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[2017] ZASCA 156
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Sayed and Others v S (530/2017) [2017] ZASCA 156; 2018 (1) SACR 185 (SCA) (24 November 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 530/2017
In the
matter between:
MUSTAQH
SAYED
FIRST
APPELLANT
AASIM
COTWELL
SECOND
APPELLANT
MOHAMED
RAWAT
THIRD
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Sayed v The State
(530/2017)
[2017] ZASCA 156
(24
November
2017)
Coram:
Ponnan, Petse, Willis JJA and Lamont and Schippers AJJA
Heard
:
1 November 2017
Delivered:
24 November 2017
Summary:
Condonation and reinstatement of lapsed
appeal – explanation for delay in lodging notice of appeal and
appeal record inadequate
– delay extreme and explanation
unacceptable – condonation refused – special plea of
autrefois acquit
and
application to stay prosecution - no prospect of success –
conduct of judicial officer - must be seen to be independent
and
impartial and treat persons with civility and courtesy –
referred to Magistrate’s Commission.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Pretorius and Bam JJ sitting as
Court of Appeal):
‘
1
The application for condonation is dismissed.
2
The Registrar is directed to forward a copy of this judgment to the
Magistrate’s Commission and to the President of the
Regional
Court for Benoni.’
JUDGMENT
Schippers
AJA (Ponnan, Petse and Willis JJA and Lamont AJA concurring):
[1]
This appeal lapsed for
failure on the part of the appellants to timeously prosecute it. The
initial question before us is whether
such failure should be condoned
and the appeal reinstated.
Facts
[2]
The appellants were
convicted in the regional court Benoni, of murder, attempted murder
and two counts of kidnapping in 2006. Their
case was referred to the
North Gauteng High Court, Pretoria (the high court), for sentence in
terms of the former s 52 of the Criminal
Law Amendment Act 105 of
1997 (the Act). Section 52(1) provided that if a regional court,
after it had convicted an accused of
an offence referred to in
Schedule 2 to the Act, was of the opinion that such offence merited
punishment in excess of its jurisdiction
under s 51, the court shall
stop the proceedings and refer the accused to the high court for
sentence.
[1]
[3]
In July 2009 the case
came before Louw J in the high court. The learned judge requested a
statement from the regional magistrate
setting out her reasons for
the convictions, as contemplated in s 52(3)
(b)
of the Act.
[2]
After considering the regional magistrate’s statement, Louw J
set aside the convictions on the basis that the proceedings
in the
regional court were irregular and not in accordance with notions of
basic fairness and justice guaranteed by the Constitution.
[3]
[4]
In November 2010 fresh
charges were preferred against the appellants on the original
complaint in the regional court, Benoni (the
second trial). In that
trial they raised a special plea of
autrefois
acquit
and applied
for a permanent stay of prosecution. The regional court dismissed the
special plea on the grounds that the appellants
were not acquitted on
the merits of the case against them; and refused a stay of
prosecution on the ground that they did not suffer
irreparable
prejudice. The appellants were granted leave to appeal to the high
court.
[5]
The court a quo
(Pretorius J and Kganyago AJ) dismissed the appeal. It held that the
magistrate had correctly rejected the plea
of
autrefois
acquit
because Louw
J had set aside the appellants’ convictions solely on account
of the irregularities in their trial in 2006,
not on the merits of
the case; and that there were no extraordinary circumstances
warranting a stay of prosecution.
[6]
The appellants then
applied to this Court for special leave to appeal, which was granted
on 9 September 2014. In terms of rule 7(1)
of the rules of this
Court,
[4]
the appellants were required to lodge their notice of appeal within
one month after they were granted leave to appeal. Under rule
8(1)
they had to lodge the record within three months of delivery of the
notice of appeal. They lodged the notice and the record
of
proceedings (which in this case consisted only of 250 pages) only on
31 May 2017, more than two years later. By then the appeal
had
lapsed.
