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[2021] ZASCA 52
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Bezuidenhout v S (41/2020) [2021] ZASCA 52 (23 April 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 41/2020
In the matter
between:
ALFRED JAN
BEZUIDENHOUT
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Alfred
Jan Bezuidenhout v The State
(41/2020)
[2021] ZASCA 52
(23 April 2021)
Coram:
SALDULKER, MOCUMIE
and NICHOLLS JJA and WEINER and MABINDLA-BOQWANA AJJA
Heard:
17 March 2021
Delivered:
This judgment was
handed down electronically by circulation to the parties’ legal
representatives by email, publication on
the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is
deemed to be have been at 12h00 on
23 April 2021.
Summary
:
Criminal law and procedure – application of
s 309B(5)
of the
Criminal Procedure Act 51 of 1977
–
appeal
against conviction – whether the appellant had a fair trial –
trial to start
de
novo
before a
different presiding officer.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Johannesburg (Monama J, and Thobane AJ):
1
The appeal is upheld.
2
The order of the high court is set aside and
replaced with the following order:
‘
(a) The
appeal is upheld and the conviction and sentence of the appellant are
set aside.
(b) The trial is to
start
de novo
in the regional court, Vosloorus before a
different presiding officer.’
JUDGMENT
Nicholls JA
(Saldulker, and Mocumie JJA and Weiner and Mabindla-Boqwana AJJA
concurring)
[1]
The central question in this appeal is whether the appellant had a
fair trial. The
appellant was charged with murder and the unlawful
possession of a firearm, in the Regional Court, Vosloorus. He
pleaded not
guilty to the charge of murder but guilty to the charge
of the illegal possession of a 38 special calibre revolver. On
1 June 2018,
the appellant was convicted on both counts and
sentenced to 15 years’ and 8 years’ imprisonment,
respectively. The
sentences were ordered to run concurrently, an
effective term of imprisonment of 15 years.
[2]
The appellant was refused leave to appeal by the trial court. So too,
was an application
in terms of s 309B(5) of the Criminal Procedure
Act 51 of 1977 (the CPA) to adduce further evidence. On petition to
the High Court,
Gauteng Division, the appellant was granted leave to
appeal against the sentence only. In his application for leave to
appeal the
conviction for murder to this Court, he also sought an
order that the case be remitted to the regional court for further
evidence
to be heard. On 26 November 2019, he was granted
special leave by this Court to appeal the merits of his conviction.
[3]
At his first appearance, on 3 July 2017, the appellant
appeared in person.
His right to legal representation was explained
to him. For the next appearances on 10 July 2017 and
17 July 2017,
he remained unrepresented, but on
22 August 2017, it was noted that he had procured the
services of an attorney from
Legal Aid, Ms Gqwede. However,
she was not present as she was busy in another court. On
30 August 2017, Ms Gqwede
was present and confirmed
that the appellant did not require the court to sit with assessors.
On 3 October 2017, the
trial was postponed because
Ms Gqwede was ill. When the matter was next set down on
22 October 2017, Ms Gqwede
was ill again.
[4]
On this occasion, the appellant addressed the court stating that he
did not wish to
have an attorney and had only done so on the court’s
advice. He claimed that this was his 14
th
court appearance
and he did not want to waste the court’s time. He stated:
‘
.
. . I believe the Court wants to determine the truth, and I think
that for the truth I do not need anybody else to speak on my
behalf .
. . I think my counsel will probably end up sick again when we have
to start the proceedings again, and I would ask the
Court to indulge
me, that if that happens, let me rather please speak the truth on my
own behalf . . . The truth does not need
any explanation.
’
[5]
On the strength of his request, the magistrate told the appellant
that it was his
right to conduct his own defence, but he should
understand that he would have to lead and cross-examine witnesses. He
was further
informed that he could change his attorney if he was
dissatisfied. The matter was postponed until 21 November 2017
and
then again to 2 February 2018, when the trial finally
commenced. He remained legally unrepresented throughout.
[6]
The appellant was charged and convicted of the murder of Mr
Bisani
Tshukela
(the deceased) by
shooting him with an unlicensed 38 special calibre Rossi revolver.
