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[2016] ZAFSHC 98
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S v Kuyler and Others (78/2015) [2016] ZAFSHC 98; 2016 (2) SACR 563 (FB) (23 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 78/2015
DATE:
23 MAY 2016
In
the matter between:
THE
STATE
And
DAVID
KUYLER & FOUR OTHERS
CORAM:
OPPERMAN, AJ
HEARD
ON: 25 APRIL 2016
JUDGMENT
BY: OPPERMAN, AJ
DELIVERED
ON: 23 MAY 2016
SUMMARY:
Criminal Procedure;
Witnesses
- Accomplice - Discharge from prosecution of witness in terms of s
204(2) of
Criminal Procedure Act 51 of 1977
– The process to
establish such in terms of
section 204(2)
of the
Criminal Procedure
Act 51 of 1977
.
ORDER
The
witness is not discharged from prosecution in respect of Robbery with
aggravating circumstances as contemplated in
section 1
of the
Criminal Procedure Act 51 of 1977
and Murder as specified by the prosecutor in this matter and for any
offence in respect of which a verdict of guilty would be competent
upon a charge relating to the offences so specified.
OPPERMAN,
AJ
Introduction
[1]
The
issue for adjudication
is
discharge from prosecution in terms of section 204(2) of the Criminal
Procedure Act 51 of 1977 (CPA).
[1]
[2]
The parties will be referred to as the
204-witness and the State.
[3]
The 204-witness was charged as accused
number three of the five accused and of Robbery with aggravating
circumstances
and Murder. The succinct
facts of the case are that the deceased was lured into a trap by the
five accused, robbed, assaulted and
killed; his body was discarded in
a storm water pipe where it was discovered by the police. The
deceased’s head and body
were wrapped in layers of tape,
plastic bags and grain bags. He died of asphyxiation
[4]
Before the trial commenced the charges were
withdrawn against accused three in terms of section 6(1)(a) of the
CPA. T
he prosecutor informed the court that
he will be called as a witness on behalf of the prosecution and will
be required by the prosecution
to answer questions which may
incriminate him in specified offences. The offences were specified by
the State.
[5]
The court, convinced that the witness is a
competent witness for the State, informed the said witness in terms
of; and of the, the
provisions in section 204(1)(a)(i)–(iv).
[6]
The 204-witness elected to appoint legal
representation and the representative
attended
the proceedings for the duration of his testimony and the enquiry of
the 204-issues.
The
issues
[7]
This
court ruled during judgment on the merits of the charges against the
accused (hereafter referred to as the main trial) that
adjudication
of the indemnity of the 204-witness demands a separate enquiry to
comply with the constitutional decree of the
audi
alteram partem-rule
.
[2]
[8]
The enquiry took place after judgement on
the main trial and numerous issues evolved. A crucial point was the
nature of the correlation
between the main trial and the 204-enquiry.
Counsel for the State and counsel for the 204-witness argued that the
enquiry had to
take place before the judgment on the main trial;
before the court evaluated the evidence of this witness in the main
trial.
[9]
The
204-enquiry itself brought questions; what form and procedure in law
does it take on,
[3]
who are the
parties to the process and what is the test to be applied for
discharge from prosecution? Further; the relationship
in law between
the State and the witness also caused some debate. These issues
rippled into numerous other questions that will
be discussed.
[10]
Research
of the questions that presented lead me to Theophilopoulus
[4]
that stated that the paucity of case precedent, the vague
constitutional interpretation of immunity, and the absence of a
precise
statutory definition for indemnity make it difficult to
analyse the exact nature and scope of the South African indemnity
devices.
The words of Page J in [zRPz]S v Kheswa and another
1997 (2)
SACR 638
(D) on 638 that
the
subject (section 204) is: ‘of some controversy amongst our
Brethren’, are expressive of the predicament that the
law finds
itself in when the practical application of this piece of legislation
is endeavoured in criminal trials.