[5]
The
applications for condonation
[7]
The appellants brought
two applications for condonation for the late filing of the appeal
record and the notice of appeal. The Director
of Public Prosecutions
(DPP) opposed the application to condone the late filing of the
record. The second application for condonation
was not opposed.
[8]
The observation of
Heher JA in
Uitenhage
Transitional Local Council v South African Revenue Service
[6]
regarding the requisites for condonation, is particularly apposite:
‘
One would have hoped that the many
admonitions concerning what is required of an applicant in a
condonation application would be
trite knowledge among practitioners
who are entrusted with the preparation of appeals to this Court:
condonation is not to be had
merely for the asking; a full, detailed
and accurate account of the causes of the delay and their effects
must be furnished so
as to enable the Court to understand clearly the
reasons and to assess the responsibility. It must be obvious that, if
the non-compliance
is time related then the date, duration and extent
of any obstacle on which reliance is placed must be spelled out.’
[9]
The factors which a
court considers when exercising its discretion whether to grant
condonation, include the degree of non-compliance
with the rules, the
explanation for it, the importance of the case, the respondent’s
interest in the finality of the judgment
of the court below, the
convenience of the court and the avoidance of unnecessary delay in
the administration of justice.
[7]
[10]
The applications for
condonation are hopelessly deficient: there is no detailed account of
the causes of delay and long periods
of time during which nothing was
done in preparation of the appeal (ranging from three months to one
year) are unexplained. To
begin with, the applications for
condonation of the late filing of the record and the notice of
appeal, were brought only on 17
March 2017 and 11 May 2017,
respectively. It is settled that an appellant must apply for
condonation without delay whenever he
realises that he has not
complied with a rule of this Court.
[8]
Why the applications for condonation were brought at such a late
stage, has also not been explained.
[11]
The appellants’
attorney, Mr C Botha, has done nothing in the preparation of the
appeal, nor furnished any explanation for
the causes of the delay.
Instead, he abdicated that responsibility to Ms M P Jiyane, an
administrative assistant in his employ.
Ms Jiyane deposed to the
founding affidavit in each of the condonation applications and said
that her duties ‘are to oversee
and to administer all matters
regarding the . . . appeal’. All the steps taken to compile the
record were done by the appellants’
counsel, Mr H F Klein.
[12]
The explanation
for the delay in Ms Jiyane’s affidavit is the following.
Shortly after receiving the order granting leave
to appeal (dated 9
September 2014), a quotation to compile the record was sought. Mr
Klein decided which documents should form
part of the record and
handed them to the transcribers who informed him that the parties had
to agree to the documents that should
be included in the record. No
details were given as to when this was done.
[13]
Nearly six months
later, on 4 March 2015, a delay which is unexplained, Mr Klein had a
meeting with Mr G Maritz of the DPP and it
was agreed that the third
appellant’s attorney should also be involved in the preparation
of the record. On 2 April 2015
a letter to that effect was written to
the third appellant’s attorney and on 4 May 2015 the contents
of the record were finalised
between the parties, including Mr Louw,
for the third appellant. It took three months to decide what
documents should form part
of a 250-page record.
[14]
On 19 May 2015 Mr Klein
wrote to the DPP to enquire if the State’s only eyewitness, a
Mozambican citizen, had absconded; and
whether the trial would
proceed. On 12 August 2015 the DPP advised the appellants’
attorneys that the witness was available
and would testify. The
appellants have not given any indication of the steps taken, if any
(for nearly three months), to ascertain
from the DPP whether the
trial would proceed.
[15]
Another two months went
by and, on 16 October 2015, Mr Klein and Mr Maritz signed a
‘memorandum of agreement’ in terms
of which they agreed
to limit the appeal record. This, despite the fact that the contents
of the record had already been finalised
between the parties on 4 May
2015. There is no explanation for the delay between 12 August 2015
and 16 October 2015 (two months).
A ‘year later’ (in
October 2016), Ms Jiyane says that they amended the memorandum of
agreement, by which time the record
had still not been lodged.