The incident took place in a farming area near
Dawn Park, within
the Boksburg Municipality, between 08h00 and 09h00 on
26 November 2016.That the appellant
shot the deceased with
his unlicensed revolver is not in dispute. Nor is it disputed that
the deceased was unarmed at the time,
carrying only a two litre
container of milk. The murder conviction of the appellant turns on
the circumstances of the shooting.
[7]
On the appellant’s version he had no intention to kill the
deceased and was
merely defending his property, his wife and
grandchildren. He claims that the shooting occurred while the
deceased was trying to
wrestle the firearm from him. In contrast, the
version of the only eyewitness, Mr Muzivukile Dumezweni who was
employed as
a herdsman by the deceased, is that the deceased was
intentionally shot and killed by the appellant for no good reason.
Mr Dumezweni
however did not see the actual shooting.
[8]
The appellant owns a small holding on which he grows vegetables. He
said that there
had been ongoing arguments for the past two to three
years over the fact that Mr Dumezweni herded cattle on to his
property,
destroying his vegetable and trampling his garden. Despite
his protestations, this occurrence, he said, took place several times
a week. On that particular day, the deceased and Mr Dumezweni
were herding 110 head of cattle. The appellant was adamant that
the
cattle were on his property, just as they had been three or four
times the previous week. Mr Dumezweni vehemently denied
that the
cattle grazed on the appellant’s property that day, or in the
past. He maintained that he and the deceased were
herding the cattle
along the tarred road, towards grazing land further away. He also
denied ever having spoken to the appellant
previously, although he
acknowledged having seen him on occasion.
[9]
Mr Dumezweni described the incident as follows. He was at the
back of the herd
while the deceased was guiding the cattle from the
front. He heard a firearm going off and the herd of cattle started
running towards
him. He herded them back towards the deceased.
Mr Dumezweni saw the appellant on the road next to the herd,
holding a ‘pump-action
gun’. After Mr Dumezweni had
herded the cattle back, he saw the appellant talking to the deceased
at close quarters.
He did not see the shooting incident but heard a
firearm go off and he saw the deceased had fallen to the ground on
his back. At
that stage the pump gun was on the ground. The appellant
then shouted at him in a language that he did not understand and
pointed
a small firearm at him and went back into his house.
Mr Dumezweni approached the deceased who told him he had been
shot by
the appellant. He saw blood on the T-shirt of the deceased in
the chest area. The appellant returned, placed the deceased into his
car and drove off. It is common cause that the appellant took the
deceased to Sunward Park Hospital where he later died. The
police arrived at the scene and Mr Dumezweni explained to them
what had happened.
[10]
The appellant’s version was that the vegetables grown on his
small holding were regularly
being destroyed and trampled by
Mr Dumezweni’s herd of cattle. He had also been the victim
of 18 robberies in the past
few months and the police had been of no
assistance when he reported them. On the day of the incident, he had
the pellet gun in
his possession as he was shooting at Indian Myna
birds that were pulling out his thatch. He saw Mr Dumezweni on
the tar road
approaching him from the right-hand side and he told him
he would shoot the cattle if they came onto his property. Realising
that
it would be pointless to shoot cattle with a pellet gun, he went
to get his 38 special calibre revolver which was in the shed. He
fired a warning shot and then noticed a second person (the deceased)
approaching him from plot 105 on the left. He fired two more
warning
shots into the air but both men continued towards him. He fired a
fourth warning shot into the ground but this did not
deter the men.
The deceased then ‘jumped on [him] with both his hands and
grabbed [the appellant’s] hand’. His
hand was on the
trigger of the revolver. The appellant, who weighs 53kg and was
almost 60 years old, described in detail how the
deceased, who was
younger, bigger and stronger than him, tried to wrestle the firearm
from him. They both fell backwards; the deceased
fell on top of him.
During the skirmish, the firearm went off and he remembers
Mr Dumezweni looking down at him. He shouted
to Mr Dumezweni
to call an ambulance and turned his attention to the deceased. He saw
the deceased had no blood at that stage,
just a ‘tiny wound’.
He tore off the deceased’s T-shirt and put it under his head,
threw his firearm into a ditch
and then put the deceased into his car
with the help of a passer-by and rushed to Sunward Park Hospital.
The police fetched
him from the hospital and on his return to the
property he fetched the firearm from the ditch and gave it to the
police, and his
wife also handed over the pellet gun.
