery and various contraventions of the
Arms and Ammunition Act 75 of 1969. He was sentenced to 35 years’ imprisonment. On appeal, the high
court confirmed the convictions on three of the counts and set aside the remaining convictions. The
sentence was reduced to 25 years’ imprisonment.
In the present appeal, the appellant appealed against his conviction of unlawful possession of a firearm
and ammunition.
The evidence showed that members of the South African Police Service had received information about a
planned robbery at the bank. Before the robbery could be carried out, the appellant and his co-accused
were arrested. Immediately prior to his arrest, the appellant had been the driver of a vehicle and was
accompanied by two passengers. One of those passengers was in possession of the firearm which was the
subject matter of this appeal. It was common cause that the appellant at no stage had physical possession
of the firearm and its ammunition, and there was some dispute as to whether the appellant was aware of
the firearm in his passenger’s possession.
Held that the only question on appeal was whether the state had established that the appellant possessed
the firearm jointly with the passenger who was found in possession thereof. In that regard the state had
to prove that the appellant had the necessary mental intention (animus) to possess the firearm. The court
held that the fact that the appellant conspired with his co-accused to commit robbery, and even assuming
that he was aware that some of his co-accused possessed firearms for the purpose of committing the
robbery, did not lead to the inference that he possessed such firearms jointly with his co-accused. Such an
inference is only justified where the state has established facts from which it can properly be inferred that
189
the group had the intention (animus) to exercise possession of the guns through the actual detentor and,
the actual detentors had the intention to hold the guns on behalf of the group.
Applying the principles set out in case law, the court concluded that there were no facts from which it
could be inferred that the appellant had the necessary intention to exercise possession of the firearm
through his passenger or that the latter had the intention to hold the firearm on behalf of the appellant.
The conviction and sentence imposed in respect thereof were thus set aside.
S v Mukkwevho 2010(1) SACR 349 GSJ
The appellant had been convicted in a regional magistrates' court of the unlawful
possession of a firearm in contravention of s 3 read with various provisions of the
Firearms Control Act 60 of 2000, and further read with s 250 of the Criminal Procedure
Act 51 of 1977, read with s 51 of the Criminal Law Amendment Act 105 of 1997. He was
also convicted of the unlawful possession of ammunition for such firearm in
contravention of s 90 of Act 60 of 2000. No alternative charges had been laid. It was
alleged that the firearm in question was a '9 mm Parabellum Calibre Norinco Model 201
Semi-automatic', the possession of a semi-automatic firearm rendering the appellant
liable to be sentenced to a minimum sentence of 15 years' imprisonment in terms of s
51(2)(a)(i) of the Criminal Law Amendment Act 105 of 1997, read with Part II of
Schedule 2 thereof. The appellant was indeed sentenced to the prescribed sentence of 15
years' imprisonment. In pleading not guilty to the charges the appellant elected to
exercise his constitutional right to remain silent and furthermore gave no evidence
whatsoever in respect of either conviction or sentence. In evidence at the trial the police
witnesses had stated that the firearm which had been found in the appellant's possession
was a 'Lorinco 201 C' semi-automatic pistol whereas the charge-sheet referred to a
Norinco semi-automatic. In an appeal to a High Court against the conviction only,
Held, that, in order to attract the prescribed minimum sentence, all the necessary elements
had to be proven at the stage of conviction, including the fact that the weapon in question
was a semi-automatic one. In this case, questions arose not only whether the appellant
had been in unlicensed possession of a firearm and ammunition, but also whether the
firearm was the one described in the charge and whether it was a semi-automatic one.
Held, further, that the documents in which the police had recorded the details of the
firearm found in the possession of the appellant had not been produced in evidence, and
no explanation for their absence had been given: in the absence of a suitable explanation
these documents should have been produced in order for the defence to cross-examine, to
test the veracity and accuracy of the information allegedly recorded therein, more
especially as there were differences between the evidence by two policemen of what was
recorded in those documents.
Held, further, as to whether the firearm was a Norinco or a Lorinco semi-automatic, that
the State was bound by the charge, and any variance between what was alleged and what
was proven could result in the setting aside of the conviction. The critical test was one of
prejudice.
Held, further, that there had to be sufficient quantum of proof before it could be found
that an accused person had committed the crime in question - proof beyond reasonable
doubt; and the court's sense of unease was acute when there was the prospect of lengthy
periods of imprisonment, such as 15 years in the present case. In view of the fact that
counsel for the defence, from the earliest opportunity, had made it clear that the chain of
evidence was being contested, the conviction, in all the circumstances, could not stand. It
was not in accordance with justice.
190
Held, further, that the fact that the firearm in question was a 'semi-automatic' one (and, by
definition in s 1, 'self-loading but not capable of discharging more than one shot with a
single depression of the trigger') was not merely part of the narrative or description of
facts in the charge-sheet: it constituted an essential element of the alleged offence. The
semi-automatic feature of the firearm was an essential element of the alleged offence
precisely by reason of the fact that it was the possession of this very type of firearm that
brought a severe minimum sentence into operation. Moreover, it was not good enough
to prove that an accused person possessed a firearm which so happened to be a
semi-automatic one: it had to be proven, at least by necessary inference, that the
accused person must have known (dolus) or ought to have been aware of the
relevant facts (culpa) which give rise to that prescribed minimum sentence for such
possession - and assumed the risks that attached thereto.
Held, further, that, even if it was accepted that it had been proved that he was in
possession of a firearm, there was nothing to justify the necessary inference that the
appellant must have been aware or ought to have been aware of the fact that it was a
semi-automatic.
Held, further, as to the question whether the appellant could be convicted of a competent
alternative verdict in terms of s 270 of Act 51 of 1977, that, as the prosecutor, the
appellant's counsel and the court a quo all seemed to have understood that the case was
an 'all-or-nothing' one, it was not difficult to imagine that, notwithstanding the fact that
the appellant had enjoyed the benefit of legal representation, he might have conducted his
defence differently and indeed might not have relied upon his constitutional right to
remain silent (s 35(3)(h) of the Constitution, 1996) if he had been made aware of the
precise nature of any alternative verdict which the State might have sought, and that, by
conducting a different line of defence, he might have avoided a compulsory minimum
sentence of 15 years' imprisonment.
Semble: It will be desirable, especially where the State seeks a conviction on a
charge of possession of a particular type or genus of firearm as a 'stand-alone' count
(ie not with other more serious counts such as murder, rape or robbery where such
a firearm is used as an instrument of such offence), to set out in the charge-sheet
itself such alternative and competent verdicts which it might seek.
Appeal upheld and conviction set aside.
Madikane v S
[2011] JOL 26693 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA & R 145 / 2010
10 / 11 / 2010
South Africa
High Court
Eastern Cape, Grahamstown
J Pickering and C Plasket JJ
Keywords:
Criminal law – Unlawful possession of firearm – Semi-automatic weapon – Prescribed minimum sentence –
Appeal
Mini Summary:
The appellant pleaded guilty to unlawful possession of a firearm in contravention of section 3 of the
Firearms Control Act 60 of 2000. He was convicted and sentenced to 15 years’ imprisonment. He appealed
against his sentence.
191
As the firearm in question was a semi-automatic pistol, a minimum sentence of 15 years’ imprisonment,
prescribed by section 51(2) of the Criminal Law Amendment Act 105 of 1997, read with Part II of
Schedule 2, applied.
Held that in such circumstances, a court is required to impose the sentence that is prescribed unless
substantial and compelling circumstances, as contemplated by section 51(3) of the Act, are present and
justify a less severe sentence.
The court found that when all the appellant’s personal circumstances were taken into account, along with
the nature and seriousness of the offence and the interests of society, it could not be said that the
imposition of the prescribed sentence of 15 years’ imprisonment was just. That constituted a substantial
and compelling circumstance justifying the imposition of a less severe sentence than the prescribed
sentence. The court deemed that a sentence of seven years’ imprisonment was one that was
proportionate to the crime, the criminal and the legitimate needs of society.
S v Mbuli 2003 (1) SACR 97 (SCA) – possession arms and ammo, more than one
accused can be in possession thro common purpose.
104) FIREARMS CONTROL ACT
S v Ntantiso
[2012] JOL 28856 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 362 / 2011
08 / 12 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
JM Roberson, B Sandi JJ
Keywords:
Criminal law – Housebreaking with intent to steal and theft – Sentence – Declaration of unfitness to
possess firearm – Review
Mini Summary:
Pleading guilty to charges of housebreaking with intent to steal and theft, the accused was convicted and
sentenced to five months’ imprisonment. The magistrate issued a declaration that the accused was unfit to
possess a firearm for the next 10 years.
Held that in terms of section 103(1)(g) of the Firearms Control Act 60 of 2000, the accused automatically
became unfit to possess a firearm upon conviction for the offence in question. There was therefore no
need for a declaration to that effect, furthermore, the magistrate did not have the power to determine a
period for which such unfitness would endure. The declaration was set aside.
105) FIRST REPORT
S v Angelo Hammond Sept 2004 (SCA) – court dealt in detail with situations where
evidence of a first report may be used in sexual misconduct cases.
106) FORFEITURE ORDERS AND SEIZURE OF ARTICLES
Guga v Minister of Safety & Security & others
[2010] JOL 26107 (ECM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
2268 / 09
09 / 09 / 2010
South Africa
High Court
192
Division:
Bench:
Eastern Cape, Mthatha
LP Pakade ADJP
Keywords:
Police – Seizure of vehicle – Lawfulness
Mini Summary:
The applicant's motor vehicle was seized by members of the South African Police service in a road block.
The applicant sought the setting aside of the seizure of his motor vehicle and the certificate purporting to
authorise it issued in terms of section 13(8) of the Police Act 68 of 1995. He also sought a restraining
order interdicting the respondents from further unlawfully seizing the motor vehicle from the possession of
the applicant as well as a mandamus that they should release the vehicle to the applicant.
Held that in light of the constitutional protection of property, a seizure of property is prima facie unlawful
and will need to be justified. The need for strict interpretation of a statutory provision which authorises the
seizure of a person's property arises from the fact that it limits the individual right to property.
Section 13(8) of the Police Act regulates the setting up of police road blocks and the procedure to be
followed in a road block. The element of reasonable suspicion in section 20 of the Act is a common
jurisdictional factor which precedes the issuing of both a search warrant in terms of section 21(1)(a) and a
certificate in terms of section 13(8) of the Police Act.
The court found that the respondents had not shown that the applicant's motor vehicle was an item to be
seized under section 13(8) of the Police Act as they failed to satisfy the requirements of section 20 of the
Act.
Having found that the search and seizure were unlawful, the court turned to consider whether or not the
applicant could lawfully possess the motor vehicle notwithstanding the finding of discrepancies on its
engine and chassis numbers. The applicant's explanation was satisfactory to the court, and the application
succeeded.
NDPP v Vermaak – 2008 JOL 21197 (SCA) – deals with scope and purpose of forfeiture
orders. Deals with concept of “instrumentality” in commission of the offence. Forfeiture
most appropriate where crime has become a business. Not suitable sanction to forfeit
motor vehicle in drunken driving cases.
107) FORSEEABILITY
Dladla v S
[2010] JOL 26105 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 80 / 08
10 / 09 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
HQ Msimang JP, S Gyanda, FE Mokgohloa JJ
Keywords:
Criminal procedure – Evidence – Circumstantial evidence
Mini Summary:
A robbery perpetrated on a municipality resulted in a person being fatally shot. The appellant was charged
with murder and robbery with aggravating circumstances. The state alleged that he had acted in concert
with certain others and in furtherance of the execution of a common purpose to commit the crimes. as
there was no direct evidence of such participation by the appellant, the respondent urged the court to
consider the circumstantial evidence tendered and to infer therefrom that there was such participation.
Held that one of the allegations the state must prove as a basis for criminal liability is that the accused
participated in the criminal activity giving rise to that criminal liability. The crucial requirement for the
finding that an accused person acted with a common purpose with one or more other offenders is that he
must have intended to commit such a crime.
It was found that the proven facts, which were supposed to form the basis for an inference based on
circumstantial evidence, did not go far enough and could not reasonably sustain an inference of guilt on
the part of the accused.
193
S v Machembo
[2008] JOL 22159 (ZH)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
HH2 / 08
16 / 01 / 2008
Zimbabwe
High Court
Harare
Makarau JP, Kudya J
Keywords:
Criminal law – Common-law offences – Culpable homicide – Foreseeability – Accused creating dangerous
situation by driving away from police roadblock – Police officer firing at accused's vehicle and killing
passenger – Death not foreseeable consequence of accused's acts
Mini Summary:
The accused was driving a lorry on a main road at night. The lorry carried several passengers. The
accused was stopped at a police roadblock; he was told by the police to go to the nearest police station
because the vehicle was not properly lit. He instead drove off, resulting in the police giving chase and
erecting another roadblock to stop him. He did not stop there either. The police opened fire, killing one of
the passengers. The accused was charged with and convicted of culpable homicide. It was alleged that by
failing to obey the order to stop, he acted negligently and that this negligence caused the death of one of
his passengers.
Held: a conviction for culpable homicide is founded, firstly, on proof of negligent conduct and, secondly,
on the foreseeability of death arising from that conduct. The concept of foreseeability is sometimes
expressed as the natural and probable consequence or as the direct result of the act or omission that the
accused fails to guard against which results in death. In casu, the accused took a deliberate and conscious
act to disobey the police. His actions in failing to stop were grossly negligent. He was therefore negligent
in that he created a dangerous situation by driving off from the roadblock instead of stopping as directed
by the police. However, the State case fell on the aspect of the foreseeability of death arising from the
accused's failure to obey the instruction to stop. Whether or not he was aware that the police who stopped
him before the shooting were armed, a reasonable man would not expect an armed policeman to shoot at
a moving lorry with passengers at the back in a bid to stop the driver. The death of the deceased was thus
caused by the policeman and not by the accused's manner of driving. It was neither the direct result nor
the natural and probable consequence of his failure to obey the police instruction to stop.
108) FRAUD
Gardener & another v S
[2011] JOL 26925 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
253 / 07
18 / 03 / 2011
South Africa
Supreme Court of Appeal
JA Heher, A Cachalia, WL Seriti JJA
Keywords:
Criminal law – Fraud – Consists in unlawfully making, with intent to defraud, a misrepresentation which
causes actual prejudice or which is potentially prejudicial to another – Question of whether non-disclosure
is criminally fraudulent is linked to the presence or absence of the necessary intention to defraud –
Criminal law – Sentence – Appeal – A suspended sentence is generally used as a weapon of deterrence
against the reasonable possibility that a convicted person may again fall into the same error (or at least
one substantially similar) – When the sentence requires that the accused serve a lengthy period of direct
imprisonment, that sentence is in itself, a deterrent, and an additional period of suspension serves no
purpose
Mini Summary:
The appellants were the joint chief executive officers of a company called LeisureNet Limited, and
directors of two offshore subsidiary companies. One of the latter companies (“Healthland Germany”) held
half the shares in Healthland Germany GmbH, the balance being held by a Jersey company (“Dalmore”).
194
In 1999, the other company in which the appellants were directors, LeisureNet International Limited
(“International”), purchased Dalmore’s interest in Healthland Germany for DM 10 million. As the
appellants each held a 20% interest in the business of Dalmore in Germany, they received a proportionate
share of the purchase price (DM 2 million each) in consequence. The price was raised and paid by
LeisureNet. The appellants had not disclosed their interest in Dalmore to LeisureNet or International, and
that fact only came to light in the course of an enquiry into the affairs of LeisureNet subsequent to its
liquidation in 2001. The non-disclosure led to the appellants being charged and convicted on charges of
fraud. The first appellant was sentenced to 12 years’ imprisonment (of which four years were conditionally
suspended), and the second appellant was also sentenced to 12 years’ imprisonment, but, in his case, five
years were conditionally suspended.
While conceding that they had breached their duty to disclose their interests in Dalmore to the LeisureNet
board, and conceding that their conduct had made them guilty of contravening section 234(1) of the
Companies Act 61 of 1973, the appellants limited their concession to an admission of negligence in that
regard. Their explanation was that their focus at the relevant times had been on the underlying
transaction involved, and that disclosure did not occur to them.
The issues on appeal were whether the appellants in failing to disclose their interest in Dalmore, intended
to deceive the board of LeisureNet, and if so, whether they possessed an intention to prejudice the
company, and whether their failure to disclose resulted in actual or potential prejudice to it.
If the conviction on the charge of fraud was sustained, the issues were whether the trial court misdirected
itself in the manner in which it evaluated the interests of society in relation to the crime; whether the trial
court erred in imposing a heavier sentence on the first appellant by reason of certain convictions for VAT
fraud and insider trading committed during his tenure as managing director of LeisureNet; and whether
the sentences were disturbingly inappropriate, justifying interference on appeal.
Held that fraud consists in unlawfully making, with intent to defraud, a misrepresentation which causes
actual prejudice or which is potentially prejudicial to another. The question of whether non-disclosure is
criminally fraudulent is linked to the presence or absence of the necessary intention to defraud. Referring
to case law, the court set out the requisites for criminal or fraudulent non-disclosure. Those include a duty
to disclose the particular fact; a wilful breach of this duty under such circumstances as to equate the nondisclosure with a representation of the non-existence of that fact; an intention to defraud which involves
knowledge of the particular fact, awareness and appreciation of the existence of the duty to disclose, and
deliberate refraining from disclosure in order to deceive and induce the representee to act to its prejudice
or potential prejudice; and actual or potential prejudice of the representee.
In the present case, the court found that the state had succeeded in proving an intention to cause
prejudice beyond a reasonable doubt. The state was required to prove beyond reasonable doubt that the
appellants withheld disclosure of their interest in Dalmore with intent to deceive the board of LeisureNet.
The court confirmed that there was a clear duty on the appellants to inform the boards of International
and LeisureNet before the contract for the purchase of Dalmore’s interest was concluded, that they each
possessed a financial interest in Dalmore and the extent of that interest. In not making the disclosure, the
appellants were certainly motivated by the negative consequences to them which such a disclosure would
occasion. It was clear that the appellants were aware of the duty, but despite numerous opportunities to
disclose the relevant fact, failed to do so. The court highlighted the factors which stood in the way of
disclosure, and the fact that the appellants substantial financial benefit from the non-disclosure.
It was concluded that the trial court was correct in finding that the probabilities in support of a deliberate
withholding of the existence and nature of the appellants’ interest in Dalmore were overwhelming. The
state had proved beyond a reasonable doubt an intention to deceive the board of LeisureNet. There was
therefore no merit in the appeal against the conviction for fraud.
In the appeal against sentence, the court considered the appellants’ submissions regarding the severity
and appropriateness of the sentences imposed. While the court a quo did not misdirect itself in any of the
respects alleged by the appellants, the present court found that there were other misdirections at the
heart of the sentences. The court a quo regarded 12 years as the appropriate period of imprisonment in
respect of each accused, but considered it fair to suspend four years of that term, in the case of the first
appellant, and five years in the case of the second appellant. A suspended sentence is generally used as a
weapon of deterrence against the reasonable possibility that a convicted person may again fall into the
same error (or at least one substantially similar). However when the sentence requires that the accused
serve a lengthy period of direct imprisonment as in this case, that sentence is in itself, a deterrent, and an
additional period of suspension serves no purpose. This is the more so when the person convicted is
already of mature years or the circumstances of the crime are peculiar or unlikely to be repeated, all of
which applied to the appellants.
The court also found no valid basis for the distinction in sentences between the first and second appelants.
The misdirection in relation to the suspension of part of the sentences left the present court free to impose
sentences which fit the case. Setting aside the sentences imposed by the lower court, the court imposed a
sentence of seven years’ imprisonment on each of the appellants.
195
Pretorius & another v S
[2008] JOL 22805 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
145 / 08
26 / 11 / 2008
South Africa
Supreme Court of Appeal
CH Lewis JA, Leach, Mhlantla AJJA
Keywords:
Criminal law – Fraud – Sentence – Appeal
Mini Summary:
The appellants operated a business largely involving fitting windscreens on motor vehicles. Most of their
business came from an insurance company, which instructed them to fit new windscreens of a particular
quality, on insured vehicles. However, the appellants committed fraud by fitting windscreens of inferior
quality but claiming for the more expensive product. They were charged and pleaded guilty to 91 counts
of fraud. Upon being convicted, they were sentenced to five years' imprisonment on each count. A
compensation order was also issued.
Appealing against the sentence, the appellants contended that the sentence was startlingly inappropriate,
particularly given the compensation order to which insufficient regard was had by the trial court.
Held that the approach of the trial court in imposing sentence could not be faulted. The court had
carefully considered all the relevant reports, mero motu required a report on the suitability of correctional
supervision and thoroughly examined the mitigating circumstances of the appellants. However, the
present court pointed out that the trial court was also bound to have regard to the factors that aggravated
the appellants' conduct.
In light of the above, the sentences imposed could not be said to be startling or inducing a sense of shock.
In fact, the sentences were consistent with sentences recently confirmed or imposed by the court for
fraud. Confirming the appropriateness of the sentence, the court dismissed the appeal.
DPP: Grahamstown v Maseti
[2011] JOL 27780 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA & R 299/2010
25 / 05 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
FBA Dawood, Hartle JJ
Keywords:
Criminal law – Fraud – Requirements – Elements of offence – Prejudice
Mini Summary:
The respondent was charged with fraud after misrepresenting to the police services that she had passed
her matric examinations. In fact, she had failed matric, and had used a forged matriculation certificate
afterwards. The trial court acquitted the respondent on the ground that the state had failed to show that
the police services had been prejudiced by the submission of the falsified certificate.
Noting an appeal against the trial court’s finding, the appellant raised a question of law in respect of
whether the trial court had erred in finding that fraud was not established because the State failed to
prove the element of prejudice.
Held that case law and the authorities on criminal law confirm that prejudice is indeed an element in the
definition of fraud. In “South African Criminal Law and Procedure”, the author, JR Milton states that there
might be cases where fraud is not committed because the misrepresentation does not cause prejudice.
That position has been applied and repeated by the courts.
In the present case, there being no evidence of prejudice caused by the respondent’s deceit, the trial
court was correct in acquitting her.
Saayman v S
[2008] JOL 22778 (E)
Case Number:
Judgment Date:
CA&R 82 / 07
07 / 12 / 2008
196
Country:
Jurisdiction:
Division:
Bench:
South Africa
High Court
Eastern Cape
JD Pickering, JJ Nepgen JJ
Keywords:
Criminal law – Fraud – Sentence – Suspended sentence – Condition of suspension – Degrading
punishment– Appeal
Mini Summary:
Pursuant to her plea of guilty, the appellant was convicted on six counts of fraud, and was sentenced to
two years' imprisonment, wholly suspended for five years on certain conditions. One of the conditions of
suspension was that the appellant would publicly apologise to three of her victims by standing in a public
place wearing a placard stating that she had been convicted of fraud and sought forgiveness from the
three complainants in question.
The present appeal was noted against the latter condition.
Held that the sentence had to be considered against the backdrop of section 10 of the Constitution which
guarantees the right to human dignity. The conduct required of the appellant by the condition attached to
the suspension of her sentence violated that right insofar as it amounted to degrading punishment.
The court acknowledged the role restorative justice may play, but explained the limits thereto.
Upholding the appeal, the court set aside the impugned sentencing condition.
S v Salcedo 2003(1) SACR 324 (SCA) – sentence on fraud. Accused has no money to
pay fine therefore period of imprisonment reduced.
S v Price - 2003(2) SACR 551 (SCA) – dealt with specific criteria when imposing
minimum sentences for fraud.
S v Mngqibisa - 2008 (1) SACR 92 (SCA). After a car accident, the insured sometimes
bends the truth (just a little) when claiming from his insurance company. See how a
misrepresentation amounted to fraud in this matter.
Nonkonyana v S
[2008] JOL 21287 (E)
Case Number:
CA & R 7 / 07
Judgment Date:
25 / 10 / 2007
Country:
South Africa
Jurisdiction:
High Court
Division:
Eastern Cape
Bench:
C Plasket, J Smith AJ
Keywords:
Criminal procedure – Sentence – Severity of – Appeal
Mini Summary:
Based on his plea of guilty to theft and fraud, the appellant was sentenced to 18 months' imprisonment, of
which six months were conditionally suspended for five years for the theft conviction and 24 months'
imprisonment for the fraud conviction, an effective sentence of three years' imprisonment. He appealed
against the sentence.
Held that the magistrate had overemphasised the seriousness of the appellant's offences at the expense
of his personal circumstances. Thus the sentences imposed were cumulatively excessive to such a degree
that interference by the present court was warranted.
Setting aside the sentences, the court imposed less severe terms of imprisonment.
Feyen v S
[2008] JOL 21560 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
A 60 / 2008
5 / 3/ 2008
South Africa
High Court
Cape of Good Hope
C Webster AJ
197
Criminal law – Fraud – Tax offences – Application for bail – Refusal of – Appeal
Mini Summary:
The appellant was charged with 53 counts of fraud and 16 tax-related offences. An application for bail was
refused, leading to the present appeal.
Held that the issue for determination before the court a quo was whether or not the interests of justice
permitted the appellant's release on bail.
The appellant bore the onus of establishing, on a balance of probabilities, that the interests of justice
permitted his release on bail.
The evidence established that the appellant had been convicted of similar offences in Belgium, and had
fled to South Africa, leaving behind his wife and daughter. The Belgian government indicated that
extradition procedures had been started against the appellant. The court accepted the respondent's
contention that the appellant posed a serious flight risk.
The appeal was dismissed.
109) FUNCTUS 0FFICIO
S V DUMA 2012 (2) SACR 585 KZP
An order made by a district court in terms of section 114 or 116 of Act 51 of
1977 referring a case to the Regional Court is procedural in nature and the
magistrate making the order is not functus officio after making the referral.
“Ndlovu J
[1] The issue arising in this matter, which was submitted by the acting regional
magistrate of Verulam in terms of section 304(4) of the Criminal Procedure Act
(the
CPA), is whether an order made by a district court magistrate in terms of section
114
or 116, as the case may be, of the CPA referring a case for sentence by a
regional
court, renders the district court magistrate concerned functus officio to deal with
the
case any further, where it subsequently transpires that the referral to the regional
court was erroneously made.
[2] On 4 February 2011 the accused was arraigned before the magistrate’s court
for
the district of Verulam on two counts; in that, firstly, he unlawfully tampered with
a
motor vehicle without the consent of its owner in contravention of section 66(1)
read
with section 89 of the National Roads Traffic Act; and, secondly, he was found in
unlawful possession of car breaking implements in contravention of section 82 of
the
General Law Amendment Act, Act 129 of 1993. The accused was legally
represented at the trial and he pleaded guilty to both counts. A statement, the
contents of which were confirmed by the accused, was handed up by the
defence
attorney in terms of section 112(2) of the CPA, amplifying the accused’s guilty
pleas.
Thereupon the magistrate dealt with the matter in terms of section 112(1)(a) and
convicted the accused on both counts as charged.
[3] However, upon the state having proved that the accused had a previous
198
conviction of theft dated 23 June 2004 in respect of which he was sentenced to
eight
17
years’ imprisonment, conditionally released on 23 September 2008 under parole
supervision until 12 January 2011, the magistrate determined that the accused,
by
virtue of his previous conviction, deserved punishment in excess of the
jurisdiction of
the magistrate’s court. Hence the magistrate, citing reliance on section 116 of the
CPA, stopped the proceedings and committed the accused for sentence by the
regional court.
[4] When the matter came before the regional court for sentence, as envisaged
by
the magistrate, the acting regional magistrate opined, correctly so in my view,
that
since in both instances the relevant statutes prescribed for punishment which
was
within the jurisdiction of the magistrate’s court, the matter ought not to have been
referred to the regional court for sentence in the first place. It is on this basis that
the
acting regional magistrate submitted the matter to this court with the request that
the
order made by the magistrate’s court be set aside and that the matter be remitted
to
that court for sentence by the magistrate who dealt with the matter initially.
[5] The penalties prescribed for the offences referred to in counts 1 and 2 are,
respectively, “a fine or to imprisonment for a period not exceeding one year” and
“a
fine or to imprisonment for a period not exceeding three years”. The penal
criminal
jurisdiction of the magistrate’s court is a fine not exceeding “the amount
determined
from time to time by the Minister by notice in the Gazette” or to imprisonment not
exceeding three years. Clearly, therefore, the penalties prescribed as maximum
sentences in both instances in this case fell within the magistrate’s jurisdiction
and,
on this basis, it was indeed an error on the part of the magistrate to refer the
matter
to the regional court for sentence, but the magistrate ought to have dealt with the
sentencing himself.
[6] It is apparent that the acting regional magistrate assumed that the
magistrate’s
referral in terms of section 114 was a final order which rendered the magistrate
concerned functus officio in the matter. I do not believe that the assumption
reflects
the correct legal position.
199
[7] Sections 114 and 116 of the CPA provide, to the extent relevant:
“114 (1) If a magistrate’s court, after conviction following on a plea of guilty but
before sentence, is of the opinion –
(a) …..
(b) that the previous convictions of the accused are such that the offence in
respect
of which the accused has been convicted merits punishment in excess of the
jurisdiction of a magistrate’s court;
(c) …
the court shall stop the proceedings and commit the accused for sentence by a
regional court having jurisdiction.
(2) Where an accused is committed under subsection (1) for sentence by a
regional
court, the record of the proceedings in the magistrate’s court shall upon proof
thereof
in the regional court be received by the regional court and form part of the record
of
that court and the plea of guilty and any admission by the accused shall stand
18
unless the accused satisfies the court that such plea or such admission was
incorrectly recorded.”
“116(1) If a magistrate’s court, after conviction following on a plea of not guilty but
before sentence, is of the opinion –
(a) …
(b) that the previous convictions of the accused are such that the offence in
respect
of which the accused has been convicted merits punishment in excess of the
jurisdiction of a magistrate’s court;
(c) …
the court shall stop the proceedings and commit the accused for sentence by a
regional court having jurisdiction.”
Since the accused was convicted on his guilty plea, it followed that section 114,
and
not 116 (as the magistrate recorded), was applicable in this case.
[8] The general rule is that once a court has pronounced a final judgment or order
in
a given matter, the court has itself no authority to correct, alter or supplement
that
judgment or order. In that respect the court has become functus officio in that its
jurisdiction in the matter has been fully and finally exercised and, therefore, its
authority over the subject matter has ceased. However, as it was noted by the
court
in Van Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration 1987
(4)
SA 569 (A), not every decision which a court makes constituted a ‘judgment or
order’
200
which was appealable. In certain circumstances the court’s decision would only
constitute a ‘ruling’ which was merely a direction against which there was no
appeal;
unless the decision disposed of a part of the relief claimed.
[9] In Van Streepen the court also explained that the main reason that the
concept of
‘judgment or order’ is construed restrictively is to avoid piecemeal decision of
cases,
adding that:
‘This is undoubtedly a very cogent consideration, particularly where the decision
in
question relates, for instance, to a procedural matter or to the admissibility of
evidence and it may in the end not have a decisive effect upon the outcome of
the
case.’
[10] As was reiterated in Van Heerden v De Kock 1979(3) SA 315 (E), in criminal
proceedings a presiding officer is not functus officio until after conviction and only
becomes so at the point when the accused is sentenced. In the present instance
the
accused was only convicted but not yet sentenced. What the magistrate did was
only to give a direction into the future conduct of the case, namely, to refer the
matter to the regional court for the accused to be sentenced by that court. This
direction was clearly not a final judgment or order which finally disposed of the
case
but was, in my view, only a ruling, capable of subsequent reconsideration,
alteration
or amendment by the magistrate.
19
[11] It seems to me, therefore, that the district magistrate’s decision or referral
under
section 114 or 116 of the CPA is merely a ruling of a procedural nature seeking
to
direct the future conduct of proceedings in a given case. In no way does this
decision dispose, or seek to dispose, of the case. Consequently, the decision
does
not, in my view, constitute a final judgment or order and no appeal lies against it.
Accordingly, the presiding officer who made the decision is not, as I see it,
rendered
functus officio in the matter.
[12] It ought to be borne in mind that no amount of previous convictions is, in
respect
of a statutory offence, capable of increasing the maximum sentence prescribed
by
statute, regardless of the penal jurisdiction of the sentencing court. In other
words,
201
even if the regional court, in the present instance, had decided to proceed and
deal
with the matter it would still have had no power to impose any sentence beyond
the
maximum penalties prescribed by the relevant statutes under which the accused
was charged and convicted.
[13] Every court is obliged, in determining an appropriate sentence, to take into
account previous convictions that have been proved against an accused.
However,
the relevance and importance of the previous convictions so proved will largely
depend upon the elements which the previous crimes have in common with the
one
that the accused is currently convicted of. Whether or not the previous conviction
of
theft is ‘relevant and important’ in relation to the accused’s present convictions is
another question, which I think is to be better left in the hands of the magistrate
to
determine. It seems to me that the appropriate step for this court to take, in the
circumstances, is to issue the necessary declaratory orders and refer the matter
back to the magistrate for sentencing of the accused, in the hope that regional
magistrates shall in the future not need to refer matters such as this one to the
high
court, as it happened here. In the event of the magistrate who convicted the
accused
being not available, any other magistrate of the same court shall, by virtue of
section
275(1) of the CPA, have the power to deal with the matter accordingly.
[14] In the consequence, the following order is made:
1. The conviction of the accused is confirmed.
2. It is declared that the provisions of section 114 of the Criminal Procedure Act
51 of 1977are not applicable in this case.
3. It is further declared that the magistrate’s court for the district of Verulam has
the requisite penal jurisdiction to deal with the matter.
4. The matter is remitted to the magistrate to give effect to the order referred to
in paragraph 3 above; and, in the event of the magistrate who convicted the
accused being unavailable, the matter shall be dealt with by any other
magistrate of the same court, in terms of section 275.
5. The magistrate shall, amongst others, take cognizance of any period during
which the accused was incarcerated, both prior and after his conviction, when
determining the appropriate sentence.”
110) FURTHER / FRESH EVIDENCE
Makumbane and others v S
[2014] JOL 32313 (SCA)
202
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
46 / 2013
18 / 09 / 2014
South Africa
Supreme Court of Appeal
MS Navsa ADP, MJD Wallis, NP Willis JJA
Keywords:
Criminal procedure – Special entry – Section 317(2) of the Criminal Procedure Act 51 of 1977 provides
that an application for a special entry shall be made to the judge who presided at the trial, subject to that
judge’s availability - therefore, only the trial court can make a special entry – Appeal – Application to lead
further evidence – An application on appeal to lead evidence that was available and that accused had
elected not to give at the trial is impermissible
Mini Summary:
In October 2008, two men were taken to a grinding mill where they were beaten. One died as a result,
and the other (the complainant) was severely injured. The applicants were charged with murder,
attempted murder and kidnapping. At the end of their trial, they were convicted of murder and assault
with intent to do grievous bodily harm. The second and third applicants were convicted of kidnapping of
the complainant. They were sentenced to an effective term of life imprisonment.
Leave to appeal against both conviction and sentence was refused. An application to the present Court for
leave to appeal, including applications for leave to lead further evidence on appeal and an application for
the making of a special entry, was referred for oral argument by this court in terms of section 21(3)(c)(ii)
of the Supreme Court Act 59 of 1959. The parties were required to be prepared, if called upon to do so, to
address the merits of the appeal.
Held that the testimony of the complainant sufficiently established that the applicants had participated in
a collective assault on the two young men, which left the one dead and the other with extensive bruises
and lacerations. On that evidence the convictions for murder and assault with intent to commit grievous
bodily harm were proper. Similarly, the convictions of the second and third applicants on the kidnapping
count could not be challenged. Faced with that, the applicants sought to introduce fresh evidence at the
appeal and also asked the court to make a special entry arising from the manner in which the advocate
who represented them throughout the trial conducted their defence. Section 317(2) of the Criminal
Procedure Act 51 of 1977 provides that an application for a special entry shall be made to the judge who
presided at the trial, subject to that judge’s availability. Therefore, only the trial court can make a special
entry. The application for a special entry was accordingly dismissed in the course of the hearing.
The application to lead further evidence on appeal was also dismissed. The purpose of the application was
nothing more than to enable the applicants to reopen the case in order to give evidence that they had
elected not to give at the trial. The record showed that they made a conscious decision when legally
represented not to give evidence. An application on appeal to lead evidence that was available and that
they had elected not to give at the trial was plainly impermissible.
The Court then considered the averment that the applicants had not received a fair trial due to the
conduct of their advocate. The Court found that the applicants’ complaints in that regard were not borne
out by the record.
The application for leave to appeal against the convictions was accordingly dismissed.
Turning to the application for leave to appeal against the sentences imposed, the Court held that the trial
court had erred in finding that no substantial and compelling circumstances justifying the imposition of a
lesser sentence than the prescribed minimum existed. Setting out the mitigating factors in the case, the
Court concluded that those constituted substantial and compelling circumstances justifying a departure
from the statutorily prescribed minimum sentence. The appeal against sentence was upheld, and the
sentence was replaced with an effective sentence of 23 years’ imprisonment.
111) FURTHER PARTICULARS
112) GUILTY PLEAS
203
S v Van Wyk
[2014] JOL 31649 (FB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
35 / 2014
20 / 03 / 2014
South Africa
High Court
Free State, Bloemfontein
S Naidoo, A Kruger JJ
Keywords:
Criminal procedure – Theft – Conviction and sentence – Review
Mini Summary:
Having pleaded guilty to a charge of theft, the accused was convicted under section 112(1)(a) of the
Criminal Procedure Act 51 of 1977 and was sentenced to “6 months imprisonment wholly suspended for 3
years in that the accused is never found guilty of a similar crime”.
Held on review that the sentence was a text book example of how a sentence should not read. Under
section 112(1)(a) the accused is convicted on the plea of guilty alone. There is no questioning by the
presiding officer. The review court pointed out that section 112(1)(a) is not intended for lazy or
incompetent presiding officers who do not want to, or are unable to, question the accused under section
112(1)(b) to determine whether the accused admits all the elements of the offence. Presiding officers
should use section 112(1)(a) only where the offence is of a minor nature. The charge in this case was not
one which should have been dealt with under section 112(1)(a). The accused should have been
questioned under section 112(1)(b).
Regarding the sentence, the Court explained that only a fine of up to R5 000 can be imposed under
section 112(1)(a), to which alternative imprisonment can be added. A sentence of imprisonment, even if
suspended, without the option of a fine, is not competent under section 112(1)(a). Conditions of
suspension must be clear.
Neither the conviction nor the sentence were sustainable in this case, and were set aside.
1. S v SWARTZ 2014 (1) SACR 461 (NCK)
The accused had been charged in a magistrates' court with two counts of assault F
with intent to do grievous bodily harm. He pleaded not guilty to these charges, but
guilty to common assault. The prosecutor accepted this plea. On questioning by the
magistrate, however, the accused did not admit all the elements of the offence and
the magistrate accordingly recorded a plea of not guilty. The matter then proceeded
on the original charges of assault with intent to do grievous bodily harm, and after
hearing evidence the G magistrate duly convicted the accused on these charges. The
magistrate then submitted the matter for special review and requested that the
convictions be set aside on the basis that, in terms of s 113(2) of the Criminal
Procedure Act 51 of 1977, the trial should have proceeded on the charges of
common assault, to which the accused had pleaded. On review the court embarked
upon an analysis of the proper interpretation of H s 113(2) of the Act.