[16]
Ms Jiyane’s
affidavit is silent as to when the documents comprising the record
were given to the transcribers. There is thus
no explanation for the
delay between 4 May 2015 (when the contents of the record had been
finalised) and January 2016 – a
period of eight months - when
Mr Klein collected the record from the office of the Legal Aid Board,
Pretoria.
[17]
When Mr Klein fetched
the record from the Legal Aid Board in January 2016, he kept a copy
for himself and Mr Louw, and handed the
remaining copies to Ms
Jiyane. She kept them in her office until September or October 2016
(at least nine months) when Mr Klein
collected them. This delay also,
is not explained. Ms Jiyane says that shortly after receiving the
record (again, no details are
given), ‘Mr Klein realised that
the record was not the record he requested from the Transcribers’,
and asked her not
to send it to their correspondent attorneys in
Bloemfontein.
[18]
The transcribers took
about two weeks to compile the record, between 21 October 2016 and 3
November 2016, when they certified it
as being correct. Once again,
there is no explanation for a delay of some seven months - between 3
November 2016 when the record
was completed and 31 May 2017 - when it
was eventually filed. Even after those long delays, a proper record
of the proceedings
was not lodged. Important documents (such as
the record of postponements in the regional court and the judgment by
the regional
magistrate in the first trial) were not included in the
record; and documents which should not have formed part of the
record,
such as heads of argument and counsel’s address, were
included.
[19]
I come now to the
application for condonation of the late filing of the notice of
appeal. Ms Jiyane gave a single reason for the
late filing of the
notice. It is this: ‘[W]e were under the erroneous impression
that the application for leave to appeal
filed in the High Court
Appeal, was sufficient.’ This is not an explanation, let alone
a satisfactory one, for the delay
in filing the notice. Of course,
had Mr Botha simply read the rules when leave to appeal was granted,
he would have known precisely
when the notice of appeal and the
record had to be filed. An attorney instructed to note an appeal is
required to acquaint himself
with the rules of the court in which the
appeal is to be prosecuted.
[9]
The notice of appeal was not lodged timeously because Mr Botha
neglected his duties to the court and his clients, and left the
matter entirely in the hands of an administrative assistant, who
evidently has no legal training.
[20]
Further, the late
filing of the record and notice of appeal has a direct impact upon
the respondent’s interest in the finality
of the judgment by
the court a quo. Here the appellants are facing serious criminal
charges in the regional court, the judgment
in favour of the
respondent concerns a special plea and a refusal to stay a
prosecution and not the merits of the matter, and both
the
Constitution and the interests of justice require that the pending
case against them be finalised expeditiously.
[21]
Ms S Fisher-Klein, who
appeared for the appellants, rightly conceded that there has been a
flagrant disregard of the rules, but
submitted that non-compliance
with the rules by the attorney should not be laid at the door of the
appellants. The dictum of Steyn
CJ in
Salojee
,
[10]
provides a complete answer to this submission:
‘
I should point out, however, that it has
not at any time been held that condonation will not in any
circumstances be withheld if
the blame lies with the attorney. There
is a limit beyond which a litigant cannot escape the results of his
attorney’s lack
of diligence or the insufficiency of the
explanation tendered. To hold otherwise might have a disastrous
effect upon the observance
of the Rules of this Court. Considerations
ad misericordiam
should not be allowed to become an invitation to laxity. In fact this
Court has lately been burdened with an undue and increasing
number of
applications for condonation in which the failure to comply with the
Rules of this Court was due to neglect on the part
of the attorney.
The attorney, after all, is the representative whom the litigant has
chosen for himself, and there is little reason
why, in regard to
condonation of a failure to comply with a Rule of Court, the litigant
should be absolved from the normal consequences
of such a
relationship, no matter what the circumstances of the failure are.’
[22]
Moreover, this Court
has held that in cases of flagrant breaches of the rules, especially
in the absence of an acceptable explanation,
condonation may be
refused regardless of the merits of the appeal; this applies even
where the blame lies solely with the attorney.