[11]
Mr Dumezweni denied having seen the appellant wrestling with the
deceased for the firearm;
denied that they both fell; denied that the
fatal shot went off during the altercation as they fell; and denied
seeing the appellant
lying flat on his back. Mr Dumezweni was
insistent that both the appellant and the deceased were standing when
the deceased was
shot. Any suggestion that the incident took place on
the appellant’s property was vehemently rejected. When this was
put
to Mr Dumezweni his response was that the appellant’s
property was ‘far away from the spot where [the appellant]
shot
[the deceased]’. He maintained that the deceased had fallen on
the road.
[12]
It is difficult to understand, on his own version, exactly what was
visible to Mr Dumezweni
and what he actually saw of the shooting
incident. He said the reason why he did not see the shooting was
because the cattle were
in front of him and he was approaching from
behind. Even though he did not see the shooting, he heard the sound
of a gunshot and
saw the deceased falling down. In his evidence in
chief Mr Dumezweni said that he heard only one shot. Later he
confirmed
to the appellant that he had heard three shots being fired
but maintained that these were from the pellet gun and not the
revolver.
[13]
Constable Phoshoko and
Constable Chepape were the police officers who arrested the
appellant soon after the shooting.
They testified that they were
called to the scene of the shooting where they found the deceased’s
jersey, jacket and a two
litre bottle of milk lying on the ground.
Mr Dumezweni told them that the deceased had gotten into an
argument with the appellant,
who had then shot him. The appellant had
taken the deceased to hospital immediately afterwards. The police
fetched the appellant
from the hospital and brought him back to the
scene. As requested, the appellant went into the house and fetched
two guns, a revolver
and a pellet gun. The revolver had no ammunition
in it and there were no spent cartridges on the scene. Both
constables said there
was no blood on the clothing of the appellant
and no blood on the scene. They saw no fencing around either of the
properties, the
appellant’s and the neighbouring plot 104,
although Constable Chepape made reference to a fence around the
appellant’s
house.
[14]
Warrant Officer Shadung, working with the forensic unit
confirmed that the revolver and
air gun were in working order. The
revolver had a chamber for 5 rounds of ammunition in the cylinder. He
testified that the revolver
could not go off accidentally.
[15]
What took on great significance in the course of the trial was
whether there was gunshot residue
around the wound sustained by the
deceased. If a bullet were to be fired at close range, as in a
struggle, one would expect to
find ‘tattooing’ or
‘starring’ on the skin. This is the presence of small
puncture-like wounds on the skin
in a regular pattern.
Warrant Officer Shadung said that a gunshot from up to 50 cm
away would cause tattooing from the
gun powder residue. The skin
would tear apart into a star shape or cross sign and that is where
you would find the powder tattooing.
Dr
Alverez,
the trauma surgeon at Sunward Park said that the deceased was
bleeding profusely from a gunshot wound on the
right side of
chest, under the arm. Although not a ballistics expert, he saw no
tattooing, no starring, and no stellated lesions
(these are lesions
normally seen with close proximity contact or high velocity ballistic
penetration).
[16]
Dr E Apatu, the forensic pathologist who conducted the post
mortem testified that the
bullet went into the right hand side of the
chest, then upwards and back into the left chest cavity. There was
blood in the right
chest cavity, a partially collapsed right lung
with a perforating wound in the lower lobe of the right lung. The
left lung was
intact. As to the position of the shooter when the
revolver was fired, she vacillated between saying that the gun was
shot at a
ninety degree angle which she then changed to forty five
degrees, and then again, changed to somewhere in between. On whether
the
shot was at close range Dr Apatu said that she did not note
any gunshot residue around the wound but because it was a regular
circular wound it was not a distant shot. She then said it was ‘maybe
at the end of close range, the beginning of intermediate
range’.
She said if she were to make, what she described as a very rough
guess, the gun would have been perhaps 30 cm
or more from the
deceased when it went off. She concluded that the autopsy was not
suggestive of a close contact wound, based on
her findings. This was
because one would have found imprints of the muzzle, either partial
or complete, and a stellate wound. If
a little further away one would
expect tattooing which was also not present.