Held, that, on a proper interpretation of the section, it did not require an election by
the prosecutor, as to the charge in respect of which the prosecution was to proceed,
before the trial could proceed. It provided that the trial would proceed on the original
charge/s, and, in other words, not on the lesser I charge/s, unless the prosecutor
indicated otherwise. In the absence — as in the present case — of an indication by
the prosecutor, the magistrate had correctly proceeded on the basis of the original
charges against the accused, namely of assault with intent to do grievous bodily
harm. (Paragraphs [40] — [41] at 470c – e.)
Held, however, that on the evidence, the charge had not been proven and the
conviction had to be set aside. (Paragraph [46] at 471b.) J
S v Barnard
[2011] JOL 27812 (ECP)
Case Number:
CA&R 172 / 2011
204
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
15 / 06 / 2011
South Africa
High Court
Eastern Cape, Port Elizabeth
PW Tshiki, N Dambuza JJ
Keywords:
Criminal procedure – Plea of guilty – Questioning – Nature of
Mini Summary:
The accused was convicted of theft of a cell phone and was sentenced to 12 months’ imprisonment, wholly
suspended on certain conditions.
As he had pleaded guilty, the magistrate questioned him in terms of section 112(1)(b) of the Criminal
Procedure Act 51 of 1977.
Held on automatic review that although the accused’s answers to the questioning showed a lack of mens
rea, the magistrate continued to question him in an attempt to convince him that his denial of mens rea
was incorrect. Some of the question went against the purpose of section 112(1)(b) in that they amounted
to interrogation.
The review court realised that the magistrate did not appreciate the purpose of section 112(1)(b) and had
no idea in what circumstances the state should accept the accused’s plea.
The Court explained the scope of the summary trial envisaged in section 112(1)(b). It is irregular for a
magistrate to refuse to enter a plea of not guilty on behalf of an accused where it is clear that not all the
elements of the offence are being admitted. It is not the function of the Court to evaluate the answers
given by the accused.
The conviction and sentence were set aside, and the case was referred back for trial de novo before
another magistrate.
S v MBUYISA (SCA)
CLOETE JA, PONNAN JA and LEACH JA
2011 AUGUST 26; SEPTEMBER 26
Plea—Plea of guilty—Written statement in terms of s 112(2) of Criminal Procedure Act
51 of 1977—Content of statement—Repetition of allegations in charge-sheet—
Undesirable, but no inflexible rule that an accused, who uses certain of the phraseology in
a charge, cannot be convicted.
S v VAN DER MERWE AND OTHERS 2011 (2) SACR 509 (FB)
The appellants had been convicted in a magistrates' court on charges of crimen injuria
and each sentenced to a fine of R20 000 or 12 months' imprisonment, plus a further six
months' imprisonment conditionally suspended for five years. The charges arose out of a
video recording they had made to express their opposition to the policy, of the university
they attended, of promoting racial integration of the university students' residence in
which they resided. It featured an initiation ritual in which the complainants — black
staff members at same university — appeared to be forced by the appellants into
ingesting a concocted brew and thereafter vomiting. The appellants also appeared to have
urinated into the brew and, during the episode, referred to the complainants as 'whores'.
The facts as pleaded in appellants' plea explanation in terms of s 112(2) were accepted by
the State and supported the contention that the urination, ingestion and vomiting were all
simulated. No formal admissions were made in the appellants' plea explanations
admitting to the averments in the charge-sheet that the iniuria was racially motivated.
The State alleged that what appeared in the video recording was real — that the
complainants were depicted as inferior and unintelligent human beings, thereby impairing
205
not only their human dignity but also 'extensively and tacitly' that of blacks in general
and/or the black students and personnel of the university in particular.
The grounds of appeal were that — (a) the sentence was disproportionate to the offence
in the context and relevant circumstances; (b) the fine exceeded the court's jurisdiction;
(c) the use of a newspaper article to reflect the convictions of the community was not
competent ; (d) the plea and the facts upon which it rested were not based on racial insult
— the behaviour to which was pleaded guilty impugned the dignity of the complainants
as human beings; and (e) a sentence of suspended imprisonment was not appropriate and,
in particular, linking the condition of suspension thereof to s 21 of Act 4 of 2000 was not
appropriate or permissible.
Held, that, where an accused person pleaded guilty and handed in a written statement in
terms of s 112(2) of the Criminal Procedure Act 51 of 1977, detailing the facts on which
his plea was premised, and the prosecution accepted the plea, the plea so explained and
accepted constituted the essential factual matrix on the strength of which sentence should
be considered and imposed. Such an essential factual matrix could not be extended or
varied in a manner that adversely impacted on the measure of punishment as regards the
offender. The facts, as pleaded and accepted, supported the contention that the urination,
ingestion and vomiting were all simulated. Simulated offensive conduct towards the
complainants was, without their consent, made to look real. In that secret depiction lay
the iniuria — indeed the video was not evidence of the iniuria, it was iniuria. It has to be
accepted that the two groups were performing, in other words, play-acting. To the extent
that the court a quo found otherwise, it materially erred.
Held, further, that, in the circumstances, the court a quo could not have approached the
matter of sentence anyhow save on those facts plus the undisputed facts whereby those
facts were amplified by the prosecution and defence during the course of closing
arguments. It was however clear from the original as well as supplementary reasons for
judgment that the court a quo did not approach the sentencing on such factual premise;
instead reckoning that, because the appellants had not expressly taken issue with the
racial averments embodied in the charge-sheet, such averments were tacitly admitted and
thus constituted facts on which sentence could be validly premised. This reasoning was
materially flawed and the finding relative to racism, which the court a quo regarded as a
strongly aggravating factor, was a monumental misdirection.
Held, further, that the reliance placed by the sentencing court upon the contents of the
press article — handed in by the defence in order to demonstrate how the accused were
portrayed in the press and public media as extremely loathsome persons who deserved
very severe punishment — as being true and conveying a true reflection of the legal
convictions of the community, had adversely influenced the determination of a balanced
sentence. It was unfair to the accused for those views to have been taken into account in
such a manner, given the specific purpose for which the article was handed in. It was also
unfair to have accentuated the punitive aspects of the public opinion so expressed without
affording the defence an opportunity of dealing therewith.
Held, further, that the linking of future rulings by the Equality Court [as suspensive
conditions to sentences of imprisonment imposed against the appellants] appeared
undesirable. The Equality Court proceedings — the quantum of proof and the ultimate
rulings and remedies — were essentiall civil in nature. Allowing a suspended criminal
206
sentence to be triggered and put into operation on the strength of a civil wrong or
transgression could lead to absurd repercussions. Our domestic jurisdiction had not yet
developed that far. The appeal was allowed and the sentences of the first and third
appellants altered to one of a fine of R10 000 each and the sentences of the second and
fourth appellants altered to a fine of R15 000 each. It was further ordered that the
appellants had to appear before the court on a stated date should they fail to pay the fines,
so that the court could impose a sentence of imprisonment.
Case Information
Appeal from sentences imposed in a magistrates' court. The facts appear from the reasons
for judgment.
Pretorius v DPP A O 2011 (1) SACR 54 (KZP)
The applicant was charged with various counts of theft, fraud and contraventions of the
Natal Nature Conservation Ordinance 15 of 1974. After initial consultation with his legal
representatives it was agreed that he would plead not guilty to all the charges. However,
it subsequently emerged that the State intended to introduce a video recording in
evidence against the applicant and, having viewed the recording, his legal representatives
advised him to plead guilty to certain of the charges. The State agreed, in its turn, to
withdraw the remaining charges. The applicant indicated that he was not happy with this
advice, but, when his counsel proposed to withdraw, he signed the written plea
explanation and pleaded guilty to six charges. He was duly sentenced to various terms of
imprisonment, all conditionally suspended, and to pay fines totalling R70 000. About a
year later the applicant applied for an order reviewing and setting aside the trial court's
judgment, on the basis that undue pressure had been brought to bear on him by his
defence team, and that he had not acted freely and voluntarily in pleading guilty.
Held , that it was incorrect to suggest that the applicant had been left with no choice, but
to plead guilty to the six counts. He had been properly and competently counselled about
the possibility of a jail sentence if he pleaded not guilty to all the charges, and he had
been given the choice of rejecting counsel's advice and of accepting other legal
representation. He had decided to accept the advice. The decision had been voluntarily
and intelligently made, and it revealed no irregularity in counsel's conduct. Furthermore,
it was evident that counsel had felt obliged to withdraw, if, his advice having been
rejected, he could no longer be of assistance to his client. In this, counsel had acted
within the bounds of his duty. In addition, despite his being questioned at length by the
trial court about his guilty plea, and despite a long mitigation process, no suggestion had
been made by the applicant that he had not intended to plead guilty to the six charges.
The only inference to be drawn from this conduct was that, even if he had had some
initial reservations about pleading guilty, the applicant had later acquiesced in that course
of conduct. Accordingly, no irregularity had been shown to have been committed.
Application dismissed.
Case Information - Review application. The facts and issues appear from the judgment of
H Msimang JP, in which Gyanda J concurred.
S v Joseph
[2010] JOL 26098 (WCC)
207
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 148 / 10
07 / 09 / 2010
South Africa
High Court
Western Cape, Cape Town
Le Grange J, Klopper AJ
Keywords:
Criminal procedure – Plea of guilty – Questioning – Review
Mini Summary:
The accused was charged, and pleaded guilty to, domestic violence. He was convicted and sentenced to
12 months' imprisonment, wholly suspended for five years on certain conditions.
Held on automatic review that the magistrate's questioning of the accused pursuant to his plea of guilty
fell short of what was required. The court set out the issues which needed to have been established during
questioning.
The conviction and sentence were set aside and the case remitted to the magistrate for questioning
afresh.
S v Manyakanyaka
[2009] JOL 23538 (Ck)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 24 / 08
12 / 09 / 2008
South Africa
High Court
Bisho
AEB Dhlodhlo J, PW Tshiki AJ
Keywords:
Criminal procedure – Plea of guilty – Questioning – Court's duty
Mini Summary:
Having pleaded guilty to a charge of theft, the accused was convicted and sentenced to a fine of R1 600,
or in default of payment to undergo eight months’ imprisonment, wholly suspended for three years on
condition that the accused was not convicted of theft, attempted theft, possession of stolen property or
receiving stolen property committed during the period of suspension. He was also ordered to compensate
the complainant her money.
Held that the answers given by the accused during the questioning on his plea did not constitute
admissions to all the elements of the offence of theft and some of the questions by the court amounted to
cross examination of the accused. The accused's replies showed that he had a defence to the charge.
The purpose of the court's questioning of an accused who has pleaded guilty to the charge is to ascertain
beyond doubt that the accused person is in fact pleading guilty to the charge by admitting all the elements
of the offence. It is a method of establishing the guilt of the accused beyond a reasonable doubt without
the state having to call evidence to prove the commission of the offence. Where an accused's response to
questions put to him by the court suggest a possible defence to the charge, even if unbelievable, the court
should enter a plea of not guilty and allow the prosecutor to proceed with his prosecution. It is therefore
not for the court, at that stage, to evaluate the answers given by the accused as if it were weighing
evidence or to judge their truthfulness or plausibility.
Setting aside the conviction and sentence, the court remitted the case for hearing de novo before another
magistrate.
S v Maharaj
[2009] JOL 22956 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
396 / 08
19 / 11 / 2008
South Africa
High Court
Eastern Cape
B Sandi J, N Dambuza
Keywords:
Criminal procedure – Guilty plea – Conviction – Review
Mini Summary:
208
Based on his plea of guilty, the accused was convicted of driving a motor vehicle on a public road whilst
the concentration of alcohol in his blood was not less that 0,05 grams per 100 millilitres of blood.
The case was sent on review after the magistrate realised that the accused had not admitted that a blood
sample was taken from him within two (2) hours of the driving of the vehicle.
Held on review that the statement was tendered by the accused with the assistance of his legal
representative who was aware of the provisions of section 65(3) of the National Road Traffic Act 93 of
1996, namely that the blood had to be taken within two hours of the driving of the vehicle.
The proceedings were confirmed as being in accordance with justice.
S v Gaviyaya
[2009] JOL 23630 (ZH)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
HH 85 / 08
11 / 09 / 2008
Zimbabwe
High Court
Harare
Chitakunye, Guvava JJ
Keywords:
Criminal law – being found in possession of goods in regard to which there is a reasonable suspicion that
they were stolen – whether accused person can be convicted on plea alone, without evidence being
ledCriminal procedure – admissions – what may be admitted – by accused person – accused may not
admit facts which are within the peculiar knowledge of another personCriminal procedure — plea — guilty
plea — conviction on basis of plea — charge under s 125(a) of Criminal Code [Chapter 9:23] —conviction
may not be recorded without leading evidence
Mini Summary:
The accused pleaded guilty in the magistrates court to a charge of contravening section 125(a) of the
Criminal Law (Codification and Reform) Act [Chapter 9:23], that is, being found in possession of goods in
circumstances giving rise to a reasonable suspicion that they were stolen and being unable at any time to
give a satisfactory account of his possession. The magistrate found him guilty on his plea. The facts in the
outline of the state case did not contain any explanation of how accused acquired the goods and the
questions posed by the magistrate did not elicit any explanation from the accused as to how he came to
possess the goods or even what explanation he gave to the police.
Held that it would be absurd to ask an offender in plea proceedings if he admits that there was a
reasonable suspicion that the goods found in his possession had been stolen. It is not the accused who
suspects himself. The suspicion is formed by a third person, usually a police officer. The circumstances
which give rise to the suspicion that the property was stolen must be as perceived by and considered by
that police officer. There must be something that the police officer saw and considered in the accused's
possession or manner of possession for him reasonably to suspect that the property was stolen. Such a
matter is not within the accused's knowledge and so any admission of that element of the offence by the
accused would not be of much value. Consequently, where the accused enters a plea of guilty the
presiding magistrate should still receive evidence on the circumstances giving rise to a reasonable
suspicion that the goods were stolen. Where no evidence has been given, the court is never in a position
to satisfy itself that the explanation is not satisfactory. It is the court that has to be satisfied that the
accused has failed to give a satisfactory account of his possession and that the suspicion alleged is
therefore reasonable in the circumstances.
S v Gwande & another
[2009] JOL 23637 (ZH)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
HH 101 / 08
15 / 11 / 2008
Zimbabwe
High Court
Harare
Omerjee, Hungwe JJ
Keywords:
Court – magistrate – duties – unrepresented accused – magistrate's responsibilities towardsCriminal
procedure – plea – guilty – questioning of accused by magistrate – need to phrase questions carefully to
ensure accused understands what he is pleading guilty to – disclosure of facts by prosecutor – need for
209
court to ensure that prosecution discloses sufficient facts – use of State's outline of facts – need to ensure
that accused has actually agreed with such outline
Mini Summary:
Magistrates owe enormous duties toward unrepresented accused persons. The magistrate is the primary
bulwark defending the ignorant or impoverished against the potential injustices wrought through an
excess of zeal; pressure of work; administrative inefficiency or plain ineptitude in the investigation and
prosecution of offences.
Where the accused person pleads guilty, and the court proceeds in terms of section 271(2)(b)(i) of the
Criminal Procedure and Evidence Act [Chapter 9:07], the magistrate is duty bound to ensure that the
prosecutor has disclosed sufficient and adequate facts, which are capable of informing, not only the court,
but also the accused, precisely what the allegations against him are. Where the prosecution fails to
provide or disclose adequate facts in support of the charge, it must be directed to do so: the magistrate
must mero motu invoke the provisions of section 177(1) of the Act and direct the prosecution to provide
further particulars. Failure by the magistrate to ensure prior disclosure of adequate and sufficient facts
amounts to a misdirection and offends against the accused person's constitutional right to be afforded a
fair trial, in particular, the right to be informed, in detail, of the nature of the offence charged as
guaranteed by section 18(3)(b) of the Constitution.
The purpose of the enquiry in terms of section 271(2)(b)(i) of the Act is to ensure that the accused’s plea
of guilty is an unqualified or unequivocal and genuine plea. The magistrate can only satisfy himself if he
asks questions which are carefully formulated by marrying the charge, the essential elements and the
particular facts of the case. Merely paraphrasing the definition of an offence will not assist an accused to
understand the import of the elements, more so if they are of a technical legal nature.
Magistrates and prosecutors should desist from the practice, which appears to be common, of simply using
the state's outline of its case when the accused tenders a guilty plea. The state outline is not based on
facts which the accused has given prior agreement to. The use of the state outline exposes the accused to
the danger of being convicted on facts that he has not been given an opportunity to carefully reflect on
and has the real potential of the accused being severely prejudiced, in the sense that he may be convicted
on the basis of facts which he may not agree with but which facts aggravate the offence and lead to a
more severe punishment than warranted. The correct procedure should be that if, in a contested trial, the
accused pleads guilty to the charge, the magistrate should take a short recess to allow the prosecutor to
interview the accused and draw up a statement of agreed facts based on the information gathered.
113) HABITUAL CRIMINAL
Sibiya v S
[2012] JOL 29102 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 447 / 2011
17 / 04 / 2012
South Africa
High Court
South Gauteng, Johannesburg
FHD van Oosten J, TP Mudau AJ
Keywords:
Criminal law – Theft – Conviction and sentence – Appeal – Habitual criminal – Need for prior warning
Mini Summary:
After being convicted on a charge of theft, the appellant was committed for sentence to the Regional Court
under the provisions of section 116 of the Criminal Procedure Act 51 of 1977. The Regional Magistrate
declared him a habitual criminal due to his previous convictions. The present appeal was against
conviction and sentence.
The police had spotted the appellant carrying a television set wrapped in a blanket. According to the two
police witnesses who testified at the trial, the appellant informed them that he had purchased the
television set at a nearby shop, but he was unable to produce a receipt. The appellant testified that he had
found the television set on the street as if it had been abandoned. He picked it up and decided to take it.
Held that as there was no evidence, nor could it be inferred from the evidence, that the television set had
been stolen, the appellant was wrongly convicted. However, the evidence did establish beyond reasonable
doubt, an offence under section 36 of the General Law Amendment Act 62 of 1955, which in terms of
section 264 of the Criminal Procedure Act, is a competent verdict on a charge of theft. The conviction of
theft was substituted with a conviction of contravention of section 36 of the Act 62 of 1955.
210
Regarding sentence, the court held that in terms of section 286 of the Criminal Procedure Act, the court
may declare certain persons as habitual criminals “if it (the court) is satisfied that the said person
habitually commits offences and that the community should be protected against him”. In the
consideration of a sentence in terms of section 286, the Court is required to thoroughly investigate all the
relevant circumstances. Of particular relevance are factors such as the frequency of the accused’s
previous convictions and the presence of a warning against an indeterminate sentence, at a previous
imposition of sentence. No previous warning had been given in this case, with the result that the sentence
imposed was inappropriate. Setting aside the sentence, the Court sentenced the appellant to eight years’
imprisonment, and issued a warning that he might be declared a habitual criminal in terms of section 286
of the Criminal Procedure Act 51 of 1977, should he again be convicted of any offence.
Gabatswe v S
[2008] JOL 21957 (W)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 59 / 06
17 / 06 / 2008
South Africa
High Court
Witwatersrand Local
FHD van Oosten J, P Coppin AJ
Keywords:
Criminal procedure – Repeat offender – Habitual criminal – Validity of declaration
Mini Summary:
The appellant was convicted of theft, and due to his long list of previous convictions sentencing was
referred to the regional court in terms of section 116 of the Criminal Procedure Act 51 of 1977. He was
declared an habitual criminal in terms of section 286(1), which in effect means a term of imprisonment of
not less than 7 years and not more than 15 years.
The present appeal was against sentence.
Held, that the only question for determination on appeal concerned the merits of the declaration. The
declaration of a person as an habitual criminal is in the nature of a finding that the usual methods of
punishment have ceased to serve any good purpose, and therefore does not strictu sensu serve as a
punishment for the new offence. In order to achieve the purpose of a declaration the court should do a
proper investigation into the nature and circumstances of an accused's previous convictions. In the
present case, the court found that the lower court was entitled to make the declaration merely on the
basis of the previous convictions of the appellant.
S v Van Eck 2003(2) SACR 563 (SCA) – court dealt with aspects to consider when
making such order. Confirmed sentence still exists and can be imposed.
Mans v Minister, Korrektiewe Dienste & andere
[2008] JOL 21381 (W)
Case Number:
2007 / 17113
Judgment Date:
30 / 01 / 2008
Country:
South Africa
Jurisdiction:
High Court
Division:
Witwatersrand Local
Bench:
JCW van Rooyen AJ
Keywords:
Criminal Procedure – Imprisonment – Habitual criminal – Maximum term – Additional sentences –
Interpretation of statutory provisions – Application dismissedCorrectional Services Act 111 of 1998 –
Correctional Services Act 111 of 1998, sections 39 and 73 – Correctional Services Act 111 of 1998,
sections 39(2) and 73(6) – Correctional Services Act 111 of 1998, sections 39(2)(a) and 73(6)(c)
Mini Summary:
The applicant had been declared a habitual criminal and whilst serving his sentence he had escaped from
prison on various occasions. During those escapes he had committed the same offences, viz, theft and
fraud, and had been convicted and effectively sentenced to a further 43 years' imprisonment for these
offences, which included seven for escaping from custody. After serving over 15 years of his first term as
a habitual criminal and before that term was up, he applied to court to be released, amongst others. He
based his application on a constitutional court ruling that a habitual prisoner should not be imprisoned for
more than 15 years. In addition he contended that sections 39(2)(a) and 73(6)(c) of the Criminal Services
211
Act 111 of 1998 provided for his immediate release. The former section provides that sentences should
run consecutively unless a court orders otherwise, but must run concurrently if a person has been
imprisoned for life, or has been sentenced as a habitual criminal. Section 73(6)(c) permits a sentence of
15 years for a habitual criminal.
Held that if the applicant's interpretation of section 39(2)(a) was correct then a prisoner who committed
murder in prison and had been sentenced to life for it would have his sentence terminated after 15 years.
Held that the word "concurrent" in the section referred to the part of the sentence imposed for a crime
committed during the 15-year term that would run concurrently with existing imprisonment. The balance
would have to be served after the fifteen years had been completed. Any sentence which was imposed on
the applicant after imprisonment as a habitual criminal, and which related to a crime committed before the
declaration as a habitual criminal and which was generically the same as the group to which the
declaration was connected had to come to an end after 15 years. Any sentence which was imposed on the
applicant after imprisonment as a habitual criminal and was based on an offence committed after
imprisonment as a habitual criminal had to run concurrently with the 15 year term. If a balance remained,
the balance had to be completed after the 15 years. The application was dismissed.
114) HEARSAY EVIDENCE
S v Saeed and another
[2012] JOL 29299 (FB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
65 / 2009
20 / 09 / 2011
South Africa
High Court
Free State, Bloemfontein
MH Rampai J
Keywords:
Evidence – Hearsay evidence – Admissibility
Mini Summary:
During the course of the presentation of the prosecutor’s case, the Court heard hearsay evidence by two
civilian witnesses and three police witnesses. The Court then heard argument for and against the
admission of the hearsay evidence. It then made an interlocutory ruling, for which it now provided
reasons.
Held that while the general rule of evidence is that hearsay evidence is ordinarily inadmissible, the rule is
not absolute. In terms of section 3 of the Criminal Law Amendment Act 45 of 1988, there are three
permissible exceptions or ways in which the otherwise inadmissible hearsay evidence can be received as
admissible evidence. The first is mutual agreement between the proponent and the opponent, the second
is the confirmatory testimony by the original declarant of the narrator’s initial hearsay testimony, and the
third is by way of the interests of justice.
In the present case, the Court had to determine whether the interests of justice demanded that the
hearsay evidence in this case be excluded or included. The first step was to consider the nature of the
proceedings and the onus of proof. Nest, the nature of the evidence had to be considered. The Court was
of the prima facie view that the nature of the hearsay evidence did not justify that it be excluded on the
grounds that it constituted inadmissible evidence. Having taken account of the nature of the evidence, the
Court was of the view that the interests of justice favoured the inclusion of the hearsay evidence under
attack.
The third consideration was the purpose for which the evidence was tendered. The purpose for which the
hearsay evidence was tendered was certainly to prove important aspects in the chain of evidence, namely
the identities of the perpetrators and their deadly association with the victims. The finding was essential in
order to establish each charge of murder.
Specific account must then be taken of the probative value of the evidence. The Court found that the
probative value of the hearsay evidence and the objective guarantees of the entire evidence constituted
compelling justification for the hearsay to be considered and not to be disregarded.
The Act further requires that specific account be taken of the reason why the evidence was not given by
the person upon whose credibility the probative value of such evidence depends; and of any prejudice to a
party against which the admission of such evidence might entail.
Against the above considerations, the Court found that the hearsay evidence should be admitted.
212
S v Angelo Hammond - Sept 2004 (SCA) – court dealt in detail with situations where
evidence of a first report may be used in sexual misconduct cases.
S v Jones - 2004 (1) SACR 420 (CPD) – expert evidence – opinions expressed in text
books are hearsay unless confirmed by expert under oath ie. “battered woman syndrome”
115) HOSTILE WITNESSES
S v Rathumbu 2012 (2) SACR 219 (SCA) – witness declared hostile after deviating
from the witness statement. Later disavowal of prior written statement in court. Having
regard to the substantial corroboration for the truthfulness of the statement found in other
evidence, the court was correct in admitting it and appeal against conviction was
dismissed.
S v MCOSELI (ECG)
PICKERING J and MAGEZA AJ
2011 NOVEMBER 2
Court—Judicial officer—Presiding officer required to set out evidence and analyse
evidence in judgment.
Evidence—Witnesses—Hostile witness—Declaration as hostile witness—Prosecutor not
complying with requirements of s 190(2) of Criminal Procedure Act 51 of 1977—
Declaration as hostile witness irregular.
Sentence—Imposition of—Judgment on sentence—Judgment making no reference to
minimum sentencing provisions that were applicable—Judgment of such poor quality
that it could be inferred that magistrate had failed to apply his mind.
116) HOUSEBREAKING
Mathobela and another v S
[2012] JOL 29163 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 172 / 2011
26 / 04 / 2012
South Africa
High Court
South Gauteng, Johannesburg
CJ Claassen J, TP Mudau AJ
Keywords:
Criminal law – Housebreaking – Theft – Conviction and sentence – Appeal – Evidence – Inferences
Mini Summary:
The appellants were convicted of housebreaking with intent to steal and theft, and were each sentenced to
eight years’ imprisonment. The present appeal was against conviction and sentence. The grounds of
appeal were that there was no direct evidence linking the two appellants to the commission of the offence,
and that the mere fact that the appellants were arrested shortly after the incident of housebreaking and
theft, in possession of R23 650 and R25 750 in cash respectively resulted in the trial court drawing an
erroneous inference that they were guilty.
Held that there are two cardinal principles in relation to inferential reasoning. The first is that the
inference sought to be drawn must be consistent with all the proved facts. Secondly, the proved facts
should be such that they exclude every reasonable inference save the one to be drawn.
213
The Court set out material parts of the evidence which, viewed cumulatively compelled the conclusion that
that the trial court could not be faulted in its finding of guilt. It was safe to conclude that the appellants in
light of all the factors, were responsible for the break-in and theft. Their convictions were confirmed.
On the issue of sentence, the Court again found no grounds upon which to interfere. The appeal was thus
dismissed.
Frans v S
[2010] JOL 26340 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 229 / 09
17 / 05 / 2010
South Africa
High Court
Eastern Cape, Grahamstown
PW Tshiki, E Revelas JJ
Keywords:
Criminal procedure – Housebreaking with intent to assault – Assault with intent –– Common assault ––
Charge sheet –– Substitution of charges –– Irregularity –– Appeal
Mini Summary:
The appellant was convicted of housebreaking with intent to assault and assault with intent to do grievous
bodily harm, and was sentenced to three years’ imprisonment, one year of which was conditionally
suspended.
The charge sheet reflected the charges as housebreaking with intent to assault and assault. After the
appellant pleaded not guilty, the court enquired from the prosecutor whether the charge was
housebreaking with intent to assault and assault with intent to do grievous bodily harm, which the
prosecutor confirmed.
The present appeal was against conviction and sentence.
Held that the trial court’s substitution of the charge with a more serious one without seeking the views of
the appellant’s representative was an irregularity. The conviction on the more serious charge was set
aside and the conviction was replaced with one of common assault. The court went on to confirm the
correctness of such conviction, based on the evidence against the appellant.
Despite the amendment to the conviction, the court found the sentence to remain appropriate. The appeal
against sentence was thus dismissed.
S v Mavungu
[2008] JOL 21901 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
14 / 02162 / 2007
09 / 06 / 2008
South Africa
High Court
Transvaal Provincial
WRC Prinsloo J, FJ Jooste J
Keywords:
Criminal procedure – Trespass – Conviction and sentence – Review
Mini Summary:
Convicted of housebreaking with the intent to commit an offence and trespassing, the accused was
sentenced to 3 years' imprisonment wholly suspended for 5 years on condition that the accused was not
convicted, during the period of suspension, of housebreaking with intent to commit an offence.
The case was sent on review as the magistrate had convicted the accused of housebreaking with intent to
commit an offence and trespassing, when, in view of the charge against the accused, he should only have
been convicted of housebreaking with intent to commit trespassing.
Held that one of the man questions before the court was whether the offence of trespassing had been
committed as the accused had been found inside a caravan. The court confirmed that a caravan should be
regarded as a building, and therefore, that the offence had been committed. The conviction was replaced
with one of housebreaking with intent to contravene section 1(1)(b) of the Trespass Act 6 of 1959, by
being in (or remaining in) the caravan, broken into, without permission. The sentence was confirmed.
214
S v Mzozoyana – 2008 JOL 21268 (E) – accused convicted of housebreaking and
murder. Court dealt with onus of proof on State and duty to prove case beyond reasonable
doubt. Court not satisfied presence of accused on scene satisfactorily established.
S v Ngxokolo – 2008 JOL 21267 (E) CA 366/07 – accused convicted of housebreaking
with intent to steal and theft. Admissibility of an admission made by accused to police on
arrest in question. Court held admission not properly admitted into evidence and its
admission amounted to an irregularity. Irregularity, however, did not result in miscarriage
of justice therefore not fatal. Conviction stood
Klaas v S
[2010] JOL 26381 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 302 / 09
26 / 05 / 2010
South Africa
High Court
Eastern Cape, Grahamstown
C Plasket J, GH Bloem AJ
Keywords:
Criminal procedure – Housebreaking – Sentence – Appeal
Mini Summary:
The appellant was convicted of housebreaking with intent to steal and theft, and was sentenced to 15
years’ imprisonment. Leave to appeal was granted solely against the sentence.
Held that although the offence was serious, the circumstances under which it was committed had to be
considered. No violence was used, and no property was damaged. Although the complainant suspected
that the intruders might have hit her dogs with branches she found in the house, there was no evidence
that the dogs were hurt. Watches worth about R700 were stolen but returned to the complainant on the
same day.
The sentence imposed appeared to be intended as a deterrent, but was too severe. The court replaced the
sentence with one of six years’ imprisonment.
117) IDENTIFICATION EVIDENCE
Nyabo v S
[2008] JOL 22823 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
327 / 07
27 / 11 / 2008
South Africa
Supreme Court of Appeal
JA Heher JA, Combrinck, Cachalia JJA
Keywords:
Criminal law – Robbery – Rape – Conviction – Appeal – Assessment of evidence
Mini Summary:
The appellant noted the present appeal against his convictions on charges of rape and robbery.
According to the complainant, she had been abducted by two men, and was taken to a shack where she
was raped by both men. One then left, and she was left with the other, who again raped her. She
identified him as the appellant.
The central issue was the identification of the appellant as the perpetrator of the offences.
215
Held that while the trial court purported to endorse the correct legal approach to assessing evidence in
such cases, it in fact, was guilty of misdirection in its assessment.
The complainant's testimony on the identity of the appellant as the perpetrator was adduced by leading
questions to which neither the court nor the appellant's counsel raised objection. The complainant was
found to have been prompted by the prosecution.
The court also took issue with the trial court's findings that the lighting in the shack was good, and that
the complainant had ample opportunity to see the appellant. That was shown not to be true. The shack
was actually in darkness and the complainant's opportunity to view the perpetrator at a time when she
was under emotional pressure was open to doubt. While her evidence of identification might have been
true and reliable, a much more careful and detailed investigation was necessary before arriving at that
conclusion.
The misdirections of the trial court meant that the present court was free to reconsider the strength of the
case against the appellant. It was pointed out that the appellant's version was not shown to have been not
reasonably possibly true. In the circumstances, the states' case had to fail unless the evidence of the
complainant was of itself so clear and unanswerable as to justify the conclusion that the appellant's
version was, although without apparent flaw on the face of it, nevertheless false beyond a reasonable
doubt.
The appeal was upheld and the two convictions set aside.
Nyabo v S
[2009] JOL 23069 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
327 / 07
27 / 11 / 2008
South Africa
Supreme Court of Appeal
JA Heher, Combrinck, Cachalia JJA
Keywords:
Criminal law – Robbery and rape – Appeal against conviction – Assessment of evidence – Identification –
Trial court unduly influenced by demeanour of complainant, in circumstances where her evidence was
inadequate– Although complainant's identification of appellant might have been reliable, a more thorough
investigation was necessary by the trial court before a conclusion could be arrived at
Mini Summary:
The appellant had been convicted of various offences including robbery and rape.
Despite the appellant's having denied any knowledge of the complainant or the incident, the trial court
found the complainant to be both credible and reliable, and rejected the appellant's version. On appeal to
the full court, the appellant was still unsuccessful as the court found no misdirection. The present appeal
then ensued.
Held that the issue in dispute was whether the complainant had reliably identified the appellant as one of
her assailants.
The appellant was now known to the complainant, but she identified him subsequently.
The trial judge set out certain principles relevant to the assessment of evidence. The present court agreed
with those principles, but found that they had not actually been applied by the trial court.
It was clear from the record that the trial judge was strongly influenced by the complainant's demeanour.
He found her to be honest and confident in her identification of the accused. However, the present court
found that much of the complainant's evidence in relation to opportunity for identification on the night in
question was adduced by leading questions to which neither the court nor the appellant's counsel raised
objection. Although the complainant's identification of the appellant might have been reliable, a more
thorough investigation was necessary by the trial court before a conclusion could be arrived at. Instead,
there was no corroboration for the complainant's identification of the appellant and no means of reliably
testing her account of such opportunity as she may have been afforded before and during the abduction
and assault.
The trial judge made much of the alleged defects in the evidence of the appellant as reasons for
disbelieving him. The appeal court found that that was an over-robust conclusion given that the
appellant's evidence was not challenged.
As a result of the misdirections referred to above, both in the evaluation of the complainant’s evidence
and the assessment of the appellant's credibility, the appeal court was at large to reconsider the strength
of the case against the appellant. It pointed out that the state's case had to fail unless the evidence of the
complainant was of itself so clear and unanswerable as to justify the conclusion that the appellant's
version was, although without apparent flaw on the face of it, nevertheless false beyond a reasonable
216
doubt. The inadequacy of the complainant's evidence meant that such a finding could not be made. The
appeal accordingly succeeded, and the appellant was pronounced not guilty.
Xaba v S
[2014] JOL 32089 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 172 / 13
14 / 02 / 2014
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Lopes, Pillay JJ, Bezuidenhout AJ
Keywords:
Criminal law – Robbery with aggravating circumstances – Murder – Conviction and sentence – Appeal –
Identification
Mini Summary:
The appellant was convicted of one count of robbery with aggravating circumstances and one of count of
murder. He was sentenced to 12 years’ imprisonment on the first count and 20 years’ imprisonment on
the second count – the 2 to run concurrently. The Court further directed that the non-parole period in
respect of the imprisonment should be 15 years.
On appeal, the central issue related to the identification of the appellant as one of the attackers of the
deceased. The State relied on an eye witness who was the only witness in the matter.
Held that evidence of identification is approached by the courts with a degree of caution. The reliability of
the witness’ observation must be tested. The trial court was aware of the correct approach to be applied,
and did apply caution in her assessment of the evidence. Corroboration for the testimony of the single eye
witness was sought. Unable to fault the trial court’s judgment, the present Court confirmed the
convictions.
In sentencing the appellant, the trial court committed a misdirection in failing to allow counsel for the
State and the defence to address her on the question of the imposition of a non-parole period as provided
for in section 276 B of the Criminal Procedure Act 51 of 1977. Notwithstanding the misdirection, there was
no good reason for this Court to interfere with the length of the imprisonment imposed upon the
appellant. Although the appellant was a first offender, the circumstances of the offence clearly warrant the
punishment imposed.
The appeal was upheld only to the extent that the direction by the Judge that a non-parole period of 15
years’ imprisonment should be applicable to the appellant was set aside.
Kholosa & another v S
[2012] JOL 29149 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA 183 / 2010
16 / 09 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
JW Eksteen, ZM Nhlangulela JJ, PHS Zilwa AJ
Keywords:
Criminal law – Kidnapping – Rape – Murder – Conviction and sentence – Appeal – Alibi defence –
Identification
Mini Summary:
The appellants were convicted on charges of kidnapping, rape and murder. They were each sentenced to
eight years’ imprisonment on the charge of kidnapping and to life imprisonment on each of the remaining
two charges. The first appellant appealed against his convictions and sentences, while the second
appellant challenged only his sentences.
The victim of the crimes was forcibly taken from her dwelling by three armed intruders, and her bloodstained body was found the next day. Three witnesses positively identified the appellant as having taken
an active role in the abduction of the deceased.
Held that in any criminal trial, the onus of establishing the guilt of the accused, beyond a reasonable
doubt, rests on the state.
The evidence of the deceased’s boyfriend and another friend, who were asleep in the same room as her
when the intruders broke in, was that the deceased had shone a light at the intruders and her boyfriend
217
recognised the appellant, who was known to him. The deceased’s boyfriend and the other person in the
room later identified the appellants in an identification parade.
The Court set out the principles governing the assessment of evidence to determine if the onus of proof
has been discharged; alibi defences; and identification. Applying those principles, the Court agreed with
the trial court’s conclusion that the appellants acted in concert on the day in question, and were guilty on
all counts. The principle of common purpose could however only apply to the kidnapping and murder
charges. The offence of rape is such that it can only be committed by the instrumentality of the
perpetrator’s own body. The evidence in this case did not establish that the first appellant had raped the
deceased. At best he could be regarded as an accomplice to rape. His conviction and sentence on the
charge of rape were set aside.
In the appeal against sentence, the Court upheld the appeal only to the extent that the sentence on the
kidnapping count was reduced to five years’ imprisonment.
S v Maphumulo A O 2010 (2) SACR 550 (KZP)
The two appellants were each convicted on one count of murder and four counts of
attempted murder. The first appellant was also convicted of unlawful possession of a
firearm and unlawful possession of ammunition. They appealed against their convictions
only, arguing that the court a quo had erred in finding that they had been reliably
identified as the perpetrators of these offences. It was further argued that, since bad blood
existed between the family of the first appellant and that of the deceased and some of the
other complainants, the court a quo should have found that the witnesses had a motive
falsely to implicate the appellants. In addition, the second appellant had been identified
only by a single witness, and the court a quo had failed to approach this evidence with the
necessary caution.