[11]
[23]
Although this is a case
where condonation could justifiably be refused irrespective of the
merits of the appeal, we nevertheless
invited Ms Fisher-Klein to
address us on the merits of the appeal so as to enable us to assess
its prospects of success.
[24]
As already stated, in
the second trial the appellants raised the plea of
autrefois
acquit
, namely that
they had already been acquitted of the offences with which they were
charged, as contemplated in
s 106(1)
(d)
of the
Criminal Procedure Act 51 of 1977
.
[12]
The rule against double jeopardy is enshrined in
s 35(3)
(m)
of the Constitution, which states that every accused person has a
right to a fair trial, which includes the right not to be tried
for
an offence for which that person has previously been either acquitted
or convicted.
[13]
[25]
More than 80 years ago,
in
Manasewitz
,
[14]
Stratford JA held that the requisites for a plea of
autrefois
acquit
are that the
accused must have been tried previously on the same charge by a court
of competent jurisdiction and acquitted on the
merits. This holding
has been affirmed by the Constitutional Court as follows:
‘
The requirement that the previous acquittal
must have been on the merits, or to put it differently, that the
accused must have been
in jeopardy of conviction, means that, if the
previous prosecution was vitiated by irregularity, then it cannot
found a plea of
autrefois acquit
in a subsequent prosecution. That is because the accused was not
acquitted on the merits and was never in jeopardy of conviction
because the proceedings were vitiated by irregularity.’
[15]
[26]
This is such a case.
Louw J held that the proceedings were not in accordance with justice
because of the conduct of the regional
magistrate, Ms E Schutte, more
particularly in the following respects. The regional magistrate
required a trial within a trial
to establish whether witness
statements were read by, or read back to, the relevant deponent,
before the defence could cross-examine
on those statements. She had
repeatedly interjected during the presentation of evidence, took over
the questioning and made inappropriate
comments on the value of the
evidence whilst it was being adduced. In the course of the
proceedings the regional magistrate indicated
that she had already
made up her mind as to the injuries sustained by the complainant.
[27]
The regional magistrate
almost immediately took over the questioning of Mr Sayed, the first
appellant, during his evidence in chief.
His cross-examination
covered some 44 pages, in which there were 93 interruptions by the
magistrate. When Mr Sayed, who is Muslim,
testified, the regional
magistrate questioned him and then sarcastically remarked: ‘I
think I should go to a mosque okay.’
The regional magistrate
also took over the examination of deceased’s wife, to the point
that the prosecutor remarked that
he could not compete with the
court.
[28]
The regional magistrate
appears to have prejudged the evidence of a police officer when, in
the course of his evidence, she said:
‘
No, listen, listen you know what sir I hope
to God that you do something else but investigate or attend scenes
you are not being
coerced, the point is I am telling you and Mr Botha
[the defence attorney] will tell you that on the evidence it is
common cause
between the state and the defence you are wrong full
stop.’
[29]
Louw J held that
a reasonable person ‘would infer bias as the most likely reason
for the regional court magistrate’s
unwarranted findings,
utterances and her judicial impatience and intolerance’; and
concluded that in the light of the extensive
nature of the
irregularities, the convictions had to be set aside. The following
statement by Louw J, namely, ‘I do not give
judgment on the
merits of the case’, places it beyond question that the
appellants’ convictions were not set aside
on the basis of any
finding on the merits, but on account of the irregularities in the
proceedings before the regional court which
were so gross that they
rendered the entire trial invalid. This Court has held that in such a
case, the conviction is set aside
without reference to the merits and
the accused can be retried.
[16]
[30]
For the above reasons
the appellants’ plea of
autrefois
acquit
, in my
opinion, has no prospect of success in the appeal.