[17]
The trial court identified 5 issues for determination: whether the
appellant intentionally shot
the deceased; whether the deceased and
the appellant were a distance away from each other when the shot went
off, or struggling
for the firearm; whether Mr Dumezweni and the
deceased threatened the appellant; whether the cattle were on the
appellant’s
property; and whether the firearm was recovered
from inside the appellant’s house or from a trench on his
property.
[18]
The trial court accepted the testimony of Mr Dumezweni
describing him as a consistent and
honest witness who withstood
‘lengthy and gruelling’ cross examination by an
unrepresented accused. The court appeared
to accept that the evidence
of Mr Dumezweni as a single witness, who on his own admission
did not see the firearm go off,
would have been insufficient to prove
that the version of the appellant could not be reasonably possibly
true. It held that the
cautionary rule in respect of single witnesses
required further ‘guarantees’.
[19]
These took the form of corroboration for Mr Dumezweni’s
version in the evidence of
the other state witnesses, particularly
Dr Apatu, Warrant Officer Shadung and Dr Alverez. The
trial court said that
‘all three experts testified the firearm
was not in close proximity to the deceased when he was shot. There
was no starring
or tattooing to show the firearm was close to the
deceased’s chest when the deceased was shot’. Therefore,
it was concluded
that there was no close contact at the time and the
appellant’s version that he was in a skirmish over the firearm
with the
deceased when the shot went off could not be believed.
[20]
It is against this evidence that one must assess whether the
appellant had a fair trial. While
the trial court had been
cognisant of the need to explain fully to the appellant the
consequences of declining legal representation
at the outset of the
trial, at the end of the state’s case, the court merely
reminded the appellant that he had the right
to testify and to call
witnesses and that they would be cross-examined by the prosecutor.
Notwithstanding the technical nature
of some of the state’s
evidence, it was not drawn to the attention of the appellant that the
expert evidence may need to
be rebutted by an expert witness. Nor was
it suggested to him that in light of the evidence led by the state he
should reconsider
whether he required legal representation.
[21]
Even during sentencing, on 1 June 2018, the magistrate
remarked that the appellant
believed that his conviction ‘was
based on perceptions, and that the expert evidence should be
reconsidered.’ This
could have been remedied when the appellant
procured the services of an attorney to argue his leave to appeal.
Together with the
application for leave to appeal, the appellant’s
legal representative brought an application to adduce further
evidence in
terms of s 309B(5) of the Criminal Procedure Act 51
of 1977 (the CPA). This section provides:
‘
(5)
(a)
An application for leave to appeal may be accompanied by
an application to adduce further evidence (hereafter referred to as
an
application for further evidence) relating to the conviction,
sentence or order in respect of which the appeal is sought to be
noted.
(b)
An application for further evidence must be supported by an affidavit
stating that—
(i)
further evidence which would presumably be accepted as true, is
available;
(ii)
if accepted the evidence could reasonably lead to a different
decision or order;
and
(iii)
there is a reasonably acceptable explanation for the failure to
produce the evidence before
the close of the trial.
(c)
The court granting an application for further evidence must—
(i)
receive that evidence and further evidence rendered necessary
thereby, including
evidence in rebuttal called by the prosecutor and
evidence called by the court; and
(ii)
record its findings or views with regard to that evidence, including
the cogency
and the sufficiency of the evidence, and the demeanour
and credibility of any witness.
(6)
Any evidence received under subsection (5) shall for the purposes of
an appeal be deemed to be evidence taken or admitted at
the trial in
question.’
[22]
An application was made by the appellant to call the evidence of a
land surveyor, Mr Muller,
and Mr Wolmarans, a forensic and
ballistic expert, formerly employed by the South African police for
more than 20 years.
Mr Muller, using the police
photographs, identified the spot where the deceased was shot by
establishing where the clothing
was photographed by the police
immediately after the shooting. He concluded that this point was on
the appellant’s property,
not on the road or the neighbouring
plot. This contradicts the evidence of Mr Dumezweni.
[23]
Mr Wolmarans reconstructed the scene. His report details various
inconsistencies in the
evidence of Mr Dumezweni. Significantly,
he stated that because the deceased was wearing a T-shirt, any
gunshot residue would
be found on the clothing rather than the skin.
