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2022
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[2022] ZAFSHC 351
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S v Thabethe and Others (08/2022) [2022] ZAFSHC 351 (14 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 08/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
THE
STATE
And
MBANA
PETER THABETHE
ACCUSED
1
LIMAKATSO
MOOROSI
ACCUSED 2
SEIPATI
SILVIA DHLAMINI
ACCUSED
3
IQBAL
MEER SHARMA
ACCUSED
4
NULANE
INVESTMENTS 204 (PTY) LTD
ACCUSED
5
(as
represented by Accused 4)
DINESH
PATEL
ACCUSED
6
ISLANDSITE
INVESTMENTS ONE HUNDRED AND EIGHTY ACCUSED
7
(PTY)
LTD
(as
represented by Accused 8)
RONICA
RAGAVAN
ACCUSED
8
HEARD
ON:
03
NOVEMBER 2022
CORAM:
N.M.
MBHELE DJP
DELIVERED
ON:
_ 14
DECEMBER 2022
[1]
This is an application to note a
special entry in terms of section 317(1) of the Criminal
Procedure
Act 51 of 1977(CPA)
[1]
brought by accused 6, 7 and 8 (the accused). The accused
unsuccessfully brought an application to compel the
state to furnish
them with further and better particulars in order to prepare for
their criminal trial. This application was triggered
by the judgment
in which the accused’s aforementioned application was refused.
[2]
Aggrieved by the refusal of the accused’s application in terms
of section 87,
Mr. Aldwage, on behalf of accused 6, and Mr.
Hellens, on behalf of accused 7 and 8, moved an application in
terms
of section 317(1) from the bar immediately after delivery of
judgment.
[3]
There was no substantive
application filed. Messrs. Aldwage and Hellens submitted
that
the refusal of the application to compel the state to furnish the
accused with further and better particulars constitutes
and
irregularity in that the particulars provided by prosecution are
inadequate to enable the accused to prepare for trial.
They
contended that the further particulars provided do not sufficiently
inform the accused of the case they have to answer.
[4]
Section 317 (1) of the CPA
provides as follows:
“
(1)
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 as 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.”
[5]
In
S
v Khoza And Others
[2]
2010 (2)
SACR 207
(SCA)
[44]
The grounds open to a trial judge in refusing to note a special
entry are restricted: 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. There is a further ground not expressly mentioned in s 317(1),
but inherent in the section: when the irregularity
appears from the
record itself the special entry procedure, whilst convenient, may be
unnecessary because of the wide powers of
appeal enjoyed
by the SCA in terms of s 316 of the Act.
[45]
In an application for leave to appeal against the refusal to note a
special entry, it is necessary for an applicant to show
a reasonable
prospect of success on appeal, whether the irregularity appears
ex
facie
the record or not.
[46]
Even if the court considers that the trial of the appellants was
rendered unfair by the presence of an irregularity, that is
not
enough to vitiate the proceedings, unless the irregularity is per se
such as to have that effect, or there has been a failure
of justice,
in that the evidence (and credibility findings, if any)
unaffected by the irregularity was insufficient
to prove the guilt
beyond a reasonable doubt.
5
In
the last-mentioned regard, s 322(1) of the Act, it seems to me,
provides a reasonable and justifiable limitation on the
constitutional
right to a fair trial. No argument was addressed to us
on this matter, but counsel did not submit otherwise. The
Constitutional
Court has held that the meaning of the concept
'failure of justice', in s 322(1), must be understood to raise
the
question whether the alleged irregularity stated in the special entry
has led to an unfair trial.
[6]
In
Nkabinde
v The State (115/17)
[2016] ZASCA 75
(01 June 2017)
[3]
the
following the SCA remarked as follows when dealing with the
provisions of Section 317:
"[27]
The purpose of a special entry is to raise an irregularity
in connection with or during the trial as a ground
of
appeal against conviction under s 318(1) of the Act. The latter
section provides, inter alia, that if a special entry
is
made on the record, the person convicted may appeal to this Court
against his conviction on the basis of the irregularity stated
in the
special entry. Recently this Court has held that the sole purpose
of a special entry is to record an irregularity
that does
not appear on the record. As is shown below, all of the so-called
special entries are not proper special entries but
grounds of appeal
under s 316 of the Act, because they appear on the record. Some 60
years ago this Court held that the
special entry procedure is of
vital importance and should be utilised where the irregularity does
not appear on the record of the proceedings. So, the
statement in the application for leave to appeal to this Court
that a special entry is 'simply a method
of applying
for an appeal in regard to irregularities on or off
the record' is quite wrong.