Held, that evidence of identification must always be evaluated with caution. However,
awareness of the need for caution was not in itself sufficient - the treatment of the
evidence must demonstrate that caution had been applied. Such a demonstration was
missing in the judgment of the court a quo. For one thing, notwithstanding the fact that
both appellants were known to all three identification witnesses, only one of them had
identified the second appellant; for another, the record showed that the reliability of
observation of each witness had not been properly tested. In the result, the reasons given
by the court a quo for accepting the identification evidence were unsatisfactory, and the
court was thus at large to come to its own conclusion on the matter.
Held, further, that the court a quo had been alive to the issue of bad blood between the
two families, and no fault could be found with the manner in which it had been dealt
with. The judgment had also taken into account the fact that the crime had been
committed in broad daylight, that the witnesses had been close by, and that the single
witness who had identified the second appellant had had a clear view of the assailants.
However, insufficient attention had been given to the length of time during which the
witnesses had been able to observe the appellants. Nevertheless, regarding the first
appellant, three witnesses had testified that he was well known to them, and this
testimony was unchallenged. This, together with the fact that the witnesses corroborated
each other, was sufficient to remove all danger that the first appellant had been wrongly
identified.
Held, further, that the position was different concerning the identification of the second
appellant. Only one witness had identified him as having been present, but his
opportunity reliably to observe the second appellant had not been tested. Furthermore,
notwithstanding the fact that this appellant was well known to the other two
218
eyewitnesses, they had not identified him as a participant in the attack. Accordingly,
reliance on the uncorroborated evidence of the single witness could cause grave injustice.
Held, further, concerning the convictions for unlawful possession of a firearm and of
ammunition, that the police officer who testified in this regard could not connect the
names of the people he had found in unlawful possession of firearms to any of the faces
of the accused in the dock. For this reason, as the first appellant's counsel had submitted,
the appeal against these convictions had to succeed.
First appellant's appeal against convictions for unlawful possession of a firearm and of
ammunition upheld, and sentences set aside. First appellant's appeal against convictions
for murder and attempted murder dismissed. Second appellant's appeal upheld;
convictions and sentences set aside.
Case Information
Appeal against conviction. The facts appear from the judgment of Msimang JP, in which
Jappie J and Swain J concurred.
Mgengo v S
[2011] JOL 27809 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA 19 / 2011
01 / 06 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
Pakade ADJP, JD Pickering, E Revelas JJ
Keywords:
Criminal law – Rape – Conviction – Appeal – Identification
Mini Summary:
The appellant was convicted of the rape of an 11-year-old girl and was sentenced to 16 years’
imprisonment. He appealed against his conviction.
The trial court had taken cognisance of the fact that the complainant was a child and a single witness, but
found her to be an honest and reliable witness. By contrast, the appellant was found to be an
unsatisfactory witness who was evasive and unconvincing.
Held that the complainant’s identification of the appellant as her rapist was corroborated by her pointing
out of his house as being the house in which she was raped. Although the Court expressed concern about
the police’s handling of the issue of identification, it was satisfied that the complainant’s identification of
the appellant did not stand alone. There was sufficient supporting evidence to back up her testimony.
The appeal was dismissed.
Mdlalose v S
[2011] JOL 27894 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 184 / 11
25 / 08 / 2011
South Africa
High Court
KwaZulu-Natal, Durban
Ndlovu, Gorven JJ
Keywords:
Criminal law – Conviction – Appeal – Identification
Mini Summary:
The appellant was convicted of robbery with aggravating circumstances read with the provisions of the
Criminal Law Amendment Act 105 of 1997; attempted murder also read with the same provisions; and
sexual assault.
219
Held on appeal that various facts suggested that the identification of the appellant as the perpetrator was
open to doubt. The state had a duty to prove the guilt of the appellant beyond a reasonable doubt. Whilst
the complainant might have laboured under a sincere and honest belief that the appellant was her
attacker, it seemed, in the circumstances of the case, that there was a reasonable doubt of her being
innocently mistaken in her identification of the appellant.
The appeal was upheld and the conviction and sentence set aside.
S v Baleka – 1986(4) SA 192 (T) – admissibility of video recordings. Authenticity not a
matter pertaining to admissibility but relevant only to weight as evidence. Are real
evidence thus rules of evidence relating to documents not applicable.
Nelani & another v S
[2008] JOL 21733 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 245 / 07
25 / 04 / 2008
South Africa
High Court
Transvaal Provincial
BR Southwood J, K Makhafola AJ
Keywords:
Criminal law – Murder – Conviction – Appeal
Mini Summary:
In the present appeal, the first appellant appealed against his conviction and sentence on a charge of
murder, and the second appellant appealed against his convictions of murder and unlawful possession of
the firearm and ammunition and the sentences imposed therefor.
Held that the question for determination on appeal related to the identity of the person who had shot the
deceased. Each of the appellants alleged that it was the other. The court held that the actual question was
whether there was any credible and reliable evidence to show that either appellant was guilty of murder.
As the evidence could not establish the guilt of either appellant beyond a reasonable doubt, the appeals
were upheld.
118) IDENTIFICATION PARADES
Phumlani v S
[2014] JOL 31310 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA & R 213 / 11
03 / 08 / 2012
South Africa
High Court
Eastern Cape, Grahamstown
Y Ebrahim ADJP, PW Tshiki J
Keywords:
Criminal Law – Robbery with aggravating circumstances – Identification parade – Alibi – Prejudice –
Criminal Procedure Act 51 of 1977, s309, s309C, s37
Mini Summary:
The appellant was charged with and convicted of robbery with aggravating circumstances on 29 June
2009. He was sentenced to 15 years imprisonment.
The grounds for the appeal were based on the failure by the state to prove its case beyond reasonable
doubt. It was alleged that the trial court had erred by rejecting the appellant's alibi and accepting
evidence from the identification parade which was not properly constituted.
The manner in which the identification parade was conducted was challenged and it was alleged to have
prejudiced the appellant due to non-compliance with the Rules of Practice recognised in section 37 of the
Criminal Procedure Act 51 of 1977 (“the Act”). The evidence of the video footage was also challenged as
being unreliable.
220
Held that the state did not present any reliable evidence with which to prove its case. With the appellant's
alibi also not having been proven false by the court a quo, the conviction could not be upheld. The
conviction and sentence were thus set aside.
Gobe v S
[2008] JOL 21272 (E)
Case Number:
CA & R 201 / 2007
Judgment Date:
21 / 11 / 2007
Country:
South Africa
Jurisdiction:
High Court
Division:
Eastern Cape
Bench:
Pillay J, Greenland AJ
Keywords:
Criminal Procedure – Attempted murder/robbery with aggravating circumstances – Identification parade –
Procedural irregularities – Severity of – Appellant not prejudiced – Appeal dismissed
Mini Summary:
The appellant and an accomplice had entered an office in which other members of staff witnessed them
demand money and then shoot two people, one in the stomach and the other in the back as he was
fleeing. In his trial before a regional magistrate the appellant denied that he was present at the scene of
the crime, but admitted that he had been in the area at the date and time of the offence. He raised one
alibi in defence. In convicting the appellant the magistrate had relied on his admission and the
corroborating evidence of the witnesses and the suspected accomplice.
In this appeal against conviction and sentence, the issue was primarily whether the identification parade,
which had not been conducted in accordance with acceptable standards in terms of section 37(1) of the
Criminal Procedure Act 51 of 1977, was so inadequate that the accused had been prejudiced by its
defects, more especially the defect that he had not been afforded legal representation at the parade.
Held that the record showed that the accused had been informed of his right to legal representation at the
parade and he had elected not to have a lawyer present. In addition he and his accomplice had not raised
any concerns and had cooperated with the police. The magistrate had not erred in his finding that the
appellant had not been prejudiced by the procedural imperfections. Even if the evidence of the parade
should have been excluded, the conviction was still fully supported by other evidence. The appeal was
dismissed.
S v Chabalala - 2003 (1) SACR 134 (SCA) – notwithstanding shortcomings in ID parade,
court must still evaluate evidence of identity – can still be sufficient even if parade not
the best.
R v Jackson – 1955(4) SA 85 (SR) – dealt with requirements and potential or inherent
dangers in photo-identification “parades”.
R v Madubedube – 1958(4) SA 276 (O) – dealt with purpose and value of identification
parades. Enormous value if done correctly.
S v Mhlakaza – 1996(2) SACR 187 (C) – disputes about admissibility of ID parade to be
adjudicated by means of a trial-within-a-trial. Onus on state!
119) ILLEGAL IMMIGRANTS
South African Human Rights Commission and others v Minister of Home Affairs, and others
[2014] JOL 32353 (GJ)
Case Number:
Judgment Date:
41571 / 12
28 / 08 / 2014
221
Country:
Jurisdiction:
Division:
Bench:
South Africa
High Court
Gauteng Local Division, Johannesburg
MP Tsoka J
Keywords:
Immigration – Detention of immigrants – Constitutionality
Mini Summary:
The applicants sought a declaratory order that the respondents’ practices regarding detention of the 19
applicants and other detainees, were unconstitutional and in contravention of the Immigration Act 13 of
2002. They also sought a systemic order requiring the first to fourth respondents to provide regular
reports to the first applicant about the number and status of detainees at a certain repatriation centre
(Lindela) and to permit the first applicant regular access to Lindela.
Held that although the issue of the release of the detainees was moot, the Court found that the
consideration of the issue of unlawful detention of the individual applicants presented a live issue worthy
of consideration. The interests of justice dictated that the lawfulness or otherwise of the individual
applicants had to be considered.
The Court went on to find that the respondents’ conduct of detaining illegal foreigners beyond the
maximum permissible 120 days was unlawful and unconstitutional. There could be no basis for the
argument, as submitted by the respondents, that there is a discretion to extend the maximum detention
period beyond 120 days whenever it is necessary or justifiable.
The Court granted the declaratory and systemic relief sought by the applicants.
Ulde v Minister of Home Affairs & another
[2008] JOL 21433 (W)
Case Number:
5353 / 08
Judgment Date:
21 / 02 / 2008
Country:
South Africa
Jurisdiction:
High Court
Division:
Witwatersrand Local
Bench:
R Sutherland AJ
Keywords:
Immigration – Illegal immigrant – Detention – Lawfulness
Mini Summary:
In an urgent application, the applicant sought a declaration that his detention was unlawful and that the
respondents should release him from their custody.
Held that whether or not the detention was lawful related to the proper application of sections 8, 34 and
41 of the Immigration Act 13 of 2002.
After setting out the relevant statutory provisions, the court examined the circumstances in which the
applicant was detained. It then turned to consider the respondent’s grounds of opposition.
The contention that the application was premature due to internal remedies not being exhausted was
rejected by the court. Although that requirement is preferred, the court has a discretion to condone noncompliance in urgent cases such as the one at hand.
However, the court went on to find that the application was meritless and launched recklessly in as much
as it relied on false premises for the relief sought. A punitive order resulted.
120) INDECENT ASSAULT
Geldenhuys v S
[2008] JOL 21605 (SCA)
Case Number:
470 / 07
Judgment Date:
31 / 03 / 2008
Country:
South Africa
Jurisdiction:
Supreme Court of Appeal
Division:
Bench:
BJ van Heerden, Cameron, Nugent, Streicher JJA, Kgomo AJA
Keywords:
Criminal Law – Indecent assault – Same-sex offenders – Constitutionality of statute – Discrimination
against males – Relative ages of boys and girls – Not justification proffered – Statute unconstitutional –
Order for "read-in" proviso – Appeal partially successfulSexual Offences Act 23 of 1957 – Sexual Offences
Act 23 of 1957, section 14 – Sexual Offences Act 23 of 1957, sections 14(1) and (3) – Sexual Offences Act
222
23 of 1957, section 14(1)(b)The Constitution of the Republic of South Africa, 1996 – The Constitution of
the Republic of South Africa, 1996, section 9 – The Constitution of the Republic of South Africa, 1996,
section 9(3)
Mini Summary:
In February 2005 the appellant, a male, was convicted of 10 counts of contravening section 14(1)(b) of
the Sexual Offences Act 23 of 1957 related to his activities with a boy under the age of 19 but above the
age of 12 at the time when the activities were carried out. He was sentenced to an effective 11 years'
imprisonment. The magistrate had adopted a prima facie view at an early stage that the complainant had
been a willing participant in all the various sexual interludes between him and the appellant. The
prosecutor had assented to this and the appellant was convicted in terms of the section, which does not
require an absence of consent, as in the case of the common-law definition of rape.
When the appellant appealed to the High Court the judge had found that the magistrate had been justified
in thinking that the complainant had been a willing participant. Therefore the matter of willing
participation had not been fully investigated and there was no basis for the High Court to find that the
magistrate had been wrong. The High Court had dismissed the appeal against conviction but had upheld
the appeal against sentence, which was reduced to 7 years' effective imprisonment.
In this appeal to the Supreme Court of Appeal, the appellant, inter alia, raised the constitutionality of the
section in limine. His argument was that the Act discriminates against same-sex sexual activities by
setting the legal age of consent at 16 and 19 years for girls and boys respectively. Thus, had the
complainant been a girl the activities that were carried on, apparently with consent, when the complainant
was 16 years old would not have been unlawful had he been a girl but were unlawful under the Act as it
then was.
Held that the onus of proving consent did not rest with the accused, as contended by the respondent.
Although absence of consent is not part of the definition of the crime of indecent assault, the definition
includes an averment of unlawfulness. Even though the acts were not malum in se and were only unlawful
because of the complainant's lack of consent, the proof of unlawfulness rested with the State. The State
had not adduced sufficient evidence to negative the reasonable possibility that the complainant had
consented to the sexual acts in question.
Held that, on the face of it, the same-sex/heterosexual legal age of consent distinction drawn in section
14 did discriminate unfairly against persons on the grounds of sexual orientation, even when viewed in the
light of the State's constitutional and international obligations to protect young people against, inter alia,
sexual exploitation. No justification for this discrimination had been proffered in terms of section 36(1) of
the Constitution. Sections 14(1) and (3) of the Act were therefore unconstitutional. Since the Act had been
repealed (by section 68(2) of the Criminal Law (Sexual Offences & Related Matters Act 32 of 2007), an
appropriate remedy was to sever the words "under the age of 19 years" after the words "a boy" and read
in the words "under the age of 16 years". On this basis, four of the convictions were set aside and the
sentences reduced accordingly.
Swartz v S
[2008] JOL 22396 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 299 / 07
17 / 04 / 2008
South Africa
High Court
Cape of Good Hope Provincial
MJ Hlophe JP; EJS Steyn AJ
Keywords:
Criminal procedure – Indecent assault – Child complainant – Competence as witness – Enquiry
Mini Summary:
The appellant was convicted of the indecent assault of a 4-year-old boy. He was sentenced to 3 years’
correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act 51 of 1977.
He appealed against his conviction.
Held that presiding officers are required, when dealing with young witnesses, to determine whether they
have the necessary competency to testify. In the present case, the regional magistrate was required to
determine whether the witness, a child of seven years of age at the time of the trial, was a competent
witness to give sworn evidence in terms of section 162 of the Act.
The trial court's conviction of the appellant based on the complainant's evidence without conducting the
enquiry referred to above or making a finding regarding the child's competency was an irregularity.
The appeal was upheld.
223
Qwakanisa v S
[2008] JOL 21273 (E)
Case Number:
CA & R 115 / 07
Judgment Date:
12 / 12 / 2007
Country:
South Africa
Jurisdiction:
High Court
Division:
Eastern Cape
Bench:
JC Froneman, HJ Liebenberg JJ
Keywords:
Criminal Procedure – Indecent assault – Sentence – Offence treated as rape – Statutory minimum
exceeded – No warranted by circumstances – Sentence set aside – Reduced to statutory minimum
Mini Summary:
The appellant, who was drunk and 20 years old at the time of the offence, had indecently assaulted the
complainant by penetrating her anally. For the purpose of sentence, the magistrate treated the offence as
rape and sentenced the appellant to 12 years' imprisonment. The appeal was against sentence on the
grounds that the magistrate had misdirected himself in treating the offence as rape whilst the appellant's
conduct did not fall within the old definition of rape. Further, even if the offence merited a sentence
equivalent to that for rape proper, the statutory minimum for a first offender who is convicted of rape is
10 years: the circumstances did not justify a sentence in excess of the prescribed minimum.
Held that even if the offence could be construed as rape for the purpose of sentence, the magistrate had
over-emphasised the seriousness of the crime and the interests of the community at the expense of the
appellant's personal circumstances and the particular context in which the offence was committed. Both
the appellant and the complainant had been heavily under the influence of liquor, and there was no
evidence that the complainant was left with permanent physical or mental injuries. While the offence was
serious, the circumstances militated against a finding that it warranted a sentence in excess of the
statutory minimum. The sentence was set aside and reduced to ten years.
121) INFERENCES
Mathobela and another v S
[2012] JOL 29163 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 172 / 2011
26 / 04 / 2012
South Africa
High Court
South Gauteng, Johannesburg
CJ Claassen J, TP Mudau AJ
Keywords:
Criminal law – Housebreaking – Theft – Conviction and sentence – Appeal – Evidence – Inferences
Mini Summary:
The appellants were convicted of housebreaking with intent to steal and theft, and were each sentenced to
eight years’ imprisonment. The present appeal was against conviction and sentence. The grounds of
appeal were that there was no direct evidence linking the two appellants to the commission of the offence,
and that the mere fact that the appellants were arrested shortly after the incident of housebreaking and
theft, in possession of R23 650 and R25 750 in cash respectively resulted in the trial court drawing an
erroneous inference that they were guilty.
Held that there are two cardinal principles in relation to inferential reasoning. The first is that the
inference sought to be drawn must be consistent with all the proved facts. Secondly, the proved facts
should be such that they exclude every reasonable inference save the one to be drawn.
The Court set out material parts of the evidence which, viewed cumulatively compelled the conclusion that
that the trial court could not be faulted in its finding of guilt. It was safe to conclude that the appellants in
light of all the factors, were responsible for the break-in and theft. Their convictions were confirmed.
On the issue of sentence, the Court again found no grounds upon which to interfere. The appeal was thus
dismissed.
Sv Abduragham Thebus & Moegemat Adams - Aug. 2003 (CCT 36/02) – court found on
split decision that accused cant be questioned on reason for late disclosure of alibi as
violates right to remain silent. If elects to say nothing in warning statement accused can’t
224
be questioned on such election despite fact that subsequently offers alibi. Court may not
draw any negative inference in these circumstances.
Mlimo v S
[2008] JOL 21505 (SCA)
Case Number:
454 / 2007
Judgment Date:
18 / 3/ 2008
Country:
South Africa
Jurisdiction:
Supreme Court of Appeal
Division:
Bench:
Farlam, Mthiyane JJA, Kgomo AJA
Keywords:
Criminal law – Murder – Attempted murder – Conviction and sentence – Appeal
Mini Summary:
The appellant was convicted of murder and attempted murder and sentenced to life imprisonment for
murder and twelve years' imprisonment for attempted murder. He appealed against his convictions and
sentences.
Held that the evidence adduced by the State established that the complainant was shot and her husband
killed, with a firearm registered in the appellant's name. The appellant opted not to testify, and there was
therefore nothing to counter the evidence linking him to the incident.
The appeal was dismissed.
122) INQUESTS
1. BOTHA v MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT BOTHA v MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT AND OTHERS 2014 (1) SACR 479
(NCK)
The applicant applied to review and set aside a decision made by the third
respondent (the magistrate) to exhume the body of the deceased. The applicant was
the son of the deceased and his mother was standing trial for his murder. It
appeared that the postmortem report had been done in a rather perfunctory manner
and it was not clear what the effect of two gunshot wounds to his head had been,
and whether his death could have been a suicide. The applicant contended that the
magistrate was not empowered by the Inquests Act 58 of 1959 (the Act) to grant
permission to exhume the body of the deceased. He argued that the National
Director of Public Prosecutions (NDPP) could use the provisions of the Act up to the
point that it took the decision to implement the prosecution of the accused,
thereafter the magistrate was no longer empowered by the provisions of the Act to
grant the relevant permission. With reliance on the provisions of s 21(2) of the Act
he argued that the NDPP had one bite at the cherry and that, insofar as the
prosecution of the applicant's mother was concerned, the NDPP had made its
decision and now had to abide by it. Secondly, he argued that the decision made by
the magistrate was an administrative act and was subject to the provisions of the
Promotion of Administrative Justice Act 3 of 2000, and, as such, having regard to the
fact that the magistrate had granted permission without having regard to the
requirements of the rules of natural justice, in that no notice of the application was
given to the accused or the deceased's family, the permission had to be set aside.
Held, as regards the first contention, that the method of interpretation that the
applicant sought to impose was pedantic and mechanical and was no longer favoured
by the courts, which had adopted the 'purposive' method of interpretation of
statutory enactments. Section 4 of the Act stated that the investigating officer
provided a report, together with all the relevant information, to the public prosecutor
who could, if he deemed it necessary, call for additional information regarding the
death. To restrict the access of the NDPP to this mechanism of obtaining relevant
information, only up to I the point postulated by the applicant, would lead to an
225
absurd and undesirable result that Parliament could never have intended when
enacting the Act. If a DPP was made aware of new information which required a
further examination of the remains of the deceased who had already been buried, on
the interpretation proposed by the applicant this would lead to the absurd result that
the DPP would not have a mechanism to conduct such
further examination. If he were deprived of this mechanism of obtaining relevant
evidence, this might lead to a miscarriage of justice and an absurd result which
Parliament could never have intended. (Paragraphs [20] at 486j – 487a, [22] at 487f
– g and [23] at 487h – 488a.)
Held, as regards the applicant's second contention, that s 3(4) of the Act did not
require notice to be given to any person for an application granting permission to
exhume a body. In the context of a criminal investigation or a criminal trial, an ex
parte application was appropriate. The exhumation of the deceased was regulated by
statute and it was clear from the magistrate's reasons that he had considered and
applied the relevant statute. Evidence on oath had been placed before him, including
that of the investigating C officer and a forensic pathologist, and he had evaluated
this evidence. From his reasons it was clear that he had brought a judicial discretion
to bear on the relevant request to exhume the body of the deceased, and in those
circumstances the act of considering and granting the permission was a judicial act
which was not subject to the provisions of the Promotion of Administrative Justice
Act. In these circumstances the application had to be dismissed. (Paragraphs [35] at
491h – 492a and [36] at 492b.)
Case Information
SJ van Niekerk SC (with SL Erasmus) for the applicant. B
TE Barnard for the National Director of Public Prosecutions.
Application for the reviewing and setting-aside of permission to exhume a body.
Order C
The application is dismissed and applicant is ordered to pay the second respondent's
costs.
123) INTERMEDIARIES
In Kerkhoff v Minister of Justice and Constitutional Development &
others 2011 (2) SACR 109 (GNP) Southwood J, after referring to the judgment
in the Constitutional Court, had this to add (at [7]):
'It is clear that the enquiry has a narrow focus: to determine whether it is in the best
interests of the child that an intermediary be appointed. It is not concerned with
whether the child is competent to give evidence or whether the child's evidence is admissible,
credible or reliable. Those are issues which will arise in the trial and will be decided by the
court in the light of all the evidence. It is significant that s 170A makes provision for a single
procedure for the appointment of an intermediary and essential jurisdictional fact, ie when it
appears to the court that the relevant witness would be exposed to undue mental
stress and suffering; and that no provision is made for the accused to oppose the
appointment of an intermediary. While an accused must have a right to be heard on the
issue, it seems to me that, in the case of a witness of 10 or 11, it is very unlikely that a court
would conclude that it is not in the interests of the witness to appoint an intermediary. As
pointed out by the Constitutional Court, the appointment of an intermediary will
ensure that the trial is fair.'
The Constitutional Court, in Director of Public Prosecutions, Transvaal v
Minister of Justice and Constitutional Development & others 2009 (2) SACR
130 (CC); 2009 (4) SA 222 (CC),
226
124) INTERPRETERS (SWORN IN AND CASUAL)
S v Siyotola – 2003(1) SACR 154 (E) – interpreter not sworn in as interpreter. Not per se
irregular that can be said was failure of justice. Must have been prejudice.
125) INTENTION
Jaftha v S
[2014] JOL 31655 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA & R 89 / 2013
11 / 11 / 2013
South Africa
High Court
Eastern Cape, Grahamstown
M Lowe J, L Lindoor AJ
Keywords:
Theft of stock – Mens rea – Boer goats – Member of SAPS – Case of beer – Farm labourers
Mini Summary:
The appellant was charged and convicted of theft of stock and sentenced to three years' imprisonment of
which one year was conditionally suspended.
Counsel for the appellant argued that mens rea was absent, while the state argued that the appellant was
aware that he was committing the crime of theft.
The appellant was a member of the SAPS at the time and he requested two farm labourers to acquire two
or three goats for him in exchange for a case of beer. The labourers carried out his request and the goats
were slaughtered and left hanging on a tree near the farm. At no time did the appellant enquire from the
labourers as to the origin, ownership or cost of the goat carcasses.
Held that the state had to prove beyond a reasonable doubt that the appellant was party to the theft of
the goats. Taking all the relevant factors of the case such as his initiation of the arrangement, his lack of
discussion around the purchase price, the fact that he knew that the labourers were poor and worked on
the farm and that he offered a single case of beer for the goats, into consideration; it was obvious that
appellant was fully aware of his part in the theft. The appeal against the conviction and the sentence were
dismissed.
S v QEQE (EC)
GROGAN AJ
2011 JUNE 8
Murder—Mensrea—Intention to kill—Doluseventualis—What constitutes—Accused, as
driver of motor vehicle, executing dangerous manoeuvre, fully aware and reckless of
danger it posed to those in vicinity in general and in particular to those killed when
vehicle struck them—Accused can in legal sense be said to have ‘consented’ or
‘reconciled himself’ to or ‘taken into the bargain’ fact that persons in vicinity might be
struck by vehicle and killed—State of mind of accused in such circumstances amounting
to doluseventualis—Accused guilty of murder of those struck and killed by vehicle.
Sv Abduragham Thebus & Moegemat Adams - Aug. 2003 (CCT 36/02) – court found on
split decision that accused cant be questioned on reason for late disclosure of alibi as
violates right to remain silent. If elects to say nothing in warning statement accused can’t
227
be questioned on such election despite fact that subsequently offers alibi. Court may not
draw any negative inference in these circumstances.
126) INTERLOCUTORY PROCEEDINGS
Meyer v Streeklanddros Groenewald & 'n ander
[2008] JOL 22541 (NC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 412 / 07
30 / 04 / 2008
South Africa
High Court
Northern Cape
CB Cillié J, KJ Moloi AJ
Keywords:
Criminal procedure – Interlocutory application – Appeal
Mini Summary:
The applicant was charged with 27 counts of fraud, of which four were withdrawn. He was then acquitted
at the end of the State's case on another four of the charges. The present application was for the review
of the decision not to acquit him on a further two charges.
Held that the High Court is reluctant to intervene in unterminated proceedings in a lower court.
The refusal of an application for acquittal at the end of the State's case is an interlocutory decision and is
not appealable.
The application was dismissed.
127) INTIMIDATION
S v Mramba
[2008] JOL 21713 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA & R 219 / 07
30 / 8 / 2008
South Africa
High Court
Eastern Cape
JCH Jansen J, PC Van der Byl AJ
Keywords:
Criminal procedure – Intimidation – Conviction and sentence – Review
Mini Summary:
The accused was convicted on a charge of having contravened section 1(1)(a) of the Intimidation Act 72
of 1982, and was sentenced to 12 months' imprisonment of which 6 months were conditionally suspended
for a period of four years.
On review, the court replaced the conviction and sentence with more appropriate ones, and in the present
ruling, set out its reasons therefor.
Held that the magistrate failed to explain to the accused the reverse onus that rested upon him in terms
of section 1(2) of the Intimidation Act. The section provides that "in any prosecution for an offence under
subsection (1), the onus of proving the existence of a lawful reason as contemplated in that subsection
shall be upon the accused, unless a statement clearly indicating the existence of such a lawful reason has
been made by or on behalf of the accused before the close of the case for the prosecution". The conviction
could therefore, not stand.
The conviction was replaced with one of assault, and the sentence amended accordingly.
128) IRREGULARITIES
1. S v RAMULIFHO 2013 (1) SACR 388 (SCA)
228
The appellant was convicted in a regional court of rape and was sentenced by the
high court to life imprisonment in 2002. He was granted leave to appeal in 2010 and,
after hearing argument at the hearing of the appeal in November 2012, the court
upheld the appeal and ordered the immediate release of the appellant. It appeared
that the appellant was approximately 16 years old at the time of the offence and 18
years old when he eventually stood trial after having been in custody for two years.
His correct age was never properly ascertained by the police or prosecution. By the
time the trial commenced he had been arrested, interrogated, detained for almost
two years, and been forced to make admissions or a confession, all without the
assistance of a legal representative or the advice of his parents or guardian. It
appeared furthermore that the regional magistrate did not inform the appellant of his
right to legal representation; he did not properly explain to the appellant how to
cross-examine, and when the appellant showed, through his questions, that he did
not understand how to cross-examine, he did not assist the appellant to put
questions; he allowed the prosecutor to ask obviously leading questions on the
material issues and to lead inadmissible evidence; and he did not properly explain to
the appellant his rights in respect of the medico legal report and he clearly did not
read it, or, if he did, he did not understand its import. Eventually, when he gave
judgment he did not properly consider all the evidence. With regard to the
complainant, he did not remind himself about the dangers inherent in dealing with a
child's evidence and there is no suggestion that he carefully considered her evidence
to determine whether it could be found to be reliable. He dealt with the defence
evidence in two or three lines, and what he said did not properly reflect the
substance of what the witnesses said, and he did not consider their evidence in the
light of the medico legal report which obviously indicated that they were telling the
truth. The conduct of the trial showed that a lack of legal representation prejudiced
the appellant.
The court held that, even if it were accepted that all the evidence was properly
before the court, it did not prove beyond a reasonable doubt that the appellant was
guilty, and he should have been acquitted. (Paragraph [13] at 395g–396a.)
As regards the delay in the matter coming before the court on appeal, it appeared
that these delays were caused by (1) the failure of the appellant's advocate to inform
him, immediately after sentence, of his right to apply for leave to appeal and his
right to appeal; (2) the failure of the Legal Aid officer who consulted with the
appellant in August 2003 to appoint an attorney to represent the appellant and order
a transcript of the proceedings to enable the appellant to apply for leave to appeal;
(3) the failure of the appellant to follow up his instructions to ascertain what
progress his attorney was making (which was probably due to the appellant's lack of
education and means); and (4) the failure of the Legal Aid officer or attorney
appointed by the Legal Aid Board to expeditiously obtain the record (81 pages in
extent) for the purpose of the application for leave to appeal and the appeal itself.
Held, that delays of this nature, in the prosecution of a criminal appeal when the
appellant was serving a prison sentence, were not acceptable and ran contrary to the
ethic which should prevail in the administration of the criminal-justice system. Where
a convicted person who is serving a prison sentence wishes to appeal, every person
involved in the process must ensure that he or she does, with the utmost expedition,
what he or she is required to do. The judge or magistrate must hear the application
for leave to appeal without delay, the registrar or clerk of the court must have the
record transcribed and prepare the record of proceedings, and transmit and file all
necessary documents without delay, and the attorney representing the accused must
ensure that everyone involved expeditiously does what is required. And that is
because the freedom of the individual is involved and must be safeguarded within
229
the limits of the law. It is an egregious violation of individual freedom to detain a
person in prison, and it is the solemn duty of every judicial officer, official involved in
the administration of justice, and the legal practitioner representing the accused, to
ensure that it will happen only with the full authority of the legal process. The judicial
officer and every other official involved in the legal process whereby a person is
deprived of his freedom are obliged to ensure that that process obtains the full
stamp of approval of the law as quickly as possible, and the impression must never
be created that our courts and judicial officials are indifferent to the freedom of the
individual. (Paragraph [17] at 397e–h.)
Case Information
Appeal from a conviction of rape in a regional court and the imposition of a sentence
of life imprisonment in the Venda High Court (Hetisani J). The facts appear from the
reasons for judgment.
Keyser v S
[2012] JOL 29392 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
634 / 11
25 / 05 / 2012
South Africa
Supreme Court of Appeal
JA Heher, S Snyders, MJD Wallis JJA, McLaren, BR Southwood AJJA
Keywords:
Criminal law – Drug trafficking – Conveying of cocaine into country – Appeal against conviction and
sentence dismissed – Criminal procedure – Inclusion in charge sheet of statutory provisions which
contained unconstitutional presumptions – Whether trial rendered unfair as a result – A criminal conviction
can only be set aside on the ground of irregularity after consideration of the whole record in order to
determine whether a failure of justice or an unfair trial has resulted from that irregularity – Mere inclusion
in charge sheet of references to statutory provisions that have been declared unconstitutional, whilst
irregular, does not per se mean that there has been a failure of justice or an unfair trial
Mini Summary:
The appellant was arrested at Johannesburg International Airport on 10 December 2004. He was later
convicted of dealing in cocaine in contravention of section 5(b) of the Drugs and Drug Trafficking Act 140
of 1992, and sentenced to 20 years’ imprisonment. The present appeal was against conviction and
sentence.
The basis of the appeal was that the charge sheet to which he had pleaded had informed him that the
State would rely on sections 20 and 21 of the Act, which sections contained reverse onus provisions that
were declared unconstitutional in various cases.
Held that a criminal conviction can only be set aside on the ground of irregularity after consideration of
the whole record in order to determine whether a failure of justice or an unfair trial has resulted from that
irregularity. The mere inclusion in a charge sheet of references to statutory provisions that have been
declared unconstitutional, whilst irregular, does not per se mean that there has been a failure of justice or
an unfair trial. In the present case, the appellant did not allege that reference to the unconstitutional
reverse onuses influenced the conduct of the prosecution or his own response in any way. The magistrate
also had no resort to the impugned provisions in arriving at his judgment. The technical point raised by
the appellant was rejected, as the appellant was deprived of a fair trial.
A further argument raised by the appellant was that the State had failed to prove its case beyond a
reasonable doubt. However, the Court was not convinced in that regard. The appellant was arrested on his
return from a trip to Brazil, where he had supposedly been seeking work. The Court was sceptical of the
fact that he spoke none of the languages applicable to Brazil, that his flight had been subsidised by a
person whose interest in assisting him remained unexplained, and that the details of the interviews for
which he had gone were sketchy. Similarly unconvincing was the appellant’s explanation for the bag
containing the cocaine, which he had brought into the country.
While it was uncontested that the appellant had brought the drugs into South Africa, whether he had
knowingly done so had to be established, in this case through a process of inferential reasoning.
Examining the various aspects of the appellant’s evidence, the Court concluded that his bona fides was
undermined by the inherent improbabilities attached thereto. It was held that the gross weight of
improbability was sufficient to leave no reasonable doubt that the appellant was a willing and informed
230
participant in the scheme for importing the drugs into South Africa. The appeal against conviction was
therefore dismissed.
In considering the appeal against sentence, the Court acknowledged that the sentence of 20 years’
imprisonment was a heavy one. However, the quantity of the drugs conveyed by the appellant and the
number of lives potentially affected by the abuse of the drug were indicative of the disregard which the
appellant had for the negative repercussions of his actions. The sentence was therefore not an
inappropriate one, and the appeal was dismissed.
Honourable Minister of Safety and Security v Jongwa and another
[2013] JOL 30251 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
73 / 2011
14 / 03 / 2013
South Africa
High Court
Eastern Cape, Grahamstown
JD Pickering, M Lowe JJ
Keywords:
Legal proceedings – Magistrate’s judgment – Review application – Impartiality
Mini Summary:
In the trial court, the first respondent sued the applicant for damages arising out of her alleged wrongful
and unlawful detention, malicious prosecution and assault by members of the South African Police Service.
The trial was presided over by the second respondent who upheld all three of the first respondent’s claims.
In the present application, the applicant sought the review and setting aside of the second respondent’s
judgment on the basis that the second respondent should have recused himself because of his intimate
relationship with the first respondent’s attorney.
Due to averments made by the respondents, the applicant conceded that there was an irreconcilable
dispute of fact as to whether or not the relationship between second respondent and the first respondent’s
attorney was ongoing at the time of the trial. The applicant did not seek a referral of the dispute to oral
evidence.
Held that in terms of the established approach to the above issue, the application fell to be determined on
the basis of those facts averred in applicant’s affidavits which had been admitted by the respondents,
together with the facts alleged by the respondents. Applying that approach, the court accepted that, as
averred by the second respondent and the first respondent’s attorney, their intimate relationship had in
fact terminated during June 2007.
An applicant must make out his case in his founding papers. In the present matter the application for
review of the trial proceedings was premised solely on the alleged existence of an ongoing relationship.
The respondents were called upon to answer only the specific allegations put forward by applicant and
none other.
The issue to be determined was whether, having regard to the factual matrix contained in respondents’
affidavits, second respondent was disqualified from hearing the case by reason of a reasonable
apprehension by applicant of bias on his part.
Finding that a reasonable person in the position of applicant would not apprehend in the circumstances
that the second respondent could not bring an impartial mind to bear on his adjudication of the case
because of his previous intimate relationship with the first respondent’s attorney, the Court dismissed the
application.
S v Khumalo
[2012] JOL 29355 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
110 / 12
22 / 08 / 2012
South Africa
High Court
South Gauteng, Johannesburg
WL Wepener, PA Meyer JJ
Keywords:
Criminal procedure – Rights of accused – Right to cross-examination – Failure to complete crossexamination – Irregularity – Review
Mini Summary:
The accused was found guilty of robbery, and sentencing was postponed after the regional magistrate
noticed that after the complainant gave her evidence in chief, the witness was cross examined by the
231
defence attorney. The postponement was to allow further cross examination of the complainant by the
accused’s legal representative. On the subsequent trial date the complainant failed to attend court and the
State case was closed without the further cross examination of the witness. The accused applied for the
discharge of the accused pursuant to the provisions of section 174 of the Criminal Procedure Act 51 of
1977 by virtue of the fact that the accused’s right to cross examine was infringed and that such an
infringement was fatal to the state’s case. The district magistrate, however, refused such a discharge and
the accused thereafter closed his case without leading further evidence.
Held that the present Court had to decide whether the right to cross examination is so fundamental that a
failure to complete cross examination of a witness leads to a failure of justice entitling the conviction to be
quashed, the matter is reviewable having regard to the fact that the accused enjoyed legal representation.
The question was whether the failure to complete the cross examination of the state witness fell into the
category of matters which result in a pointless exercise of going through the motion of imposing sentence
only for the conviction to be set aside later. In other words, the question was whether the irregularity
which occurred was of so gross a nature as to vitiate the proceedings before the magistrate. The Court
found that the irregularity (failure to finalise the cross-examination of the witness) was of such a nature
that the accused’s right to a fair trial had been infringed. The infringement of a right which is guaranteed
in the Constitution leads to the proceedings being tainted by an irregularity and it falls to be set aside.
Pretorius v DPP A O 2011 (1) SACR 54 (KZP)
The applicant was charged with various counts of theft, fraud and contraventions of the
Natal Nature Conservation Ordinance 15 of 1974. After initial consultation with his legal
representatives it was agreed that he would plead not guilty to all the charges. However,
it subsequently emerged that the State intended to introduce a video recording in
evidence against the applicant and, having viewed the recording, his legal representatives
advised him to plead guilty to certain of the charges. The State agreed, in its turn, to
withdraw the remaining charges. The applicant indicated that he was not happy with this
advice, but, when his counsel proposed to withdraw, he signed the written plea
explanation and pleaded guilty to six charges. He was duly sentenced to various terms of
imprisonment, all conditionally suspended, and to pay fines totalling R70 000. About a
year later the applicant applied for an order reviewing and setting aside the trial court's
judgment, on the basis that undue pressure had been brought to bear on him by his
defence team, and that he had not acted freely and voluntarily in pleading guilty.