[31]
As to the stay of
prosecution, the appellants contended that the court a quo erred in
not finding that a cumulative time-lapse of
nine years was so
unreasonable as to warrant a stay of prosecution. That, however, does
not paint the true picture and ignores
the following facts. The
proceedings in the regional court ran over three years, during which
there was no unreasonable delay.
Additional time was taken with
obtaining the s 52 statement from the regional magistrate; and the
appellants were subsequently
acquitted because of gross
irregularities which rendered their entire trial invalid. The
appellants were released on bail and consequently
suffered no
prejudice.
[32]
Indeed, it is the
appellants’ case that unreasonable delays were caused by
postponements in the high court since their first
appearance on 22
August 2007 until Louw J delivered judgment on 25 September 2009; and
that this was ‘the most expensive
period’ during which
three advocates were engaged for five days. In this regard the
appellants relied upon the right to a
fair trial in terms of s 35(3)
of the Constitution, which includes the right to a speedy trial (s
35(3)
(d)
)
and the right to a legal practitioner of their choice (s 35(3)
(f)
,
seemingly on the basis that the appellants may run out of funds and
will have to be assisted by the Legal Aid Board.
[33]
On the totality of the
evidence, I do not consider that the delays in the high court justify
a stay of prosecution. The case could
not be heard on 22 August 2007
due to an overcrowded roll. It was postponed to 14 April 2008, 12 May
2008, 13 October 2008 and
14 April 2009 because the record was not in
the court file. The judge who had to hear the case on 14 April 2009
recused himself
because he knew the regional magistrate too well.
Louw J heard the case on 27 July 2009 and requested the regional
magistrate to
furnish reasons for the conviction. The case was
postponed to 21 August 2009 and judgment was delivered on 25
September 2009. The
appellants were not prejudiced at all, on the
contrary their convictions were set aside.
[34]
The decision to retry
the appellants was made in October 2009. There is no explanation as
to why the second trial commenced a year
later, on 1 November 2010.
The appellants were given written notice to appear and released on
warning. The trial was delayed because
in March 2011 the appellants
made representations to the DPP to withdraw the charges against them.
On 31 May 2011 their attorney
was informed that the representations
were unsuccessful. Thereafter, the appellants sought an order in the
high court ‘requesting
Judge Louw to amend, change or
supplement his judgement [as to] whether the merits were indeed
considered by him’. On 14
February 2012 the appellants withdrew
that application and subsequently requested the trial court to
postpone the case to 31 May
2012.
[35]
On 31 May 2012 the plea
of
autrefois acquit
and the application for a stay of prosecution were argued in the
regional court. Judgment was delivered on 14 September 2012 and
thereafter the appellants were granted leave to appeal to the high
court, which dismissed the appeal on 8 November 2013. Subsequently,
on 9 September 2014 this Court granted the appellants special leave
to appeal.
[36]
So, from the date of
their first appearance in the second trial, the delays in the
finalisation of that trial were caused solely
by the appellants, as a
result of their representations to the DPP, their application for the
clarification of the order of Louw
J and the appeals pursuant to the
dismissal of the plea of
autrefois
acquit
and their
application for a stay of prosecution.
[37]
In these circumstances,
an application for a stay of prosecution is simply unjustified. The
appellants have been charged with very
serious crimes: murder,
attempted murder and two counts of kidnapping. As the Constitutional
Court has held, barring a prosecution
before a trial begins, without
any opportunity to ascertain the real effect of a delay on the
outcome of the case is far-reaching
as ‘it prevents the
prosecution from presenting society’s complaint against an
alleged transgressor of society’s
rules of conduct.’ Such
radical relief will seldom be justified in the absence of significant
prejudice to the accused.
[17]
[38]
Although there was some
delay in the high court between August 2007 and September 2009, the
appellants were not prejudiced by the
delay; and they suffered no
prejudice as a result of the delays pursuant to the second trial. And
the circumstances of their case
are nowhere near extraordinary to
justify a stay of their prosecution.
[18]
[39]
In my view, the
application for a stay of prosecution likewise has no prospects of
success on appeal.