The
legislation
[11]
The relevant piece of legislation reads as
follows:
204
“Incriminating evidence by witness for prosecution”
204
(1) Whenever the prosecutor at criminal proceedings informs the
court that any person called as a witness on behalf of the
prosecution will be required by the prosecution to answer questions
which may incriminate such witness with regard to an offence
specified by the prosecutor—
(a)
The court, if satisfied that such witness is otherwise a competent
witness for the prosecution, shall inform such witness—
(I)
that he is obliged to give evidence at the proceedings in question;
(ii)
That questions may be put to him which may incriminate him with
regard to the offence specified by the prosecutor;
(iii)
that he will be obliged to answer any question put to him, whether by
the prosecution, the accused or the court, notwithstanding
that the
answer may incriminate him with regard to the offence so specified or
with regard to any offence in respect of which a
verdict of guilty
would be competent upon a charge relating to the offence so
specified;
(iv)
that if he answers frankly and honestly all questions put to him, he
shall be discharged from prosecution with regard to the
offence so
specified and with regard to any offence in respect of which a
verdict of guilty would be competent upon a charge relating
to the
offence so specified; and
(b)
such witness shall thereupon give evidence and answer any question
put to him, whether by the prosecution, the accused or the
court,
notwithstanding that the reply thereto may incriminate him with
regard to the offence so specified by the prosecutor or
with regard
to any offence in respect of which a verdict of guilty would be
competent upon a charge relating to the offence so
specified.
(2)
If a witness referred to in subsection (1), in the opinion of the
court, answers frankly and honestly all questions put to
him—
(a)
such witness shall, subject to the provisions of subsection (3), be
discharged from prosecution for the offence so specified
by the
prosecutor and for any offence in respect of which a verdict of
guilty would be competent upon a charge relating to the
offence so
specified; and
(b)
The court shall cause such discharge to be entered on the record of
the proceedings in question.
(3)
The discharge referred to in subsection (2) shall be of no legal
force or effect if it is given at preparatory examination
proceedings
and the witness concerned does not at any trial arising out of such
preparatory examination, answer, in the opinion
of the court, frankly
and honestly all questions put to him at such trial, whether by the
prosecution, the accused or the court.
(4)
(a) Where a witness gives evidence under this section and is not
discharged from prosecution in respect of the offence in question,
such evidence shall not be admissible in evidence against him at any
trial in respect of such offence or any offence in respect
of which a
verdict of guilty is competent upon a charge relating to such
offence.
(b)
The provisions of this subsection shall not apply with reference to a
witness who is prosecuted for perjury arising from the
giving of the
evidence in question, or for a contravention of section 319 (3) of
the Criminal Procedure Act, 1955 (Act 56 of 1955).
[12]
The above shows that there are three stages prescribed in the section
204-process; the first is the pre-testimony stage,
[5]
the
second is the testimony of the witness
[6]
and
the third is the phase wherein the presiding officer must form an
opinion of the testimony of the witness and record it.
[7]
The
last stage forms the crux of this judgment.
[13]
The
lacuna
in law is the absence of any statute or precedent that prescribes and
defines the exact process of the third phase in section 204.
The
notion of the judgment will be to pursue a principle and guideline
for this.
The adjudication of the indemnity of the witness
in this case will follow and conclude the judgment.
[14]
The Key Issues are:
a)
Indemnity
b)
The 204(2)-phase
c)
The test
d)
The procedure
[15]
As a point of departure it is apposite to remind that there is a
definite difference in the law of evidence between the evaluation
of
the evidence of a witness on merits in the main trial
[8]
and the evaluation of the evidence of a witness for indemnity.
[9]
Indemnity
[16]
The overarching term in law, ‘indemnity’, has been
narrowed down to ‘discharge from prosecution’ in
the
South African criminal law. Section 204 was enacted as a
prosecutorial tool that moves the witness, usually an accomplice or
an accessory, to testify despite the self-incriminatory nature of the
testimony. For purpose of this judgment the word ‘indemnity’
will also be used but in the above sense.
[17]
Indemnity, in general terms,
may
arise from
contract
,
from
statute
,
or from the nature of the relationship itself. In this instance the
entity is a hybrid phenomenon of contract and statute.