As the clothing was not sent to the forensic unit, Warrant Officer
Shadung
was not aware that it could provide a filter effect for the
gun shot residue. Similarly, the pathologist never received the
T-shirt,
nor was this fact put to her during her testimony. In
Mr Wolmarans’ view, because the shot was fired upwards,
the possibility
of the shot going off in a struggle could not be
excluded. As regards the pressure required to fire the revolver, he
stated that
Warrant Officer Shadung was correct that the firearm
can only fire with the correct pressure and double action requires
more
pressure than single pressure but the pressure was not tested.
[24]
In his judgment on the application to adduce further evidence, the
magistrate dismissed the application
on the grounds that he had
already found that the appellant’s evidence on how the deceased
had obtained the gunshot wound
to be a fabrication. Therefore, the
evidence of the proposed witnesses would not materially change the
outcome of the trial. As
regards the fact that the appellant had
conducted his own defence, quoting
S
v Petzer and Another,
[1]
the
magistrate found this to constitute insufficient grounds to allow
further evidence. This was particularly so, the magistrate
found, in
circumstances where he had explained to the appellant that he was
entitled to call witnesses to support his case.
[25]
The
locus
classicus
on the test to be applied for a successful application to adduce
further evidence is
S
v de Jager.
[2]
This
decision was before the enactment of s 309B
[3]
but
the basic principles remain unchanged, now subject to the
Constitution. Holmes JA said:
‘
This
Court, can, in a proper case, hear evidence on appeal; see
R
v Carr
1949 (2) 693 (AD); but the usual
course, if a sufficient case has been made out, is to set aside the
conviction and sentence and
send the case back for the hearing of the
further evidence, as was done, for example, in
R
v Mhlongo and Another
1935 AD 133.
However, it is well settled that it is only in an exceptional case
that the Court will adopt either of the foregoing courses. It
is
clearly not in the interests of the administration of justice that
issues of fact, once judicially investigated and pronounced
upon,
should lightly be re-opened and amplified. And there is always the
possibility, such is human frailty, that an accused, having
seen
where the shoe pinches, might tend to shape evidence to meet the
difficulty. Accordingly, this Court has, over a series of
decisions,
worked out certain basic requirements. They have not always been
formulated in the same words, but their tenor throughout
has been to
emphasise the Court’s reluctance to re-open a trial. They may
be summarised as follows:
(a)
There should be some reasonably sufficient
explanation, based on allegations which may be true, why the evidence
which is sought
to lead, was not led at the trial.
(b)
There should be a
prima
facie
likelihood of the truth of the
evidence.
(c)
The evidence should be materially relevant
to the outcome of the trial.’
Non-fulfilment
of any one of these requirements would ordinarily be fatal to the
application.
[4]
[26]
It has been held that the exercise of the court’s discretion to
receive further evidence
will be reserved for only exceptional
circumstances.
[5]
There
can be no doubt that there is a general need in the public interest
for finality in duly concluded litigation.
[6]
This
must be seen in the light of every person’s right to a fair
trial as set out in s 35(3)
[7]
of
the Constitution, which is now the overarching consideration in all
trials.
[27]
This Court in
Hanuman
v S
[8]
found
that the affidavit of an 11 year old complainant who sought to
retract her allegations of sexual impropriety against her
step-father, could not reasonably be true. The application to adduce
further evidence was refused. So too, in
S
v Romer,
[9]
where
an appellant sought to lead further medical evidence on the
appellant’s defence of sane automatism. This Court held
that
the medical evidence was controversial and related to conviction
rather than sentence which was the subject of the appeal.
[28]
The question of adducing further evidence has been dealt with in
several high court decisions.
In
Munyai
v S,
[10]
the
complainant sought to recant her evidence that the appellant raped
her. The court was not entirely convinced that the second
requirement, namely the truth of the complainant’s allegations,
had been met. However, it was not disputed that the complainant
and
the appellant had had consensual sex encounters when he was out on
bail. While this did not necessarily mean that the earlier
rape had
not occurred, the court held that there was the very real danger of a
miscarriage of justice. The conviction and sentence
were set aside
and the matter referred back to the trial court for the hearing of
further evidence, on the truth or falsity of
the rape allegations,
subject to certain directives, including making provision for legal
representation for the complainant.