Held , that it was incorrect to suggest that the applicant had been left with no choice, but
to plead guilty to the six counts. He had been properly and competently counselled about
the possibility of a jail sentence if he pleaded not guilty to all the charges, and he had
been given the choice of rejecting counsel's advice and of accepting other legal
representation. He had decided to accept the advice. The decision had been voluntarily
and intelligently made, and it revealed no irregularity in counsel's conduct. Furthermore,
it was evident that counsel had felt obliged to withdraw, if, his advice having been
rejected, he could no longer be of assistance to his client. In this, counsel had acted
within the bounds of his duty. In addition, despite his being questioned at length by the
trial court about his guilty plea, and despite a long mitigation process, no suggestion had
been made by the applicant that he had not intended to plead guilty to the six charges.
The only inference to be drawn from this conduct was that, even if he had had some
initial reservations about pleading guilty, the applicant had later acquiesced in that course
of conduct. Accordingly, no irregularity had been shown to have been committed.
Application dismissed.
Case Information - Review application. The facts and issues appear from the judgment of
H Msimang JP, in which Gyanda J concurred.
232
S v Kasi
[2011] JOL 26695 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
20100326
25 / 10 / 2010 [10 / 11 / 2010]
South Africa
High Court
Eastern Cape, Grahamstown
NC Dambuza and I Schoeman JJ
Keywords:
Criminal procedure – Trial proceedings – Irregularity – Special review
Mini Summary:
The accused was charged with reckless or negligent driving. After a number of postponements, the
proceedings recommenced and the magistrate proceeded with sentence. The case was then sent on
special review after it was realised that the magistrate had not delivered judgment on the conviction yet.
Held that as the proceedings were clearly irregular, they were set aside and the case was to be heard de
novo before another magistrate.
Matshiba v S
[2010] JOL 26341 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 276 / 09
17 / 05 / 2010
South Africa
High Court
Eastern Cape, Grahamstown
PW Tshiki, E Revelas JJ
Keywords:
Criminal procedure – Housebreaking with intent to steal – Theft – Sentence – Amendment to sentence –
Appeal
Mini Summary:
Based on his plea of guilty, the appellant was convicted on six counts of housebreaking with intent to steal
and theft. The effective sentence was 62 years’ imprisonment. Twenty two days later, the magistrate
recalled the case and amended the sentence so that parts thereof ran concurrently. The effective sentence
was thus 22 years’ imprisonment.
The present appeal was against the severity of the sentence, and the amendment thereto.
Held that it appeared that in amending the sentence, the magistrate purported to rely on section 298 of
the Criminal Procedure Act 51 of 1977. The section provides that if a wrong sentence is passed by
mistake, the court may before or immediately after the sentence is recorded, amend the sentence.
The general rule is that where a sentence has been imposed, a court is functus officio, and ordinarily the
sentence cannot be changed. Before a sentence can be amended, it must be clear that it is wrong by
reason of the fact that it was imposed by mistake. A sentence is wrong if it is incompetent or irregular and
should not have been imposed by the court. More importantly, the amendment must be imposed before or
immediately after the sentence is recorded.
The amendment in this case had the effect of imposing additional terms to the sentence. The sentence
was not shown to be wrong, and the time for amendment in terms of section 298, had passed.
The amendment was set aside. The court deemed the rest of the sentence to be too severe. It therefore
replaced it with one of four years’ imprisonment.
Frans v S
[2010] JOL 26340 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
CA&R 229 / 09
17 / 05 / 2010
South Africa
High Court
Eastern Cape, Grahamstown
PW Tshiki, E Revelas JJ
233
Criminal procedure – Housebreaking with intent to assault – Assault with intent –– Common assault ––
Charge sheet –– Substitution of charges –– Irregularity –– Appeal
Mini Summary:
The appellant was convicted of housebreaking with intent to assault and assault with intent to do grievous
bodily harm, and was sentenced to three years’ imprisonment, one year of which was conditionally
suspended.
The charge sheet reflected the charges as housebreaking with intent to assault and assault. After the
appellant pleaded not guilty, the court enquired from the prosecutor whether the charge was
housebreaking with intent to assault and assault with intent to do grievous bodily harm, which the
prosecutor confirmed.
The present appeal was against conviction and sentence.
Held that the trial court’s substitution of the charge with a more serious one without seeking the views of
the appellant’s representative was an irregularity. The conviction on the more serious charge was set
aside and the conviction was replaced with one of common assault. The court went on to confirm the
correctness of such conviction, based on the evidence against the appellant.
Despite the amendment to the conviction, the court found the sentence to remain appropriate. The appeal
against sentence was thus dismissed.
S v Tsukulu & others
[2010] JOL 26357 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
99 / 10
10 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Theron J, Ngwenya AJ
Keywords:
Criminal procedure – Protected plants – Unlawful possession – Conviction and sentence– Review
Mini Summary:
The accused were charged in terms of the provisions of the Natal Conservation Ordinance 15 of 1974, and
the Trespass Act 6 of 1959. The specific offences with which they were charged were the unlawful
gathering of specially protected indigenous plants; unlawful possession of specially protected indigenous
plants; trespassing on land to gather specially protected indigenous, plants alternatively; and the unlawful
gathering of indigenous plants on a public road.
Despite the court exhorting the first accused to obtain legal representation, he refused to do so. He stated
that he would disclose the basis of his defence, provided the plants for which he was charged were
produced in court as evidence. Stating that the exhibits had been replanted, the magistrate refused the
request.
Held on review that the proceedings were not in accordance with justice, and neither the conviction nor
sentence could stand.
In the face of the demand by the accused that he see the exhibits of the plants, it was a misdirection on
the part of the trial court to rule that the plants should not be produced in court simply because they had
been replanted. A second misdirection, related to the inadequate proof of the offence. The court
highlighted the breaks in the evidence adduced regarding whether the plants found were properly
identified and if so, whether they were adequately proved to be specially protected.
The third misdirection by the magistrate pertaining to accused number one relates to the refusal by the
magistrate to allow him to lead evidence in his defence. The court showed annoyance with the first
accused’s refrain that he had evidence to lead but could only do so once the exhibits were brought to
court. In adopting the stance it did, the trial court denied the accused the right enshrined in the
Constitution. Section 25(d) of the Constitution provides that every accused person has a right to a fair
trial, which shall include the right to adduce and challenge evidence.
The conviction and sentence were set aside.
S v Manyakanyaka
[2009] JOL 23538 (Ck)
Case Number:
Judgment Date:
Country:
CA&R 24 / 08
12 / 09 / 2008
South Africa
234
Jurisdiction:
Division:
Bench:
High Court
Bisho
AEB Dhlodhlo J, PW Tshiki AJ
Keywords:
Criminal procedure – Plea of guilty – Questioning – Court's duty
Mini Summary:
Having pleaded guilty to a charge of theft, the accused was convicted and sentenced to a fine of R1 600,
or in default of payment to undergo eight months’ imprisonment, wholly suspended for three years on
condition that the accused was not convicted of theft, attempted theft, possession of stolen property or
receiving stolen property committed during the period of suspension. He was also ordered to compensate
the complainant her money.
Held that the answers given by the accused during the questioning on his plea did not constitute
admissions to all the elements of the offence of theft and some of the questions by the court amounted to
cross examination of the accused. The accused's replies showed that he had a defence to the charge.
The purpose of the court's questioning of an accused who has pleaded guilty to the charge is to ascertain
beyond doubt that the accused person is in fact pleading guilty to the charge by admitting all the elements
of the offence. It is a method of establishing the guilt of the accused beyond a reasonable doubt without
the state having to call evidence to prove the commission of the offence. Where an accused's response to
questions put to him by the court suggest a possible defence to the charge, even if unbelievable, the court
should enter a plea of not guilty and allow the prosecutor to proceed with his prosecution. It is therefore
not for the court, at that stage, to evaluate the answers given by the accused as if it were weighing
evidence or to judge their truthfulness or plausibility.
Setting aside the conviction and sentence, the court remitted the case for hearing de novo before another
magistrate.
Nyabo v S
[2008] JOL 22823 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
327 / 07
27 / 11 / 2008
South Africa
Supreme Court of Appeal
JA Heher JA, Combrinck, Cachalia JJA
Keywords:
Criminal law – Robbery – Rape – Conviction – Appeal – Assessment of evidence
Mini Summary:
The appellant noted the present appeal against his convictions on charges of rape and robbery.
According to the complainant, she had been abducted by two men, and was taken to a shack where she
was raped by both men. One then left, and she was left with the other, who again raped her. She
identified him as the appellant.
The central issue was the identification of the appellant as the perpetrator of the offences.
Held that while the trial court purported to endorse the correct legal approach to assessing evidence in
such cases, it in fact, was guilty of misdirection in its assessment.
The complainant's testimony on the identity of the appellant as the perpetrator was adduced by leading
questions to which neither the court nor the appellant's counsel raised objection. The complainant was
found to have been prompted by the prosecution.
The court also took issue with the trial court's findings that the lighting in the shack was good, and that
the complainant had ample opportunity to see the appellant. That was shown not to be true. The shack
was actually in darkness and the complainant's opportunity to view the perpetrator at a time when she
was under emotional pressure was open to doubt. While her evidence of identification might have been
true and reliable, a much more careful and detailed investigation was necessary before arriving at that
conclusion.
The misdirections of the trial court meant that the present court was free to reconsider the strength of the
case against the appellant. It was pointed out that the appellant's version was not shown to have been not
reasonably possibly true. In the circumstances, the states' case had to fail unless the evidence of the
complainant was of itself so clear and unanswerable as to justify the conclusion that the appellant's
version was, although without apparent flaw on the face of it, nevertheless false beyond a reasonable
doubt.
The appeal was upheld and the two convictions set aside.
235
Mosesi v S
[2009] JOL 23068 (W)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 994 / 04
04 / 02 / 2009
South Africa
High Court
Witwatersrand Local
M Jajbhay J, DI Berger AJ
Keywords:
Criminal procedure – Attempted extortion – Conviction – Appeal – Trial proceedings – Irregularity – Bias
of magistrate
Mini Summary:
The appellant was convicted of attempted extortion and was sentenced to pay a fine of R10 000 or
undergo three months' imprisonment.
In appealing against the conviction, the appellant contended that the magistrate had unfairly descended
into the arena and assisted the respondent with its case.
Held that every accused has a constitutional right to a fair trial. The trial court may intervene at any time
to elucidate a point, but should not take over the examination or put leading questions to support the
state case before the parties have finished their examination of the witness.
The magistrate in this case had interrupted the prosecution in the presence of a key witness, and had
engaged with a discussion, before the prosecution was done with its case, on whether the key elements of
the offence were proved. His conduct alerted the parties and in particular the state as to what the
deficiency in their case at that point in time was. This constituted a gross irregularity in the proceedings. A
court's enquiry or examination should be aimed at elucidating any points that may be obscure after
examination of the parties. In order to give the accused a fair trial a judicial officer must not only be
impartial, but be seen to be impartial.
The court concluded that the accused did not enjoy a fair trial. The conviction and sentence were thus set
aside.
S v Mazomba
[2009] JOL 23402 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R2 / 09
31 / 03 / 2009
South Africa
High Court
Eastern Cape, Bhisho
PHS Zilwa AJ, AEB Dhlodhlo ADJP
Keywords:
Criminal law – Assault with intent to do grievous bodily harm – Conviction and sentence– Review
Mini Summary:
The accused was convicted of assault with intent to do grievous bodily harm and was sentenced to pay a
fine of R3 000 or in default of payment to undergo two years' imprisonment. He was further declared unfit
to possess a firearm in terms of section 103(1) of Act 60 of 2000.
The acting senior magistrate submitted the case on special review on the grounds that the verdict of the
magistrate was incompetent in that the essential elements of the crime of assault with intent to do
grievous bodily harm were not included in the offence of contravention of a protection order which the
accused had been charged with; and that the alternative of two years' imprisonment was disproportionate
to the amount of the fine imposed.
Held that having gone through the record of proceedings and having considered the magistrate's
submissions, the court agreed that the magistrate had indeed erred in convicting the accused of assault
with intent to do grievous bodily harm in the circumstances of the case. The evidence proved the offence
of common assault rather than assault with intent.
Setting aside the conviction and sentence, the court ruled that the accused was convicted of common
assault and sentenced to pay a fine of R3 000 or in default of payment to undergo six months'
imprisonment.
236
Raath v S
[2008] JOL 22903 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 82 / 08
10 / 12 / 2008
South Africa
High Court
Cape of Good Hope Provincial
LJ Bozalek, WJ Louw, PL Goliath JJ
Keywords:
Criminal law – Murder – Conviction and sentence – Appeal
Mini Summary:
Despite his plea of not guilty, the appellant was convicted of murder and assault with the intent to do
grievous bodily harm, and was sentenced to life imprisonment. On appeal, the court raised the question of
whether the appellant was properly advised, prior to the commencement of the trial, that the prescribed
minimum sentence provisions would apply.
Held that although not directly advised, the appellant was fully ware of the sanction being sought by the
state. His right to a fair trial was not infringed and it was open to the court a quo, upon a finding that the
murder was premeditated or planned, to sentence the appellant to life imprisonment.
That led to the question of whether or not the murder was premeditated. On the evidence before it, the
court found that the murder was not pre-planned.
The court found the sentence of life imprisonment to be too severe, and replaced it with one of 22 years'
imprisonment.
Mbanjwa v S
[2009] JOL 22960 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA41 / 2007
14 / 11 / 2008
South Africa
High Court
Eastern Cape
G Goosen AJ, JCH Jansen J
Keywords:
Criminal law – Conviction and sentence – Appeal
Mini Summary:
The appellant was convicted of assault and crimen injuria and was sentenced to a fine of R6 000 or in
default of payment thereof to undergo a period of eight months' imprisonment.
On appeal, the main ground of appeal was that the magistrate had erred by not taking the necessary
steps in terms of section 186 of the Criminal Procedure Act 51 of 1977 to have two witnesses subpoenaed
to testify.
Held that section 186 of the Criminal Procedure Act provides that a court may at any stage of criminal
proceedings subpoena any person as a witness if the evidence of such witness appears to the court
essential to the just decision of the case. The term "essential to the just decision of the case" means that
the court, upon an assessment of the evidence before it, must consider that unless it hears the evidence
of a particular witness it is bound to conclude that justice will not be done in the end result. A court of
appeal will interfere with the exercise of the discretion on very limited grounds. The present court was not
satisfied that the evidence could be described as essential to the just decision of the case.
The appeal against conviction therefore failed.
On the appeal against sentence, the court pointed out that an appeal court will not lightly interfere with a
trial court's discretionary imposition of sentence. Finding no grounds upon which to interfere with the
sentence, the court dismissed the appeal.
Owies & another v S
[2008] JOL 22626 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
A 611 / 07
30 / 09 / 2008
South Africa
High Court
237
Division:
Bench:
Cape of Good Hope
Motala J, MI Samela AJ
Keywords:
Criminal procedure – Trial – Conduct of – Rights of accused – Violation of
Mini Summary:
The appellants were convicted of attempted robbery, murder and attempted murder, and were each
sentenced to an effective 24 years' imprisonment. They appealed against their convictions and sentence.
The grounds of appeal related to the excessive questioning of the appellants by the magistrate, and the
failure to advise the first appellant of his right to legal representation after his representative withdrew.
Held that the constitutional right to a fair trial includes the right to have a legal representative appointed
at State expense is necessary. That right is of critical importance.
The court also explained the process of questioning of the accused. In this case, the magistrate was found
to have descended into the arena and taken over the role of the prosecution.
Finding the rights of the appellants to have been violated, the court set aside the convictions and
sentences.
S v Mdali
[2008] JOL 22390 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
25 / 688 / 07
05 / 05 / 2008
South Africa
High Court
Cape of Good Hope Provincial
Le Grange, NC Erasmus JJ
Keywords:
Criminal procedure – Assault with intent – Conviction and sentence – Trial proceedings – Errors
Mini Summary:
The accused was convicted of assault with the intent to do grievous bodily harm, and sentenced to a term
of 6 months’ imprisonment which was wholly suspended for a period of 3 years on certain conditions.
Held on review that the rights of the accused to cross-examination were not properly explained. That was
conceded by the magistrate.
The magistrate also erred when she ruled that a person who was present during court proceedings cannot
be called as a witness. The magistrate confused the principles governing the admissibility of evidence with
the probative value of such evidence, if found to be admissible. This error, amounts to a serious
irregularity that vitiated the proceedings.
The court found that the accused’s constitutional right to a fair trial, and in particular his right to adduce
and challenge evidence, was grossly violated. The conviction and sentence were thus set aside.
Swartz v S
[2008] JOL 22396 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 299 / 07
17 / 04 / 2008
South Africa
High Court
Cape of Good Hope Provincial
MJ Hlophe JP; EJS Steyn AJ
Keywords:
Criminal procedure – Indecent assault – Child complainant – Competence as witness – Enquiry
Mini Summary:
The appellant was convicted of the indecent assault of a 4-year-old boy. He was sentenced to 3 years’
correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act 51 of 1977.
He appealed against his conviction.
Held that presiding officers are required, when dealing with young witnesses, to determine whether they
have the necessary competency to testify. In the present case, the regional magistrate was required to
determine whether the witness, a child of seven years of age at the time of the trial, was a competent
witness to give sworn evidence in terms of section 162 of the Act.
238
The trial court's conviction of the appellant based on the complainant's evidence without conducting the
enquiry referred to above or making a finding regarding the child's competency was an irregularity.
The appeal was upheld.
Mafu & others v S
[2008] JOL 21385 (W)
Case Number:
A 1105 / 05
Judgment Date:
14 / 02 / 2008
Country:
South Africa
Jurisdiction:
High Court
Division:
Witwatersrand Local
Bench:
CJ Claassen J, NF Kgomo AJ
Keywords:
Criminal procedure – Competence of legal representative – Robbery with aggravating circumstances –
Alibi defence – Not led in chief – Not put to prosecution witnesses – Gross irregularity – Irregular conduct
of presiding officer – Convictions set aside
Mini Summary:
The three appellants, who were Zimbabwean citizens, had been charged with robbery with aggravating
circumstances for assaulting their victim in a spaza shop where they robbed him of his cell phone and
passport. The defence that they were not in the spaza shop only came to light during the prosecutor's
cross-examination of them; their own legal representative had failed to lead this evidence during chief,
and he had failed to put this evidence to the state's witnesses during his cross-examination of them. The
appellants were convicted as charged and each sentenced to 13 years' imprisonment. In this appeal the
issue was the competence of their legal representative.
Held that a court is entitled to see and hear the reaction of state witnesses when they are told that the
accused, who they have identified as the perpetrators, were in fact elsewhere and could not have
committed the crime. It is also important for the court to know that the alibi defence will be raised
because the court will then know that the whole question of identification "comes acutely into the
foreground", and a cautionary rule becomes applicable. It is also important for the prosecution to know
that such a defence will be raised in order for the prosecution to verify the correctness of it. The failure of
the appellant's legal representative had been inexcusable and a breach of rudimentary duty. He never
disputed the fact that had been informed about this defence and had referred to it in his closing address.
His failure constituted a gross irregularity that went "to the very ethos of justice and notions of fairness".
The record also showed that the magistrate had been prejudiced against the appellants; the questions put
by the court had not been for purposes of clarification but for the purpose of pressurizing them into saying
things the court wanted them to say. They amounted to judicial harassment. The cumulative effect of the
two types of irregularities vitiated the proceedings in the court a quo. The convictions and sentences were
set aside.
Swartz v S
[2008] JOL 22396 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 299 / 07
17 / 04 / 2008
South Africa
High Court
Cape of Good Hope Provincial
MJ Hlophe JP; EJS Steyn AJ
Keywords:
Criminal procedure – Indecent assault – Child complainant – Competence as witness – Enquiry
Mini Summary:
The appellant was convicted of the indecent assault of a 4-year-old boy. He was sentenced to 3 years’
correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act 51 of 1977.
He appealed against his conviction.
Held that presiding officers are required, when dealing with young witnesses, to determine whether they
have the necessary competency to testify. In the present case, the regional magistrate was required to
determine whether the witness, a child of seven years of age at the time of the trial, was a competent
witness to give sworn evidence in terms of section 162 of the Act.
The trial court's conviction of the appellant based on the complainant's evidence without conducting the
enquiry referred to above or making a finding regarding the child's competency was an irregularity.
The appeal was upheld.
239
S v Maputle – 2003(2) SACR 15 (SCA) – accused appeared in prison clothes not held to
be an irregularity per se but is undesirable.
S v Mlilwana
[2008] JOL 21696 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 21 / 08
01 / 02 / 2008
South Africa
High Court
Eastern Cape
C Plasket JD Pickering JJ
Keywords:
Criminal procedure – Conviction – Review
Mini Summary:
The accused was convicted of theft of a credit card, pursuant to her plea of guilty. A second charge, viz
that of fraud, was withdrawn.
Held that the questioning by the magistrate related to the withdrawn charge of fraud, and not to that of
theft. The questioning nevertheless led to the conviction on the charge of theft.
On review, the court set aside the conviction and sentence as a result of the above irregularity.
S v Mathabathe 2003(2) SACR 28 (TPD) – court held irregular for presiding officer to
enter arena and leading and cross-examining witnesses
S v Stevens 2003(2) SACR 95 (TPD) – candidate attorney appears without right of
appearance. Proceedings irregular even if refused permission by principal to apply for
certificate. Matter sent on review and set aside.
S v Siyotola – 2003(1) SACR 154 (E) – interpreter not sworn in as interpreter. Not per se
irregular that can be said was failure of justice. Must have been prejudice.
S v Mashaba – 2004(1) SACR 214 (TPD) – duty rests on presiding officer to keep record
of proceedings and must be clear from record that rights of accused were explained.
S v Rotya
[2008] JOL 21695 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 34 / 08
14 / 02 / 2008
South Africa
High Court
Eastern Cape
JD Pickering, RWJ Jones JJ
Keywords:
Criminal procedure – Trial – Questioning by magistrate – Irregularity – Review
Mini Summary:
Convicted of assault with intent to do grievous bodily harm and arson, the appellant received a wholly
suspended sentence on each count.
Held on review that the magistrate's questioning of the accused took up 13½ pages of the record, and the
tone of the questioning was inappropriate. The court found that the manner in which the magistrate
questioned the accused precluded her from objectively adjudicating the issues before her. It was
concluded that the accused did not have a fair trial and the convictions and sentences were set aside.
240
S v M – 2004(1) SACR 238 (NPD) – agreed by parties that accused sit in room of
intermediary to listen to evidence but not present in court. Held to be irregular but not set
aside as no failure of justice had occurred.
S v Makhaya – 2004(1) SACR 444 (CPD) – held to be irregular for presiding officer to
remark accused came from poor area to break into more well off area (white area). Shows
racial prejudice and / or class prejudice.
S v Ngxokolo – 2008 JOL 21267 (E) CA 366/07 – accused convicted of housebreaking
with intent to steal and theft. Admissibility of an admission made by accused to police on
arrest in question. Court held admission not properly admitted into evidence and its
admission amounted to an irregularity. Irregularity, however, did not result in miscarriage
of justice therefore not fatal. Conviction stood
S v Mafu + 2 Case no. A1105/2005 (WLD) – this was an appeal where the representation
on trial was pathetic. The court had no hesitation to find the representation incompetent.
The question that fell to be answered was whether such incompetence led to a failure of
justice. In this case it clearly did. The appeal succeeded. The presiding officer also
descended into the arena to such an extent that it rendered the trial per se unfair.
The DPP Western Cape v Paul Killian – Case no. 690/06 (SCA) – a criminal trial is not
unfair, fundamentally or at all, simply because the prosecutor also interrogated the
accused at an earlier statutory inquiry at which the right to silence and the right against
self-incrimination was denied.
Gobe v S
[2008] JOL 21272 (E)
Case Number:
CA & R 201 / 2007
Judgment Date:
21 / 11 / 2007
Country:
South Africa
Jurisdiction:
High Court
Division:
Eastern Cape
Bench:
Pillay J, Greenland AJ
Keywords:
Criminal Procedure – Attempted murder/robbery with aggravating circumstances – Identification parade –
Procedural irregularities – Severity of – Appellant not prejudiced – Appeal dismissed
Mini Summary:
The appellant and an accomplice had entered an office in which other members of staff witnessed them
demand money and then shoot two people, one in the stomach and the other in the back as he was
fleeing. In his trial before a regional magistrate the appellant denied that he was present at the scene of
the crime, but admitted that he had been in the area at the date and time of the offence. He raised one
alibi in defence. In convicting the appellant the magistrate had relied on his admission and the
corroborating evidence of the witnesses and the suspected accomplice.
In this appeal against conviction and sentence, the issue was primarily whether the identification parade,
which had not been conducted in accordance with acceptable standards in terms of section 37(1) of the
Criminal Procedure Act 51 of 1977, was so inadequate that the accused had been prejudiced by its
defects, more especially the defect that he had not been afforded legal representation at the parade.
Held that the record showed that the accused had been informed of his right to legal representation at the
parade and he had elected not to have a lawyer present. In addition he and his accomplice had not raised
any concerns and had cooperated with the police. The magistrate had not erred in his finding that the
appellant had not been prejudiced by the procedural imperfections. Even if the evidence of the parade
should have been excluded, the conviction was still fully supported by other evidence. The appeal was
dismissed.
S v Phiri
[2008] JOL 21479 (T)
241
Case Number:
CC 512 / 07
Judgment Date:
04 / 12 / 2007
Country:
South Africa
Jurisdiction:
High Court
Division:
Transvaal Provincial
Bench:
K Makhafola AJ
Keywords:
Criminal procedure – Trial – Irregularities – Evidence
Mini Summary:
The accused was one of two persons charged with raping a 16-year-old girl. When the case came before
the present court for sentencing, the court questioned whether the proceedings in the trial court had been
in accordance with justice.
Held, that the trial of the accused was riddled with irregularities. The court highlighted the problems,
which included the trial court's conduct of the proceedings, the handling of the evidence, and sufficiency of
the evidence before the court.
The irregularities found by the court were considered so serious that the proceedings were vitiated. The
conviction was set aside and the accused discharged.
Mbhense v S
[2008] JOL 21488 (N)
Case Number:
AR 236 / 04
Judgment Date:
05 / 02 / 2008
Country:
South Africa
Jurisdiction:
High Court
Division:
Natal Provincial
Bench:
Msimang, Pillay JJ
Keywords:
Criminal procedure – Robbery with aggravating circumstances – Conviction and sentence – Appeal –
Irregularities in trial
Mini Summary:
The appellant was convicted of the crime of robbery with aggravating circumstances, and was sentenced
to serve a term of 15 years' imprisonment.
Acting on a tip-off pursuant to an armed robbery at a private residence, the police found the appellant and
three others at the appellant's house, in the possession of the items stolen during the robbery.
Held, that the trial of the appellant was vitiated by a number of irregularities. The charge-sheet had not
warned the appellant that the State would rely on the minimum sentencing provision of the Criminal Law
Amendment Act 105 of 1997. The court could also not be satisfied that the appellant had properly been
apprised of the right to legal representation as the proceedings had not been properly recorded.
The appeal was allowed and the conviction and sentence set aside.
S v Gwande & another
[2009] JOL 23637 (ZH)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
HH 101 / 08
15 / 11 / 2008
Zimbabwe
High Court
Harare
Omerjee, Hungwe JJ
Keywords:
Court – magistrate – duties – unrepresented accused – magistrate's responsibilities towardsCriminal
procedure – plea – guilty – questioning of accused by magistrate – need to phrase questions carefully to
ensure accused understands what he is pleading guilty to – disclosure of facts by prosecutor – need for
court to ensure that prosecution discloses sufficient facts – use of State's outline of facts – need to ensure
that accused has actually agreed with such outline
Mini Summary:
Magistrates owe enormous duties toward unrepresented accused persons. The magistrate is the primary
bulwark defending the ignorant or impoverished against the potential injustices wrought through an
excess of zeal; pressure of work; administrative inefficiency or plain ineptitude in the investigation and
prosecution of offences.
Where the accused person pleads guilty, and the court proceeds in terms of section 271(2)(b)(i) of the
Criminal Procedure and Evidence Act [Chapter 9:07], the magistrate is duty bound to ensure that the
prosecutor has disclosed sufficient and adequate facts, which are capable of informing, not only the court,
but also the accused, precisely what the allegations against him are. Where the prosecution fails to
provide or disclose adequate facts in support of the charge, it must be directed to do so: the magistrate
242
must mero motu invoke the provisions of section 177(1) of the Act and direct the prosecution to provide
further particulars. Failure by the magistrate to ensure prior disclosure of adequate and sufficient facts
amounts to a misdirection and offends against the accused person's constitutional right to be afforded a
fair trial, in particular, the right to be informed, in detail, of the nature of the offence charged as
guaranteed by section 18(3)(b) of the Constitution.
The purpose of the enquiry in terms of section 271(2)(b)(i) of the Act is to ensure that the accused’s plea
of guilty is an unqualified or unequivocal and genuine plea. The magistrate can only satisfy himself if he
asks questions which are carefully formulated by marrying the charge, the essential elements and the
particular facts of the case. Merely paraphrasing the definition of an offence will not assist an accused to
understand the import of the elements, more so if they are of a technical legal nature.
Magistrates and prosecutors should desist from the practice, which appears to be common, of simply using
the state's outline of its case when the accused tenders a guilty plea. The state outline is not based on
facts which the accused has given prior agreement to. The use of the state outline exposes the accused to
the danger of being convicted on facts that he has not been given an opportunity to carefully reflect on
and has the real potential of the accused being severely prejudiced, in the sense that he may be convicted
on the basis of facts which he may not agree with but which facts aggravate the offence and lead to a
more severe punishment than warranted. The correct procedure should be that if, in a contested trial, the
accused pleads guilty to the charge, the magistrate should take a short recess to allow the prosecutor to
interview the accused and draw up a statement of agreed facts based on the information gathered.
129) JOINDER OF ACCUSED
S v Boekhoud & others
[2008] JOL 21740 (W)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
134 / 06
14 / 04 / 2008
South Africa
High Court
Witwatersrand Local
Saldulker J
Keywords:
Criminal procedure – Misjoinder – Appeal
Mini Summary:
The accuseds were charged with the main counts of money laundering, racketeering, theft and fraud. The
applicant, being the second accused, sought leave to appeal against a judgment of this Court, dismissing
an application for a ruling that a misjoinder existed in that it was irregular and impermissible to join him
with the first accused in an indictment which included counts with which he had not been charged.
Held that the decision that no misjoinder existed had a final effect on the applicant. It was definitive of his
rights. The result was that the State's case against both accused would then proceed on all the counts set
out in the indictment including those that the applicant objected to. The result was that although it was an
interlocutory matter, it was of final effect, and was appealable.
It was found to be in the interests of justice to grant leave to appeal.
130) JUDGMENT GENERAL
S v Williams & another
[2012] JOL 29033 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 303 / 2011
02 / 11 / 2011
South Africa
High Court
Eastern Cape, Port Elizabeth
D Chetty J, A Beyleveld AJ
Keywords:
Criminal law – Trial court’s duties – Inadequacy of judgment – Onus of proof
Mini Summary:
243
Despite having pleaded not guilty, the appellant was charged with murder, unlawful possession of a
7.65mm semi-automatic pistol, and unlawful possession of two rounds of 7.65 calibre ammunition. The
three charges being taken as one for purposes of sentence, he was sentenced to 15 years’ imprisonment.
The present appeal was directed at both conviction and sentence.
Held that it was necessary for the court to draw attention to the poor quality of the regional court’s
judgment, which fell far short of the minimum standard which can reasonably be expected of a
magistrate. The judgment was shoddy and careless to the point of almost amounting to a dereliction of
the regional magistrate’s duty as a judicial officer.
The regional magistrate’s failure to set out the evidence was unacceptable. He also made no effort at all to
analyse the evidence which was tendered on behalf of the state, contenting himself with a criticism of
appellant’s evidence. That approach lost sight of the fact that the onus of proving its case beyond
reasonable doubt rested throughout on the state.
The present Court found that the state had failed to prove beyond reasonable doubt that the appellant
was in possession of the firearm and that he was therefore the person who had fired the shots which killed
the deceased. The accused should therefore have been acquitted.
The appeal was upheld and the convictions and sentence set aside.
S v Vika 2010 (2) SACR 444 (E)
Roberson J, having set out the regional magistrate’s “very short”
judgment on sentence, stated, inter alia, as follows at 448 h – j:
“In these few lines there is no mention of the appellant’s personal
circumstances, and the magistrate seems to have had regard only to
the seriousness of the offences..”
Mphalele v First National Bank of SA Ltd 1999 (2) SA 667 (CC) the
following was stated at 671E – H:
“There is no express constitutional provision which requires Judges to
furnish reasons for their decisions. Nonetheless, in terms of s1 of the
Constitution, the rule of law is one of the founding values of our
democratic state, and the Judiciary is bound by it.
The rule of law
undoubtedly requires Judges not to act arbitrarily and to be
accountable. The manner in which they ordinarily account for their
decisions is by furnishing reasons. This serves a number of purposes.
It explains to the parties, and to the public at large which has an
interest in courts being open and transparent, why a case is decided as
it is. It is a discipline which curbs arbitrary judicial decisions. Then,
too, it is essential for the appeal process, enabling the losing party to
take an informed decision as to whether or not to appeal or, where
necessary, seek leave to appeal. It assists the appeal Court to decide
whether or not the order of the lower court is correct. And finally, it
provides guidance to the public in respect of similar matters. It may
well be, too, that where a decision is subject to appeal it would be a
violation of the constitutional right of access to courts if reasons for
such a decision were to be withheld by a judicial officer.”
S v Bruintjies and Others unreported case no CA&R71/2010 Eastern Cape
Division, Chetty J, with whom Dambuza J agreed, stated:
244
“Although the transcript of the evidence amounts to one hundred and
thirty two pages, the magistrate’s judgment is regrettably rather terse.
11
Courts of law are required to hand down reasoned judgments and it is
lamentable that the magistrate ignored this salutary practice for
exigencies of time. This no doubt contributed to the obfuscation of the
triable issues for the judgment proceeds on the assumption that the
issue which fell for decision related to identification. Identity was not
the real issue given the admitted common cause fact that the
complainants and the appellants lived in the same area and were well
acquainted with each other. The appellant’s defence throughout was
that the complainants, for reasons of their own, had conspired to falsely
incriminate them. Consequently, the court was called upon to analyze
and evaluate the evidence and make credibility findings.”
131) JUDGMENT INCOMPLETE
132) JUDGMENT POOR
S v Williams & another
[2012] JOL 29033 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 303 / 2011
02 / 11 / 2011
South Africa
High Court
Eastern Cape, Port Elizabeth
D Chetty J, A Beyleveld AJ
Keywords:
Criminal law – Trial court’s duties – Inadequacy of judgment – Onus of proof
Mini Summary:
Despite having pleaded not guilty, the appellant was charged with murder, unlawful possession of a
7.65mm semi-automatic pistol, and unlawful possession of two rounds of 7.65 calibre ammunition. The
three charges being taken as one for purposes of sentence, he was sentenced to 15 years’ imprisonment.
The present appeal was directed at both conviction and sentence.
Held that it was necessary for the court to draw attention to the poor quality of the regional court’s
judgment, which fell far short of the minimum standard which can reasonably be expected of a
magistrate. The judgment was shoddy and careless to the point of almost amounting to a dereliction of
the regional magistrate’s duty as a judicial officer.
The regional magistrate’s failure to set out the evidence was unacceptable. He also made no effort at all to
analyse the evidence which was tendered on behalf of the state, contenting himself with a criticism of
appellant’s evidence. That approach lost sight of the fact that the onus of proving its case beyond
reasonable doubt rested throughout on the state.
245
The present Court found that the state had failed to prove beyond reasonable doubt that the appellant
was in possession of the firearm and that he was therefore the person who had fired the shots which killed
the deceased. The accused should therefore have been acquitted.
The appeal was upheld and the convictions and sentence set aside.
133) JURISDICTION
S v Meje & another
[2011] JOL 27754 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
248 / 11
13 / 09 / 2011
South Africa
Supreme Court of Appeal
KK Mthiyane, MML Maya, JB Shongwe, WL Seriti JJA, C Plasket AJA
Keywords:
Criminal procedure – Jurisdiction of trial court – Section 110 of the Criminal Procedure Act 51 of 1977 –
Vests territorial jurisdiction in a court in the absence of objection to jurisdiction – Criminal procedure –
Jurisdiction of trial court – The jurisdiction of a court is determined at the stage that proceedings are
commenced and, in terms of section 76(1) of the Criminal Procedure Act 51 of 1977, proceedings
commence when the charge sheet is lodged with the clerk of the court
Mini Summary:
The first respondent was convicted on five counts of fraud, and was sentenced to seven years’
imprisonment of which two years were conditionally suspended, while the second respondent was
convicted on fourteen counts of fraud, and was sentenced to seven years’ imprisonment of which two
years were conditionally suspended. An appeal against conviction and sentence was directed to the High
Court which raised the issue of whether the trial court had had jurisdiction to try the respondents. Finding
that it did not, the Court a quo set aside the respondents’ convictions and sentences without dealing with
the merits of the appeal.
The present appeal by the state was noted terms of section 311 of the Criminal Procedure Act 51 of 1977.
The sole issue raised in the appeal was whether the trial court had jurisdiction to try the respondents.
Held that the issue of jurisdiction arose as a result of the restructuring of the regional court in the
province of Gauteng after the date of the commission of the offences of which the respondents had been
convicted, but before the date on which they first appeared in the trial court. At the time of the
commission of the offences in 1998 and 1999, the Southern Transvaal Regional Division had territorial
jurisdiction in respect of offences committed in Kagiso (in the magisterial district of Krugersdorp). Later,
however, with effect from 1 April 2004, the regional divisions of the Southern Transvaal and the Northern
Transvaal were amalgamated into one regional division called the Regional Division of Gauteng with seats
at 23 places including Pretoria.
The court a quo set aside the convictions and sentences of the respondents on two bases. The first was
that as the offences were committed within the territorial jurisdiction of the erstwhile regional division of
the Southern Transvaal, a court sitting in Pretoria, within the territorial jurisdiction of the erstwhile
Regional Division of the Northern Transvaal, did not have jurisdiction to try the respondents. Secondly, it
held that section 110 of the Criminal Procedure Act could not avail the state because it did not create
substantive jurisdiction. The present Court disagreed with the lower court’s reasoning.
The first error was the finding that the jurisdiction of a court to try an accused must be determined at the
time the offence with which the accused is charged was committed. However, in S v Mamase & another
2010 (1) SACR 121 (SCA), it was held that the jurisdiction of a court is determined at the stage that
proceedings are commenced and that, in terms of section 76(1) of the Criminal Procedure Act,
proceedings commence when the charge sheet is lodged with the clerk of the court. While there was no
record of when the charge sheet was lodged with the clerk of the court, it could be accepted that the
earliest date on which this could have occurred was 24 June 2004. Consequently, the proceedings against
the respondents commenced, at the earliest, on 24 June 2004. As at that date, one regional division, the
Regional Division of Gauteng which had came into existence on 1 April 2004, had territorial jurisdiction
over the entire province of Gauteng. As Kagiso falls within the province of Gauteng, any court of that
regional division, including one sitting in Pretoria, had jurisdiction to try the respondents on charges of
fraud.