[18]
There is an informal pre-trial contract between the State and the
perpetrator for indemnity. This agreement is not included
in section
204 and emanates from the National Prosecuting Authority Act, 1998
(Act No. 32 of 1998) and the Constitution, 1998.
It
provides
that the prosecuting authority has the power to institute criminal
proceedings on behalf of the State and to carry out
any necessary
functions incidental to instituting criminal proceedings.
[19]
The above pre-trial agreement will be cemented in a formal court
order in terms of statute, section 204(2), if the court is
of the
opinion that the witness answered all questions frankly and honestly.
The
relationship between the State and the 204-witness
[20]
The pre-trial agreement is self-serving;
the prosecution undertakes to desist in pursuing a criminal sanction
against the co-accused
and the co-accused offers truthful testimony
in the case for the State.
[21] The agreement
changes the status of an accused to a witness for the State.
[22] This is where
the relationship of the State with the witness ends; the prosecutor
does not become the attorney or advocate
of the 204-witness itself.
The duty of the State is to without fear, favour or prejudice promote
successful prosecution of the
case with, amongst others, the evidence
of this witness.
[23] Conflict in
interest between the task of the prosecutor and the legal character
of a 204-witness is real.
In this case, for
instance, the witness did indeed answer appropriately on some
questions and did assist the State to proof the
case against the
other accused to a certain extent. He, however, endangered the
evidence with a refusal to answer some questions,
blatant lies to
others and vagueness on the other.
[24]
As result of this the prosecutor was conflicted; he realized that the
witness did not comply with the 204-test for indemnity.
On the other
hand he laboured under the impression that he could not argue against
indemnity to be granted because that will weaken
his case against the
accused. The prosecutor also had the “promise” of
indemnity to consider. The psychological evaluation
of the witness
that will be discussed later, showed him to be a vulnerable person.
This, to such an extent that prosecution might
not be merited.
[25]
The cause of the confusion is a misunderstanding of the law; the
muddle lies between the 204-issues and the evaluation of witnesses
on
the merits in the main trial.
[26]
As pointed out already; the State is
dominus
litis
in the prosecution of the 204-witness if indemnity is refused.
[10]
The
conflict continues in that the State does not have to rely on the
section 204(2) court order to “honour” the pre-trial
contract with the former accused/204-witness; it can merely order
nolle
prosequi.
The enquiry
[27]
This decree in section 204(2) resulted in a procedure that ordered
the presiding officer to
mero moto
and
in singuli
form the opinion whether the witness answered all questions frankly
and honestly. The judicial decision was thus on the initiative
of the
court and in the opinion of this one entity without any enquiry.
Neither the 204-witness nor the State had
locus
standi
in the process.
[28]
The decision in Mahomed v Attorney General of Natal &
Others
1996 (1) SACR 139
(N)
(The 1996-Mahomed case) brought constitutional development to the
practise. According to this judgment, when a witness is warned
under
section 204(1)(a) he acquires a right; or at least a legitimate
expectation to a discharge if all the questions are answered
frankly
and honestly. He is therefore entitled, before the judicial decision
can be made, to an enquiry in terms of the
audi
alteram partem
principle.
[29]
Two years later and in contradiction to this; in the same division of
the High Court, the following remark was made in
[zRPz]
Mahomed
v Attorney General of Natal & others
1998 (1) SACR 73
(N) (The
1998-Mahomed case) on 81:
“
Indeed,
I am constrained to say that, were it not for the judgment of this
Court in the Mahomed case, supra, I would have been inclined
to the
view that the procedure which the courts had adopted prior to the
decision in the Mahomed case was correct and that the
accomplice does
not have a right to a hearing in relation to the question of his
discharge from prosecution.”
[30]
Within this pickle of law the courts currently have to classify and
apply the “hearing” that must precede the judicial
decision or opinion for indemnity.
[31]
The premise this judgment will progress from is that the witness has
a right to be heard. It is indeed the constitutionally
correct
imperative. The nature and form of the enquiry must be ascertained.
The
204(2)-stage; the nature of the enquiry
[32]
Schmidt
[11]
declared
that:
“
There
is no single standard for all judicial decisions. The degree of proof
varies, depending upon the nature of the particular
action and the
stage of the litigation when the matter has to be decided.”