[40]
It follows that the
only appropriate order in the circumstances, is one dismissing the
application for condonation of the late filing
of the appeal record.
[41]
What remains is
the unjudicial conduct of the regional magistrate. I have referred
above to the irregularities which Louw J found
evinced bias on the
part of the regional magistrate. This led to a miscarriage of justice
where the appellants had been convicted
of serious charges. What is
more disturbing is that the appellants’ case was not the first
in which the regional magistrate
has displayed such conduct: three
appellate courts, including this Court, have found that she behaved
in a manner unbecoming a
judicial officer.
[19]
[42]
In
Ndlangamandla
,
[20]
the high court found that neither the prosecutor nor the defence were
given an opportunity to present evidence in a manner they
considered
appropriate because the regional magistrate constantly descended into
the arena. She behaved in an ‘irritable,
derogatory and
outrageous manner’; she was discourteous to all officials,
parties and witnesses, and hurled insults with
impunity. The court
noted that the regional magistrate had contemptuously ignored its
admonishments in the past.
[21]
[43]
This Court in
Smith
,
[22]
found that the regional magistrate was rude to the prosecutor, the
witnesses, the appellant in that case, and his attorney. She
interfered with the presentation of the case. She did not treat the
officers of the court, the witnesses or the appellant with
dignity.
Her interjections ‘were often derogatory and insulting and
sometimes nonsensical.’
[23]
[44]
In
Phiri
[24]
the court observed:
‘
The trial is fraught with serious
irregularities impacting the core of the proper administration of
justice. The said irregularities
are manifested by the manner of
criticising the police, the prosecution, the defence and this court.
Ms … has been called
stupid
,
the public prosecutor is directed to watch TV and DSTV on channel 69,
and she was also given lessons on how to conduct the prosecution
during court proceedings. From the record nearly every arm of the
court is labelled incompetent. I must remark, as I hereby do,
that
such conduct is unbecoming and should be discouraged at all costs.
Discourtesy to witnesses cannot be condoned as well as
insults hurled
with impunity
in facie curiae
.
’
[25]
[45]
The conduct of the
regional magistrate erodes public confidence in the judicial system.
Ngcobo CJ put it this way:
‘
In my view it is fundamental to our
judicial system that judicial officers are not only independent and
impartial, but that they
are also seen to be independent and
impartial. Civility and courtesy should always prevail in our courts.
Litigants should leave
our courts with a sense that they were given a
fair opportunity to present their case. This is crucial if public
confidence in
the judicial system is to be maintained. And public
confidence in the judicial system is essential to the preservation of
the rule
of law, which is so vital to our constitutional democracy.
Therefore, legal representatives should not stand by as spectators
over
what may convey an impression of bias. They should raise any
objection as soon as reasonably practicable. This will allow the
judicial
officer to explain his or her behaviour and, if necessary,
correct that behaviour. Judicial officers, it must be remembered, are
only human. This will make our courts vigilant of their behaviour and
ensure that they prevent behaviour that may create an apprehension
of
bias.’
[26]
[46]
In the
circumstances, we have no alternative but to again refer the regional
magistrate’s conduct to the Magistrate’s
Commission and
the President of the Regional Court, Benoni, in the hope that they
will urgently take steps to avoid a recurrence
of the unjudicial
conduct displayed by the regional magistrate.
[47]
The following order is
made:
‘
1 The application for
condonation is dismissed.
2 The Registrar is directed to forward a copy of this
judgment to the Magistrate’s Commission and to the President of
the
Regional Court for Benoni.’
_________________
A
Schippers
Acting
Judge of Appeal
Appearances
For
Appellant: S F Fisher-Klein
Instructed
by:
Botha
Attorneys, Johannesburg
Honey
Attorneys, Bloemfontein
For
Respondent: G J C Maritz
Instructed
by:
Director
of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
Section 52(1) provided:
‘(1) If a regional court, after it has convicted an accused of
an offence referred to in Schedule 2 following on-
(a) a plea of guilty; or
(b) a plea of not guilty,
but before sentence, is of the opinion that the offence in respect
of which the accused has been convicted merits punishment
in excess
of the jurisdiction of a regional court in terms of section 51, the
court shall stop the proceedings and commit the
accused for sentence
by a High Court having jurisdiction.