The lower court’s second error lay in its application of section 110 of the Criminal Procedure Act. The Court
blurred the distinction between the concepts of substantive jurisdiction – the jurisdiction, in this case, to
try accused charged with fraud – and territorial jurisdiction. Section 110 does not confer substantive
246
jurisdiction on a court but, in the absence of a plea of absence of jurisdiction, it may acquire territorial
jurisdiction it otherwise does not have.
The Court upheld the appeal and exercising its power in terms of section 311(1)(a) of the Criminal
Procedure Act, re-instated the convictions and sentences, and remitted the matter to the court below for
the appeal to proceed on the merits.
S v Nkomo – 2008 JOL 21135 (ZS) – deals with territorial jurisdiction where offence
committed in one country and accused flees and is arrested in another. Need some
element of crime or harmful effect thereof to have occurred in the country trying the
matter. Discusses in detail the elements of murder.
134) JUVENILE OFFENDERS
In Kerkhoff v Minister of Justice and Constitutional Development &
others 2011 (2) SACR 109 (GNP) Southwood J, after referring to the judgment
in the Constitutional Court, had this to add (at [7]):
'It is clear that the enquiry has a narrow focus: to determine whether it is in the best
interests of the child that an intermediary be appointed. It is not concerned with
whether the child is competent to give evidence or whether the child's evidence is admissible,
credible or reliable. Those are issues which will arise in the trial and will be decided by the
court in the light of all the evidence. It is significant that s 170A makes provision for a single
procedure for the appointment of an intermediary and essential jurisdictional fact, ie when it
appears to the court that the relevant witness would be exposed to undue mental
stress and suffering; and that no provision is made for the accused to oppose the
appointment of an intermediary. While an accused must have a right to be heard on the
issue, it seems to me that, in the case of a witness of 10 or 11, it is very unlikely that a court
would conclude that it is not in the interests of the witness to appoint an intermediary. As
pointed out by the Constitutional Court, the appointment of an intermediary will
ensure that the trial is fair.'
The Constitutional Court, in Director of Public Prosecutions, Transvaal v
Minister of Justice and Constitutional Development & others 2009 (2) SACR
130 (CC); 2009 (4) SA 222 (CC),
1. S v RAMULIFHO 2013 (1) SACR 388 (SCA)
The appellant was convicted in a regional court of rape and was sentenced by the
high court to life imprisonment in 2002. He was granted leave to appeal in 2010 and,
after hearing argument at the hearing of the appeal in November 2012, the court
upheld the appeal and ordered the immediate release of the appellant. It appeared
that the appellant was approximately 16 years old at the time of the offence and 18
years old when he eventually stood trial after having been in custody for two years.
His correct age was never properly ascertained by the police or prosecution. By the
time the trial commenced he had been arrested, interrogated, detained for almost
two years, and been forced to make admissions or a confession, all without the
assistance of a legal representative or the advice of his parents or guardian. It
appeared furthermore that the regional magistrate did not inform the appellant of his
right to legal representation; he did not properly explain to the appellant how to
cross-examine, and when the appellant showed, through his questions, that he did
not understand how to cross-examine, he did not assist the appellant to put
questions; he allowed the prosecutor to ask obviously leading questions on the
material issues and to lead inadmissible evidence; and he did not properly explain to
the appellant his rights in respect of the medico legal report and he clearly did not
247
read it, or, if he did, he did not understand its import. Eventually, when he gave
judgment he did not properly consider all the evidence. With regard to the
complainant, he did not remind himself about the dangers inherent in dealing with a
child's evidence and there is no suggestion that he carefully considered her evidence
to determine whether it could be found to be reliable. He dealt with the defence
evidence in two or three lines, and what he said did not properly reflect the
substance of what the witnesses said, and he did not consider their evidence in the
light of the medico legal report which obviously indicated that they were telling the
truth. The conduct of the trial showed that a lack of legal representation prejudiced
the appellant.
The court held that, even if it were accepted that all the evidence was properly
before the court, it did not prove beyond a reasonable doubt that the appellant was
guilty, and he should have been acquitted. (Paragraph [13] at 395g–396a.)
As regards the delay in the matter coming before the court on appeal, it appeared
that these delays were caused by (1) the failure of the appellant's advocate to inform
him, immediately after sentence, of his right to apply for leave to appeal and his
right to appeal; (2) the failure of the Legal Aid officer who consulted with the
appellant in August 2003 to appoint an attorney to represent the appellant and order
a transcript of the proceedings to enable the appellant to apply for leave to appeal;
(3) the failure of the appellant to follow up his instructions to ascertain what
progress his attorney was making (which was probably due to the appellant's lack of
education and means); and (4) the failure of the Legal Aid officer or attorney
appointed by the Legal Aid Board to expeditiously obtain the record (81 pages in
extent) for the purpose of the application for leave to appeal and the appeal itself.
Held, that delays of this nature, in the prosecution of a criminal appeal when the
appellant was serving a prison sentence, were not acceptable and ran contrary to the
ethic which should prevail in the administration of the criminal-justice system. Where
a convicted person who is serving a prison sentence wishes to appeal, every person
involved in the process must ensure that he or she does, with the utmost expedition,
what he or she is required to do. The judge or magistrate must hear the application
for leave to appeal without delay, the registrar or clerk of the court must have the
record transcribed and prepare the record of proceedings, and transmit and file all
necessary documents without delay, and the attorney representing the accused must
ensure that everyone involved expeditiously does what is required. And that is
because the freedom of the individual is involved and must be safeguarded within
the limits of the law. It is an egregious violation of individual freedom to detain a
person in prison, and it is the solemn duty of every judicial officer, official involved in
the administration of justice, and the legal practitioner representing the accused, to
ensure that it will happen only with the full authority of the legal process. The judicial
officer and every other official involved in the legal process whereby a person is
deprived of his freedom are obliged to ensure that that process obtains the full
stamp of approval of the law as quickly as possible, and the impression must never
be created that our courts and judicial officials are indifferent to the freedom of the
individual. (Paragraph [17] at 397e–h.)
Case Information
Appeal from a conviction of rape in a regional court and the imposition of a sentence
of life imprisonment in the Venda High Court (Hetisani J). The facts appear from the
reasons for judgment.
Harmans v S
[2011] JOL 27806 (ECG)
248
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
12 / 2010
10 / 06 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
JM Roberson, I Schoeman JJ, J Grogan AJ
Keywords:
Criminal law – Sentence – Life imprisonment – Youthful offender – Appeal
Mini Summary:
The appellant was convicted on three counts of robbery with aggravating circumstances and three counts
of murder. The present appeal was directed at the sentences of life imprisonment on each of two of the
three murder counts.
The age of the appellant was estimated at 17 years 11 months at the time the offences were committed.
As he was under 18 years of age, the prescribed minimum sentence of life imprisonment did not apply to
him. However, the trial court exercised its common law jurisdiction, and imposed two sentences of life
imprisonment.
Held that although not arguing that the trial court was guilty of any misdirection in sentencing the
appellant, the latter argued that the sentences were shockingly inappropriate considering the appellant’s
youthfulness.
The Court took cognisance of the trial court’s reasons for sentencing the appellant as it had. It agreed that
in the circumstances of this case, the sentence was not disproportionate to the crime.
The appeal was dismissed.
S v Lukhele
[2012] JOL 28867 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 125 / 2012
02 / 03 / 2012
South Africa
High Court
North Gauteng, Pretoria
PM Mabuse, NM Mavundla JJ
Keywords:
Criminal procedure – Juvenile accused – Court’s duties
Mini Summary:
The accused, a juvenile, appeared before a regional magistrate where he was charged with robbery with
aggravating circumstances. He pleaded guilty, and his legal representative handed into court a written
plea explanation in accordance with the provisions of section 112 of the Criminal Procedure Act 51 of
1977.
A probation officer’s report was received by the Court, wherein it was recommended that the accused
could be sentenced in terms of the provisions of section 276(1)(h) of the Act. The state having no
objection, the magistrate obliged and sentenced the accused to three years’ correctional supervision and,
in addition, declared him, in terms of the provisions of section 103(1) of the Firearms Control Act 60 of
2000, unfit to possess a firearm.
Held on review that as the term "correctional supervision" refers to diverse non-custodial measures, it
was not enough for the trial magistrate just to sentence the accused to "correctional supervision" in terms
of section 276(i)(h). What the magistrate should have done, as confirmed by the Director of Public
Prosecution, was to identify the specific measures applicable to the accused and thereafter formulate a
general framework in which the measures would be implemented.
Concerns were also raised about the fact that at the time of sentencing, the accused was a child.
The matter was remitted to the magistrate court for the purposes of determining the nature and scope of
the correctional supervision and for compliance with the provisions of section 75 read with section 72 of
the Child Justice Act 75 of 2008.
S v Phulwane – 2003(1) SACR 631 (TPD) – dealt with factors court to be considered
when sentencing minors.
249
S v Z and four other cases – 1999(1) SACR 427 (ECPD) – gave an extensive exposition
of principles governing, and options available in sentencing juvenile offenders. Court
considered as juveniles, all persons under age of 21, not just 18. Is inappropriate to
impose imprisonment, including suspended imprisonment on juvenile unless a presentence (probation officers) report has been obtained.
135) LEADING QUESTIONS
Nyabo v S
[2008] JOL 22823 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
327 / 07
27 / 11 / 2008
South Africa
Supreme Court of Appeal
JA Heher JA, Combrinck, Cachalia JJA
Keywords:
Criminal law – Robbery – Rape – Conviction – Appeal – Assessment of evidence
Mini Summary:
The appellant noted the present appeal against his convictions on charges of rape and robbery.
According to the complainant, she had been abducted by two men, and was taken to a shack where she
was raped by both men. One then left, and she was left with the other, who again raped her. She
identified him as the appellant.
The central issue was the identification of the appellant as the perpetrator of the offences.
Held that while the trial court purported to endorse the correct legal approach to assessing evidence in
such cases, it in fact, was guilty of misdirection in its assessment.
The complainant's testimony on the identity of the appellant as the perpetrator was adduced by leading
questions to which neither the court nor the appellant's counsel raised objection. The complainant was
found to have been prompted by the prosecution.
The court also took issue with the trial court's findings that the lighting in the shack was good, and that
the complainant had ample opportunity to see the appellant. That was shown not to be true. The shack
was actually in darkness and the complainant's opportunity to view the perpetrator at a time when she
was under emotional pressure was open to doubt. While her evidence of identification might have been
true and reliable, a much more careful and detailed investigation was necessary before arriving at that
conclusion.
The misdirections of the trial court meant that the present court was free to reconsider the strength of the
case against the appellant. It was pointed out that the appellant's version was not shown to have been not
reasonably possibly true. In the circumstances, the states' case had to fail unless the evidence of the
complainant was of itself so clear and unanswerable as to justify the conclusion that the appellant's
version was, although without apparent flaw on the face of it, nevertheless false beyond a reasonable
doubt.
The appeal was upheld and the two convictions set aside.
136) LEAVE TO APPEAL
Barnard v S
[2014] JOL 31617 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
891 / 2012
29 / 05 / 2013
South Africa
Supreme Court of Appeal
250
Division:
Bench:
LM Mpati P, LV Theron, Pillay JJA, NP Willis, NC Erasmus AJJA
Keywords:
Criminal procedure – Appeal – Leave to appeal – Where a person obtains leave to appeal against the
refusal in a High Court, of a petition seeking leave to appeal against a conviction or sentence in the
regional court, the issue before the court is whether leave to appeal should have been granted by the High
Court and not the merits of the appeal – Test is whether there is a reasonable prospect of success on
appeal
Mini Summary:
Convicted of rape, the appellant was sentenced to 15 years’ imprisonment. He appealed against his
conviction and sentence.
Held that the Court first had to consider the nature and ambit of the appeal. Where a person obtains
leave to appeal to the present Court against the refusal in a High Court, of a petition seeking leave to
appeal against a conviction or sentence in the regional court, as was the case here, the issue before the
Court is whether leave to appeal should have been granted by the High Court and not the merits of the
appeal. The present Court does not have authority to entertain an appeal directly from the regional court.
The test in regard to whether leave to appeal should have been granted by the High Court is whether
there are reasonable prospects of success on appeal – whether a court of appeal could reach a different
conclusion to that of the trial court. The appellant argued that the High Court ought to have found that
there was a reasonable possibility that another court might find that the trial court erred firstly in rejecting
the appellant’s version as not being reasonably possibly true, and secondly, in not approaching the
evidence of the complainant with the necessary caution and merely paying lip service to the cautionary
rule.
In accepting the evidence of the complainant, the trial court found that she was an impressive witness,
that her evidence was corroborated in material respects and in particular by the medical evidence. The
present Court was not persuaded that the magistrate was wrong in the assessment of the evidence and
accordingly was not satisfied that there was a reasonable possibility that an appeal court could reach a
different conclusion in respect of the conviction.
Regarding sentence, the Court took into account the personal circumstances of the appellant as well as
the aggravating factors relevant to the case. Having regard to the nature and circumstances of the
offence, the personal circumstances of the appellant as well as the interests of the community, the Court
was not persuaded that another court might find that the sentence of 15 years’ imprisonment was unduly
excessive or shockingly inappropriate.
The appeal was dismissed.
S v KRUGER 2014 (1) SACR 647 (SCA)
The high court, sitting as a court of appeal, dismissed an appeal by the appellant
against his conviction and sentence in a regional magistrates' court for rape. The
appellant applied for leave to the Supreme Court of Appeal against the conviction
and the court granted leave, concluding that it was possible that another court might
arrive at a different conclusion, and that leave to appeal should not be lightly refused
where the person concerned was facing a lengthy sentence of imprisonment. On
appeal,
Held, that the test applied by the high court was incorrect: what had to be
considered in deciding whether leave to appeal should be granted was whether there
was a reasonable prospect of success. In that regard more was required than the
mere possibility that another court might arrive at a different conclusion, no matter
how severe the sentence that applicant was facing. The time of the court was
valuable and should be used to hear appeals that were truly deserving of its
attention. It was in the interests of the administration of justice that the proper test
be applied and scrupulously B followed. In the present case the court had had to hear
an appeal in respect of which there was no reasonable prospect of success.
(Paragraphs [2] at 648i – 649a and [3] at 649c – d.) The appeal was accordingly
dismissed.
251
S v SENKHANE 2011 (2) SACR 493 (SCA)
In terms of established case law the appellant has an automatic right of appeal to D the
Supreme Court of Appeal against the refusal of an application for condonation by a High
Court, sitting as a court of appeal, relating to the appeal before it. However, the time has
come for the Supreme Court of Appeal to exercise its inherent jurisdiction and to lay
down that leave to appeal should first be sought from the High Court against such refusal.
In doing so the SCA will be regulating — in terms of s 20(1) and s 21(1) of the Supreme
Court Act 59 of 1959 read with s 35(3)(o) and s 173 of the Constitution, 1996 — the
procedure to be followed for appeals to be heard by it. The High Court, constituted as a
court of appeal, provides its reasons for its refusal to grant condonation, and when faced
with an application for leave to appeal against such refusal, will deal with it on its merits.
If that is refused, an accused person will have further recourse to the SCA by way of
petition.
Case Information
B Appeal from a decision in the Free State High Court (Ebrahim J and Jordaan J)
refusing an application for condonation for the late prosecution of an appeal against
convictions and Supreme Court of Appeal to exercise its inherent jurisdiction and to lay
down that leave to appeal should first be sought from the High Court against such refusal.
In doing so the SCA will be regulating — in terms of s 20(1) and s 21(1) of the Supreme
Court Act 59 of 1959 read with s 35(3)(o) and s 173 of the Constitution, 1996 — the
procedure to be followed for appeals to be heard by it. The High Court, constituted as a
court of appeal, provides its reasons for its refusal to grant condonation, and when faced
with an application for leave to appeal against such refusal, will deal with it on its merits.
If that is refused, an accused person will have further recourse to the SCA by way of
petition.
Case Information
B Appeal from a decision in the Free State High Court (Ebrahim J and Jordaan J)
refusing an application for condonation for the late prosecution of an appeal against
convictions and sentences in a regional magistrates' court. The facts appear from the
judgment of Navsa JA.
P du P Greyling for the appellant.
Minister of Safety & Security & others v Mohamed & another
[2011] JOL 27875 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
598 / 10
21 / 09 / 2011
South Africa
Supreme Court of Appeal
S Snyders, MS Navsa, JA Heher, A Cachalia JJA, CM Plasket AJA
Keywords:
Criminal procedure – Appeal – Restricted leave to appeal – Where leave to appeal was granted in respect
of a single issue, High Court wrong in extending grounds to consider other issues – Criminal procedure –
Search warrant – Validity of – Starting point in a consideration of the validity of warrant is to establish
whether the warrant complied with sections 20 and 21 of the Criminal Procedure Act 51 of 1977 – Court
252
disagreeing with High Court finding that warrant was overly broad and that the Magistrate who issued it
did not apply his mind
Mini Summary:
The respondents, who occupied premises where the second appellant conducted a search and made
seizures in terms of a warrant granted by the third appellant (“the magistrate”), successfully applied to
the court of first instance for an order setting aside the warrant and for the return of all the items seized.
In challenging the validity of the warrant, the respondents raised a number of grounds which were then
not pursued before the court of first instance. A completely different point, not adumbrated in any of the
affidavits, arose before the court.
By the time the matter was heard by the court of first instance, nobody had included a record of the
proceedings before the Magistrate in the papers. The first appellant (“the minister”) and the second
appellant placed before the court, a copy of the affidavit by the latter that served before the magistrate.
Although the essence of the allegations made in that affidavit was repeated by the second appellant in the
answering affidavit, it was not attached to the papers because the second appellant alleged that it
contained sensitive information that would adversely affect his investigation if made public. The copy
sought to be introduced was unsigned and unattested, leading to an objection that there was no
compliance with section 21(1) of the Criminal Procedure Act 51 of 1977 (“the Act”) because what served
before the Magistrate was not information on oath. To overcome that, the first two appellants offered to
make the original affidavit available to the judge, but that was objected to by the respondents and refused
by the judge.
Despite the Magistrate having stated on oath that he granted the warrant in terms of the provisions of
sections 20 and 21(1) after having had regard to an affidavit placed before him, deposed to by the second
appellant, the court of first instance ruled that the Magistrate had “based his belief on a document which
he mistakenly believed to be an affidavit”, that it was not proper for him to have granted the warrant and
that he acted contrary to the provisions of the enabling statute. The negative implications for the
Magistrate’s professional conduct led to his joining the other appellants in seeking leave to appeal to the
court a quo. Leave to appeal was granted, in respect of the issue of whether the Magistrate’s decision to
issue the warrant was based on an affidavit or a mere document.
The full court was divided as to the merits of the appeal. The majority was of the opinion that the warrant
was overbroad in its terms, and that the Magistrate had not exercised his mind in granting the warrant.
The present appeal was against that decision.
Held that the approach of the majority of the court a quo contained at least two fundamental errors, one
relating to the procedure and the other to the principles applicable to search warrants.
The first error concerned the grounds of appeal. Leave to appeal was granted in respect of one issue
alone, as referred to above. However, the majority in the court a quo raised various other issues mero
motu. An appellant has no right to argue matters not covered by the terms of the leave granted. While the
present court had jurisdiction to extend the grounds on which leave to appeal was granted, the court a
quo had no such jurisdiction.
Although the above finding rendered it unnecessary to decide any further issue, the judgment of the
majority on the search warrant revealed so clear a departure from established principles as to require this
Court to ensure that it would not in future serve as authority for the reasoning contained therein.
Search warrants are statutory creations designed to assist the state in its fight against crime. Because of
the impact it has on an individual’s right to privacy, it is necessary to strike a balance between the
interests of the state and that of the individual. The investigating directorate is required to place before a
judicial officer an adequate and objective basis to justify the infringement of the important right to
privacy. The legislation sets up an objective standard that must be met prior to the violation of the right,
thus ensuring that search and seizure powers will only be exercised where there are sufficient reasons for
doing so. These provisions thus strike a balance between the need for search and seizure powers and the
right to privacy of individuals.
The starting point in a consideration of the validity of the warrant was to establish whether the warrant
complied with sections 20 and 21 of the Act. The information placed before the Magistrate by the second
appellant, that motivated the granting of the warrant, pointed to evidence of the respondents being
involved in terrorist activity. The objective standard of proof set in the Act, together with the judicial
oversight, were important requirements that were duly satisfied. Having regard to the facts, the majority
in the court a quo was wrong in their conclusion that the warrant was overly broad and that the Magistrate
did not apply his mind.
The appeal was upheld with costs.
137) LEGAL PRIVILEGE
253
A Company and others v Commissioner for the South African Revenue Services
[2014] JOL 32040 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
16360 / 2013
17 / 03 / 2014
South Africa
High Court
Western Cape, Cape Town
AG Binns-Ward J
Keywords:
Legal privilege – Scope of – Attorney’s fee notes
Mini Summary:
In the course of an audit of the applicants’ tax affairs, the respondent (“the Commissioner”) indicated his
requirement that the applicants provide SARS with copies of certain documentation. That included a
request for a breakdown of an identified trial balance account in respect of professional fees in the books
of one of the applicant companies pertaining to the 2009 year of assessment. On identifying the relevant
fee notes, the applicants noted that the fees concerned had been raised in respect of legal professional
services rendered by the attorneys to the first and third applicants. Privilege was claimed on the basis that
the nature of the advice sought by the first and third applicants was discernible from the invoices, and the
applicants refused to provide the invoice, except in redacted form.
Held that legal advice privilege covers communications between lawyers and their clients whereby legal
advice is sought or given. The requirements are that the legal advisor must have been acting in a
professional capacity at the time; the advisor must have been consulted in confidence; the communication
must have been made for the purpose of obtaining legal advice; the advice must not facilitate the
commission of a crime or fraud; and the privilege must be claimed.
The applicants provided no basis for the court to examine the assertion of legal advice privilege other than
the applicants’ say so. In general, it is not possible to judge whether privilege is validly claimed or not if
the context is not provided. The applicants’ papers provided virtually nothing by way of relevant legal
context. They also did not explain how mere reference in the fee notes to work done or documents
considered would undermine their privilege in respect of the content of communications with their
attorneys concerning the seeking and giving of advice. On the other hand, the respondent’s answering
papers explained the context in which SARS’s insistence on being furnished with uncensored copies of the
fee notes was being pursued. The Commissioner considered that the content of the invoices might go to
confirm that the applicants, or fellow entities in the group of companies of which they were part, had
knowledge of the flow of funds involved in certain structured finance arrangements in respect of which
SARS had decided to reassess the third applicant’s liability for payment of income tax and secondary tax
on companies.
There being no South African case law dealing with the question before the court, regard was had to
foreign jurisprudence. Based on English law, the conclusion was that attorneys’ fee notes are not
amenable to any blanket rule that would characterise them as privileged communications per se. Mere
reference in fee notes to advice sought or given does not equate to disclosure of the substance of the
advice. The position would be different if the fee note set out the substance of the advice, or contained
sufficient particularity of its substance to constitute secondary evidence of the substance of the advice.
Only one of the invoices in question contained information from which the nature of the legal advice could
be discerned. The remaining invoices would have to be furnished as requested by the respondent
138) LEGAL REPRESENTATION
Harms JA in S v Halgryn 2002 (2) SACR (SCA) 211 at 215 i-j, where the
learned judge said:
“The Constitution has two provisions which are relevant to the argument: the
right to choose a legal representative and to be represented by that person (S 35
(3) (f), and the right to have a legal representative assigned by the State and at
State expense if substantial injustice would otherwise result (S 35 (3)
254
(g). Although the right to choose a legal representative is a fundamental right
and one to be zealously protected by the courts, it is not an absolute right and is
subject to reasonable limitations”.
Owies & another v S
[2008] JOL 22626 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 611 / 07
30 / 09 / 2008
South Africa
High Court
Cape of Good Hope
Motala J, MI Samela AJ
Keywords:
Criminal procedure – Trial – Conduct of – Rights of accused – Violation of
Mini Summary:
The appellants were convicted of attempted robbery, murder and attempted murder, and were each
sentenced to an effective 24 years' imprisonment. They appealed against their convictions and sentence.
The grounds of appeal related to the excessive questioning of the appellants by the magistrate, and the
failure to advise the first appellant of his right to legal representation after his representative withdrew.
Held that the constitutional right to a fair trial includes the right to have a legal representative appointed
at State expense is necessary. That right is of critical importance.
The court also explained the process of questioning of the accused. In this case, the magistrate was found
to have descended into the arena and taken over the role of the prosecution.
Finding the rights of the appellants to have been violated, the court set aside the convictions and
sentences.
S v Ntuli – 2003(1) SACR 613 (WLD) – practitioners must represent client properly.
Heads of argument in appeal case must be done properly and should not be simple
“notice”.
S v Stevens 2003(2) SACR 95 (TPD) – candidate attorney appears without right of
appearance. Proceedings irregular even if refused permission by principal to apply for
certificate. Matter sent on review and set aside.
Mbhense v S
[2008] JOL 21488 (N)
Case Number:
AR 236 / 04
Judgment Date:
05 / 02 / 2008
Country:
South Africa
Jurisdiction:
High Court
Division:
Natal Provincial
Bench:
Msimang, Pillay JJ
Keywords:
Criminal procedure – Robbery with aggravating circumstances – Conviction and sentence – Appeal –
Irregularities in trial
Mini Summary:
The appellant was convicted of the crime of robbery with aggravating circumstances, and was sentenced
to serve a term of 15 years' imprisonment.
Acting on a tip-off pursuant to an armed robbery at a private residence, the police found the appellant and
three others at the appellant's house, in the possession of the items stolen during the robbery.
Held, that the trial of the appellant was vitiated by a number of irregularities. The charge-sheet had not
warned the appellant that the State would rely on the minimum sentencing provision of the Criminal Law
Amendment Act 105 of 1997. The court could also not be satisfied that the appellant had properly been
apprised of the right to legal representation as the proceedings had not been properly recorded.
255
The appeal was allowed and the conviction and sentence set aside.
139) LICENCE SUSPENSIONS
S v Vekeni
[2011] JOL 28000 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 248 / 2011
12 / 09 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
JM Roberson, JJ Nepgen JJ
Keywords:
Criminal procedure – Traffic violation – Conviction and sentence – Review
Mini Summary:
The accused was convicted of driving a motor vehicle on a public road when the concentration of alcohol in
his blood was not less than 0,05 gram per 100 millitres of blood, specifically 0,29 gram, just short of six
times the legal limit. He was sentenced to two years’ imprisonment in terms of section 276 (1)(i) of the
Criminal Procedure Act 51 of 1977. The magistrate further ordered that in terms of section 34(1)(c) of the
National Road Traffic Act 93 of 1996 (“the Act”), the accused was disqualified from obtaining a licence or a
permit for a period of 10 years from date of sentence.
Held that section 34 of the Act provides that a court convicting a person of any offence in terms of the Act
may order the suspension or cancellation of a licence or permit, or disqualify a person from obtaining a
licence or permit. Section 34 is however expressly subject to section 35 of the Act.
It was not clear that the accused was aware of the power of the court to order that suspension or
disqualification should not take effect, or should be for a shorter period than that prescribed. Had section
35(3) been explained, he might have elected to give evidence under oath and request that suspension or
disqualification not take effect. Because of the apparent omission to explain the provisions of section
35(3), the proceedings in relation to the provisions of section 35 of the Act were not in accordance with
justice.
The order made in respect of section 34 was set aside and the matter was remitted to the magistrate to
ascertain whether or not the accused had a driving licence, to explain the provisions of section 35 (2) (if
applicable) and section 35(3) to the accused, and thereafter to make such order as he considered
appropriate.
140) MAINTENANCE
Freeth & another v Freeth
[2009] JOL 23420 (SE)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
210 / 08
18 / 11 / 2008
South Africa
High Court
South Eastern Cape Local
N Dambuza J
Keywords:
Divorce– Maintenance– Liability– Maintenance order
Mini Summary:
The first applicant and the respondent had been married until 1990 when the marriage was terminated by
divorce. The divorce order provided for the payment of maintenance by the respondent, in respect of the
couple's minor children. That order was subsequently amended by an order of the maintenance court.
The second respondent was one of the children. When he intended enrolling for study, the first applicant
and respondent were in dispute about their individual contributions towards his fees.
256
Held that the respondent was correct in his contention that the high court has no power to vary an order
of the maintenance court. The parties were however, in dispute as to whether it was the divorce order or
the maintenance court order which governed the issue. On the evidence before it, the court could not
resolve that issue.
The application was dismissed.
S v Senyola
[2012] JOL 28868 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 133 / 2012
02 / 03 / 2012
South Africa
High Court
North Gauteng, Pretoria
MF Legodi, N Ranchod JJ
Keywords:
Criminal procedure – Maintenance order – Alleged contravention – Conviction – Review
Mini Summary:
The accused was charged with contravention of a maintenance order. His plea of guilty was changed to
that of not guilty. He indicated as a defence that he had been paying directly to the complainant or
beneficiary and that he was made to believe that the maintenance order would be cancelled or that it
would not be acted upon. The state closed its case without addressing the defence raised by the accused.
Held on review that the Court was concerned that not all the elements of the offence had been proved
beyond reasonable doubt, and in particular an intention to disobey the maintenance order. Secondly, if the
accused had paid certain amounts towards maintenance of his child in lieu of compliance with the court
order, that could be an aspect to consider when assessing the arrear amounts of maintenance in terms of
the court order.
The conviction and sentence were set aside and the criminal proceedings were converted into a
maintenance enquiry. The matter was remitted to the magistrate to proceed with such maintenance
enquiry.
Botha v Botha
[2008] JOL 21900 (W)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2005 / 25726
09 / 06 / 2008
South Africa
High Court
Witwatersrand Local Division
Satchwell J
Keywords:
Marriage – Divorce – Maintenance – Entitlement to
Mini Summary:
In a divorce action between the parties, the issue in dispute was the interpretation and application of
section 7(2) of the Divorce Act, which confers a discretion upon the court to make a maintenance order in
favour of one spouse against the other.
Held that in terms of the clean-break and constitutional principles, there is no automatic right to
maintenance after divorce. Entitlement to maintenance must first be shown before a court determines the
quantum and duration thereof.
The payment of maintenance to a spouse upon divorce is the creation of statute. The Divorce Act permits
a court to make an award which it finds just for maintenance by one party of the other party.
Having regard to the facts of the case, particularly with regard to the marital regime governing the parties'
marriage, and their individual circumstances, the court found that the defendant did not establish an
entitlement to maintenance by the plaintiff.
S v Ngxekana
[2008] JOL 22130 (E)
Case Number:
Judgment Date:
Country:
CA&R 133 / 08
04 / 06 / 2008
South Africa
257
Jurisdiction:
Division:
Bench:
High Court
Eastern Cape
JC Pickering J, JM Roberson AJ
Keywords:
Criminal procedure – Maintenance offence – Sentence – Review
Mini Summary:
Pursuant to his plea of guilty to a charge of failing to comply with a maintenance order, the accused was
convicted and sentenced to 8 months' imprisonment, suspended on certain conditions.
Held on review that the amount which the accused was ordered to pay until the arrear maintenance was
eroded was more than he could afford. Although the magistrate had advised the accused to apply for a
reduction, she nevertheless left in place an order which was not capable of being complied with.
Finding on that and other grounds that the proceedings were not in accordance with justice, the court set
aside the sentence, and converted the trial into a maintenance enquiry.
141) MALICIOUS INJURY TO PROPERTY
S v Malapane
[2011] JOL 27840 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
186 / 2011
19 / 09 / 2011
South Africa
High Court
South Gauteng, Johannesburg
NP Willis, FHD van Oosten JJ
Keywords:
Criminal procedure – Conviction – Special review – Competent verdicts – Theft – Malicious injury to
property
Mini Summary:
The accused was charged with one count of assault with intent to do grievous bodily harm and another
count of theft. The trial magistrate convicted the accused on the count of assault but on the count of theft
convicted him not of theft but of malicious injury to property. The evidence supported the conviction of
assault. The reason for the magistrate not convicting on the count of theft was that the accused did not, in
fact, steal the property of the complainant but threw his merchandise, which consisted of vegetables, on
to the ground where it was trampled upon by the accused and passers-by. Some of the persons who were
passing by helped themselves to the merchandise on the ground.
During the course of a routine inspection, the senior magistrate came across the matter and doubted the
correctness of the conviction of malicious injury to property as a competent verdict on a count of theft.
The case was sent to the present court on special review, for clarity.
Held that malicious injury to property consists in the unlawful, intentional damaging of the property of
another. All those elements were present in the proven facts before the learned magistrate. However, the
question was what was the verdict competent in terms of section 270 of the Criminal Procedure Act.
Malicious injury to property does not appear as a competent verdict on a charge of theft. The relevant
question was whether there were essential elements of the offence of malicious injury to property included
in the offence of theft with which the accused was charged. In the crime of malicious injury to property
the intention is to damage property rather than to deprive the owner of ownership, as is the position in
the case of theft. Although both offences relate to property, the essential elements of malicious injury to
property, on the one hand and theft, on the other are different. The conviction of malicious injury to
property and the sentence imposed in respect thereof were thus reviewed and set aside.
S v Chauke
[2008] JOL 22256 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
A 653 / 08
11 / 08 / 2008
South Africa
High Court
Transvaal Provincial
BR du Plessis, E Jordaan JJ
258
Criminal procedure – Malicious damage to property – Sentence – Review
Mini Summary:
The accused was convicted on two counts of malicious damage to property, and sentenced to 3 years'
imprisonment.
Held that while the offence deserved a serious sentence, the fact that the accused had been provoked had
to be taken into account. The court accordingly set aside the sentence and replaced it with one of 3 years'
imprisonment, half of which was conditionally suspended for 5 years.
142) MALICIOUS PROSECUTION
Minister, Justice & Constitutional Development & others v Moleko
[2008] JOL 21600 (SCA)
Case Number:
131 / 07
Judgment Date:
31 / 03 / 2008
Country:
South Africa
Jurisdiction:
Supreme Court of Appeal
Division:
Bench:
BJ van Heerden, Farlam JJA, Kgomo AJA
Keywords:
Delict – Claim for damages – Malicious prosecution – Requirements
Mini Summary:
The respondent had sued the appellants for damages, arising from his alleged malicious prosecution by
the appellants. The respondent had been a magistrate who had released two accused who had been
charged with Schedule 6 offences and to whom the provisions of section 60(11)(a) of the Criminal
Procedure Act 51 of 1977 applied. The State subsequently prosecuted the respondent for defeating the
ends of justice.
Finding that the respondent's dignity and self-respect were impaired, the trial court upheld the claim and
ordered the appellants to pay the respondent damages
Held that to succeed in the claim of malicious prosecution, the claimant must allege and prove that the
defendants set the law in motion; acted without reasonable and probable cause; acted with "malice" (or
animo injuriandi); and that the prosecution had failed.
The evidence established that the person responsible for the respondent's prosecution did not properly
apprise herself of the facts before setting the prosecution into motion.
The court found that the respondent had proved all the requirements for his claim against the second
appellant. The appeal of the other appellants was upheld, and that by the second appellant dismissed.
143) MARITIME LAW
Owners of the MV Silver Star v Hilane Limited
[2015] JOL 32697 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
82 / 2014
28 / 11 / 2014
South Africa
Supreme Court of Appeal
MJD Wallis, VM Ponnan, Pillay, DH Zondi JJA, TR Gorven AJA
Keywords:
Maritime law – Associated ship arrest – Prerequisites – In terms of section 3(7)(c) of the Admiralty
Jurisdiction Regulation Act 105 of 1983, the charterer or sub-charterer of a vessel who is personally liable
in respect of a maritime claim is deemed, for the purposes of association alone, to be the owner of the
chartered vessel – Onus of proving that arrest was justified includes proving the alleged association on a
balance of probabilities – “Maritime claim” – Admiralty Jurisdiction Regulation Act 105 of 1983, section 1 –
Any claim for, arising out of or relating to the carriage of goods in a ship, or any agreement for or relating
to such carriage; any charterparty or the use, hire, employment or operation of a ship, whether such
claim arises out of any agreement or otherwise; any judgment or arbitration award relating to a maritime
claim, whether given or made in the Republic or elsewhere; or any contribution, indemnity or damages
with regard to or arising out of any claim in respect of any matter mentioned above
Mini Summary:
259
The respondent was the owner of the Sheng Mu. In July 2011, it concluded a charterparty agreement with
a third party (“Phiniqia”) for the carriage of cargo from Iran to India. It pursued claims arising from the
charterparty claims by way of the arrest of the Silver Star as an associated ship in relation to the Sheng
Mu, in terms of section 3(6), read with section 3(7), of the Admiralty Jurisdiction Regulation Act 105 of
1983. The registered owners of the Silver Star brought an application for the release of the vessel. The
dismissal of the application led to the present appeal.
The charterparty provided for the issue of two sets of bills of lading. A second set of bills could only be
issued against a letter of indemnity (LOI) given to Hilane by Phiniqia. Phiniqia executed an LOI in favour of
Hilane indemnifying it in respect of any liability, loss, expenses or damage of whatsoever nature that
Hilane might sustain by reason of having issued two sets of bills of lading in accordance with Phiniqia's
request. The LOI also provided that if the Sheng Mu or any other property belonging to Hilane should be
arrested or detained, or such an arrest or detention be threatened, by reason of issuing two sets of bills of
lading, Phiniqia undertook to provide immediately on demand such bail or other security as might be
required to prevent such arrest or detention or to secure the release of the vessel or such other property
and to indemnify Hilane in respect of any loss, damage or expenses. Once the second set of bills of lading
had been issued and the LOI furnished to Hilane’s agents, Hilane asked for the cancellation and return of
the first set of bills of lading as it was entitled to do. Shortly before the vessel was due to arrive at its
destination, Phiniqia's agents indicated to Hilane that the original bills of lading might not be available
upon arrival. The shipper (“Golden Waves”) cited on the first bill of lading then informed Hilane that it had
not been paid for the coal. Hilane passed that message to Phiniqia, but Golden Waves’ claims were not
resolved. Golden Waves proceeded to enforce its claim by arresting the Sheng Mu. Hilane demanded that
Phiniqia fulfil its obligations under the two LOIs and reinforced the demand with an order of the High Court
in England, but Phiniqia did not respond. Eventually Hilane had to procure a guarantee from its own
bankers to secure the release of the Sheng Mu from arrest. It then referred a dispute to arbitration in
London, contending that Phiniqia was obliged to indemnify it against the claim by Golden Waves and for
the damages it said that it suffered in consequence of the arrest of the Sheng Mu. It obtained an award in
its favour.
Following therefrom, the respondent sought to enforce its claims in an action in rem in South Africa
brought against the Silver Star as an associated ship in relation to the Sheng Mu. The appellant (the
owners of the Silver Star) contended that Hilane was not entitled in law to invoke the associated ship
arrest provisions in order to pursue them against the Silver Star. It was argued that Hilane’s claims
against the Silver Star were claims that arose from the arbitration award it obtained against Phiniqia in
London – the effect of which was to extinguish the underlying claims on which the award was based and
to replace those claims with a claim based on the award itself. The appellant contended that the claim was
no longer one that related to the Sheng Mu and accordingly that there was no longer a ship concerned the
existence of which is the foundation for an associated ship arrest, because the associated ship is arrested
instead of the ship concerned.
