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[2009] ZAKZPHC 10
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Director of Public Prosecutions, Kwazulu-Natal v Regional Magistrate, Vryheid and Others (AR 397/2007) [2009] ZAKZPHC 10 (24 March 2009)
IN THE
KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
CASE NO. AR 397/2007
In the matter between:
THE DIRECTOR OF PUBLIC
PROSECUTIONS
KWAZULU
NATAL
APPLICANT
and
THE REGIONAL MAGISTRATE, J DE
BRUYN
FIRST RESPONDENT
JAN GEORGE VAN DER
WATT
SECOND RESPONDENT
JAKOBUS JOHANNES
UYS
THIRD RESPONDENT
AARON SHIYINDUKU
ZULU
FOURTH RESPONDENT
MUZIMBIZI PETROS
NDLOZI
FIFTH RESPONDENT
ERASMUS THOKOZANI
FAKUDE
SIXTH RESPONDENT
MBHEKISENI PETROS
BUTHELEZI
SEVENTH RESPONDENT
SIKHUMBUZO
MBATHA
EIGHTH RESPONDENT
J
U D G M E N T
Delivered :
March 2009
LEVINSOHN DJP
[1]
The applicant has launched these proceedings seeking to review and
set aside the verdict
brought in by the first respondent, the
Regional Magistrate of Vryheid (hereinafter referred to as “the
Magistrate”),
acquitting the second to eighth respondents
respectively (these respondents where necessary will be referred to
as accused Nos.
1 to 7 respectively).
[2]
In order to properly get to grips with the issues that arise in these
proceedings,
I shall briefly set out the salient background facts and
the essential chronology of events in this case.
[3]
The accused were charged with the crime of kidnapping (count 1) and
two counts of
assault with intent to do grievous bodily harm (counts
2 and 3). They were arraigned before the Magistrate and pleaded
not
guilty to the charges. Each were legally represented.
[4]
In a broad outline the State case appears to be that the accused were
party to kidnapping
the complainant, one Sithole, and taking him to a
particular farm where he was assaulted and tortured with a view to
compelling
him to reveal the whereabouts of certain stolen cattle.
A third charge of assault with intent to do grievous bodily harm
related to one Bongani Ndlovu who apparently was deceased at the date
when the trial commenced.
[5]
The trial came before the Court on 4 September 2006. On that
day it was adjourned
to 11 December 2006 and then further adjourned
for trial to commence on 3 to 13 April 2007. On 3 April 2007
all the accused
pleaded to the charges and put up their statements in
terms of section 115.
[6]
The first witness called by the State was Dr H Hlela. Her
testimony related
to an examination on the complainant Thulani
Sithole. One of the aspects mentioned by the doctor in her
evidence was that
on examination the complainant appeared to be
“
distraught
”
.
[7]
The complainant commenced his evidence on 3 April 2007. He
spoke in IsiZulu
through an interpreter who interpreted the evidence
into Afrikaans. During the course of this evidence the record
reveals
the following exchange between the Court and the interpreter:
“
HOF
Ek sien hy huil, mnr die Tolk?
TOLK
Ja, hy huil, Edelagbare.
HOF
O,
ek sien! Goed, nou, Meneer, ek neem aan dit was ‘n baie
emosionele ervaring gewees wat u deurgegaan het. Wil
u kans kry
om uself te herstel om te hou huil of wat is die posisie?
Kan
ons maar voortgaan? --- Ons kan voortgaan.
Kan ons voortgaan,
is u seker, want u staan nou en snik? Is u goed genoeg om voort
te gaan?
---
Ja.”
The
evidence in chief went on throughout 3 April 2007. The
examination was resumed on 4 April 2007 and cross-examination by
Mrs
van der Walt for accused No. 1 commenced on that day. (See page
187 of the record.) To say the least this cross-examination
was
lengthy and searching.
[8]
After what appears to have been the midday adjournment the record at
page 227 reveals
the following exchange between the Court and the
prosecutor:
AANKLAER
Edelagbare, mag ek net voordat die kruisondervraging voortgaan, net
die Hof, ‘n aansoek bring dat die Hof net met die
getuie opneem
of hy emosioneel in staat is om aan te gaan vandag, want dit is onder
my aandag gebring, nie deur die getuie nie,
maar deur ‘n ander
groep persone, dat die Staat versuim om die getuie te beskerm deur
die getuie is nie in staat om aan te
gaan nie en ek vra die Hof om
dit net met die getuie op te neem, of hy fisies, ensovoorts …
(tussenkoms)
HOF
Emosioneel.
