1 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. 2 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 3 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. 4 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 5 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 6 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 7 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 8 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 9 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 10 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) 11 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 Å„ 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 Å„ 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