[29]
In
Sebofi
v S,
[11]
the
court
mero
motu
remitted the matter for further evidence and directed that the
magistrate call for evidence relating to the specimens taken at
the
medical examination and the laboratory results, as well as any cell
phone records that may exist. In that matter, another rape
case, the
court decried the paucity of evidence which was not commensurate with
the seriousness of the charges and the resultant
life sentence. The
calibre of the case presentation by both the defence and the
prosecution, and the lack of proper forensic investigation
was
deprecated. It was found the magistrate, despite her best endeavours,
had not done enough to ensure that there was a fair trial.
[30]
In
War
v S
[12]
,
another instance of the recantation of a rape allegation by a child
whose father allegedly raped her, the court granted an application
to
the trial court to lead further evidence. In this instance, the child
herself had given conflicting versions even before the
trial began.
The court found that there was no reason to prefer the one version
over the other and as the appellant was facing
life in prison, it
would be an affront to justice to deny the appellant the opportunity
to investigate the evidence foreshadowed
in the application.
[31]
More recently in
Lottering
v S,
[13]
an
application in terms of s 309B(5) by the appellant, who was a
policeman convicted of armed robbery, was declined. The appellant
sought to call his wife as witness and laid his failure to do so
during the trial at the door of his legal representative. The
court
held that the appellant’s wife clearly had an interest in her
husband’s acquittal and, in any event, the complainant’s
identification of the appellant was overwhelmingly convincing. The
court noted the different considerations in criminal and civil
trials
[14]
and
stressed the importance of finality in litigation, which had been
enunciated in a long line of decisions. It was held that such
applications should not be granted where there is but a token
compliance with s 309B(5)(
b
).
[32]
While finality in litigation is an important consideration, this
should not be at the expense
of an accused person’s fair trial
rights. In this instance, it was not enough for the magistrate, at
the end of the State’s
case, to have merely informed the
appellant, an unrepresented accused, that he could call witnesses in
his defence. The importance
of the forensic evidence, and its
possible impact on the eventual outcome of the trial, should have
been fully explained to the
appellant. As a layperson, and from a
perusal of the record, it is clear that he did not have sufficient
skill and expertise to
understand what countervailing evidence was
required and, indeed, where he may procure evidence of such a
specialised nature. The
magistrate, after explaining the consequences
of the evidence, should have asked the appellant whether he wished to
call expert
witnesses in rebuttal, and if necessary, assisted him in
doing so. It would also have been apt at this stage to suggest to the
appellant that he reconsider his stance on legal representation, once
faced with evidence of a technical nature. The magistrate’s
failure to adopt either course of action, in my view, rendered the
trial unfair.
[33]
Where an appeal court has found the trial to be unfair, various
options are open to it. Section 19
of the Superior Courts
Act
[15]
empowers
a court hearing an appeal to remit a case to the court of first
instance or ‘confirm, amend or set aside the decision
which is
the subject of the appeal and render any decision which the
circumstances may require’.
[16]
Generally,
courts have looked favourably upon remittal to the trial court for
the hearing of further evidence, which is primarily
of a formal and
technical nature.
[17]
But
this is not necessarily so. The overriding principle must always be
the interest of justice.
[34]
The question then arises whether to remit the matter back to the
trial court or direct that the
matter commences
de
novo
.
In
Sebofi
the court declined an invitation by the State to order that the trial
start
de
novo
in terms of ss 313 and 324 of the CPA.
[18]
It
found that this was not an option open to it, as there was no
question of invalidity in the sense contemplated in those sections,
which are confined to technical failures.
[35]
In
Mokoena
v S
[19]
this
Court dealt with a technical irregularity in terms of s 324A
which resulted in the failure of justice. The high court
had remitted
the matter back to the same magistrate for the re-opening of the case
to allow the leading of further evidence. This
Court found that
because the magistrate had already made strong credibility findings
against the appellant it was not in the interests
of justice that the
same magistrate adjudicate the case.
[36]
Here too, the magistrate has made an adverse credibility finding
against the appellant. More
importantly, he has decided that the
proposed evidence would make no material difference to the outcome of
the case. In circumstances
where a judicial officer has
pre-determined an issue, remittal on the very same issue would amount
to a miscarriage of justice.
To remit this matter to the trial court
under these circumstances for the adjudication of further evidence
would not be fair to
the appellant. Once this is so, the only
alternative is for the matter to start
de novo
before a
different magistrate.
[37]
In the result the following order is made:
1
The appeal is upheld
.