AANKLAER
In staat is om aan te gaan met die getuienis vandag, Edelagbare.”
The
Magistrate then made enquiries and the witness assured him that the
matter can proceed, whereupon Mrs van der Walt resumed her
cross-examination which in parts was in my view unfair and badgered
the witness. See for example at page 250 lines 2 –
19.
[9]
The case was remanded until 5 April 2007. Upon resumption the
prosecutor made
the following statement to the Court:
“
AANKLAER
Edelagbare, ek wil net op rekord plaas dat die klaer, Thulani
Sithole, wat nog onder kruisondervraging staan, ‘n boodskap
gestuur deur die ondersoekbeampte dat hy baie siek is en kan nie hof
bywoon nie, hy is op die oomblik by die dokter.
Die
ondersoekbeampte is gestuur om die mediese sertifikaat te bekom sodat
ek dit kan inhandig, een of ander tyd. Edelagbare,
ek gaan nie
‘n aansoek bring dat ek my volgende getuie gaan roep op hierdie
stadium nie, ek dink dit sal teëgestaan
word en dit sal ook
onregverdig wees, gesiene waar ons nou in die saak staan.”
The
case was then remanded to 3 July 2007 and a suspended warrant of
arrest was authorised against the witness.
[10]
When the case resumed on 3 July 2007 there was a new prosecutor Mr N.
Zuma. Mr Zuma announced:
“
Your Worship, at this stage the
State is applying for the postponement of this matter which is partly
heard. The reason for
the postponement as it appears on the
previous occasion, that the witness had a problem proceeding with the
matter.”
Mr
Zuma addressed the Court in English whereupon Mrs van der Walt with
the support of Mr Prinsloo, objected to the proceedings in
English
since according to them it had been agreed that Afrikaans be the
language of record. A debate about this ensued whereafter
the
Magistrate made a ruling that the case should proceed in Afrikaans
and that an Afrikaans prosecutor should be made available.
This
ruling effectively excluded Mr Zuma who was only fluent in the
English and Zulu languages. He then indicated to the
Magistrate
that he would have to consult the Director of Prosecutions, whereupon
the Magistrate allowed the matter to stand down.
[11]
On resumption the previous prosecutor Mrs VK Brown appeared.
She indicated that she was
not prepared to proceed with the matter.
She said that there had been threats made against her life. The
difficulty
however was that there were no substitute Afrikaans
speaking prosecutor available to proceed with the case. She
accordingly
made an application for the postponement saying :
“
Edelagbare my opdragte is om
aansoek te doen om ‘n uitstel, op grond van die Hof se
beslissing oor die taal problem, om ‘n
Afrikaanse aanklaer te
kry om hierdie saak verder te voer.”
Mrs Brown went on to say (page
274):
“
AANKLAER
Edelagbare, ek het ter goedertrou aangeneem dat ‘n
Engelssprekende aanklaer toegelaat sou word om Engels te praat in
die
Hof en dit is hoekom ek dit nie gerade geag het om ‘n
Afrikaanssprekende aanklaer te kry in hierdie saak nie, aangesien
ek
wel hierdie selfde problem al voorheen in sake het ek ondervind, en
ek het ter goedertrou opgetree.”
The
matter of the witness’ previous absence was then raised by Mrs
Brown. She produced a doctor’s letter and also
a
psychologist report Exhibit N. The psychologist recorded that
the witness Mr Sithole was suffering symptoms which are consistent
with a diagnosis of post traumatic stress disorder (see page 278).
The prosecutor also indicated to the Magistrate that the
witness
Sithole was present but in view of his condition he ought not to give
evidence. At page 279 the Magistrate observed:
“
HOF
Hoe lank gaan hierdie toestand van hierdie getuie voortduur en
wanneer gaan hy eendag gereed wees as hy nie in die laaste
drie
maande kon herstel het nie met terapiesessies nie? Hoe lank
gaan hy dan nou nog ongesteld wees, as ek dit nou so kan
stel?”
The
Magistrate also expressed his displeasure about the absence of the
psychologist. The prosecutor could not furnish an explanation
as to why the psychologist had not been subpoenaed.
[12]
The defence representatives opposed any application for an
adjournment and the Magistrate at
page 298 gave his ruling. He
severely criticised the State for failing to procure the presence of
both the doctor and the
psychologist. He took the view that the
factual basis upon which the State sought the postponement was wholly
insufficient.
He accordingly refused the postponement and
ordered that the witness, who was present in court, proceed with his
evidence.