[33]
The 204-proceedings is analogous to, for instance, enquiries in terms
of
section 103
of the
Firearms Control Act 60 of 2000
. It falls
within the variation of: “Proceedings not readily classifiable
as criminal and civil.” There are some vital
unique issues to
be considered in the characterisation of the 204-process.
[34]
Firstly; the trial against the accused and the 204-enquiry are two
separate entities in the proceedings as a whole. The enquiry
has no
role to play in the main trial and was decreed in the Supreme Court
of Appeal in
S
v Mnyamane and another
1990 (1) SACR 137
(A)
to
be at the end of the criminal proceedings
;
after the dispute between the State and the accused has been ruled
upon
.
[12]
The decision of Friedman AJA
on
137 in the headnote is that: “It amounts to an irregularity for
a court to grant a witness a discharge from prosecution
in terms of
s
204(2)
of the
Criminal Procedure Act 51 of 1977
before the conclusion
of the case.”
[35]
The conclusion of the main criminal case is after judgment on the
merits or sentence depending on the nature of the issue and
the
relevance to either judgment or sentence.
[36]
Further; the witness has indeed acquired a right; or at least a
legitimate expectation, to a discharge, if all questions are
answered
frankly and honestly. The witness becomes a party to the adjudication
of this right.
[37]
Constitutional realism dictates that the right must be decided in an
enquiry. Hurt J, however, reasoned in the 1998-Mohammed
case that
the
scope of a 'hearing' to meet the accomplice's 'legitimate
expectation' must, of needs, be very restricted. In his view; there
is not anything unduly inequitable (or unconstitutional) about the
concept of a limited right to a hearing in this context.
[38]
This line of reasoning ignores constitutional integrity. It goes
without saying that the stakes for the 204-witness and the
administration of justice in the indemnity enquiry are high. The
freedom of the person and the credibility of the justice system
are
at risk if a court makes a ruling without applying its mind
judicially. This is nothing but judicial accountability that
epitomises
a fair trial.
[39]
In S v Smith
2006 (1) SACR 307
(W) the court held, with reference to
section 103(2)(a)
of the
Firearms Control Act 60 of 2000
, that an
enquiry
[13]
must be
held. The dictum of the judgment is that in the light of the high
premium placed by our courts on the rights of an
accused or potential
accused in a trial, as well as the interest of the administration of
justice; the court should not only inform
the accused of his right to
apply for discharge, but should also inform him that he may advance
reasons or present evidence to
enable the court to consider the
possibility of discharge. The State has the same right to promote the
interest of the society.
The
test
[40]
The enquiry is, as a product of to the above, to establish on a
balance of probabilities whether the witness answered all questions
frankly and honestly.
[41]
This is not a proceeding instituted with a view to conviction and
punishment. It is a procedure for a specifically proclaimed
different
purpose.
T
he
test and purpose for the evaluation of veracity of the witness to be
applied in the main trial is not the same as in the indemnity
enquiry.
The legislator declared
that explicitly with: “all questions frankly and honestly.”
[42]
The reasoning in the 1998- Mohammed case goes, with respect, of track
at this juncture when it states that the presiding officer's
opinion
with regard to indemnity of the witness will be formed as a necessary
precursor to his decision with regard to the guilt
or innocence of
the accused. He goes further to argue that if the enquiry is after
judgment on merits in the main trial the 204-witness
might have to
convince the court that the evaluation of his evidence was wrong and
must be reconsidered.
[43]
As stated, the two processes are irrelevant to each other. The
indemnity enquiry does not require the witness to convince the
presiding officer that the evaluation in the main trial was
erroneous; it is to convince him that his evidence was frank and
honest
and on a completely different platform. The test to be applied
is different.
[44]
In the indemnity enquiry the test is for all questions to be answered
honestly and frankly. Not just some. In the main trial
the evidence
of a witness need not be accepted in totality to carry weight.
“Frankly and honestly on all questions”
stands against
trite
law that in the decision making process as to whether or not to
accept the evidence of an accomplice who testifies under the
auspices
of
section 204
on the merits in the main trial, it is not expected of
the accomplice that his testimony is wholly truthful in all he says.