2
The order of the high court is set aside and replaced with the
following
order:
‘
(a) The
appeal is upheld and the conviction and sentence of the appellant are
set aside.
(b) The trial is to
start
de novo
in the regional court, Vosloorus before a
different presiding officer.’
C
NICHOLLS
JUDGE
OF APPEAL
APPEARANCES:
For
appellant:
F Roets
Instructed
by:
Botha-Booysens & Van As Attorneys, Boksburg
Symington
& De Kok, Bloemfontein
For
respondent: M
Mashego
Instructed
by: The
Director of Public Prosecutions, Johannesburg
The
Director of Public Prosecutions, Bloemfontein.
[1]
S v Petzer and Another
[1992] 1 All SA 99
(A); 1992(1) SACR 633 (A).
[2]
S v de Jager
[1965] 2 All SA 490
(A);
1965
(2) SA 612
(A) at 613c-d.
[3]
This
section was inserted by
s3
of The
Criminal Procedure Amendment Act
76 of 1997
, which came into effect on 28 May 1997.
[4]
S v
de Jager
fn 2 above at 613E.
[5]
Colman v
Dunbar
1933
AD 141
at
161-3
;
R
v Carr
1949
(2) SA 693
(A) at 699;
S
v Louw
[1990] ZASCA 43
;
[1990] 4 All SA 703
(AD);
1990 (3) SA 116
(A) at 123H;
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metro Rail and
Others
[2004] ZACC 20
(CC);
2005 (4) BCLR 301
(CC);
2005 (2) SA 359
(CC)
para 41;
Bo-Kaap
Civic and Ratepayers Association and Others v City of Cape Town and
Others
[2020]
2 All SA 330
(SCA);
[2020] ZASCA 15
para 64.
[6]
S v
Sterrenberg
1980 (2) SA 888
(A) at 893F-G.
[7]
Section
35 (3) of the Constitution provides:
‘
(3)
Every accused person has a right to a fair trial, which includes the
right –
(a)
to be informed of the charge with sufficient detail to answer
it;
(b)
to have adequate time and facilities to prepare a defence;
(c)
to a public trial before an ordinary court;
(d)
to have their trial begin and conclude without unreasonable
delay;
(e)
to be present, when being tried;
(f)
to choose, and be represented by, a legal practitioner, and to be
informed of this
right promptly;
(g)
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 this
right promptly;
(h)
to be presumed innocent, to remain silent, and not to testify
during the proceedings;
(i)
to adduce and challenge evidence;
(j)
not to be compelled to give self-incriminating evidence;
(k)
to be tried in a language that the accused person understands or, if
that is not
practicable, to have the proceedings interpreted
in that language;
(I)
not to be convicted for an act or
omission that was not an offence under either
national or
international law at the time it was committed or omitted;
(m)
not to be tried for an offence in
respect of an act or omission for which that
person has
previously been either acquitted or convicted;
(n)
to the benefit of the least severe of
the prescribed punishments if the prescribed punishment for the
offence has been changed
between the time that the offence
was
committed and the time of sentencing; and
(0)
of appeal to, or review by, a higher court.’
[8]
S v
Hanuman
[1998] 1 All SA 254
(A);
1998
(1) SACR 260
(SCA).
[9]
S v Romer
[2011]
ZASCA 46; 2011 (2) SACR 153 (SCA).
[10]
Munyai v S
2017
(2) SACR 168
(GJ);
[2017] 3 All SA 23
(GJ); [2017] ZAGPJC 121.
[11]
Sebofi
v S
[2016] ZAGPJHC 290.
[12]
War v S
2015(1)
SACR 571 (GP).
[13]
Lottering v S
2020
(2) SACR 629 (WCC).
[14]
Ibid
para 28, where reference is made to
S
v Carr.
[15]
Superior Courts Act 10 of 2013
.
[16]
Ibid,
section 19(
d
).
[17]
Mathikinca
v S
[2015] ZAWCHC 134
;
2016 (1) SACR 240
(WCC) para 17; S v Ross
[2012] ZAWCHC 171
;
2013 (1) SACR 77
(WCC) para 13.
[18]
Sebofi v S
fn
11 above.
[19]
Mokoena
v S
[2019]
ZASCA 74
;
2019 (2) SACR 355
(SCA).