As the witness Sithole entered the witness box he
said the following:
“
Edelagbare,
ek wil graag onder die aandag van die Hof bring, ek kan nie meer
praat nie, vandag kan ek nie praat nie, want ek moet
terug dokter toe
gaan.”
The Magistrate responded as follows:
“
HOF Meneer, as u weier om
verdere getuienis af te lê – ons het reeds die
aangeleentheid voor u debatteer, ons
is al van vanoggend hoe laat,
besig met hierdie aangeleentheid. Ek het al van vanmôre
tienuur tot nou probeer vasstel
wat die aangeleentheid is. Daar
is geen mediese getuienis voor my dat u so ongesteld is dat u nie kan
voortgaan met u getuienis
nie. Mag ek net vir u daarop wys dat
as u weier om voort te gaan om getuienis af te lê dan is die
Hof by magte om u
toe te sluit vir vyf jaar, as daar goeie gronde
is. Verstaan u dit, Meneer?”
The witness then said:
“
Ek verstaan Edelagbare, maar ek
is nog nie gesond nie, my kop is nog nie reg nie.”
The retort of the Magistrate was
the following:
“
Mevrou, gaan voort asseblief.
As u nie die vrae wil beantwoord nie, dan moet u vir my so sê,
dan sal ek die nodige doen
en sal ons die saak uitstel vir ‘n
tydperk van vyf jaar en kan ons u toesluit en dan kan u my laat weet
wanneer u gereed
is om voort te gaan met u getuienis. Die keuse
is u s’n.”
At
which point the prosecutor asked for an adjournment to consult with
the witness. The Magistrate refused and directed Mrs
van der
Walt to proceed with her cross-examination which she did from pages
301 through to 306 at which point the Court took the
luncheon
adjournment.
[13] On
resumption the witness was not present and the following exchange
took place:
“
HOF
Waar is die getuie?
AANKLAER
Edelagbare, die
getuie het ineengestort.
HOF
Ja.
AANKLAER
Edelagbare, die sekuriteit het my kom roep na ons verdaag het vir ete
en ek het toe die getuie gevind buite by die voorhek
van die
landdroskantoor se perseel waar hy so half agteroor gelê het.
Ek kan nie sê wat sy toestand was nie,
dit het gelyk asof hy
flou geval het. ‘n Ambulans is toe geroep deur die
polisiebeamptes en hy is toe nou weg hier
met ‘n ambulans.
Ek het ‘n afskrif van die ambulans se rekordboek gevra,
aangevra indien die Hof dit wil hê
om te bewys dat hy hier weg
is met ‘n ambulans. …”
After
discussion the case was adjourned to 4 July 2007. A warrant of
arrest was issued against the witness that the warrant
was to stand
over until 4 July.
[14]
On resumption on 4 July 2007 the Court was presented with a medical
certificate from a doctor
which read as follows:
“
Mr Thulani Sithole presented to
our hospital on 3 July 2007 as it was reported that he had
collapsed. On examination his vital
signs were within the
normal range as well as his blood sugar. The patient was
checked from head to toe and was admitted
to the ward for overnight
observation. On 4 July he was seen and he is feeling better and
there was no problem overnight.
Patient is fit for discharge.”
The
prosecutor informed the Court that the doctor had indicated that he
was not going to come personally to court. Also that
he was not
in a position to give evidence about the witness’ mental
condition (“gemoedstoestand”).
[15]
The witness was present and the Magistrate ordered him to be sworn
in. The following exchange
between the Court and the witness
took place:
“
HOF
Volle naam asseblief. Praat harder asseblief.
GETUIE
Ek het hoofpyn, Meneer.
HOF
U volle naam asseblief, Meneer.
THULANI SITHOLE
HOF
Sweer hom in, asseblief.
GETUIE
U Edele, ek voel ek
kan nie vandag praat nie. Asseblief kan ek huis toe gan om rus
te kry.
HOF
Meneer, gaan u weier om die eed te neem of moet ek die nodige stappe
doen om u toe te sluit?
Ja
Meneer, asseblief. Gaan u die eed neem of gaan u nie die eed
neem nie?
GETUIE
Ek vra asseblief U Edele, dat u die saak uitstel want ek het regtig
hoofpyn.
HOF
Meneer, gaan u die eed neem of gaan u nie die eed neem nie?
Sweer him in asseblief, mnr die Tolk.
GETUIE
Asseblief Edelagbare, ek kan nie vandag praat nie.
HOF
Mnr Sithole asseblief. Hierdie saak gaan nou klaar gemaak
word. Ek wild it vir u baie duidelik stel. Ek
wit hê
u moet die eed neem. As u nie die eed neem nie, gaan ek vir u
toesluit vir ‘n tydperk van vyf jaar, want
u het geen rede om
nie die eed te neem nie. Ons het dit reeds bepaal. Die
mediese sertifikaat sê u is
fit
.