His
testimony would suffice if it is to a large extent truthful and
sufficient corroboration thereof exists.
[14]
[45]
There is a difference between honestly and frankly; and trustworthy.
A witness may answer, subjectively, honestly and
frankly but may make
a mistake. If he made a bona fide mistake he might not be refused
indemnity, but his same evidence must be
rejected in the main trial
if it is material to the issues.
[46]
The test for veracity of the evidence in the main trial against the
accused is objective against all the evidence adduced.
The test for
indemnity is subjective; the witness must testify to the best of his
ability in the circumstances that prevailed.
Circumstances such as
personal intellectual and emotional intelligence, fear, perceptions
of intimidation, ignorance of the legal
system and more may come to
play when the indemnity enquiry is held.
The
procedure & location of the enquiry in the case
[47]
It flows from: “
advance
reasons or present evidence to enable the court to consider the
possibility..,” that the witness will be granted the
opportunity to adduce evidence. The State will have the same right
subsequently. Arguments will follow and then judgment.
[48]
The State and the advocate for the witness in this case averred that
because the integrity of the evidence of the witness is
an issue in
the main trial as well as the 204-enquiry, the applicant must have
had the opportunity to be heard before judgment
in the main trial.
This stance was also taken by Page J in [zRPz]S v Kheswa and another
1997 (2) SACR 638
(D).
[49]
These assertions may not be condoned and are flawed. A court may
never permit itself to be blackmailed or held hostage by the
yearning
of a witness for indemnity from his crimes whilst adjudicating the
guilt or innocence of an accused person. The two processes
are
entwined in the fact that the evidence of the 204-witness happened in
the main trial and was measured against the other evidence
with the
sole purpose of adjudicating the guilt or innocence of the accused.
[50]
The court may never allow the absurdity that a witnesses be given the
opportunity, in the main case, to have
locus
standi
to address their own
credibility. The State is
dominus litus
at this stage; the
lis
is between the State and the accused. It is not between the
witness and the accused or the witness and the State.
[51]
The absurdity that will follow, if such is granted, is that all
witnesses might claim the same right for other reasons. A specific
witness may argue that the credibility finding on his testimony may
affect his eminence in society or a person that also have a
stake in
civil claims against the accused might argue that his credibility
finding in the criminal case might affect his chances
of successful
litigation in the civil matter. This to name a few examples. Worse
even, the Legislator did not contemplate that
an accomplice, giving
evidence under the provisions of
section 204
, should be entitled to
call witnesses to bolster the veracity of his evidence before
judgment. Nor could it have been contemplated
that the
accomplice would be entitled to put questions to other witnesses in
the course of the trial for the ultimate purpose of
establishing his
candour.
[52]
To reiterate; the 204-enquiry is at the end of the main trial; at the
earliest after judgment on merits. This will serve the
fair
trial-principle in criminal law.
Conclusion
[53]
In conclusion it can be regarded as settled law
that the process to come to the judicial decision that the witness
answered all the questions frankly and honestly is to be guided
by
the following:
a)
The enquiry is
sui generis
and to be regarded separate from the main trial on the merits of the
charges.
b)
The enquiry is
to be held after the conclusion of the main trial; that is at the
earliest after judgment on the merits of the criminal
charges to
comply with the fair trial-principle in both the main trial and the
204-enquiry.c)
The court must
establish on a balance of probabilities whether the witness complied
with: “frankly and honestly to all question”.
d)
The test is
subjective; did the witness testify to the best of his ability in the
prevailing circumstances to comply with “frankly
and honestly
on all question”?
e)
The witness
must therefore be allowed to advance reasons and/or present evidence
to justify his discharge from prosecution.
f)
The State has
an interest in the enquiry and
locus
standi
for
as far as it is the representative of the National Prosecutorial
Authority to advance reasons and adduce evidence.
g)
The court
shall apply its mind to the evidence and give judgment.
h)
The “opinion”
or judicial decision will direct the outcome: If the court finds that
the witness did not testify frankly
and honestly it records that
discharge from prosecution on the specified charges as well as
competent verdicts thereto, is refused.