Held that an associated ship arrest can be sought in the following circumstances. There must be a ship in
respect of which a maritime claim has arisen. This is referred to as the ship concerned. Then there must
be another ship – the associated ship – that satisfies the requirements of section 3(7)(a) of the Act, in
that it is either in the same ownership as the ship concerned, or where both ships are owned by
companies, as is ordinarily the case, control of the company owning the ship concerned at the time the
claim arose must be the same as control of the company that owns the associated ship at the time of its
arrest. However, in many maritime situations, the claims arising in respect of a ship might not fall into
either category because they were claims that lay in personam against the charterer of the vessel. The
problem was addressed by the deeming provision in section 3(7)(c) of the Act. In terms of the section, the
charterer or sub-charterer of a vessel who is personally liable in respect of a maritime claim is deemed, for
the purposes of association alone, to be the owner of the chartered vessel. For the purposes of
determining whether an association exists, the question is who is the owner of the ship concerned at the
time the maritime claim arose. That is clear from the language of the various sub-sections of
section 3(7)(a). All that the deeming provision does is to place a charterer or sub-charterer of a vessel
who incurs, but does not pay, a debt arising from its having been the charterer of the vessel, in the same
position as the owner of the vessel would be if the owner incurred the same debt and did not pay it.
The appellant’s proposition that, because an English arbitration award extinguishes the underlying claim
on which the award was based, it is not made in respect of a particular ship and therefore there can be no
ship concerned for the purposes of an associated ship arrest, was held to be problematic. The Court was
not satisfied that an arbitration award of the nature of the present award would in English law be regarded
as extinguishing the claim or claims on which the award was based. Any judgment or arbitration award
relating to a maritime claim is itself a maritime claim. In this case, the maritime claims that underpinned
the award arose from a charterparty dispute and any claim for, arising out of or relating to a charterparty
was a maritime claim.
Addressing the question of whether, on a proper interpretation of the Act, a claim in respect of an
arbitration award relating to a maritime claim is a claim in respect of the ship in respect of which the
original maritime claim lay, the court answered the question in the affirmative. Hilane’s maritime claims
260
under the charterparty arose in respect of the Sheng Mu and Phiniqia, which was liable in respect of those
claims, was deemed to be its owner for the purpose of an associated ship arrest.
The issue of whether, on the facts, the requisite association had been established, was dealt with in a
concurring judgment. It was accepted that Hilane bore the onus of demonstrating that the arrest was
justified and that included proving the alleged association on a balance of probabilities. The crux of the
factual dispute related to the ownership or control of the Silver Star. Despite the appellant’s denials, the
evidence established that the vessel was owned by a company with the same controlling company as the
ship concerned.
The appeal was dismissed.
Progress Bulk Carriers Ltd v Sylvia Shipping Co Ltd & another
[2008] JOL 21790 (N)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 336 / 07
01 / 04 / 2008
South Africa
High Court
Natal Provincial
Levinsohn DJP, Swain J, Radebe AJ
Keywords:
Maritime law– Arrest of ship– Security– Onus of proof
Mini Summary:
As applicant in the court a quo, the appellant obtained an order for the arrest of the second respondent
ship. The purpose of the arrest, effected in terms of section 5(3) of the Admiralty Jurisdiction Act 105 of
1983 was to obtain security to meet the applicant's claim against the respective respondents in pending
arbitration proceedings which were to take place in London.
After providing security, the first respondent approached the court for a reduction in the amount of
security it had put up. It also sought counter-security from the applicant. The reduction was refused, but
the application for counter-security succeeded. The present appeal was noted against the latter order.
Held that an applicant for security bears the onus of proof, and must establish a prima facie case.
Examining the facts, the court found that the first respondent did not establish a prima facie case in
support of its claim for counter-security.
144) MECHANICAL COURT RECORDINGS
Trial — Judgment — Reasons for judgment — When to be supplied — Oral judgment
— Unwise not to record oral judgment — Where oral reasons not recorded, Court on
review has no way of knowing whether they are consistent with reasons furnished in
response to request under Rules of Court or enquiry on review. S v Ntjaba2000 (2)
SACR 218 (W)
Record
Trial — Record — Content of — Semble: Record must not be so truncated that it
omits procedural steps followed — Impossible for Court on review to determine
whether proceedings in accordance with justice — Although magistrates not required
to transcribe proceedings in full, record of trial should at least reflect whether
unrepresented accused's rights have been explained and understands position. S v
Wellington1991 (1) SACR 144 (Nm)
Trial — Record — Content of — Everything material to trial that occurs must be
recorded — Enquiry in terms of s 4(1) of Dangerous Weapons Act 71 of 1968 — Must
be entered on record by presiding officer — Information required to be recorded set
out. S v Gwele1991 (1) SACR 107 (Tk)
261
Trial — Record — Content of — Magistrates and interpreters to ensure, in the light of
s 35(3)(k) of Constitution of the Republic of South Africa Act 108 of 1996, that it
appears from record that accused was tried in a language he understood. S v Chauke
and Another1998 (1) SACR 354 (V)
Trial — Record — Content of — Magistrates' court being court of record —
Everything directly related to proceedings to be recorded — Particularly in casu
presiding officer's enquiry into interpreter's competence and swearing in — Cannot
be accepted that procedure, not recorded, was followed purely on magistrate's ipse
dixit. S v Saidi2007 (2) SACR 637 (C)
Trial — Record — Content of — Record to show that accused was advised of right to
receive legal representation at State expense, under s 25(3)(e) of Constitution Act
200 of 1993 — Where record not showing that accused so advised, accused to
receive benefit of the doubt, and it to be accepted that accused not in fact so
advised. S v Moos1998 (1) SACR 372 (C)
Trial — Record — Correction of — Application for the correction of a record in terms
of Rule 66(6) of the Magistrates' Courts Rules must be heard in open court. De Wet v
Greeff NO en 'n Ander1991 (2) SACR 17 (T)
Trial — Record — Duty of presiding officer to keep record of proceedings — Duty of
magistrate to ensure that clearly audible record of proceedings made — Such
necessary to enable transcriber to prepare clear and understandable transcription of
proceedings — Unnecesary delays avoided if magistrate were to peruse record and
effect necessary improvements before record submitted for review. S v
Mashaba2004 (1) SACR 214 (T)
Trial — Record — Duty of presiding officer to keep record of proceedings —
Everything that happens during course of trial should be recorded — Recording
machine not to be switched off — Switching off of recording machine creating highly
undesirable impression that something being done that should be kept from eyes of
reviewing Judge. S v Mashaba2004 (1) SACR 214 (T)
Trial — Record — Duty of presiding officer to keep record of proceedings —
Instructions to unrepresented accused persons — Desirable that these be
mechanically recorded. S v Visser2001 (1) SACR 401 (C)
Trial — Record — Duty of presiding officer to keep record of proceedings — Must do
so in intelligible way and in the first person — Failure to do so could lead to guilty
persons being acquitted for that reason alone. S v Haibeb1994 (1) SACR 657 (Nm)
Trial — Record — Explanation of accused's rights — Such explanation and accused's
response must be precisely recorded on record — Judicial officer should not delegate
this duty to interpreter. S v Thobakgale2007 (1) SACR 395 (T)
Trial — Record — Explanation of accused's rights — What precisely is stated by
judicial officer to accused with regard to right to legal representation and what
precisely accused replied thereto when making election, all constitute 'record of
proceedings' as provided for in s 76(3)(a), (b) and (c) of Criminal Procedure Act 51
of 1977 — Perusal of record must reveal precisely what was conveyed to
unrepresented accused regarding right to consult with legal practitioner of choice,
right to be provided with legal practitioner at State expense and right to dispense
with legal practitioner and reaction thereto must appear ex facie record of
proceedings — Record of explanation of accused's rights shouldn't be merely in form
262
of cryptic notes, but should rather appear verbatim — Accused's reason for election
made must also be recorded. S v Sibiya2004 (2) SACR 82 (W)
Trial — Record — Judgment — Judge failing to provide full reasons for judgment —
Losing party wishing to appeal — Judge's failure after 15 months to decide whether
or not he believed that another court might reach different conclusion regrettable —
Statement of reasons giving assurance to parties that court having given due
consideration to matter — Ensuring public confidence in administration of justice —
While giving only brief reasons sometimes unavoidable, this practice to be utilised
sparingly. National Director of Public Prosecutions v Naidoo and Others2011 (1)
SACR 336 (SCA)
Trial — Record — Judgment — Magistrate failing to give reasons for either conviction
or sentence — Magistrate having duty to provide full reasons for judgment at
conclusion of trial, not only when requested by reviewing judge — Failure to furnish
reasons at end of trial severely hampering review function — Reviewing court
disadvantaged in applying test as to whether proceedings in accordance with justice
— Court also not able to have regard to factual and credibility findings made by trial
court. S v Molawa; S v Mpenges2011 (1) SACR 350 (GSJ)
Trial — Record — Judgment — Presiding officer required to keep a record of
judgment and reasons therefor — Magistrates' Courts Act 32 of 1944 s 93 ter(3) and
Criminal Procedure Act 51 of 1977 s 146. S v Adams2001 (1) SACR 59 (C)
Trial — Record — Judgment — Reason for — It is in interests of justice that Judge,
either sitting alone or with assessors, should give reasons for finding of trial Court —
Where trial Court makes no findings as to credibility of witnesses who testify, Court
on appeal, (a) has to do its best on material on record; (b) cannot proceed on
assumption that there has been no misdirection or irregularity in process of reaching
decision reached by Court a quo; (c) cannot assume that Court a quo has cogent
reasons for seemingly accepting witnesses who implicate appellant; and (d) should
have regard only to question of onus of proof once all relevant evidence has been
examined to see whether there is any doubt as to which version is acceptable. S v
Frazenburg and Others2004 (1) SACR 182 (E)
Trial — Record — Judgment — Reasons for — Duty of presiding officer to provide
reasons for judgment — Trial court not providing reasons, resulting in court of appeal
being unable to determine basis upon which convictions founded. S v Ngabase and
Another2011 (1) SACR 456 (ECG)
Trial — Record — Judgment — Reasons for — Not only salutary practice, but
obligatory, for judicial officers to provide reasons to substantiate their conclusions —
Court of appeal having interest in knowing why judicial officer making given order —
In interests of open and proper administration of justice, and important for
maintenance of public confidence, that courts state publicly reasons for their
decisions. S v Maake2011 (1) SACR 263 (SCA)
Trial — Record — Language of — If parity of 11 official languages in court
proceeding adhered to, it could result in considerable strain in resources and impact
negatively on quality of service delivery and efficiency in administration of justice —
Section 35(3)(k) of Constitution of the Republic of South Africa Act 108 of 1996 not
conferring on accused person right to have trial conducted in language of choice but
merely confers right to be tried in language that she or he understands, or, if that
263
not practical, to have proceedings interpreted into such language — This falling short
of addressing parity of use of languages in court proceedings — Solution to problems
could be introduction of one language of record in court proceedings, possibly
English. S v Damoyi2004 (1) SACR 121 (C)
Trial — Record — Lost trial record — Magistrate not empowered to order attendance
of accused and witnesses before him for purposes of reconstruction of lost record of
proceedings — Record to be reconstructed in accordance with administrative
procedures — Hence the proceedings relating to reconstruction of the record set
aside and the matter remitted to the clerk of the court with instructions to
reconstruct the record by the best possible and most reliable means. S v Biyana1997
(1) SACR 332 (T)
Trial — Record — Magistrate having given oral judgment which was not
contemporaneously recorded — Reviewing Court not entitled to approach matter
afresh on evidence — If reviewing Judge entertains doubts about conviction he
should call for magistrate's reasons for judgment — Only where magistrate is unable
to furnish his or her reasons can Court approach matter afresh. Makhudu v Director
of Public Prosecutions2001 (1) SACR 495 (SCA)
Trial — Record — Mechanical recording of record defective — Impossible to
reconstruct record — Accused person's right of appeal not to be frustrated by
provision of incomplete record of evidence — Only avenue for protection of right the
setting aside of proceedings — Duty resting on presiding officers and prosecutors to
ensure proper recording of proceedings — Conviction and sentence set aside. S v
Sebothe and Others2006 (2) SACR 1 (T)
Trial — Record — Record incomplete — Reconstruction of — Where record
incomplete as to proceedings on sentence — Whether court of appeal entitled to hear
evidence in mitigation of sentence as opposed to remittal of matter to trial court for
reconstruction of record — New evidence admissible on appeal in terms of enabling
statutes and then only in exceptional circumstances — Circumstances such as in
present case, where legally represented appellants were before court and in
agreement to proceeding by way of further evidence on appeal, constituting
exceptional circumstances. S v Ncube and Others2011 (2) SACR 471 (GSJ)
Trial — Record — Record incomplete or lost — Effect of — Record of proceedings in
regional court before sentencing by High Court in terms of Criminal Law Amendment
Act 105 of 1997 defective — Court unable to say whether proceedings in accordance
with justice or not and setting aside proceedings — Court noting that there had been
no acquittal on merits — Court remitting case to regional court to be heard de novo
before another magistrate. S v Appel2004 (2) SACR 360 (E)
Trial — Record — Record incomplete — Sentencing — Magistrate's reasons for
sentence not appearing from record — In answer to notice of appeal magistrate
requesting that 'ex tempore judgment' be regarded as reasons for purpose of appeal
— Regardless of desire to add nothing further, magistrate could have been requested
to furnish his reasons for sentence — Proper protection of appellant's constitutional
right to appeal and community's interests that offenders be properly punished
requiring of judicial officer that thorough attention be paid to formulation and
furnishing of reasons for sentence — Without it sound criminal justice hampered. S v
Calitz en 'n Ander2003 (1) SACR 116 (SCA)
264
Trial — Record — Record incomplete — When Court may set aside the conviction on
that ground — The test is whether the notes are substantially correct and complete
— Question must be considered in the context of the relevant case — Record in casu
sometimes inaudible and sometimes unclear — Impossible to adjudicate the appeal
— Conviction and sentence set aside. S v Booysen1996 (2) SACR 393 (E)
Trial — Record — Record irretrievably lost — Procedure to be followed in
reconstruction of record both where trial completed and where trial still part heard —
Record, including exhibits, to be preserved with the utmost care. S v Sibanda1991
(2) SACR 425 (ZH)
Trial — Record — Record irretrievably lost — Recording tapes found to be blank and
magistrate's notes missing — Magistrate compiling a judgment from memory and
submitting same to reviewing Court as 'reconstructed record' — Such 'reconstruction'
inadequate for purposes of review — Magistrate's summary of evidence possibly
correct and conviction possibly proper, but it was for reviewing Court, having regard
to evidence, to decide this — To rely on magistrate's summary wholly inadequate for
this purpose — Conviction and sentence set aside. S v Mcophele2007 (1) SACR 34
(E)
Trial — Record — Record lost and allegedly not capable of reconstruction — Matter
part-heard — Court declining to set aside proceedings and order fresh trial:
magistrate with assistance of prosecutor to attempt to reconstruct the record as best
he could. S v Rakgoale2001 (2) SACR 317 (T)
Trial — Record — Record lost and allegedly not possible to reconstruct — Matter
part-heard — Magistrate and interpreter no recollection of accused's answers and
despite telephonic contact with prosecutor, his input into reconstruction of record not
received — Held that Court not to set aside conviction and sentence in such cases
unless satisfied that not possible to reconstruct same — In casu that stage not yet
reached as no evidence that prosecutor unable to assist and assistance of other
persons in court, such as accused's guardians, could be elicited — Matter accordingly
referred back to clerk of the court with instruction the best secondary evidence of
contents of lost record be obtained and reconstructed record be placed before the
magistrate for finalisation. S v Ntantiso and Others1997 (2) SACR 302 (E)
Trial — Record — Record lost totally or material portion thereof lost — Impossible to
reconstruct record — In appeal or on review conviction and sentence to be set aside
— Not permissible to refer matter back to trial court for trial de novo. S v
Fredericks1992 (1) SACR 561 (C)
Trial — Record — Record lost, destroyed or incomplete — Procedure to be followed
in reconstruction — Reconstruction of record part of trial process — Accused, legal
representative and prosecutor all to be informed of need for reconstruction — Parties
to assemble in open court to undertake reconstruction — Purpose of assembly to be
placed on record — Parties to express views as to accuracy of each aspect of
reconstruction before transcription in normal manner. S v Zenzile2009 (2) SACR 407
(WCC)
Trial — Record — Record lost, destroyed or incomplete. See alsoAppeal — Record
— Record lost, destroyed or incomplete
265
Trial — Record — Record of submissions and judgment on sentence lost —
Reconstruction impossible — Sentence appearing unduly severe, but Court of appeal
unable to express opinion on appropriate sentence in absence of record — Matter
remitted to trial court for re-imposition of sentence after consideration of further
evidence and submissions. S v Miggel2007 (1) SACR 675 (C)
Trial — Record — Record on appeal where lodged by prisoner serving term of
imprisonment — Effect of invalidity of s 309(4) and s 305 of Criminal Procedure Act
51 of 1977 — Reference to s 309(4) in Magistrate's Court Rule 67 had no further
application after its declaration of invalidit — Clerk of court now obliged to arrange
for record to be transcribed in all cases where an appeal is noted even where
condonation for late noting of an appeal is required. S v Banyane and Others1999
(1) SACR 622 (W)
Trial — Record — Record sent on review containing number of omissions precluding
proper consideration of matter — Magistrate's notes stolen but court considering
other avenues of reconstructing record — Clerk of the court accordingly ordered to
obtain assistance of State witnesses, accused, magistrate, prosecutor, interpreter,
stenographer and others to make good the omissions and then to submit affidavit to
the Registrar setting out efforts made by him to reconstruct same. S v Gumbi1997
(1) SACR 273 (W)
145) MENTAL CAPACITY OF ACCUSED
S v Matina – 2008 JOL 21270 (E) CA&R 289/07 – accused charged with assault and
theft. Section 79 proceedings brought on basis accused unable to follow proceedings and
make out proper defence. State applied for accused to be detained pending decision of a
judge in chambers. Held that such order should only be made if detention of accused was
in the public interest.
S v DEWHURST (ECP)
REVELAS J and MAKAULA J
2011 NOVEMBER 22
Trial—Mental state of accused—Order in terms of s 47 of the Mental Health Care Act
17 of 2002 that accused, who was not capable of acting in accordance with his
appreciation of the wrongfulness of his conduct, be held in a psychiatric hospital—Order
can only be made after evidence has been placed before court linking accused with
offence with which he was charged—Criminal Procedure Act 51 of 1977, s 77(6)(a)(i).
146) MINIMUM SENTENCES
266
Mahinje v S
[2015] JOL 32787 (ECB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 10 / 2014
25 / 11 / 2014
South Africa
High Court
Eastern Cape, Bhisho
G Goosen, S Alkema, Z Nhlangulela JJ
Keywords:
Criminal law – Rape – Sentence – Appeal – Prescribed minimum sentence
Mini Summary:
Based on his plea of guilty, the appellant was convicted of the rape of a three-year old child. Sentenced to
life imprisonment, he appealed against his sentence. The grounds of appeal related to averment that the
that the trial court had erred in not finding that there were substantial and compelling circumstances
present in the mitigating factors which would warrant a departure from the prescribed minimum sentence
as provided in section 51(1) of the Criminal Law Amendment Act 105 of 1997 – and that the trial court
had erred in not finding that a sentence of life imprisonment would, in the circumstances of the case, be
disproportionate.
Following the appellant’s conviction a victim impact assessment was conducted and a report was compiled
by a clinical psychologist.
Held that the imposition of sentence in a criminal trial is quintessentially a matter in the discretion of the
trial court. A court of appeal will not readily interfere with the sentence imposed by the trial court. Those
principles are not affected by the fact that provision is now made for the imposition of certain prescribed
statutory minimum sentences applicable to certain categories of offences. The imposition of an
appropriate sentence remains, notwithstanding the statutory prescribed minimum sentences, a matter
that is within the discretion of the trial court.
The proper approach to the imposition of sentence in circumstances such as the present is for the trial
court to take into account all the traditional factors which serve as mitigating factors in relation to
sentence and to weigh those factors against the aggravating features found to be present. The Court will
thereby seek to balance the range of competing interests relevant to the determination of an appropriate
sentence, having regard to the nature and gravity of the crime, the interests and circumstances of the
offender and the interests of the society as a whole. The aim is to arrive at a proportionate sentence.
The appellant’s submission that the trial court had erred in not finding that the personal circumstances of
the appellant constituted substantial and compelling circumstances warranting a departure from the
prescribed minimum sentence, was rejected by the Court. It was held that the trial court had correctly
MvS
[2014] JOL 31588 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
764 / 12
09 / 05 / 2013
South Africa
Supreme Court of Appeal
KK Mthiyane DP, SA Majiedt, A Cachalia JJA, NC Erasmus, Saldulker AJJA
Keywords:
Criminal law – Rape of minor – Sentence – Whether imposition of prescribed minimum sentence of life
imprisonment was appropriate – A minimum sentence prescribed by law which, in the circumstances of a
particular case, would be unjustly disproportionate to the offence, the offender and the interests of
society, would justify the imposition of a lesser sentence than the one prescribed by law
Mini Summary:
The appellant was convicted of the rape of his 13-year-old niece. He appealed against his conviction and
his sentence of life imprisonment. Denying that he had raped the child, the appellant disputed that the
state had proved beyond a reasonable doubt that the offence had occurred.
Held that the trial court’s finding that the child and her grandmother (to whom she had reported the
incident) were honest, credible and trustworthy witnesses was unassailable. The Court noted that the
complainant was a single witness in respect of the rape incident itself and that she was a child. Section
208 of the Criminal Procedure Act 51 of 1977, provides that a single witness’ evidence is adequate to
sustain a conviction, provided that it is satisfactory in all material respects. The evidence of children must
be treated with circumspection. It would therefore not have been safe to convict on her evidence alone.
However, there was sufficient corroboration for the child’s testimony in the form of undisputed DNA
evidence that the appellant’s semen was found on her underwear, and the appellant’s utter inability to
explain that. That constituted adequate proof of the rape.
267
In sentencing the appellant, the trial court found no substantial and compelling circumstances to deviate
from the prescribed minimum sentence of life imprisonment for the rape of the child. In arriving at that
conclusion, the court erred. A minimum sentence prescribed by law which, in the circumstances of a
particular case, would be unjustly disproportionate to the offence, the offender and the interests of
society, would justify the imposition of a lesser sentence than the one prescribed by law. In the present
case, despite the seriousness of the offence of rape, the rape was not of the most heinous kind. Weighing
the mitigating factors against the aggravating ones, the Court concluded that the imposition of the
statutorily prescribed minimum sentence by the High Court was grossly disproportionate to the offence.
The Court was therefore obliged to set aside the sentence and replace it with a more appropriate one. The
offence was considered deserving of severe punishment so as to convey the gravity of the offence and
society’s justified abhorrence thereof. It was decided that a sentence of 15 years’ imprisonment would
meet the objectives of sentencing and would fit the crime, the criminal and the needs of society.
. S v Mabaso 2014 (1) SACR 299 (KZP)
A life sentence was set aside on appeal because at his trial the accused was not informed
of the possibility of a life sentence being imposed. The accused must be informed of fact
that the provisions of the Amendment Act are to be applied and the consequences thereof.
It could not be assumed that, because an accused was legally represented, the provisions
of the Act had been pertinently brought to his attention
S v MASWANGANYI 2014 (1) SACR 622 (GP)
The appellant was convicted in a regional magistrates' court of rape and was
sentenced to life imprisonment. He appealed against both the conviction and
sentence. The court dismissed the appeal against conviction, as the evidence against
the appellant was unassailable. Counsel for the state conceded that, due to the fact
that the charge-sheet had incorrectly referred to s 51(2) of the Criminal Law
Amendment Act 105 of 1997, providing for a minimum sentence of 10 years'
imprisonment, instead of s 51(1), providing for a life sentence, the court a quo had
erred in imposing a life sentence. As regards sentence, it appeared that the appellant
was 19 years of age at the time the crime was committed, and that he suffered from
depression. He was a first offender. There was no evidence that showed that the
complainant had suffered any physical injury.
Held, that the concession by the state, that the incorrect citation of the applicable
statutory provision constituted a misdirection, was not consistent with the latest
state of the law. In the circumstances, where the magistrate had enquired of the
appellant's legal representative whether the minimum sentence provisions had been
explained to his client, and this was confirmed, there had been no prejudice to the
appellant. Furthermore, when his legal representative addressed the magistrate in
applying for bail, pending appeal, no mention had been made or objection taken to
the imposition of a life sentence. (Paragraphs [21] at 626i, [22] at 627a–d and [24]
at 627f.)
Held, further, as regards the sentence of life imprisonment, that the magistrate had
erred in not properly considering the issue of rehabilitation of the appellant,
especially in view of his age at the time the crime was committed. It seemed that
good prospects existed that he could be rehabilitated and accordingly the sentence of
life imprisonment was disproportionate in the circumstances. The sentence imposed
was substituted with a sentence of 20 years' imprisonment. (Paragraphs [30] at 628f
– g and [31] at 628g–h.)
268
Kwanape v S
[2013] JOL 30935 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
442 / 12
26 / 11 / 2012
South Africa
Supreme Court of Appeal
XM Petse, RW Nugent JJA, NC Erasmus AJA
Keywords:
Criminal law – Sentencing – Prescribed minimum sentence legislation – Court not given clean slate to
impose whatever sentence it deemed fit, but was required to approach that question conscious of the fact
that the legislature has ordained life imprisonment or the particular prescribed period of imprisonment as
the sentence which should ordinarily be imposed for the commission of the listed crimes in the specified
circumstances
Mini Summary:
Upon his conviction on a charge of rape, the appellant was committed to the High Court for sentence in
terms of section 52 of the Criminal Law Amendment Act 105 of 1997 (“the Act”). While section 52 was
later repealed by the Criminal Law (Sentencing) Amendment Act 38 of 2007, at the time material to this
case, it required a regional court which had convicted an accused person of an offence for which life
imprisonment was the prescribed sentence, to stop the proceedings and commit the accused for sentence
by a High Court.
The High Court concluded that the appellant’s conviction was supportable on the evidence, and proceeded
to consider whether substantial and compelling circumstances as intended in section 51(3)(a) of the Act
existed. It found that none existed and therefore imposed a sentence of imprisonment for life. Leave to
appeal was granted on the ground that this was not the worst type of rape, and that there was no
evidence suggesting that the complainant had suffered serious physical injury as a consequence of the
rape.
Held that there were numerous delays in this case, which led to the determination of this appeal taking
longer than would have been the case had the matter been dealt with expeditiously. In terms of
section 35(3)(o) of the Constitution, the appellant has a right to a fair trial which includes the right of
appeal to a higher court. Consequently the delays experienced in this case undermined or compromised
those rights.
On the merits, the crucial issue was the factual enquiry of whether the High Court should have found that
substantial and compelling circumstances existed, justifying a departure from the mandatory minimum
sentence of life imprisonment.
The gravamen of the appellant’s submissions was that the cumulative effect of the mitigating factors
weighed against the aggravating features, which the court below should have taken into account,
constituted substantial and compelling circumstances. Consequently, it was submitted, the court below
should have found that it was free to depart from the prescribed minimum sentence of life imprisonment
under section 51(3) of the Act. The introduction of prescribed minimum sentence legislation meant that a
court was not to be given a clean slate on which to inscribe whatever sentence it thought fit. Instead, it
was required to approach that question conscious of the fact that the legislature has ordained life
imprisonment or the particular prescribed period of imprisonment as the sentence which should ordinarily
be imposed for the commission of the listed crimes in the specified circumstances.
Applying the above approach to the facts, the Court confirmed the High Court’s conclusion that substantial
and compelling circumstances were absent.
The appeal was accordingly dismissed.
Kolea v S
[2013] JOL 30790 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
157 / 12
30 / 11 / 2012
South Africa
Supreme Court of Appeal
L Mpati P, KK Mthiyane DP, FDJ Brand, JB Shongwe JJA, BH Mbha AJA
Keywords:
Criminal law – Rape – Appeal against conviction and sentence – Whether, on a charge of rape, a
sentencing court is precluded from imposing a life sentence – or from referring the matter to a higher
court for consideration of that sentence – solely on the basis that the charge sheet refers to section 51(2)
269
instead of section 51(1) of the Criminal Law Amendment Act 105 of 1997 – Where charge sheet expressly
recorded that the appellant was charged with the offence of rape, read together with the provisions of
section 51(2) of the Act, appellant was always aware of charge to be met and that the State intended to
rely on the minimum sentencing regime
Mini Summary:
After the appellant was convicted of rape in the Regional Court, the case was referred to the High Court
where the conviction was confirmed and a sentence of 15 years’ imprisonment was imposed. On appeal to
the full court, the conviction was again confirmed, and the sentence was increased to one of life
imprisonment. The further appeal against both conviction and sentence, was with the special leave of this
Court.
Held that the main issue on appeal was whether, on a charge of rape, a sentencing court is precluded
from imposing a life sentence – or from referring the matter to a higher court for consideration of that
sentence – solely on the basis that the charge sheet refers to section 51(2) instead of section 51(1) of the
Criminal Law Amendment Act 105 of 1997. Section 51(2) of the Act provides for the imposition of a
minimum sentence of 10 year’s imprisonment in respect of a first offender while section 51(1) prescribes a
minimum sentence of life imprisonment.
The appellant contended that as he was charged and convicted under section 51(2) of the Act, it was not
thereafter open to the respondent to invoke a completely different sub-section, ie section 51(1), which
provides for a more severe sentence. It was contended further that the Regional Court was competent to
impose a sentence in terms of section 51(2) of the Act, read with Part III of Schedule 2, and had no
authority to refer the matter to the High Court for sentencing. The Court pointed out that the accused’s
right to be informed of the charge he is facing, and for there to be sufficient detail to enable him to
answer it, is underpinned by section 35(3)(a) of the Constitution, which provides that every accused
person has a right to a fair trial. If the State intends to rely on the minimum sentencing regime created in
the Criminal Law Amendment Act, that should be brought to the attention of the accused at the outset of
the trial. In this case, the State’s intention to rely on and invoke the minimum sentencing provisions was
made clear from the outset. The charge sheet expressly recorded that the appellant was charged with the
offence of rape, read together with the provisions of section 51(2) of the Act. The Court was therefore
satisfied that the appellant, who was legally represented throughout the trial, well knew of the charge he
had to meet and that the State intended to rely on the minimum sentencing regime created in the Act.
In appealing the conviction, the appellant challenged his identification as one of the perpetrators of the
rape. However, the Court found the evidence to prove that the appellant had been properly identified.
There was also no merit found in the appeal against sentence. The full court was found to have correctly
considered all relevant factors in deciding on the issue of sentence.
The appeal was dismissed.
Makatu v S
[2013] JOL 30951 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
612 / 2012
25 / 10 / 2013
South Africa
Supreme Court of Appeal
MS Navsa ADP, LO Bosielo, MML Maya, Pillay JJA, Meyer AJA
Keywords:
Criminal law – Murder – Intention – Evidence establishing that accused was guilty of murder on the basis
of dolus eventualis as he foresaw that his victim might die from strangulation but recklessly persisted with
his conduct – Criminal law – Sentence – Appeal – Misdirections committed by trial court resulting in
sentences being interfered with on appeal
Mini Summary:
Charged with murder, rape and robbery, the appellant pleaded not guilty to murder, guilty to rape and
guilty to theft. He was convicted based on his plea, and was sentenced to life imprisonment on the murder
count, 20 years’ imprisonment on the rape count and 6 months’ imprisonment on the theft count. The
present appeal was against conviction and sentence.
In the appeal against conviction, the appellant contended that the statement in terms of section 112(2) of
the Criminal Procedure Act 51 of 1977 did not contain the requisite details. As far as the murder count
was concerned, the appellant argued that the offence was not established as the State had failed to lead
evidence to prove intent.
Held that while the medical evidence established that the deceased had probably died of strangulation
with a rope, the trial judge inadvertently omitted to indicate whether the murder conviction was based on
direct intent or dolus eventualis. The present Court was unable to conclude that it was proved beyond a
270
reasonable doubt that the appellant had planned to kill the deceased. However, the conclusion that he
foresaw that she might die from strangulation and that he recklessly persisted with his conduct was
inescapable and reasonable. The appellant was therefore guilty of murder on the basis of dolus eventualis.
Turning to the conviction of rape, the Court noted that the appellant’s main attack against the conviction
of rape was that the section 112(2) statement was a mere regurgitation of the indictment and that it did
not provide the necessary details to constitute the offence. The appellant admitted that the sexual
intercourse was without the victim’s consent and that he knew that it was wrong. To argue as he did that
he did not understand what sexual intercourse meant, thus implying that he pleaded guilty under a
misapprehension of the proper charge was described as disingenuous.
The appeal against conviction on all three counts was dismissed.
However, it was found that the sentences imposed were not sustainable. The trial judge was guilty of a
number of misdirections which were so gross that they vitiated the sentences imposed. Firstly, the trial
court stated that the murder was committed under circumstances where the offence justified the sentence
prescribed under Schedule 2 of Part 1 of the Criminal Law Amendment Act 105 of 1997, but the
indictment never made mention of the section or the Act. Secondly, no evidence was led to bring the
murder within the purview of the section. Consequently, the sentence of life imprisonment was wrongly
imposed. The court set aside the sentence and replaced it with one of 15 years’ imprisonment.
The sentence of 20 years’ imprisonment on the rape count was described in the indictment as falling
under section 51(1)(a) of the Criminal Law Amendment Act. That could not be correct as there is no such
section. The only part of the Act that might be relevant was section 51(2)(b) which refers to Part III of the
Schedule. That section prescribes a sentence of not less than 10 years for a first offender unless there are
substantial and compelling circumstances to justify a lesser sentence as contemplated in section 51(3) of
the Act. The disparity between 10 years and 20 years was highlighted by the court, which set the
sentence aside, finding no justification for the disparity. The sentence was replaced with one of 10 years’
imprisonment.
The Court ended by commenting on the unacceptable delays in the prosecution of criminal appeals in the
High Court from which this matter came. However, the Court’s reference to systemic delays was
controverted in a dissenting judgment.
1. S v KOLEA 2013 (1) SACR 409 (SCA)
A sentencing court is not precluded from imposing a life sentence or referring a
matter to a higher court for consideration of sentence, solely on the basis that the
charge-sheet erroneously refers to s 51(2) instead of s 51(1) of the Criminal Law
Amendment Act 105 of 1997. (Paragraphs [11]–[14] at 413b-h and [19]–[20] at
415b–f.)
The majority decision in S v Mashinini and Another2012 (1) SACR 604 (SCA) D not
approved.
Case Information
Appeal from a conviction in a regional court for rape and sentence of 15 years'
imprisonment in the Free State High Court (Musi JP, Jordaan J and Murray AJ). The
facts appear from the reasons for judgment.
Thembalethu v S
[2008] JOL 21512 (SCA)
Case Number:
343 / 07
Judgment Date:
20 / 03 / 2008
Country:
South Africa
Jurisdiction:
Supreme Court of Appeal
Division:
Bench:
Mthiyane JA, FD Kgomo, Malan AJJA
Keywords:
Criminal procedure – Unlawful possession of firearm – Sentence – Minimum sentence provisions –
Applicability
Mini Summary:
The appellant was convicted of, inter alia, robbery with aggravating circumstances, unlawful possession of
a firearm and attempted murder. He was sentenced to an effective 25 years' imprisonment. He appealed
against the sentence of 15 years' imprisonment on the charge of unlawful possession of a firearm. The
271
basis of the appeal was that the prescribed minimum sentence provisions of section 51(2)(a) read with
Part II of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 were inapplicable.
Held, that the appellant's argument was that there was no offence for possession of a semi-automatic
firearm and that the minimum sentence provisions were not applicable. He argued further that the
regional court was wrong to have sentenced him to 15 years' imprisonment instead of no more than 3
years' imprisonment as provided for in the now repealed Arms & Ammunition Act 75 of 1969.
The court held that that in providing for increased penal jurisdiction for the possession of a semiautomatic firearm the Legislature had not created a new offence, but merely enhanced the penal
jurisdiction of the court in respect of an existing offence. Offences relating to the possession of a semiautomatic or automatic firearm were offences in respect of which the court acquired an enhanced penal
jurisdiction.
The appeal was dismissed.
Mapule v S
[2012] JOL 29242 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
817 / 11
30 / 05 / 2012
South Africa
Supreme Court of Appeal
S Snyders, FDJ Brand, NZ Mhlantla JJA, BR Southwood, XM Petse AJJA
Keywords:
Constitutional law – Right to fair trial – Section 35 of Constitution – Fairness demands that the accused be
informed right at the outset of the trial, of the charge faced – Criminal law – Sentence – Minimum
sentence provisions in Criminal Law Amendment Act 105 of 1997 – Applicability – Where complainant not
proved beyond reasonable doubt to have been under the age of 16 years at the time of the incident, and
State did not prosecute appellant for rape of a girl under the age of 16 years in terms of section 51(1)
read with Part I Schedule 2 of the minimum sentence legislation, such legislation not applicable
Mini Summary:
After the appellant was convicted of rape, the case was referred to the high court in terms of the minimum
sentence provisions of the Criminal Law Amendment Act 105 of 1997, the Court sentenced the appellant
to life imprisonment. Although leave to appeal was initially granted only against the conviction, a
subsequent application for leave to appeal against sentence was granted. After the appeal was heard, an
order was made dismissing the appeal against conviction, but upholding the appeal against sentence.
Reasons for that order were now furnished by the Court.
Held that the charge sheet made no mention of the complainant’s age or the provisions of the minimum
sentence legislation. The obvious hearsay and unreliable evidence by the complainant that she was 12
years old at the time of the incident, was gainsaid by the doctor who examined her. The state failed to
tender reliable evidence to resolve the uncertainty regarding the complainant’s age. Thus, when,
subsequent to conviction, the magistrate advised the appellant of his rights and said that because the
complainant was 12 years old at the time of the incident, the provisions of the minimum sentence
legislation compelling the imposition of life imprisonment had to be applied, he erred in two respects.
First, the complainant was not proved beyond reasonable doubt to have been under the age of 16 years at
the time of the incident. Second, the state did not prosecute the appellant for the rape of a girl under the
age of 16 years in terms of section 51(1) read with Part I Schedule 2 of the minimum sentence legislation.
The high court erred in the same respects.
The wording of the minimum sentence legislation makes it clear that it applies to persons convicted of the
offences listed in the schedules. The particular crime a person is convicted of is therefore a jurisdictional
fact essential to the application of the various sentences prescribed in the minimum sentence legislation.
As the appellant was not charged with nor convicted of the rape of a girl under the age of 16, the
minimum sentence of life imprisonment did not apply.
The right to a fair trial is entrenched in section 35 of the Constitution. At no stage prior to his conviction
was it brought to the appellant’s attention that he could be sentenced by the high court or that he could
be sentenced to life imprisonment. To be informed, right at the outset of the trial, of the charge faced, is
one of the demands of fairness.
