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2023
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[2023] ZAECQBHC 13
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Mitchell and Others v S (CC 04/2018) [2023] ZAECQBHC 13 (10 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION – GQEBERHA
Case
No: CC 04/2018
In
the matter between:
JERMAINE
MITCHELL
First Applicant (Accused 1)
GLYNN
SIMIONE CARELSE
Second Applicant (Accused 2)
WENDELL
JADE PETERSON
Third Applicant (Accused 4)
ROBIN
TAYLOR
Fourth Applicant (Accused 5)
and
THE
STATE
Respondent
JUDGMENT
MAKAULA
J:
[1]
These applications are in terms of
section 317(1)
of the
Criminal
Procedure Act 51 of 1977
for special entries to be made on the record
of the proceedings as irregularities and illegalities had allegedly
occurred.
[2]
In the first application the accused persons (the plaintiffs) sought
the following
to be entered into the record:
“
1.
The Applicant’s stood trial in the Eastern Cape Local Division
of the High Court
on charges of Murder.
2.
The only direct witness implicating the Applicants was Morne Nel, a
204 witness.
3.
The State by way of which included both prosecutions, Advocate
Gorbedan, the
Deputy Director of National Prosecutions, and the
Investigating Officer had more than one interview with the 204
witness, prior
to the commencement of the trial, recorded on video.
4.
There existed no privilege that the State could claim, over the audio
and video
footage of these interviews.
5.
The existence of the interview and the video footage of the interview
were never
brought to the attention of the Defence nor was it made
available to the Defence in preparation for trial until the existence
thereof
was volunteered by the 204 witness during cross examination.
(
sic
)
[3]
In the second application they sought the following to be entered
into the record
as constituting an irregularity or illegality.
1.
Adv MM Sandan was the complainant in a case of Conspiracy to commit
Murder against
Jermaine Mitchell, Glynn Simione Carelse and Wendell
Jade Peterson.
2.
Adv MM Sandan’s brother was the second complainant in the same
case.
He was also a complainant on a charge of Conspiracy to
commit Murder.
3.
Adv MM Sandan’s brother was placed under witness protection and
Adv MM
Sandan was given 24h00 personal protection as a result of the
case.
4.
The alleged offences were committed between the 6
th
and
12
th
of February 2018.
5.
Adv MM Sandan was well aware of the charges preferred as early as
February 2018.
6.
The same accused persons, i.e. Jermaine Mitchell, Glynn Simione
Carelse and Wendell
Jade Petersen were also accused persons on
charges of Murder in a separate case to be tried in High Court.
7.
The case in High Court went on trial on the 23
rd
day of
April 2018.
8.
Adv MM Sandan led the prosecution in the High Court against the
accused well
knowing that he was a complainant against them in the
case of Conspiracy at the same time. (
sic
)
[4]
The applications are opposed by the respondent (the State).
[5]
The crux of the applications, based on the founding affidavits is
that the State withheld
crucial evidence to wit two DVDs where Mr Nel
(section 204
witness) was interviewed by the respondent’s
persons including Mr Sandan, the prosecutor in this matter. The
applicants
aver that had this information not been unearthed under
cross-examination, it would not have been volunteered by the
respondents.
The failure to disclose the DVDs, goes to the
credibility of Mr Nel, and was prejudicial to the applicants for the
following reasons:
“
5.1
In both these DVD’s Nykie made it very clear that he did not
want to testify in this matter;
5.2
He made it unequivocally clear that none of us and / or our families
had threatened him
and / or his family (although the video shows a
desperate attempt by some of those present to pressurise him into
claiming that
he was somehow bribed or threatened);
5.3
The first video ended abruptly and there is no explanation from the
State as to why it suddenly
ended, but when it ended, however Nykie
was still in the position that he did not want to testify, this
despite pressure from some
of those present, which included both
prosecutors, Advocate Gorbedan, the Deputy Director of National
Prosecutions, and the Investigating
Officer;
.
. .
7.4
The second DVD appears to begin out of nowhere and it too ends with
no indication whatsoever
that Nykie had agreed that he would
testify. (It therefore becomes worrisome as to how it came
about that he eventually decided
to testify, since this Court has no
idea what happened between the time the second DVD ended and the
“decision” that
Nykie took to come and testify for the
State, the court is effectively blindfolded)”. (
sic
)
[6]
The applicants in a nutshell argue that Mr Sandan and others trampled
on the constitutional
rights of Mr Nel by compelling him to testify
without the presence of his erstwhile attorney Mr van der Spuy.
Furthermore,
the attack on the video is that it shows at some point
that Mr Nel was threatened by one of them by telling him that if he
refused
to testify, he would be returned to the “lion’s
den” i.e. St Albans prison where the rest of the accused were
detained. His co-accused would kill him if they got to know
that he attempted to be a State witness. The resultant
prejudice suffered by the applicants is that they were denied the
opportunity to “call a trial-within-trial” in order
to
determine the constitutionality of the evidence of Mr Nel in this
regard.
[7]
The applicants further sought an order directing that:
7.1
Advocate MM Sandan;
7.2
Constable Warrant Hanse;
7.3
Mr Nel; and
7.4
Advocate BS Madolo, the Director of Public Prosecution in the Eastern
Cape appear and give
oral evidence before this court subject to
cross-examination by the applicants.
[8]
The application is opposed by the State primarily on the grounds
that:
(a)
There is no other recording which was made other than the one given
to the applicants;
(b)
the applicants were afforded ample time to view the video, consult on
it and decide what
action to take;
(c)
Mr Nel and other State witnesses were extensively cross-examined on
the issues raised
in the video and in this application;
(d)
that the video has no bearing on the case itself;
(e)
that there is no indication in the founding affidavit which evidence
is sought from each
witness;
(f)
that Mr Nel and Colonel De Bruin testified and were extensively
cross-examined on
the issue and; lastly
(g)
all the other witnesses sought, were available even during the stage
when the video was
referred to in evidence.