If the court finds that the
witness did answer all the questions frankly and honestly it must
(“shall”) grant the discharge
on the specified charges
and the competent verdicts thereto; and must (shall) record the
complete order on the record of proceedings
in question.
The
enquiry for the indemnity of the 204-witness in this case
[54]
The judgment of the evidence of the 204-witness on the merits of the
evidence in the main trial was that the witness did indeed
answer
properly to some questions and did assist the State to proof the case
against the other accused to a certain extent. He,
however,
endangered the case with a refusal to answer some questions, blatant
lies to others and vagueness on the other.
His
testimony was only accepted as far as it is corroborated by other
evidence and fact.
[55]
The advocate for the witness averred, erroneously so, that he cannot
make any constructive contribution to the indemnity issue
of the
witness because the court has already made its judgment in the main
trial. The State held the same argument. Notwithstanding,
the two
parties by agreement, handed in a psychological report on Mr Andre J
Kruger by Professor Pieter Joubert.
[56]
The report was indeed helpful in the evaluation for indemnity because
the test to be applied at this stage is whether the 204-witness
testified to the best of his ability in the circumstances that
prevailed.
[57]
Professor Joubert confirmed in the report that the 204-witness lacks
insight in the seriousness of their deed and is emotionally
immature.
The witness has a full-scale I.Q. measure of 89 which is indicative
of borderline disability intelligence. He, however,
found that the
witness does not show any incapacitation with regard to perceptual
organising and functioning, conceptualising and
for his ability to be
sufficiently logical in argumentation. He realises the difference
between honesty and deceit.
[58]
The witness had a legal representative that assisted him and ensured
that he is familiar with the justice system. He was indeed
guided by
both his advocate and the prosecutor to talk the truth. He had ample
opportunity to ponder questions and answers. There
was never any
indication of intimidation during his evidence. He was relaxed but
sometimes self-conscious during testimony. Nonetheless,
he elected to
lie on some issues to serve his own agenda for indemnity.
[59]
The 204-witness did, just as during his evidence in court, not
disclose the reason for him partaking in the offences to Joubert.
Joubert based some of his findings on inadequate evidence; the
inadequacy to have been caused by the witness. The court accepted
beyond a doubt that he, accused one and accused two planned to
burglarise a shop in town but found the proposal of accused four
and
five to rob the deceased to be a better idea. They wanted the
“X-boxes” no matter what the measures. The witness
was
proofed to be involved in the assault of the deceased but he gave
false testimony about the issue. This to name a few problems
in the
evidence of the witness. This endangered the case of the State to a
material degree and jeopardised the administration of
justice.
[60]
The 204-witness did not answer all questions frankly and honestly.
Discharge from prosecution is denied.
Order
[61]
The witness is not discharged from prosecution in respect of Robbery
with aggravating circumstances as contemplated in
section 1
of the
Criminal Procedure Act 51 of 1977
and Murder as specified by the
prosecutor in this matter and for any offence in respect of which a
verdict of guilty would be competent
upon a charge relating to the
offences so specified.
M
OPPERMAN, AJ
On behalf of the
Applicant: Advocate van Wyk
Instructed
by:
Monica Drotsky Attoneys, Parys
Previously:
Anne-Marie Du Toit Attorneys, Parys
On
behalf of the State: Advocate D Pretorius
Instructed
by: Director of Public Prosecutions, Bloemfontein
[1]
All
references will be to the CPA except if specifically stated
otherwise.
[2]
[zRPz]Mahomed
V Attorney General Of Natal And Others
1996 (1) SACR 139
(N), Howard JP.
[3]
There
are numerous procedural entities in a criminal trial. Each with
their own rules and requirements. The mere reading
of the
Chapters allocated in the CPA brings a bail application, the plea
proceedings, the sentencing proceedings, the trial on
the merits of
the charges, a trial-within-a trial and some more to light. An
enquiry in terms of
section 103
of the
Firearms Control Act 60 of
2000
is a good example.