As a result of the failure referred to above, the appellant could only be convicted of rape (and not rape of
a girl under the age of 16). In terms of section 51(2)(b) of the of the Criminal Law Amendment Act, such
a conviction attracts a minimum sentence of 10 years’ imprisonment in the absence of substantial and
compelling circumstances. Even if no regard was had to the minimum sentence legislation, the court was
of the view that a discretionary sentence of 10 years’ imprisonment would be appropriate in the
circumstances. That led to the reduction of sentence on appeal.
272
Tofie v S
[2012] JOL 29211 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 75 / 2012
15 / 06 / 2012
South Africa
High Court
Western Cape, Cape Town
Erasmus J, Gangen AJ
Keywords:
Criminal law – Rape – Conviction and sentence – Appeal
Mini Summary:
The appellant was convicted on two counts of the rape of a 25-yeard old girl, and was sentenced to 10
years’ imprisonment on each count. He was granted leave to appeal against both convictions and
sentences.
The grounds of appeal against conviction were that the magistrate erred in finding that the state had
proved its case beyond a reasonable doubt and in finding the evidence of the complainant to be honest
and reliable.
Held that a court will be very reluctant to upset the findings of a trial court unless the appellant satisfies
the appeal court that there has been some miscarriage or violation of some principle of law and
procedure. The Court was satisfied on an examination of the recorded evidence that there was no
misdirection by the magistrate in her finding that the State proved its case beyond reasonable doubt, in
her accepting the evidence of the complainant and in rejecting the appellant's version of events which was
of poor quality. The appeal against conviction lacked merit, and the appellant was rightly convicted in the
trial court.
Turning to the appeal against sentence, the Court pointed out that the offences of which the appellant was
convicted were subject to the minimum sentence provisions. In terms of section 51(1) of the Criminal Law
Amendment Act 105 of 1997, the offences are referred to in Part 1 of Schedule 2 (the victim is raped
more than once and the victim is under 16 years) and therefore life imprisonment was applicable unless in
terms of section 51(3) substantial and compelling circumstances existed which justified the imposition of a
lesser sentence. The grounds of appeal against sentence were that the trial court had overemphasised the
interests of the community and underemphasised the interests of the appellant; had not taken into
account the element of mercy that should have been afforded to the appellant; that the sentence was
startlingly inappropriate and induced a sense of shock; and that in the light of the merits of the case,
another court would come to a different conclusion. The Court found no substantiation for the grounds of
appeal. Instead, the Court found the trial court to have erred in finding substantial and compelling
circumstances warranting a departure from the prescribed minimum sentence. The sentence was set aside
and replaced with the prescribed minimum of life imprisonment.
Currin v S
[2012] JOL 29244 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 499 / 10
01 / 08 / 2012
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
D Pillay, Henriques JJ
Keywords:
Criminal law – Rape – Rape of child – Conviction and sentence – Appeal
Mini Summary:
The appellant was convicted of the rape of a six year old boy, and was sentenced to life imprisonment. He
appealed against both conviction and sentence. His defence was a bare denial, with him alleging that the
witnesses had been manipulated by adults who wanted him to vacate his accommodation.
Held that the state’s case was based on the accounts of the complainant and his seven year old friend,
who was an eyewitness to the incident. To reject the state’s case and accept the appellant’s version the
Court had to find as a reasonable possibility that the adult members of the family of the appellant’s
fiancée manipulated the two children, to lie that the appellant raped the complainant for the purpose of
evicting the appellant from his accommodation. The Court found the allegation of such a conspiracy to be
farfetched.
The starting point for an appellate court considering sentence is to determine whether the court a quo
misdirected itself. The court might also interfere if the minimum sentence is clearly disproportionate to the
273
crime, the criminal and the legitimate needs of society. In a rape case, the court must begin with the
minimum sentence provisions of the Criminal Law Amendment Act 105 of 1997. Emphasising the
constitutional protection afforded to children, the absence of substantial and compelling circumstances,
and the existence of strong aggravating factors, the Court found that the sentence of life imprisonment
had to prevail.
The appeal was dismissed.
Domkrag v S
[2012] JOL 28825 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA184 / 2010
28 / 11 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
N Dambuza, D van Zyl, I Schoeman JJ
Keywords:
Criminal law – Rape – Murder – Sentence – Life imprisonment – Appeal
Mini Summary:
Convicted of housebreaking with intent to steal and rape, and of murder, the appellant was sentenced to
an effective term of life imprisonment. His appeal was directed at the sentence of life imprisonment
imposed on the count of murder.
According to the appellant, after a night of drinking, he set off for home. En route, he happened upon a
house with a window open. He decided to enter to see if there was anything he could steal. Once inside
the house, he found the occupant asleep inside. He decided to rape her, and when he heard a voice calling
from outside the house, throttled the victim to stop her from screaming. The victim died as a result.
The main ground of appeal was that the trial court had erred in finding no substantial and compelling
circumstances to warrant a lower sentence.
Held that the offence committed by the appellant did attract a prescribed minimum sentence of life
imprisonment. That is the sentence that should ordinarily be imposed for the offence unless there is
weighty justification for imposing a lesser sentence. The prescribed sentence is not to be departed from
lightly. The courts do have to assess whether the prescribed sentence is proportionate to the particular
offence.
The factors of youth and prospects of rehabilitation must be taken into account when imposing sentence,
but in the present case did not constitute substantial and compelling circumstances due to the aggravating
factors involved.
The appeal was dismissed.
S v MASHININI AND ANOTHER (SCA)
PONNAN JA, MHLANTLA JA and BOSIELO JA
2011 NOVEMBER 22; 2012 FEBRUARY 21
Sentence—Prescribed sentences—Minimum sentence—Imposition of in terms of
Criminal Law Amendment Act 105 of 1997—Charge-sheet—Error in—Charge-sheet
incorrectly stating offence as one of contravening s 51(2) instead of s 51(1)—Accused
sentenced on basis of s 51(1)—Misdirection vitiating sentence, notwithstanding that
accused, who was represented, at no stage objected to irregular procedure.
Mthimkhulu v S
[2012] JOL 28717 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
210 / 2011
29 / 09 / 2011
South Africa
Supreme Court of Appeal
274
Bench:
JBZ Shongwe, KK Mthiyane, BJ van Heerden JJA
Keywords:
Criminal procedure – Charge sheet – Incorrect details of offence – Allegation of only a single count of rape
in a charge-sheet, where the evidence supported a multiplicity of counts, meant that the properly
convicted accused could be sentenced only as a single count offender – Criminal procedure – Sentence –
Prescribed minimum sentence – Section 51 of Criminal Law Amendment Act 105 of 1997 – Where accused
charged with single count of rape, correct minimum sentence is 10 years’ imprisonment
Mini Summary:
Upon his conviction on a charge of rape, the appellant was sentenced to 15 years’ imprisonment. Leave to
appeal was eventually obtained solely in respect of sentence. The high court then set aside the sentence,
and replaced it with a sentence of life imprisonment. The further appeal against sentence was with the
leave of the court below.
Due to the numerous errors on questions of law and procedure which occurred from the inception of the
case, at the hearing of the present appeal, both parties agreed that the appeal should succeed and that
the order made by the court below should be set aside.
Held that the first error was the reference in the charge sheet to only one count of rape when the
evidence of the complainant was that she had been raped more than once by the appellant and his two
companions. The consequence of the error was that the appellant was convicted and sentenced on the
basis of section 51(2)(b)(i) of the Criminal Law Amendment Act 105 of 1997 which imposes a prescribed
minimum sentence of 10 years’ imprisonment. Had the appellant been charged with and convicted of
raping the complainant more than once, as he should have been, the minimum sentence applicable to him
would have been life imprisonment in terms of section 51(1) of the Act, read together with the provisions
of Part 1 of Schedule 2. Highlighting the prejudice caused by a sloppy charge sheet, the court stated that
the administration of justice is potentially prejudiced because the allegation of only a single count of rape
in a charge-sheet, where the evidence supports a multiplicity of counts, means that the properly convicted
accused can be sentenced only as a single count offender.
The second error related to the court’s considering itself bound to impose a 15-year sentence or even to
refer the appellant to the high court for the imposition of life imprisonment. As the appellant was charged
and convicted of only a single count of rape, a sentence of life imprisonment was not applicable.
Furthermore, as pointed out above, the prescribed minimum sentence was not 15 years but 10 years’
imprisonment. A material misdirection on the part of the trial court had thus been committed.
When the matter went on appeal to the high court, that Court also failed to appreciate that the appellant
had been charged with and convicted of a single count of rape only. It correctly recognised that the trial
court had made an error in finding that the minimum sentence prescribed by law was 15 years. However,
it erred in finding that, in the present case, the minimum sentence was life imprisonment and in replacing
the sentence imposed by the trial court with a sentence of life imprisonment.
A further misdirection was the failure to warn the appellant timeously or at all that the state would be
relying on the provisions of the minimum sentence legislation. He was warned thereof for the first time
after conviction and only when the sentencing proceedings were underway. That was a material
irregularity.
The appeal was upheld and the sentence replaced with one of 10 years’ imprisonment.
S v Senyolo 2010 (2) SACR 571 (GSJ)
The appellant was convicted in a regional court on two counts of raping a 10-year-old
girl, and sentenced to life imprisonment. The incidents occurred on 10 and 25 November
2007. He was sentenced in accordance with the provisions of s 51 of the Criminal Law
Amendment Act 105 of 1997, as amended by the Criminal Law (Sentencing)
Amendment Act 38 of 2007, which came into operation on 31 December 2007; in terms
of these amendments, the regional court was given jurisdiction to impose life sentences
for certain offences, including rape where the complainant had been raped more than
once by the accused. Act 38 of 2007 also introduced s 51(3)(aA) into Act 105 of 1997,
which provided that four specified factors would not constitute substantial and
compelling circumstances, justifying the imposition of lesser sentences that those
prescribed. These were the complainant's previous sexual history; lack of physical injury
to the complainant; the accused's cultural or religious beliefs about rape; and any prior
relationship between the accused and the complainant. In effect, therefore, the appellant
275
was sentenced in terms of provisions which had come into force after the commission of
the offences. He appealed both conviction and sentence.
Held, that the common law principle of legality insisted that criminal provisions and the
penalties for breach thereof be clearly formulated, thus enabling citizens to abide by the
law. This principle was confirmed by s 35(3)(l) and (n) of the Constitution of the
Republic of South Africa, 1996. The latter entitled an accused to the benefit of the least
severe of the prescribed punishments if such punishment had been changed between the
time that the offence was committed and the time of sentencing. Accordingly, the court a
quo had erred in sentencing the appellant in terms of the amended provisions of s
51(3)(aA); it ought to have sentenced him as if that section had not been passed and, if
relevant, attention should have been paid to the four factors it now excluded. In light of
this misdirection, sentence had to be considered afresh.
Held, further, that the second rape of the victim by the appellant, even though it was
more than two weeks after the first, and in a different place, triggered the
discretionary life sentence contemplated in Part I of Schedule 2 to Act 105 of 1997.
If this sentence were triggered where a victim was raped twice in circumstances
where there was an element of continuity, there was no reason why it should not be
triggered by a second crime, even when it was totally removed from the first in time
and place. If this were not the case, it would have the effect that the appellant would
have been treated differently for purposes of sentencing, than if he had raped his
victim twice on the first occasion.
Held, further, the court having reviewed the evidence, that the appellant had been
correctly convicted. Accordingly, two of the circumstances contemplated in Part I of
Schedule 2 to the Act were present: the victim was under 16 years of age, and she had
been raped twice. This did not mean, however, that the approach to sentencing was any
different than when only one such circumstance was present. It was also not correct to
approach sentence - as the trial court had done - from the starting point that the prescribed
sentence of life imprisonment would be imposed, unless substantial and compelling
circumstances warranted the imposition of a lesser sentence. The trial court was required
to apply its mind to the question as to whether a sentence of life imprisonment was
proportional to the offence. (The court proceeded to consider a number of comparable
cases.) The crime was an inherently serious one, and it had been aggravated by the youth
of the complainant, the recurrence of the rape after a period of two weeks, and the fact
that she had been lured with the promise of a cellphone, thus creating the impression of
consent on her part. However, this was not a case in which a sentence of imprisonment
for life would be a proportional and constitutional sentence. Appeal against conviction
dismissed. Appeal against sentence upheld. Sentence of life imprisonment set aside, and
appellant sentenced to ten years' imprisonment on each count.
Case Information
Appeal against conviction and sentence for rape. The facts appear from the judgment of
Van Eeden AJ, in which Maluleke J concurred
S v Mqikela 2010 (2) SACR 589 (ECG)
The measure of the seriousness of rape in the eyes of the legislature is reflected in the
sentences that it has laid down: ten years' imprisonment is the standard minimum
sentence for a first offender; 15 years' and 20 years' is the minimum sentence for repeat
offenders; and life imprisonment is prescribed for rapes which fall into specified
276
categories which are listed in Schedule 2 to the Criminal Law Amendment Act 105 of
1997 and repeated in S v Vilakazi [2008] 4 All SA 396 (SCA) para 12, namely:
•
Where the victim is a girl under the age of 16 years;
•
where the victim was raped more than once, whether by the accused or by
any co-perpetrator or accomplice;
•
where the rape was committed by more than one person and where such
persons acted in the execution or furtherance of a common purpose or conspiracy;
•
where the crime was committed by a person who had been convicted of
two or more offences of rape, but had not yet been sentenced in respect of such
convictions;
•
where the crime was committed by a person knowing that he had Aids or
was HIV-positive;
•
where the victim is a physically disabled woman who, due to her physical
disability, is rendered particularly vulnerable;
•
where the victim is a mentally ill woman as contemplated by the Mental
Health Act 18 of 1973; and
•
where the crime involved the infliction of grievous bodily harm.
The cases make it clear that, while all rapes are serious, there are
gradations of seriousness, and it follows that the most serious are those for which the
ultimate sentence is intended. In determining whether a case falls within the category of
the most serious of rape cases, a blind implementation of the categories of rape
enumerated above is improper, so that, for example, the rape of a girl under age
automatically results in a life sentence. That a case falls within a particular category may
aggravate what is already an inherently serious crime, so that it can properly be regarded
as among the most serious of rape cases. But it does not necessarily do so. It all depends
upon the result of the balancing exercise which the courts are enjoined to conduct.
Case Information
Appeal from a sentence imposed in the Eastern Cape High Court, Grahamstown
(Dambuza J). The facts appear from the judgment of Jones J.
D Geldenhuys for the appellant, instructed by Legal Aid SA.
CR de Klerk SC for the State.
1. S v PAULS 2011 (2) SACR 417 (ECG)
The power of a court to control the minimum actual period of imprisonment to be
served by a convicted person sentenced to imprisonment for two years or longer
— by fixing a non-parole period in terms of s 276B of the Criminal Procedure Act
51 of 1977 — should be invoked only in exceptional circumstances. It is not
possible to spell out what generally constitutes exceptional circumstances; the
individual circumstances of each case having to be considered. While parole is
not a sentenced offender's right, and the Act empowers courts to fix non-parole
periods, courts are nevertheless duty- bound to judiciously and carefully
consider, on a case-by-case basis, whether doing so is proper.
277
A proper judicial consideration as to whether exceptional circumstances in a F
particular case exist to warrant the ordering of a non-parole period in terms of s
276B of the Act, can only be made where both the State and the defence have
made submissions on the issue. Where exceptional circumstances are found to
exist in a particular case, it is the duty of the judicial officer to set them out
explicitly in the judgment, or they must be apparent therefrom.
Case Information
Appeal from a sentence imposed in a regional magistrates' court. The facts
appear from the reasons for judgment. J
Manyolo v S
[2011] JOL 26684 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA&R 29 / 10
21 / 10 / 2010
South Africa
High Court
Eastern Cape, Grahamstown
E Revelas, C Plasket JJ
Keywords:
Criminal procedure – Housebreaking with intent to rape – Rape – Sentence – Appeal
Mini Summary:
The appellant was convicted of housebreaking with intent to rape and rape, and sentenced to 28 years’
imprisonment. He appealed against the sentence.
In imposing sentence the magistrate departed from the prescribed minimum sentence of life
imprisonment, having found that there were substantial and compelling circumstances for doing so.
Held that the charge sheet failed to inform the appellant of the possibility of the prescribed minimum
sentence provisions applying to his case. That necessitated interference by the present court.
The primary question was whether the appellant had a fair trial. the failure to warn the appellant as set
out above meant that the prescribed minimum sentence provisions could not apply. The court set aside
the sentence and replaced it with one of 15 years’ imprisonment.
Raath v S
[2008] JOL 22903 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 82 / 08
10 / 12 / 2008
South Africa
High Court
Cape of Good Hope Provincial
LJ Bozalek, WJ Louw, PL Goliath JJ
Keywords:
Criminal law – Murder – Conviction and sentence – Appeal
Mini Summary:
Despite his plea of not guilty, the appellant was convicted of murder and assault with the intent to do
grievous bodily harm, and was sentenced to life imprisonment. On appeal, the court raised the question of
whether the appellant was properly advised, prior to the commencement of the trial, that the prescribed
minimum sentence provisions would apply.
Held that although not directly advised, the appellant was fully ware of the sanction being sought by the
state. His right to a fair trial was not infringed and it was open to the court a quo, upon a finding that the
murder was premeditated or planned, to sentence the appellant to life imprisonment.
278
That led to the question of whether or not the murder was premeditated. On the evidence before it, the
court found that the murder was not pre-planned.
The court found the sentence of life imprisonment to be too severe, and replaced it with one of 22 years'
imprisonment.
Mavundla v S
[2011] JOL 27972 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 683 / 10
23 / 09 / 2011
South Africa
High Court
North Gauteng, Pretoria
BR Southwood, FG Preller JJ
Keywords:
Criminal procedure – Rape – Appeal against sentence
Mini Summary:
Convicted of rape, the appellant was sentenced to life imprisonment in accordance with section 51(1) and
Schedule 2 of Part I of the Criminal Law Amendment Act 105 of 1997 (“the Act”). He appealed against his
sentence.
Held that the appellant was clearly guilty of rape. The evidence against him was overwhelming and his
defence of consent was so improbable that it could not be reasonably possibly true. The primary question
on appeal was whether the evidence established that the appellant had raped the complainant more than
once to bring the provisions of section 51(1) of the Act into operation. All the evidence established was a
single act. The court a quo therefore wrongly applied the provisions of section 51(1) of the Act and
sentenced the appellant as if he had raped the complainant twice.
Section 51(2)(b) of the Act prescribes a minimum sentence of 10 years’ imprisonment for a first offender
who commits rape and the question should have been whether there were substantial and compelling
circumstances which would justify the imposition of a sentence of less than 10 years’ imprisonment or
whether there were aggravating circumstances which required that a sentence heavier than the minimum
prescribed sentence be imposed.
Taking into account mitigating and aggravating factors, the Court found that the aggravating facts
justified a sentence heavier than the prescribed minimum sentence. A sentence of 12 years’ imprisonment
was considered appropriate in all the circumstances.
Nzama v S
[2008] JOL 22543 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 1406 / 01
30 / 05 / 2008
South Africa
High Court
Transvaal Provincial
WL Seriti J, K Makhafola AJ
Keywords:
Criminal procedure – Robbery – Conviction – Sentence – Appeal
Mini Summary:
Convicted of robbery with aggravating circumstances, the appellant was sentenced to 15 years'
imprisonment. He appealed against both the conviction and sentence.
Held that the appeal against conviction was based on the question of identity whereas that against
sentence was based on the allegation that the appellant was not warned at the commencement of the trial
that the minimum sentencing provisions would be applicable if the appellant were convicted.
The charge-sheet did not reflect that section 51(2) of the Criminal Law Amendment Act 105 of 1997 was
applicable to the charge and it did not appear on record that the appellant was ever warned of the
applicability of the Act. Apart from the charge-sheet, the trial court has a duty to bring that fact to the
attention of the accused in some other form.
The appeal against conviction was dismissed and that against sentence upheld. The sentence was replaced
with one of eight years' imprisonment.
279
S v Wasserman - 2004 (1) SACR (TPD) – pathological gambling taken into account as
mitigating factor and qualifies as “substantial and compelling circumstances” for
purposes of minimum sentences. (was case of substantial theft)
S v Mugeri - 2004 (1) SACR 370 (TPD) – regional court must refer to High Court for
sentence if Part 1 of Schedule 2.(no authority in these cases to enquire into substantial
and compelling circumstances.)
S v Jabulani Sithole - Sept. 2004 (SCA) – minimum sentences applied for large quantity
of dagga. Court held State must prove value and can’t simply assume value but must hear
evidence of realistic market related value as vary in value depending on various factors
S v Jimenez – 2003(1) SACR 507 (SCA) – court dealt with factors to be considered when
imposing minimum sentences for drug related offences.
S v Vuma – 2003 (1) SACR 597 (WLD) – where minimum sentences applicable court
must apply even if convicted accused on basis of dolus eventualis. Furtherance of a
common purpose part of facts to be considered.
S v Price - 2003(2) SACR 551 (SCA) – dealt with specific criteria when imposing
minimum sentences for fraud.
S v Cunningham 2004(1) SACR 16 (ECD) – if charge sheet does not mention reference
to potential minimum sentences then must look if accused had fair trial.
Mbhense v S
[2008] JOL 21488 (N)
Case Number:
AR 236 / 04
Judgment Date:
05 / 02 / 2008
Country:
South Africa
Jurisdiction:
High Court
Division:
Natal Provincial
Bench:
Msimang, Pillay JJ
Keywords:
Criminal procedure – Robbery with aggravating circumstances – Conviction and sentence – Appeal –
Irregularities in trial
Mini Summary:
The appellant was convicted of the crime of robbery with aggravating circumstances, and was sentenced
to serve a term of 15 years' imprisonment.
Acting on a tip-off pursuant to an armed robbery at a private residence, the police found the appellant and
three others at the appellant's house, in the possession of the items stolen during the robbery.
Held, that the trial of the appellant was vitiated by a number of irregularities. The charge-sheet had not
warned the appellant that the State would rely on the minimum sentencing provision of the Criminal Law
Amendment Act 105 of 1997. The court could also not be satisfied that the appellant had properly been
apprised of the right to legal representation as the proceedings had not been properly recorded.
The appeal was allowed and the conviction and sentence set aside.
Kotze v S
[2008] JOL 21644 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 866 / 07
04 / 04 / 2008
South Africa
High Court
Transvaal Provincial
K Makhafola, Vilikazi AJJ
280
Keywords:
Criminal procedure – Robbery with aggravating circumstances – Sentence – Appeal
Mini Summary:
Having pleaded guilty to a charge of robbery with aggravating circumstances, the appellant was convicted
as charged.
Held that the record showed that the appellant had been convicted twice on the same set of facts. The
present court held that the magistrate had become functus officio after the first conviction, and that
conviction was therefore confirmed.
The court went on to rule that the application of the prescribed minimum sentence in this case was
incorrect. The personal and mitigating circumstances of the appellant led the court to conclude that a
sentence less than the prescribed minimum one was appropriate.
The appellant was sentenced to 6 years' imprisonment.
147) MISJOINDER
Naidoo v S
[2009] JOL 23344 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
06 / 134
19/ 03 /2009
South Africa
High Court
South Gauteng, Johannesburg
P Blieden, NF Kgomo JJ, FJ Bashall AJ
Keywords:
Criminal procedure – Misjoinder – Dismissal of point – Appeal
Mini Summary:
The appellant was charged with various offences under the Prevention of Organised Crime Act No 121 of
1998. Immediately prior to the hearing of the trial the appellant raised an objection to the indictment
served on him. He claimed that there was a misjoinder as he had not been charged with all the counts
which had been brought against the first accused. The court dismissed the point, leading to the present
appeal.
Held that the reason that the first accused was charged separately in the alternative was that according
to the indictment, he was not directly involved in the thefts or frauds involved.
The charge against each of the accused in the trial court was one of racketeering and being part of a
conspiracy to achieve a criminal result, whether it be theft, fraud or the contravention of certain statutes
and/or regulations relating to the mining of minerals or customs and excise or currency control. For each
of the main counts, and the alternatives thereto, there was only one set of facts which might result in a
conviction on the main counts or on one of the alternatives. There was no possibility that any of the
accused ran the risk of being in a situation that any evidence led would not be relevant to the case he had
to meet.
The appeal was dismissed.
S v Boekhoud & others
[2008] JOL 21740 (W)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
134 / 06
14 / 04 / 2008
South Africa
High Court
Witwatersrand Local
Saldulker J
Keywords:
Criminal procedure – Misjoinder – Appeal
Mini Summary:
The accuseds were charged with the main counts of money laundering, racketeering, theft and fraud. The
applicant, being the second accused, sought leave to appeal against a judgment of this Court, dismissing
281
an application for a ruling that a misjoinder existed in that it was irregular and impermissible to join him
with the first accused in an indictment which included counts with which he had not been charged.
Held that the decision that no misjoinder existed had a final effect on the applicant. It was definitive of his
rights. The result was that the State's case against both accused would then proceed on all the counts set
out in the indictment including those that the applicant objected to. The result was that although it was an
interlocutory matter, it was of final effect, and was appealable.
It was found to be in the interests of justice to grant leave to appeal.
148) MOTOR VEHICLE THEFT
S v Dawlatt - 2008 (1) SACR 35 (N). - can a stolen vehicle be stolen (again)? Is it theft
when one steals a car knowing that it is already stolen? Several interesting issues are
dealt with in this case.
149) MURDER
Mogaramedi v S
[2015] JOL 32784 (GP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 165 / 2013
15 / 08 / 2014
South Africa
High Court
Gauteng Division, Pretoria
N Kollapen J, D Dosio, SA Thobane AJJ
Keywords:
Criminal law – Murder – Sentence – Life imprisonment – Appeal
Mini Summary:
Having pleaded guilty, the appellant was convicted of murder and sentenced to life imprisonment. He
obtained leave to appeal against his sentence.
Held that in an appeal against sentence, the court of appeal should be guided by the principle that
punishment is pre-eminently a matter for the discretion of the trial court and the court of appeal should be
careful not to erode that discretion. A sentence imposed by a lower court should only be altered if an
irregularity took place during the trial or sentencing stage; the trial court misdirected itself in respect of
the imposition of the sentence; or the sentence imposed by the trial court could be described as
disturbingly or shockingly inappropriate.
In terms of section 51(1) of the Criminal Law Amendment Act 105 of 1997, the crime of murder attracts a
sentence of life imprisonment if it was planned or premeditated.
In the present case, the appellant had been practising to become a traditional healer, and as part of his
final initiation, he had to obtain the genital organ of a close female relative. To that end, he had lured his
younger sister to his home, where he hit her over the head with an axe, stabbed her in the chest, and
waited for her to die. He then cut off her genital organ with an axe. The court acknowledged that in South
Africa, cultural practices pertaining to a belief in witchcraft and muti killings prevail. However, it referred
to evidence that the use of human body parts as an ingredient for traditional medicine is practised only by
a minority of traditional healers, who are condemned by the majority. The appellant’s religious beliefs and
convictions could not supersede the deceased’s right to life. Although everyone has a right to practice
their belief, as soon as that belief leads to an action which falls within the bounds of illegality, then in
terms of section 31(2) of the Bill of Rights it can no longer be condoned or protected.
The Court found no grounds upon which to interfere with the sentence, and dismissed the appeal.
Naude & another v S
[2010] JOL 26421 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
488 / 10
16 /11 / 2010
South Africa
Supreme Court of Appeal
282
Division:
Bench:
MS Navsa, RW Nugent JJA, K Pillay AJA
Keywords:
Criminal procedure – Murder and attempted murder – Appeal against conviction – Proper test is that an
accused is bound to be convicted if the evidence establishes his guilt beyond reasonable doubt, and must
be acquitted if it is reasonably possible that he might be innocent –Evidence – Assessment of – Failure by
accused to testify in circumstances calling for an answer – Where evidence is credible and calls for an
answer, the decision of the accused not to testify strengthens the prosecution’s caseS v Van der Meyden
1999 (1) SACR 447 (W) – FollowedS v Van Aswegen 2001 (2) SACR 97 (SCA) – Referred toS v Trainor
2003 (1) SACR 35 (SCA) – Referred toS v Crossberg 2008 (2) SACR 317 (SCA) – Referred toS v Chabalala
2003 (1) SACR 134 (SCA) – Referred toS v Boesak 2001 (1) SACR 1 (CC) – Referred toMapande v S
(046/10) [2010] ZASCA 119 (29 September 2010) – Referred to
Mini Summary:
In May 2004, an attack on a house left four dead and one survivor sustaining 25 gunshot wounds. The
survivor (“the complainant”) identified one of the assailants (“Moosa”), and he and the two appellants
were subsequently convicted of four counts of murder and one of attempted murder. The first appellant
was sentenced to an effective 20 years’ imprisonment, while the second appellant was effectively
sentenced to life imprisonment.
Both appellants appealed against their convictions on the basis of the insufficiency of the evidence against
them, and the first appellant also appealed against his sentence.
The state led evidence that Moosa’s friendship with the complainant’s brother (who was one of the victims
of the attack) had soured and that Moosa had planted the notion in the second appellant’s head, that the
latter’s girlfriend was romantically involved with the complainant’s brother.
An important part of the state’s case against Moosa and the appellants was the testimony of the first
appellant’s girlfriend, who testified that the appellants had left her home at approximately midnight of the
night preceding the morning of the shooting. When they did not return as she had expected them to, she
called the second appellant on his cellular phone. She testified that the appellants and second appellant’s
girlfriend returned to her home between 5am and 5:30am in the morning.
The testimony of the second appellant’s girlfriend differed from that of the first appellant’s girlfriend in
certain material respects. While she did not account for the presence of Moosa and the first appellant at
the times material to the case, she alleged that the second appellant had been asleep throughout, thereby
providing an alibi for him.
Other evidence adduced by the prosecution included a neighbour’s account of what she heard on the
morning in question, and a third party’s testimony that the second appellant had told him that he had
committed a massacre.
In the face of all the evidence adduced by the state, the appellants and Moosa had decided not to testify
in their own defence.
Held that in order to determine the correctness of the convictions and the sentence imposed, it was
necessary to have regard to the material parts of the evidence adduced by the state and to the factors
associated with sentencing.
As set out in case law, the proper test is that an accused is bound to be convicted if the evidence
establishes his guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is
reasonably possible that he might be innocent. It was found that in assessing the evidence before it, the
trial court had correctly considered the totality of evidence and left none of the material evidence out of
account.
The court pointed to improbabilities in the evidence of the second appellant’s girlfriend. It noted that she
was still in a relationship with the second appellant and had a child by him. She was clearly an interested
party with a motive to lie.
On the other hand, the testimony of the first appellant’s girlfriend was found to be credible. Even the
second appellant was unable to submit that her evidence was untruthful. He was constrained to argue only
that it was reasonably possible that she might have been mistaken. The court rejected that submission.
All the evidence set out above was considered by the court below and it was careful in its detailed
evaluation. The court below was very aware that it was dealing with a number of witnesses who
themselves were implicated in offences in respect of which they were required to be warned in terms of
section 204 of the Criminal Procedure Act 51 of 1977. The court was conscious of the need to be cautious
in evaluating the evidence of a single witness, particularly one seeking indemnity.
It was submitted on behalf of the appellants that because of the conflict in the evidence of the appellants’
respective girlfriends, both of whom were state witnesses, a successful prosecution was precluded. The
submission was held to be fallacious. The second appellant’s girlfriend’s evidence was rightly rejected.
The present court agreed with the trial court that the state had produced weighty evidence against the
appellants, which called for an answer. The appellants had been in the company of Moosa, against whom
283
the evidence was damning. On the evidence before the court, the inference was irresistible, in the absence
of an explanation from them, that they were with him at all relevant times. The evidence against the
appellants established their association with Mr Moosa in the perpetration of the murders. It undoubtedly
called for an answer, which was not forthcoming. Consequently, both appeals against convictions had to
fail.
The first appellant’s appeal against his sentence was also dismissed, the court going as far as to suggest
that the trial court may have been too generous with him.
Makeleni v S
[2009] JOL 22954 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
192 / 08
13/ 11 /2008
South Africa
High Court
Eastern Cape
R Pillay J, D Chetty J
Keywords:
Criminal law – Murder – Conviction – Sentence – Appeal
Mini Summary:
Upon being convicted of murder, the appellant was sentenced to 15 years' imprisonment.
Held that the appellant's defence was that he had stabbed the deceased in an altercation instigated by
the deceased, and that he was acting in self-defence. The witnesses who testified for the state did not see
the actual stabbing. The court found that there clearly was some sort of altercation, and that the deceased
had followed the appellant out of the shebeen where they had been drinking. It accepted that the
deceased might therefore have been the instigator. The state was found not to have disproved the
appellant's version that he had acted in self-defence.
The appeal was upheld and the conviction and sentence set aside.
Van Aardt v S
[2008] JOL 22851 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
179 / 08
02 / 12 / 2008
South Africa
Supreme Court of Appeal
Mpati P, Combrinck JA, FD Kgomo AJA
Keywords:
Criminal law – Murder – Conviction and sentence – Appeal
Mini Summary:
Convicted of the murder of a 15-year-old boy, the appellant a farmer, was sentenced to 12 years'
imprisonment. He appealed to the present court.
According to the state, the appellant had assaulted the deceased on his farm, in consequence of which he
died of his injuries. It was further stated that after the assault, the appellant unlawfully and with the
intent to kill the deceased, failed to obtain medical treatment for him which failure resulted in his death,
alternatively accelerated his death. The state alleged that the cumulative effect of the assault and the
deprivation of medical treatment constituted the crime of murder.
Pleading not guilty to murder, the appellant pleaded guilty to common assault, alleging that he had hit the
deceased for having stolen about R350 from his vehicle. He denied that the deceased died as a
consequence of the assault and the resultant injuries, and further denied that a legal duty reposed on him
to seek any medical intervention for the deceased.
Held that the deceased had died as a result of brain damage. The question for determination was the
cause of such damage. The appellant suggested that the appellant must have been assaulted by other
persons after the appellant had assaulted him. However, the court dismissed that as fanciful, in light of
the evidence before it. It was satisfied that the appellant had inflicted all the injuries sustained by the
deceased and consequently caused the deceased's death.
The next question was whether the appellant was guilty of culpable homicide or murder with the direct
form of intent or dolus eventualis. The court was satisfied that the appellant subjectively foresaw the
284
possibility of his conduct causing the death of the deceased and was plainly reckless as to such result
ensuing. He was accordingly guilty of murder with dolus eventualis as the form of intent.
On the appeal against sentence, the court highlighted the aggravating circumstances, such as the
sustained and vicious attack of the appellant against the defenceless deceased. It was of the view that the
sentence imposed was on the lenient side, and declined to uphold the appeal.
S v Balfour
[2008] JOL 22657 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
109 / 06
25 / 09 / 2008
South Africa
Supreme Court of Appeal
Brand, Ponnan JJA, LE Leach AJA
Keywords:
Criminal law – Murder – Sentence – Leniency – Appeal
Mini Summary:
The respondent, a policeman, had shot and killed a third party in an altercation whilst off duty. He was
charged and convicted of murder and sentenced to 14 years' imprisonment, wholly suspended on certain
conditions.
The state appealed against the sentence, arguing that it was too lenient.
Held that the court began by highlighting the unacceptable delays in the prosecution of the trial. The
prosecution was advised to avoid such delays in future.
On the merits, the court reminded that the imposition of sentence is a matter falling pre-eminently within
the judicial discretion of the trial court and the appeal court cannot interfere merely because it would have
imposed a different sentence. It can only do so if the sentence is shockingly inappropriate or if the trial
court substantially misdirected itself either on the facts or by placing undue emphasis on certain issues
and underplaying others.
The length of a period of imprisonment imposed on an offender reflects the gravity of the offence
committed. The lengthy sentence imposed on the respondent was justified by the offence in this case.
Wholly suspended sentences are designed to keep offenders out of prison in the hope that the suspended
sentences hanging over their heads will deter them from future criminal conduct. A sentence may also
only be suspended for no more than five years and its beneficial influence will be restricted to that extent.
The longer the sentence of imprisonment, the less appropriate it will be for it to be suspended in its
entirety.
The court pointed to the brutal nature of the offence in casu. The trial judge misdirected himself by not
taking proper account of all relevant considerations. The sentence was set aside and replaced with one of
12 years' imprisonment
S v Barendse 2010 (2) SACR 616 (ECG)
Just as youthfulness is a factor to be taken into account in the imposition of sentence, so
is the advanced age of the offender also such a factor, but for different reasons.
The appellant had been convicted in a regional magistrates' court of indecent assault and
rape committed on a girl between the ages of 13 and 15 years. The girl was in the foster
care of the appellant when the offences were committed. The regional magistrate had
transferred the case to the High Court for sentence. The High Court sentenced the
appellant, who was then 72 years old, to 20 years' imprisonment. In an appeal against the
sentence,
Held, that a sentence of 20 years' imprisonment (which might well have been appropriate
for a younger person) was in effect a sentence of life imprisonment for the appellant.
Held, further, that, when the appellant's advanced age and the fact that he had inflicted no
physical harm on the complainant were taken into account, a sentence of ten years'
imprisonment was in the circumstances more appropriate.Appeal allowed and the
sentence varied accordingly.
285
Case Information
Appeal against sentence imposed by a single judge in the Eastern Cape Provincial
Division (Revelas J). The facts appear from the judgment of Jansen J.
Moodley v S
[2008] JOL 22246 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 576 / 06
13 / 06 / 2008
South Africa
High Court
Transvaal Provincial
WJ Hartzenberg J, K Makhafola AJ
Keywords:
Criminal law – Murder – Sentence – Appeal
Mini Summary:
Having been found guilty of the murder of his wife, the appellant was sentenced to 15 years'
imprisonment. He appealed against the sentence.
Held that in refusing the appellant's request for a non-custodial sentence, the magistrate overemphasised the fact that the appellant had lied to the court about the circumstances in which his wife had
been killed. The present court found that the crime was one of passion, and that the appellant ordinarily
had no criminal tendencies.
The appeal was upheld, and the sentence reduced to one of 10 years' imprisonment.
S v Counter - 2003 (1) SACR 134 (SCA) – accused shot deceased who died later due to
complications in hospital. Dealt with novus actus. Still murder!
S v Vuma – 2003 (1) SACR 597 (WLD) – where minimum sentences applicable court
must apply even if convicted accused on basis of dolus eventualis. Furtherance of a
common purpose part of facts to be considered.
S v Grey – 2007 JOL 21132 (Ck) – deals with assessment of evidence and premeditated
act.
S v Nkomo – 2008 JOL 21135 (ZS) – deals with territorial jurisdiction where offence
committed in one country and accused flees and is arrested in another. Need some
element of crime or harmful effect thereof to have occurred in the country trying the
matter. Discusses in detail the elements of murder.
S v Mzozoyana – 2008 JOL 21268 (E) – accused convicted of housebreaking and
murder. Court dealt with onus of proof on State and duty to prove case beyond reasonable
doubt. Court not satisfied presence of accused on scene satisfactorily established.
Dikana v S
[2008] JOL 21293 (E)
Case Number:
CA 211 / 07
Judgment Date:
19 / 11 / 2007
Country:
South Africa
Jurisdiction:
High Court
Division:
Eastern Cape
Bench:
R Pillay, JJ Nepgen JJ, Greenland AJ
Keywords:
Criminal law – Murder – Sentence – Life imprisonment – Appeal
286
Mini Summary:
Upon being convicted of arson and two counts of murder, the appellant was sentenced to life
imprisonment on the murder charges. He appealed against those two sentences.