[2]
Section 52(3)
(b)
provided:
‘The High Court shall, after considering the record of the
proceedings in the regional court, sentence the accused, and
the
judgment of the regional court shall stand for this purpose and be
sufficient for the High Court to pass sentence as contemplated
in
section 51: Provided that if the judge is of the opinion that the
proceedings are not in accordance with justice or that doubt
exists
whether the proceedings are in accordance with justice, he or she
shall, without sentencing the accused, obtain from the
regional
magistrate who presided at the trial a statement setting forth his
or her reasons for convicting the accused.’
[3]
In terms of s
52(3)
(e)
(iv) the high
court, after it had considered the statement by the magistrate, was
authorised, inter alia, to set aside the conviction.
[4]
Rules Regulating the Conduct of the Proceedings
of the Supreme Court of Appeal of South Africa, 27 November 1998 as
amended.
[5]
Rule 8(3) provides that if an appellant fails to lodge the record
within the prescribed period, the appeal shall lapse.
[6]
Uitenhage Transitional Local Council v South African Revenue
Service
2004 (1) SA 292
(SCA) para 6.
[7]
Dengetenge Holdings (Pty) Ltd v Southern
Sphere Mining and Development Company Ltd & others
[2013]
ZASCA 5
;
[2013] 2 All SA 251
(SCA) para 11.
[8]
Ibid para 13;
Darries v Sheriff,
Magistrate’s Court Wynberg & another
1998 (3) SA 34
(SCA) at 40I-41E;
Comissioner, South African
Revenue Service v Van Der Merwe
2016
(1) SA 599
(SCA) paras 11 and 12.
[9]
Ferreira v Ntshingila
1990 (4) SA 271
(A) at 281F-G.
[10]
Salojee & another, NNO v Minister of Community Development
1965 (2) SA 135
(A) at 141B-E.
[11]
Tshivhase Royal Council & another v Tshivhase & another;
Tshivhase & another v Tshivhase & another
[1992] ZASCA 185
;
1992 (4) SA
852
(A) at 859E-F.
[12]
Section 106(1)(
d
) reads:
‘(1) When an accused pleads to a charge he may plead-
….
(d)
that he has already been acquitted of the offence with
which he is charged;’
[13]
S v Basson
2007 (1) SACR 566
(CC) para 250.
[14]
R v Manasewitz
1933 AD 165.
[15]
Basson
fn 13 para 255, citing
The State v Moodie
1962
(1) SA 587
(A) at 595F-596F.
[16]
The State v Naidoo
1962 (4) SA 348
(A) at 354D-E.
[17]
Sanderson v Attorney General, Eastern Cape
[1997] ZACC 18
;
1998 (1) SACR 227
(CC) para 38;
Zanner v Director of Public Prosecutions,
Johannesburg
[2006] ZASCA 56
;
2006 (2) SACR 45
(SCA) para 10.
[18]
Wild & another v Hoffert NO & others
1998 (2) SACR 1
(CC) para 27.
[19]
Ndlangamandla v S
(SH 665/08) [2010] ZAGPPHC 64 (14 July
2010);
Smith v S
(595/2012)
[2013] ZASCA 38
(28 March 2013);
S v Phiri
2008 (2) SACR 21 (T).
[20]
Ndlangamandla
fn 23.
[21]
Ibid paras 13-14.
[22]
Smith
fn 23.
[23]
Ibid
para 18.
[24]
Phiri
fn 23.
[25]
Phiri
fn 23 at 25I – 26A.
[26]
Bernert v Absa Bank Ltd
[2010] ZACC 28
;
2011 (3) SA 92
(CC)
para 98.