[4]
2003,
SALJ 373:
The
parameters of witness indemnity: A review of
section 204
of the
Criminal Procedure Act 51 of 1977
.
[5]
204
(1) Whenever the prosecutor at criminal proceedings informs the
court that any person called as a witness on behalf of the
prosecution will be required by the prosecution to answer questions
which may incriminate such witness with regard to an offence
specified by the prosecutor— . . .
[6]
204(1)(b)
such witness shall thereupon give evidence and answer any question
put to him, whether by the prosecution, the accused
or the court,
notwithstanding that the reply thereto may incriminate him.
[7]
(2)
If a witness referred to in subsection (1), in the opinion of the
court, answers frankly and honestly all questions put to
him—
(a)
such witness shall, subject to the provisions of subsection (3), be
discharged from prosecution for the offence so specified
by the
prosecutor and for any offence in respect of which a verdict of
guilty would be competent upon a charge relating to the
offence so
specified; and
(b)
the court shall cause such discharge to be entered on the record of
the proceedings in question.
[8]
In
S v Trainor
2003
(1) SACR 35
SCA, Navsa JA stressed that whether it be to convict or
to acquit the court must account for all the evidence, some of the
evidence
might be found to be false; some of it might be found to be
unreliable; and some of it might be found to be only possibly false
or unreliable; but none of it may simply be ignored. A conspectus of
all the evidence is required. Evidence that is reliable
should be
weighed alongside such evidence as may be found to be false.
Independently verifiable evidence, if any, should be weighed
to see
if it supports any of the evidence tendered. In considering whether
evidence is reliable, the quality of that evidence
must of necessity
be evaluated, as must corroborative evidence, if any. Evidence, of
course, must be evaluated against the onus
on any particular issue
or in respect of the case in its entirety.
[9]
The
witness must answer to the best of his or her ability. Indemnity can
be given in spite of deviations from the police statement
(S v
Banda: In re Zikhali
1972 (4) SA 707
(NC)). It may be that what the
witness said in court is the truth. There will have to be
indications other than a mere lack of
detail
that
the evidence in court is not comprehensive or satisfactory. Also see
the discussion later in the judgment on the issue.
[10]
National
Prosecuting Authority Act, 1998 (Act No. 32 of 1998): Preamble
WHEREAS
section 179 of the Constitution of the Republic of South Africa,
1996 (Act 108 of 1996 ), provides for the establishment
of a single
national prosecuting authority in the Republic structured in terms
of an Act of Parliament; the appointment by the
President of a
National Director of Public Prosecutions as head of the national
prosecuting authority; the appointment of Directors
of Public
Prosecutions and prosecutors as determined by an Act of Parliament;
[11]
2016
May 11: http://www.mylexisnexis.co.za/Index.aspx,
Procedural Law, Law of Evidence, Chapter 3: Standards of proof and
the
evaluation of evidence.
[12]
The
conclusion of this point is aptly described by Friedman AJA in S v
Mnyamane and another
1990 (1) SACR 137
(A) on 141:
“
Ultimately
the court has to determine whether, on all the evidence, a
conviction of the accused is justified. By granting a discharge
to
an accomplice at the completion of his evidence, the court not only
gives the wrong impression to the accused who might feel
that the
court is prejudging the issue, but granting a discharge at that
early stage without a proper evaluation of the witness'
evidence in
the light of all the other evidence that might be adduced could well
have a detrimental effect on the court's own
thinking. The fact that
the Act makes no provision for the withdrawal of a discharge, once
it has been granted by the court,
is an indication that it was not
contemplated that it should be given until the end of the case.”
[13]
Hearing
(noun)
(law) a proceeding (usually by a court) where evidence is taken for
the purpose of determining an issue of fact and reaching
a decision
based on that evidence hearing, audience
(noun)
an opportunity to state your case and be heard.
“
Definitions.net.
STANDS4
LLC, 2016. Web. 8 May 2016.
<
http://www.definitions.net/definition/hearing
>.
[14]
S
v Ndawonde
2013 (2) SACR 192
(KZD). 2013-2015: Paizes & Van der
Merwe, Criminal Justice Review, page 122.