Held that the evidence satisfactorily established that the appellant had acted with intent to kill in setting
alight a dwelling in which the deceased were present. The court rejected the appellant's claim that he
displayed remorse.
The court a quo's finding that no substantial and compelling circumstances existed to depart from the
prescribed minimum sentence could not be faulted.
The appeal was dismissed.
Mlimo v S
[2008] JOL 21505 (SCA)
Case Number:
454 / 2007
Judgment Date:
18 / 3/ 2008
Country:
South Africa
Jurisdiction:
Supreme Court of Appeal
Division:
Bench:
Farlam, Mthiyane JJA, Kgomo AJA
Keywords:
Criminal law – Murder – Attempted murder – Conviction and sentence – Appeal
Mini Summary:
The appellant was convicted of murder and attempted murder and sentenced to life imprisonment for
murder and twelve years' imprisonment for attempted murder. He appealed against his convictions and
sentences.
Held that the evidence adduced by the State established that the complainant was shot and her husband
killed, with a firearm registered in the appellant's name. The appellant opted not to testify, and there was
therefore nothing to counter the evidence linking him to the incident.
The appeal was dismissed.
S v Van der Vyver
[2008] JOL 21332 (C)
Case Number:
SS 190 / 06
Judgment Date:
29 / 11 / 2007
Country:
South Africa
Jurisdiction:
High Court
Division:
Cape of Good Hope Provincial
Bench:
DH van Zyl J, Adv ET Steyn (Assessor), Adv PGC José (Assessor)
Keywords:
Criminal law – Murder – Alibi defence – Onus of proof
Mini Summary:
The accused was charged with the murder of his girlfriend. Pleading not guilty to the charge, the accused
alleged that he was at work at the relevant time, and therefore could not have committed the murder.
Held that the State based its case on a blood smear which it claimed was found on the accused's shoe, on
an ornamental hammer which it claimed was the murder weapon, and on a fingerprint of the accused on a
video recorder at the crime scene. However, the court found that the State had failed to discharge the
onus of proof in respect of any of those pieces of evidence.
In attempting to establish that the accused had a motive for the murder, the State relied on a letter
written to him by the deceased. However, the court could not find that this established a motive.
The conclusion was that the alibi defence of the accused was reasonably possibly true, and that the State
had not proved the guilt of the accused beyond reasonable doubt.
State v Mshumpa and Another
[2008] JOL 21411 (ELC)
Case Number:
CC 27 / 07
Judgment Date:
21 / 08 / 07
Country:
South Africa
Jurisdiction:
High Court
Division:
East London Circuit
Bench:
Fronemann J
Keywords:
Criminal law – Murder – Attempted murder – Killing of unborn child
Mini Summary:
287
In what appeared to be a hijacking, the pregnant complainant and the father of her unborn child were
shot. The complainant was shot in her stomach, resulting in her losing her baby. In charging the two
accused, the State contended that the first accused had been hired by the second accused to get rid of the
unborn child. The second accused was the child's father, and his entanglement with another woman led to
his actions.
Held that the evidence established the guilt of the first accused beyond reasonable doubt. The court went
on to find that statements made to the police by the second accused were admissible, and that he was
also guilty of participation on the attack.
The court then turned to consider the offences of which the two accused were guilty. The State argued
that the killing of the unborn child amounted to murder. However, that submission was rejected by the
court for reasons set out in the judgment. The accused were instead convicted of, inter alia, attempted
murder of the complainant.
Mocke v S
[2008] JOL 21819 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
609 / 07
02 / 06 / 2008
South Africa
Supreme Court of Appeal
KK Mthiyane, Cloete JJA, Mhlantla AJA
Keywords:
Criminal law– Murder– Conviction and sentence– Appeal
Mini Summary:
Having been convicted of murder and sentenced to 7 years’ imprisonment, the appellant appealed against
his conviction and sentence.
The incident underlying the charge was a stabbing of an employee of the appellant’s father. The main
State witness was a friend of the appellant who was with him at the time.
Held that the trial court had misdirected itself in its handling of the conflicting evidence of the State
witness and the appellant. It should have treated the State witness as an accomplice as the evidence
strongly suggested that he was implicated in the murder. The misdirection warranted the present court’s
interference and fresh assessment of the evidence.
Examining the evidence, the court held that at best, the facts showed that the appellant was an accessory
after the fact. The conviction was replaced, and a sentence of correctional supervision imposed.
150) MUTUALLY DESTRUCTIVE VERSIONS
Hlaka & others v Minister of Safety & Security
[2008] JOL 22223 (T)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
12911 / 05
19 / 06 / 2008
South Africa
High Court
Transvaal Provincial
CJ Davel AJ
Keywords:
Delict – Claim for damages – Mutually destructive versions – Court's approach
Mini Summary:
The plaintiffs were the family of a person fatally shot by police during an attempt to arrest him. They sued
the defendant for damages.
Held that the court was faced with two mutually destructive versions. Where there is a factual dispute or
where a court is confronted with two irreconcilable versions, a court is required to make findings on the
credibility of factual witnesses, their reliability and probability. As regard the court's finding of a particular
witness, this will depend on the court's impression of veracity of a particular witness.
Where there are two contradictory versions the onus is on the plaintiff to prove on the preponderance of
probability that his version is the truth. Such onus is discharged if the plaintiff can show by credible
evidence that his version is more probable.
288
The probabilities of plaintiffs' case were found to outweigh that of the defendant. The latter was thus held
liable for plaintiffs' proven damages.
151) NEGLIGENCE
S v Mkosana – 2003(2) SACR 63 (BHC) – accused gave order to open fire on crowd
believing in danger. Could not know other troops not under his control would also open
fire. Not reasonable.
S v Vicenzo – 2003(1) SACR 605 (CPD) – accused believed had license to operate
gambling machines. Court found such belief a valid excuse.
S v Groenewald – 2008 JOL 21290 (E) – deals with duty of driver to keep proper lookout.
152) NEGLIGENT DRIVING
S v Groenewald – 2008 JOL 21290 (E) – deals with duty of driver to keep proper lookout.
De Klerk obo De Klerk v RAF & another
[2008] JOL 21786 (W)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
04 / 17901
22 / 05 / 2008
South Africa
High Court
Witwatersrand
M Jajbhay J
Keywords:
Delict – Motor vehicle collision – Negligence – U-turn – Duty of driver
Mini Summary:
The plaintiff claimed that the second defendant's negligence had caused a motor vehicle collision in which
he and his daughter were injured. The second defendant had executed a U-turn from a stationary position
on the left side of the road, and the plaintiff's vehicle had crashed into it. The defendants pleaded that the
plaintiff could have avoided the collision.
Held: The driver of a vehicle intending to change direction should ensure that the condition of the traffic
allows this. The driver of a vehicle stationary at the side of the road who wishes to drive out into the
stream of traffic has a particular duty to assure herself that it is safe to do so. This is so more particularly
if the driver wishes to cross the stream of traffic and execute a U-turn. Other drivers are not obliged to
expect every parked vehicle to embark on untoward manoeuvres. The driver of the stationary vehicle is
under a duty to give a clear signal of her intention in such a manner as to be visible to the other drivers.
While hazard lights do mean that the driver is making herself visible as her presence may constitute a
hazard, they do not mean that the oncoming driver should have foreseen that the driver was intending to
execute a U-turn. The second defendant performed an extremely dangerous and reckless manoeuvre. This
was the sole cause of the collision. Apportionment refused.
The inference that can be drawn from a failure to call a witness depends on the circumstances of a
particular case.
S v Machembo
[2008] JOL 22159 (ZH)
Case Number:
Judgment Date:
Country:
Jurisdiction:
HH2 / 08
16 / 01 / 2008
Zimbabwe
High Court
289
Division:
Bench:
Harare
Makarau JP, Kudya J
Keywords:
Criminal law – Common-law offences – Culpable homicide – Foreseeability – Accused creating dangerous
situation by driving away from police roadblock – Police officer firing at accused's vehicle and killing
passenger – Death not foreseeable consequence of accused's acts
Mini Summary:
The accused was driving a lorry on a main road at night. The lorry carried several passengers. The
accused was stopped at a police roadblock; he was told by the police to go to the nearest police station
because the vehicle was not properly lit. He instead drove off, resulting in the police giving chase and
erecting another roadblock to stop him. He did not stop there either. The police opened fire, killing one of
the passengers. The accused was charged with and convicted of culpable homicide. It was alleged that by
failing to obey the order to stop, he acted negligently and that this negligence caused the death of one of
his passengers.
Held: a conviction for culpable homicide is founded, firstly, on proof of negligent conduct and, secondly,
on the foreseeability of death arising from that conduct. The concept of foreseeability is sometimes
expressed as the natural and probable consequence or as the direct result of the act or omission that the
accused fails to guard against which results in death. In casu, the accused took a deliberate and conscious
act to disobey the police. His actions in failing to stop were grossly negligent. He was therefore negligent
in that he created a dangerous situation by driving off from the roadblock instead of stopping as directed
by the police. However, the State case fell on the aspect of the foreseeability of death arising from the
accused's failure to obey the instruction to stop. Whether or not he was aware that the police who stopped
him before the shooting were armed, a reasonable man would not expect an armed policeman to shoot at
a moving lorry with passengers at the back in a bid to stop the driver. The death of the deceased was thus
caused by the policeman and not by the accused's manner of driving. It was neither the direct result nor
the natural and probable consequence of his failure to obey the police instruction to stop.
153) NEW EVIDENCE
S v Ngcobo 2010(1) SACR 403 KZP
The accused was convicted on two counts of rape by the Pietermaritzburg regional court.
The accused's attorney intimated that, before the sentencing process could commence,
she would call for a pre-sentencing report from a probation officer. When the court
reconvened the probation officer indicated that she was unable to compile a pre-sentence
report, the reason being that, when she had conducted an interview with the complainant
for the purpose of compiling one, the complainant had informed the officer that she had
not been raped by the accused, but by someone else. At the sentencing process the
regional magistrate held the view that the matter should be referred to the High Court on
special review in terms of s 304A of the Criminal Procedure Act 51 of 1977 (the Act), but
that, before such a route could be taken, some evidence of the said retraction should be
placed before it. The court opted for a sworn statement from the complainant, obtained by
the investigating officer, and ordered that it should form part of the record of the
proceedings. It appeared however that the statement appended to the record was unsworn.
On review the following issues were raised: (a) Was the regional magistrate correct in
invoking the provisions of s 304A of the Act? (b) Whether the proceedings, in respect of
which the conviction was brought, were not in accordance with justice. In forming such
an opinion, should a court take into consideration only those factors that prevailed at the
time when the proceedings took place, or should it also take heed of subsequent evidence
where such evidence casts a totally different light upon a conviction, sufficient to warrant
its setting-aside? (c) Can a court form an opinion contemplated in s 304A(a) of the
Criminal Procedure Act on the basis of unsworn and untested statements?
290
Held, as to (a), that s 304A was introduced into the Criminal Procedure Act during 1986.
Prior to the promulgation of that amending Act, review cases in which an accused had
been convicted, but not yet sentenced, were dealt with differently by the provincial
courts. The legislature decided on an intervention in the form of the provisions of s 304A,
which brought an end to the said divergence, while bringing uniformity in interpretation
of the law on this issue.
Held, as to (b), that, before the court could intervene in terms of the provisions of s 304A,
it must form an opinion that the proceedings, in respect of which the conviction was
brought, were not in accordance with justice. Though this enquiry would, in the past,
form an integral part of the investigation, the consideration of recent cases (especially
those decided in the post-constitutional era) has revealed that preoccupation with that
enquiry was no longer rewarding. The enquiry has since been replaced by constitutional
imperatives which should be uppermost in the court's mind when deciding the issue.
Held, as to (c), that both statements, containing the allegations of complainant's retraction
of the evidence which she had given during trial, implicating the accused in the
commission of the crimes, and upon which the accused had been convicted, unsworn and
untested as they were, did not constitute evidence.
Held, further, in two pre-constitutional-era cases with facts comparable to the facts of the
present case, in the sense that, after the conviction of the accused, new facts came to light
which threw a different light on those convictions, that, in both those cases the courts,
after considering subsequent evidence, acceded to the lower courts' requests and reviewed
and set aside the convictions.
Held, further, that the facts in casu presented a totally different picture, in that there was
no evidence upon which the court could base its decision to review and set aside the
conviction handed down by the regional court.
Held, accordingly, that the matter was prematurely referred to the High Court for special
review in terms of s 304A of the Act. (Paragraph [30] at 410d/e–e.) The matter was
remitted to the regional court.
154) NEW FACTS
Kapdi & others v S
[2008] JOL 22872 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 171 / 08
27 / 10 / 2008
South Africa
High Court
Cape of Good Hope Provincial
Meer J
Keywords:
Criminal procedure – Drug offences – Bail application – Refusal of bail – Appeal
Mini Summary:
The appellants were facing four counts of contravening the Drugs & Drug Trafficking Act 140 of 1992.
They appealed against the dismissal of their applications for bail. The grounds of appeal were that the
regional magistrate had erred in not granting them bail on the basis of new facts put before the court,
pertaining to delays in the prosecution of their trial and the strength of the case against them.
Held that section 60(11)(a) of the Criminal Procedure Act 51 of 1977 applied to the bail application of the
first appellant who was charged with a schedule 6 offence. The section required him to adduce evidence
which satisfied the court that exceptional circumstances existed which, in the interests of justice permitted
his release on bail. Section 60(11)(b) was applicable to the other appellants as they were charged with a
291
schedule 5 offence. The section required them to adduce evidence which satisfied the court that the
interests of justice permitted their release on bail.
The court could not find that the lower court had wrongly dismissed the bail applications, and dismissed
the appeal.
Nel v S
[2008] JOL 21470 (W)
Case Number:
A 352 / 07
Judgment Date:
28 / 01 / 2008
Country:
South Africa
Jurisdiction:
High Court
Division:
Witwatersrand
Bench:
DSS Moshidi J, DI Berger AJ
Keywords:
Criminal law – Conviction and sentence – Appeal
Mini Summary:
Having been convicted and sentenced on a charge of theft, the appellant noted the present appeal against
the conviction and sentence.
Held, that the conviction and sentence were based on a plea agreement which the State and appellant
had entered into. On appeal, the appellant advanced a new version of events, which had not been tested
in court. The appellant had confirmed in the trial court that he had entered into the plea agreement
knowingly and voluntarily. He had enjoyed legal representation throughout the proceedings in the court
below and there was no indication that his right to a fair trial or any other rights, were not protected by
the court below.
The appeal was dismissed.
Petersen v S
[2008] JOL 21655 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 717 / 07
27 / 2 / 2008
South Africa
High Court
Cape of Good Hope Provincial
JM Hlophe JP, DH van Zyl J, KE Matojane AJ
Keywords:
Criminal law – Bail – Refusal of – Appeal
Mini Summary:
An application for bail pending the finalisation of her trial having been refused, the appellant noted the
present appeal.
Held that section 60(11)(a) of the Criminal Procedure Act 51 of 1977 makes it clear that the onus is on
the accused to adduce evidence, and hence to prove to the satisfaction of the court, the existence of
exceptional circumstances of such a nature as to permit his or her release on bail. The court must also be
satisfied that the release of the accused is in the interests of justice.
In the present case, the appellant relied on new facts which she alleged had come to light after her
previous bail applications had been decided upon. In such circumstances, the court had to be satisfied,
firstly, that such facts were indeed new and, secondly, that they were relevant for purposes of the new
bail application. They could not constitute simply a reshuffling of old evidence or an embroidering upon it.
The court found that the appellant had not adduced new evidence. Instead, she referred to speculative
facts which did not avail her.
The application was dismissed.
155) NOVUS ACTUS
S v Counter - 2003 (1) SACR 134 (SCA) – accused shot deceased who died later due to
complications in hospital. Dealt with novus actus. Still murder!
292
156) OBJECTIONS
157) ONUS OF PROOF
Clarke & another v S
[2009] JOL 23391 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 404 / 05
08 / 07 / 2008
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Findlay, Moosa AJJ
Keywords:
Criminal law – Corruption – Conviction – Appeal
Mini Summary:
The appellants were convicted of corruption, and the first appellant was sentenced to a fine of R12 000 or
18 months' imprisonment and the second appellant to a fine of R5 000 or 10 months' imprisonment. They
were granted leave to appeal against the conviction.
Held that the present case involved the concept of trapping or entrapment. The court set out the
principles involved in such cases. It then found that the magistrate in this case had erred in formulating
the test applicable to entrapment cases. A further error was committed when the magistrate appeared to
transfer the onus of proof from the state to the appellants.
The court found that the state had not discharged the onus of proof in respect of the first appellant, and
his appeal was upheld.
As the case of the second appellant might be different from that of the first appellant, the court adjourned
his appeal to a later date.
S v Mzozoyana – 2008 JOL 21268 (E) – accused convicted of housebreaking and
murder. Court dealt with onus of proof on State and duty to prove case beyond reasonable
doubt. Court not satisfied presence of accused on scene satisfactorily established.
S v Van der Vyver
[2008] JOL 21332 (C)
Case Number:
SS 190 / 06
Judgment Date:
29 / 11 / 2007
Country:
South Africa
Jurisdiction:
High Court
Division:
Cape of Good Hope Provincial
Bench:
DH van Zyl J, Adv ET Steyn (Assessor), Adv PGC José (Assessor)
Keywords:
Criminal law – Murder – Alibi defence – Onus of proof
Mini Summary:
The accused was charged with the murder of his girlfriend. Pleading not guilty to the charge, the accused
alleged that he was at work at the relevant time, and therefore could not have committed the murder.
Held that the State based its case on a blood smear which it claimed was found on the accused's shoe, on
an ornamental hammer which it claimed was the murder weapon, and on a fingerprint of the accused on a
video recorder at the crime scene. However, the court found that the State had failed to discharge the
onus of proof in respect of any of those pieces of evidence.
In attempting to establish that the accused had a motive for the murder, the State relied on a letter
written to him by the deceased. However, the court could not find that this established a motive.
The conclusion was that the alibi defence of the accused was reasonably possibly true, and that the State
had not proved the guilt of the accused beyond reasonable doubt.
158) ORGANIZED CRIME
293
Shaik & others v S
[2008] JOL 21807 (CC)
Case Number:
Judgment
Date:
Country:
Jurisdiction:
Division:
Bench:
CCT 86 / 06
29 / 05 / 2008
South Africa
Constitutional Court
Langa CJ, O'Regan ADCJ, Madala, Mokgoro, Nkabinde, Skweyiya, Van der Westhuizen,
Jacoob JJ, Jafta, Kroon AJJ
Keywords:
Criminal law– Corruption– Confiscation order– Appeal
Mini Summary:
The appellants were convicted of corruption and the state obtained an order from the High Court requiring
the appellants to pay to the State the value of three benefits which the High Court held to constitute
proceeds of crime, as contemplated by the Prevention of Organised Crime Act 121 of 1998 ("the Act").
That order formed the subject of the present appeal – the appellants contesting the validity of the
confiscation order.
Held that chapter 5 of the Act confers a power on a criminal court to make a confiscation order against a
person who has been convicted of a crime where the court has found that the person has benefited from
the crime. Chapter 5 of the Act aims to ensure that no person benefits from his wrongdoing.
The court found that the benefits were received by the appellants as a result of their corrupt relationship,
and thus constituted proceeds of unlawful activities and was subject to confiscation under the Act.
Analysing the arguments of the appellants, the court found that they had failed to show either that the
High Court had acted unjudicially or that the order it made was disturbingly inappropriate. The appeal was
thus dismissed.
2. VAN DER BURG AND ANOTHER v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
AND ANOTHER 2012 (2) SACR 331 (CC)
The applicants appealed to the court against the grant of an order under the Prevention of
Organised Crime Act 121 of 1998 forfeiting their residential property. The applicants had
been selling liquor from the residential property without a licence, in contravention of s
154(1)(a) of the Liquor Act 27 of 1989. They contended that the forfeiture provisions of
the Act were not applicable to the case and that forfeiture was disproportionate in the
circumstances. In particular, they submitted that the provisions of s 50(1)(a) permitting
forfeiture of property which is an instrumentality of an offence, applied only to offences
specifically covered by the Act. Furthermore, they argued that the forfeiture provisions
had been used abusively to punish them for activities which the ordinary criminal-law
mechanisms were readily capable of curtailing, that the forfeiture of their property was
far more serious than the seriousness of the offence and thus inappropriate, and that
forfeiture of their property would leave them and their children homeless, in breach of
their constitutional rights protecting them from arbitrary deprivation of property and
eviction.
Held, firstly, that to hold that s 50(1)(a) of the Prevention of Organised Crime Act has the
additional requirement, that the crime is one specifically covered by the Act, would
probably require a declaration of invalidity or a reading-down of the legislation, but a
decision on the constitutional validity of the provision had not been called for. Although
the Act did not explicitly identify the unlawful activity or offence at issue in the matter,
the ex facie language of the statute, as well as its aims, suggested that its forfeiture
provisions did apply to the property at which the unlawful selling of liquor occurred.
294
Accordingly, the court concluded that the forfeiture provisions of the Act were applicable
to the matter. (Paragraphs [38] and [41] at 345c–345e and 346c.)
Held, further, that the facts of the case showed that the forfeiture provisions had not been
used whimsically to punish the applicants for activities which the ordinary criminal-law
mechanisms were readily capable of curtailing, but as a last resort to put an end to the
criminality by removing the main instrument used in its commission. This was not an
abuse of the Act or the criminal justice system, and did not offend against the
Constitution. (Paragraph [51] at 349b–d.)
Held, further, that the 'ordinary criminal law' had failed to deal with the evil and that the
patent and ongoing harm caused by the unlawful conduct required alternative measures to
bring the unlawful activity to an end. The applicants had used the property for their
business of crime for more than six years, and conventional law enforcement strategies
and the preservation order previously obtained had failed to deter them. The manner in
which the crime of selling liquor without a licence was being committed, coupled with
the patent harm that its commission was causing, must result in a conclusion that
forfeiture was proportionate and appropriate in this case. (Paragraphs [53], [55] and [56]
at 349f, 350b and 350c.)
Held, further, that the applicants' bald allegation of homelessness did not seem to be
borne out by the facts, as they had not shown that their monthly income was insufficient
to lease another home while supporting their children. Moreover, forfeiture under the Act
did not necessarily result in eviction. Once a forfeiture order was granted, the occupation
might well become unlawful, but an enquiry under the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act 19 of 1998 would still have to take place, if
and when an eviction order was sought. (Paragraphs [59]–[60] at 351d, 352a and 352b.)
Held, accordingly, that forfeiture was not disproportionate in the circumstances of the
case. (Paragraph [61] at 352d.)
Appeal dismissed.
Case Information
A Appeal against grant of an order of forfeiture of residential property under the
Prevention of Organised Crime Act 121 of 1998. The facts appear from the judgment of
Van der Westhuizen J.
1. S v ROBERTS AND OTHERS 2013 (1) SACR 369 (ECP)
Since its enactment, the Prevention of Organised Crime Act 121 of 1998 has been
subjected to ongoing judicial scrutiny and has invited learned discourse. Extrapolated
from the case law the following principles emerge: in order to found a conviction
under the Act, the state is required to establish the existence of an enterprise, a
pattern of racketeering activity and a link between them and the accused. It must
thereafter establish that the accused participated in the enterprise's affairs and that
such participation was through a pattern of racketeering activity. As pointed out in S
v Eyssen2009 (1) SACR 406 (SCA) ([2009] 1 All SA 32) in paras 8 and 9, the
participation or involvement must be ongoing, continuous or repeated. It is,
however, necessary to dispel any notion that the reference to 'two offences' in the
definition of 'pattern of racketeering activity' in s 1 means two separate and
disparate offences specified in sch 1 to the Act. (Paragraph [10] at 377b–d.)
A directive was sought in terms of s 18(3)(a), read with ss 18(1), 16(1) and/or 17(1)
and/or 19(1) of the Regulation of Interception of Communications and Provision of
Communication-related Information Act 70 of 2002, to intercept telecommunications
295
between certain poachers in order to gain evidence of a syndicate's nefarious
activities. These drastic measures are required, as the cellphone numbers are kept
secret amongst the syndicate members as a method of protecting their criminal
activities, which makes conventional investigation methods extremely difficult.
Evidence adduced establishes that — (i) accused Nos 1 and 2 were directly involved
in all but the sixth listed activity; (ii) accused No 3 was directly involved in the fifth,
seventh, eighth, ninth and tenth activities; and (iii) accused No 5 was directly
involved in the fifth and seventh activities. Each of the aforegoing activities, over a
period of several years, unequivocally establishes a pattern of racketeering activity
as defined in s 1 of POCA. The evidence furthermore proves that accused Nos 1 and
2 managed the enterprise as envisaged by s 2(1)(f) of the POCA. (Paragraph [97] at
387c.)
Case Information
Criminal trial in the high court on charges under the Prevention of Organised Crime
Act 121 of 1998. The facts appear from the reasons for judgment. Parts of the
judgment not germane to this report have been omitted.
Advocate Price for the accused.
Advocate Le Roux and Advocate Swanepoel for the state.
NDPP v De Vries & others (in re: S v De Vries & others)
[2009] JOL 23198 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
SS 67 / 2005
27 / 02 / 2009
South Africa
High Court
Western Cape, Cape Town
LJ Bozalek J
Keywords:
Criminal Law – Organised crime – Confiscation order – Jurisdiction – Authority –– Prescription
Mini Summary:
The first three respondents were convicted by the court on various offences. After conviction but before
sentence, the state applied for a confiscation order enquiry to be held in terms of section 18(1) of the
Prevention of Organised Crime Act 121 of 1998 (“the Act”) into any benefits the defendants may have
derived from unlawful activities.
A postponement having been granted by the other respondents, the enquiry proceeded in relation to the
third respondent. The latter three raised three points in limine. Firstly, he contended that the applicant
had failed to prove his authority to conduct the proceedings. Secondly, he disputed the court’s jurisdiction
to hear the enquiry and, thirdly, he argued that any right which the applicant may have had to a
confiscation order had prescribed.
Held that section 18(1) of the Act makes it clear that the primary jurisdictional requirement for a
confiscation order enquiry is that the defendant has been convicted of an offence in terms of the Act. It is
common cause that the third defendant was convicted of money laundering and participating in the affairs
of an enterprise through a pattern of racketeering activities in terms of the Act.
Section 18(5) of the Act provides that no confiscation order application may be made without the written
authority of the National Director of Public Prosecutions. When the applicant pointed out to the third
respondent that both a copy of and the original written authority had been lodged with the court, the
objection was reduced to the contention that, as there was no reference in the investigator’s sworn
affidavit to the authority, no cognisance could be taken of it. The court held that the written authority was,
on the face of it, regular, and the only challenge to its validity related to the manner in which it was put
before court. The Act does not stipulate how the National Director’s authority must be proved, and the
point was dismissed.
On the third point it was held that the Act does not establish any time limit within which the State,
represented by the prosecuting authorities, may bring an application for a confiscation order. However, no
such application can be made before a defendant is convicted of an offence in terms of the Act. The State
could hardly have brought the application at an earlier stage, the conviction of an offence in terms of the
Act being a jurisdictional requirement for such a step.
296
Turning to the main issue for determination, the court found that the third respondent had benefited from
a robbery. He was therefore ordered to make payment to the State in the amount of R1 million.
S v De Vries & others
[2008] JOL 21658 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
67 / 05
18 / 02 / 2008
South Africa
High Court
Cape of Good Hope Provincial
LJ Bozalek J
Keywords:
Criminal procedure – Trial– Charges – Validity
Mini Summary:
Eleven accuseds were facing 25 charges before the present court. After an adjournment in the
proceedings, the accused gave notice of an application to declare invalid and of no force and effect, the
authorisation issued by the National Director of Public Prosecutions purporting to authorise charges
against them in terms of section 2(4) of the Prevention of Organised Crime Act 21 of 1998. They further
sought an order declaring the charges brought against them to have been invalidly instituted and set
aside.
Held that the applicants were asking the court not to consider the merits of the evidence adduced by the
State and the accused, but to rule on technical points. Should the challenges prove successful the court
was being asked to disregard all of the evidence that had been led since the inception of the trial. It was
being asked to review the regularity of its own proceedings, which was not a power which the court could
arrogate to itself.
The only possible remedy that was available to the accused seeking, at such a late stage to challenge the
validity of the authorisation, without objection on the first day of trial, was to seek a special entry of
irregularity or illegality in terms of section 317 of the Criminal Procedure Act 51 of 1977. However, the
court found that they had not made out a case in that regard, and dismissed the application.
NDPP v Starplex 47 CC & others: In re Ex parte Application of NDPP v Mamadou & another
[2008] JOL 21553 (C)
Case Number:
12099 / 07
Judgment Date:
20 / 03 / 2008
Country:
South Africa
Jurisdiction:
High Court
Division:
Cape of Good Hope
Bench:
LJ Bozalek J
Keywords:
Organised crime – Preservation of property – Onus of proof
Mini Summary:
The National Director Of Public Prosecutions sought a final order in terms of section 38(1) of Chapter 6 of
the Prevention of Organised Crime Act 121 of 1998 ("the Act") preserving certain cash amounts seized at
railway storage premises.
Held that the applicant bore the onus of proving a prima facie case.
Faced with conflicting versions regarding the ownership of the monies seized by the police, the court had
to determine whether the applicant had made out a case establishing that there were reasonable grounds
to believe that the property concerned was an instrumentality of an offence or the proceeds of unlawful
activities.
Based on the evidence before it, the court concluded that the applicant had discharged the onus resting
upon it. The order sought was granted.
NDPP v Madatt & another
[2008] JOL 21555 (C)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
6488 / 07
25 / 01 / 2008
South Africa
High Court
Cape of Good Hope
297
Bench:
Samela AJ
Keywords:
Organised crime – Preservation order – Immovable property – Instrumentality of offence
Mini Summary:
In the present application, the National Director of Public Prosecutions sought a preservation order in
terms of section 38(1) of the Prevention of Organised Crime Act 121 of 1998.
Held that before the court can make a preservation order, it must satisfy itself that there are reasonable
grounds to believe that the property concerned is an instrumentality of an offence referred to in Schedule
1 to the Act, or the proceeds of unlawful activities. Once the above is established, the court must make a
preservation order.
"Reason to believe" cannot be based on the subjective belief of a person, but on facts adduced by the
applicant which can be objectively ascertained. However, the court need not be satisfied on a balance of
probabilities that the facts are indeed established by the applicant. The applicant's facts must have a
rational and reasonable basis, and they must bear relation to the relief sought.
The applicant in this case was found to have complied with the above requirements, and the court granted
the order sought.
NDPP v Mahomed & others
[2008] JOL 21298 (SE)
Case Number:
3340 / 06
Judgment Date:
13 / 03 / 2007
Country:
South Africa
Jurisdiction:
High Court
Division:
South Eastern Cape Local
Bench:
R Pillay J
Keywords:
Organised crime – Provisional restraint order – Confirmation of
Mini Summary:
Having obtained a provisional restraint order granted in terms of section 26(1) of the Prevention of
Organised Crime Act 121 of 1998 against the defendants, the directorate of public prosecutions sought
confirmation of the order.
The defendants raised three objections to the confirmation of the order. The first objection was that
because the alleged offences were committed in or about 1998, they would suffer insurmountable
prejudice resulting from the delay in effecting the prosecution in respect thereof; secondly, the order that
they should be brought before court by no later than 24 December 2007 was not complied with and
consequently the order should be discharged; and thirdly, they denied having committed any crime and
that they benefited from the alleged offences or any other unlawful activity.
Held that the unfairness alleged by the defendants did not lead to any unjustified infringement on their
rights. The court found that there was sufficient proof of unlawful activity on the part of the defendants,
and confirmed the order.
159) PARDONS
Centre for the Study of Violence & Reconciliation & others v President of the RSA & others
[2009] JOL 23497 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
15320 / 09
29 / 04 / 2009
South Africa
High Court
North Gauteng, Pretoria
WL Seriti J
Keywords:
Administrative law – President – Powers of – Granting of pardons
Mini Summary:
The applicants sought to interdict the first respondent from granting any pardon in terms of the "Special
dispensation for Presidential pardons for political offences" until such time as the proceedings described in
Part B of the notice of motion was finally determined.
The first respondent was the president of the country, and was involved in the process in terns of which
he could grant pardons to persons who have been convicted of offences allegedly committed in pursuit of
political objectives. The process was a secret one, and the President refused to disclose which applications
for pardon he was considering. He also refused to give the victims or other persons affected by the
298
offences in question an opportunity to make representations as to whether or not a pardon should be
granted in the said applications.
Held that the pardoning process was intended to be conducted in an open and transparent manner. The
President had made a public commitment about the process that he would follow in order to consider the
pardon applications.
The court found that the president's power to grant pardons fell within the ambit of administrative action.
In order to act in accordance with his public commitment, the President should allow the victims, and/or
their families and interested parties to be heard prior to releasing any prisoner on parole.
160) PAROL EVIDENCE RULE
Nhundu v Chiota & another
[2008] JOL 21446 (ZS)
Case Number:
SC 28 / 07
Judgment Date:
01 / 10 / 2007
Country:
Zimbabwe
Jurisdiction:
Supreme Court
Division:
Harare
Bench:
Ziyambi, Cheda, Malaba JJA
Keywords:
Contract – Evidence – Parol evidence rule – Written contract – When parol evidence may be led – May be
led to prove contract conditional upon an event which has not occurred
Mini Summary:
When a contract has been reduced to writing, the document is, in general, regarded as the exclusive
memorial of the transaction and in a suit between the parties no evidence to prove its terms may be
given, save the document or secondary evidence of its contents, nor may the contents of such document
be contradicted, altered, added to or varied by parol evidence. However, the parol evidence rule does not
preclude extrinsic evidence that the contract is conditional upon the happening of an event which has not
occurred; but if the object of leading such extrinsic evidence is not only to prove the alleged oral condition
precedent but to incorporate it into the agreement of sale and then to enforce the said condition by relying
on the respondent's failure to comply therewith then the extrinsic evidence would be inadmissible.
161) PAROLE
Hendricks v S
[2015] JOL 32900 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 420 / 14
18 / 02 / 2015
South Africa
High Court
Western Cape, Cape Town
PAL Gamble, Blignault, Mantame JJ
Keywords:
Criminal law – Robbery – Kidnapping – Attempted murder – Unlawful possession of a firearm and
ammunition – Appeal against sentence
Mini Summary:
Convicted of robbery, kidnapping, attempted murder and the unlawful possession of a firearm and
ammunition, the appellant was sentenced to an effective 44 years’ imprisonment. The present appeal was
against sentence.
Held that the court a quo was at pains to stress the importance of protecting innocent members of society
against criminals like the appellant, and decided that the longest possible terms of imprisonment which
could reasonably be imposed, should indeed be imposed. The court therefore made a serious
recommendation to the prison authorities that the appellant and his cohorts not be considered eligible for
parole until such time that they had each completed a specified period (which was to be the greater part)
of the sentences imposed. That amounted to a misdirection. At the time of sentencing, section 276B of the
Criminal Procedure Act 51 of 1977, which provides for the fixing of a non-parole period, had not yet come
299
into operation. The Court could therefore not make such an order as a component of the sentence of the
appellant.
The misdirection meant that the present Court was free to consider sentence afresh. It held that an
appropriate sentence would see the appellant emerge from prison in his middle years (at around 50)
when, hopefully, the rehabilitative effect of lengthy imprisonment would render him less likely to commit
such horrific crimes again. An effective sentence of 25 years’ imprisonment was deemed appropriate to
achieve that goal.
BROODRYK AND OTHERS v MINISTER OF CORRECTIONAL SERVICES AND
OTHERS 2014 (1) SACR 471 (GJ)
COhe applicants were serving sentences of 14, 18 and 20 years' imprisonment,
respectively. Their sentences were imposed after 1 October 2004, which was the
crucial operative date for determining the parole regime provided for in the
Correctional Services legislation. Offenders who were sentenced prior to the
operative date could be considered for parole after the offender had served one-third
of the sentence, but after the operative date the provisions of s 136(1) of the
Correctional Services Act 111 of 1998 read with s 73(6)(a) applied, and in terms
thereof parole would only be considered after the offender had served at least onehalf of his sentence. The applicants attacked the constitutionality of s 136, which
they contended was in conflict with s 35(3)(n) of the Constitution, which provided
that the rights to a fair trial included the benefit of the least severe of the prescribed
punishments, if the prescribed punishment for the offence had been changed
between the time that the offence was committed and the time of sentencing.
Held, that s 35 referred clearly to an accused person's right to a fair trial, and the
trial reached a conclusion when the accused person was sentenced. The prescribed
punishments referred to in s 35 were only those imposed on an accused person after
conviction. The section did not apply to the way in which punishment was served,
and to extend the meaning of the section to include the serving of sentence would
constitute reading into it what one wished it to mean, which plainly was
impermissible. The attack on the constitutionality was dismissed. J
Case Information
HL Alberts for the applicants.
MT Moerane SC (with TWG Bester) for the respondents.
HP Joubert for the amicus curiae.
Application for an order declaring a provision of the Correctional Services Act 111 of
1998 unconstitutional.
Mthimkhulu v S
[2014] JOL 31366 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
547 / 12
04 / 04 / 2013
South Africa
Supreme Court of Appeal
XM Petse, LE Leach, MML Maya, JB Shongwe JJA, Mbha AJA
Keywords:
Criminal law – Rights of accused – Right to fair trial – Whether accused should have been heard before the
High Court invoked section 276B(2) of the Criminal Procedure Act 51 of 1977 – Parties entitled to be
heard on whether or not to fix a non-parole period and the length of such period – Criminal law –
Sentence – Fixing of non-parole period of imprisonment – Whether section 276B(2) of the Criminal
Procedure Act 51 of 1977 impels a court which sentences a person to imprisonment, following a conviction
for two or more offences where the sentences of imprisonment are ordered to run concurrently, to fix a
non-parole period in respect of the effective period of imprisonment – Section 276B(2), properly
construed, does not oblige a sentencing court to fix a non-parole period in respect of the effective period
of imprisonment as a matter of routine whenever it has ordered two or more sentences imposed on a
300
convicted person to run concurrently, but does enjoin a sentencing court, once it has exercised its
discretion under section 276B(1)(a) against the convicted person, to then fix the non-parole period in
respect of the effective period of imprisonment taking cognisance of the provisions of section 276B(1)(b) –
Statutes – Interpretation of – Purposive and contextual approach confirmed – Courts must also adopt a
construction that is consistent with the Constitution, and in the context of a criminal trial courts are dutybound to prefer an interpretation that promotes the accused’s right to a fair trial –
Mini Summary:
The appellant was convicted on one count of murder, possession of a fully automatic firearm without a
licence to possess such firearm and possession of five rounds of live without the required licence. He was
sentenced to 20 years’ imprisonment on the murder count and five years for both unlawful possession of a
prohibited firearm and ammunition. The High Court directed that the term of five years’ imprisonment in
respect of the latter two counts run concurrently with the 20 years’ imprisonment imposed in respect of
the murder count. It then proceeded to fix a non-parole period of 13 years. With leave of the court below,
the appellant appealed against that order.
Held that the starting point in the present enquiry had to be the provisions of section 276B of the Criminal
Procedure Act 51 of 1977. The principal issue for determination was