A.
Analysis
:
[9]
Section 317(1)
of the CPA reads:
“
If an accused is
of the view that any of the proceedings in connection with or during
his or her trial before a High Court are irregular
or not according
to law, he or she may, either during his or her trial or within a
period of 14 days after his or her conviction
or within such extended
period as may upon application (in this section referred to as an
application for condonation) on good
cause be allowed, apply for a
special entry to be made on the record (in this section referred to
an application for a special
entry) stating in what respect the
proceedings are alleged to be irregular or not according to law, and
such a special entry shall,
upon such application for a special
entry, be made unless the court to which or the judge to whom the
application for a special
entry is made is of the opinion that the
application is not made
bona fide
or that it is frivolous or
absurd or that the granting of the application would be an abuse of
the process of the court”.
[10]
Mr Griebenow, addressed me at length about the witnesses he had asked
that they be subpoenaed.
He implored the court to call Mr
Sandan, Ms Landman, Advocate Madolo, Mr Nel and Colonel De Bruin, the
Investigating Officer and
Constable Hanse as witnesses for the
court. He placed reliance for such an application on
The
State v Moodie
1961(4) SA 114 (TPD).
[11]
Mr Stander, for the State opposed the application on various
grounds. He argued that the
founding affidavit is silent on
what evidence is sought from the witnesses and what contributions
they are expected to make in
the enhancement of what is sought by the
applicants.
[12]
I should mention upfront that I convicted the applicants on 8 June
2021. The application
for a special entry was issued on 6 June
2022, exactly a year and 2 days later. No application for
condonation for non-compliance
with the 14 day period referred to the
section 317
was made.
[13]
Other than what is stated in the founding affidavit, there is no
evidence of an irregularity
having occurred when the video surfaced.
The State avers that it did not rely on the video to prove its case
against the
applicants. The issues raised in paragraphs 2 and 3
above were canvassed by the late Mr Price, who appeared on the
applicant’s
behalf, and I dealt with them extensively in my
judgment on the merits.
[14]
The applicants correctly conceded in argument that
section 317(1)
does not provide for the kind of application they brought, and the
order sought
[1]
The
concession is not unfounded. All that
section 317(1)
requires
is that an accused person, if he or she is of the view that the
proceedings are irregular or not according to Law, either
during his
or her trial or within 14 days after his or her conviction, on good
cause shown be allowed to apply for a special entry
to be made to
such record such irregularity.
[15]
I convicted the accused on 8 June 2021 and the application for the
special entry was made a year
and 2 days later with no application
for condonation as aforesaid. The application is fatal for lack of an
application to condone
its late filing.
[16]
Apart from what is contained in the founding affidavit and the
grounds of irregularity relied
upon, the applicants requested me to
subpoena the witnesses referred to above. On the day of the
hearing, the applicants
applied that I should call the witnesses and
lead them, so that they can be in a position to cross-examine them to
prove the grounds
of irregularities relied upon by them. I
refused to call them because there was no basis upon which I should
call them on
the papers.
[17]
The facts of this matter are distinguishable from the
Moodie
matter. In that matter the court upon getting to hear that the
deputy-sheriff was present when the jurymen were deliberating
contrary to the section 143 of the Criminal Procedure Act 56 of 1955
which required, in short, that the jury should be in a separate
room,
by themselves when they do their deliberations as to the guilt or
otherwise of an accused. Affidavits were obtained
from the
jurymen and the deputy-sheriff as to what happened in the jury room.
The court found that there was no need to call
the jury to give
viva
voce
evidence. The deputy-sheriff was called to testify.
The court reasoned as follows:
“
In the
circumstances the point of substance, as I see it, that emerges from
the accused’s complainant is one factor, namely,
that the
deputy-sheriff was in the jury room. That was clearly an
irregularity of substance although I am satisfied the deputy-sheriff
acted in good faith. The jurymen in their affidavits have said
that his presence did not worry them, but that seems to me
not a
matter for me to decide. As I see my duty it is simply to
determine whether there was an irregularity, and if there
was, to
make a special entry to that effect. I must leave it to the
Appeal Court to decide whether prejudice resulted from
it or not”.
[18]
The jurymen and the deputy sheriff, who were the subject of the
inquiry, unlike in this matter
filed affidavits upon which the court
could rely to find if there was an irregularity or even a need to
call them. In
casu,
it is only the applicants who filed
affidavits upon which the premise that there was an irregularity is
alleged. Based on
the evidence contained therein, I find no
reason to exercise the discretion vested in me by section 186 to call
them. There
are no affidavits filed by the persons I was asked
to call as the court’s witnesses.
[19]
Furthermore, the issues I am called upon to make a special entry
about, were ventilated and thoroughly
dealt with during trial by
applicant’s counsel. They form part of the record and I
dealt with them extensively in my
judgment on the merits. They
form part of the record and the applicant’s are free to appeal
against my decision in
respect thereof. For these reasons, I am
of the view that there is no merit in the application and it stands
to be dismissed.
[20]
Consequently, the application is dismissed.
M
MAKAULA
Judge
of the High Court
Appearances:
For
the Applicants:
Mr A
Griebenow
Instructed
by:
Griebenow
Attorneys
Gqeberha
For
the Respondent:
Adv M
Stander
Senior
State Advocate
Office
of the Deputy Director of Public Prosecution,
Gqeberha
Date
heard:
7
February 2023
Date
delivered
10
March 2023
[1]
A court only subpoena witnesses when it acts in terms of section 186
of the CPA.