[28]
The proviso to s 322(1) of the Act makes it clear that a conviction
or sentence must not be set aside or altered
by reason of any
irregularity or defect in the record or proceedings, unless it
appears to the appellate court that a failure
of justice
has in fact resulted from such irregularity or defect. In Naidoo JA
identified two broad categories of irregularities:
those of a serious
and gross nature that per se vitiate a trial; and those of a less
serious nature, where the court
can separate the good from the bad
and is able to consider the merits of the matter.
[32] It
must be stressed that an application for a special entry is not there
for the asking the requirements of s 317(1) of
the Act must be met,
and the court must satisfy itself that the application is bona fide
and that it is not frivolous, absurd or
an abuse of the process. The
court a quo failed to do so. All the so-called
special entries should not
have been made. In some instances, they
are simply not bona fide. In others, they are frivolous and consist
of points that lack
any substance and cannot be seriously taken; or
they are absurd in that they are inconsistent with reason or common
sense and unworthy
of serious consideration."
[7]
It is clear from the above authorities that the purpose of special
entry is to record
irregularities that do not appear on the
record.
[4]
The court does not
have a discretion to refuse the application unless it is of the view
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.
[8]
The accused’s complaint
stems from a judgment that refused their section 87 application.
The
judgment with full reasons forms part of the record. For the
application to succeed the accused must show that there was an
irregularity in the proceedings. It is well established that an
irregularity in the proceedings relates to deviation from prescribed
procedures and legal principles. It is not about the results or
incorrect judgment; it is about the process that led to the decision.
There is a legal process available for the accused to demonstrate
their displeasure with the verdict returned in their section
87
application other than the noting of a special entry. They may lodge
an appeal at the end of the trial should they be dissatisfied
with
its outcome. The court of appeal would deal with the irregularity if
it is found to exist.
[9]
The indictment that the accused were provided with contains the
elements of the offense
they are charged with. It informs them of the
case they have to answer at trial. It contains a statement of facts
detailing how
the alleged offences were committed. The accused know
which witnesses the prosecution intends to call to prove its case.
They have
been provided with statements of witnesses that the state
intends to call. All this information is sufficient to enable
the
accused to answer to the charges and prepare for trial.
[10]
In
Nkabinde
it was emphasised that the
application for special entry is not there for the taking. The court
must be satisfied that it meets
the requirements set out in section
317. Having considered the submissions made on behalf of the accused
and that the irregularity
complained of is on record, I am of the
view that the application is unnecessary and granting it would
constitute an abuse of the
process of the court. The application must
fail.
[11]
The following order is made:
Order
1.
An application for special entry in
terms of
section 317(1)
of the
Criminal Procedure Act 51 of 1977
is
refused.
N.M.
MBHELE, DJP
On
behalf of the State: Adv
P Serunye
Adv
J Witbooi
Instructed
by:
NPA
BLOEMFONTEIN
On
behalf of Accused 6: Mr.
Aldwage SC
Instructed
by SchindlerS
Attorneys
JOHANNESBURG
On
behalf of Accused 7 and 8 Adv
Hellens SC
Instructed
by Krause
Attorneys Inc.
C/O
Honey Attorneys
BLOEMFONTEIN
[1]
Criminal
Procedure Act 51 of 1977
[2]
S
v Khoza And Others
2010 (2) SACR 207
(SCA) at par. 44-46
[3]
Nkabinde
v The State (115/17)
[2016] ZASCA 75
(01 June 2017) par. 27….
[4]
See Hiemstra’s Criminal Procedure at 31-29: When the
irregularity appears on the record, it is unnecessary to use the
process in terms of
section 317
, because the irregularity can simply
be raised as grounds for appeal in the appeal under
section 316.
See
also S v De Vries 2012(1) SACR 186 SCA at par. 29