GETUIE
Dit is nie die feit dat ek weier om die eed te neem nie. Ek is
regtig siek, Edelagbare. As die Hof voel ek moet
toegesluit
word, dan kan die Hof aangaan.”
Thereafter
the Magistrate agreed to stand the case down for a quarter of an hour
in order that the prosecutor consult with the witness
in the presence
of the defence, to ascertain whether he is willing to proceed.
During this exchange the prosecutor once again
indicated to the
Magistrate that:
“
Dit lyk net asof die getuie
emosioneel nie reg is nie.”
On
resumption after the consultation the prosecutor informed the Court
that the witness had told her that he wishes to proceed with
the case
but was not able to do so that day as a result of a severe headache.
The prosecutor indicated to the Court that
in her view the witness
was about to have an emotional breakdown and she therefore tried to
call a psychiatrist who treated him.
The defence strenuously
objected to any postponement for that purpose. The Court once
again refused a postponement and ordered
the witness to give
evidence. The record reveals an exchange between the witness
and the Court. The Court threatened
the witness with
imprisonment for refusing to testify and the witness asked for a
postponement and begged the Court to let him
go home. The
upshot of all this appears at page 322 of the record with the
following exchange between the Court and the witness:
“
HOF
Ja mnr Sithole, het u nou besluit wat u wil hê dat ek moet
doen?
GETUIE
Ek het alreeds vir uitstel gevra.
HOF
Dit is vir my duidelik dat die getuie te siek is om voort te gaan en
hy word verskoon van verdure verrigtinge in hierdie
saak.
Dankie.
HOF
Ja, Mevrou, Dit is onwaarskynlik wanneer hy die nodige kapasiteit sal
hê om te kom getuig.
AANKLAER
Edelagbare, kan die Hof net, is die getuie, gaan die getuie nou nie
voortgaan nie?
HOF
Hy
gaan nie voort nie, hy is te siek om voort te gaan vandag or enige
ander tyd.
AANKLAER
Ek vra die Hof dan vir ‘n verdaging Edelagbare.”
[[16]
On resumption the prosecutor asked for a long adjournment in order to
transcribe the record for the
consideration of the Director of Public
Prosecutions. She submitted that the way in which the Court
treated the witness was
not in the interests of a healthy
administration of justice. She indicated that consideration
would be given to instituting
review proceedings. This
application by the prosecutor was vigorously opposed by the defence
and a lengthy debate ensued.
[17]
In reply the prosecutor informed the Court that the State would not
proceed with this case without
the evidence of the witness who had
been stood down and excused. She said that the possible
evidence of other witnesses was
only supplementary and of a
circumstantial nature.
[18]
In his judgment the Magistrate emphasised that the accused were
entitled to a speedy trial.
He observed that according to the
charge sheet the case started on 12 August 2005 in the District
Court. It was eventually
transferred to the Regional Court on 4
September 2005 whereupon it was adjourned eventually until April
2007. At that stage
it was adjourned because of the absence of
the main witness Sithole. The Magistrate recognised that a case
of this nature
is not only traumatic for the witness but also for the
accused in the case. The Magistrate observed that he did not
gain
the impression that Sithole was so traumatised that he could not
give evidence. He recorded that he had made an order that
the
evidence of Sithole was to be expunged from the record because he
gained the impression that Sithole was unwilling to proceed
with his
evidence and that he deliberately was trying to delay the case.
[19]
The Magistrate observed at page 342:
“
Ek vind dit
baie vreemd. Gister na lang debate, het ons voortgegaan met die
saak en die getuie het omtrent ‘n halfuur
getuienis gegee onder
kruisondervraging en ewe skielik het hy ineengestort.
Hy
is hospital toe geneem. Hy is vanmôre ontslaan met ‘n
sertifikaat wat aandui dat hy fit is, “fit for
discharge”.
Daar is niks in hierdie verslag aangedui dat die getuie nie in staat
is om vandag te gaan getuig nie.
Die dokter wat die getuie by
die hospital klaarblyklik behandel het, weier om hof toe te kom, maar
die Staat het nie alternatiewe
reëlings gemaak om die getuie na
die distriksgeneesheer te neem en die distriksgeneesheer dan te sê.
Jy moet hof
toe kom om te kom getuig oor hierdie man se toestand nie. Dit
gebeur daagliks oral in die howe in hierdie land,
dat ‘n dokter
op kort kennisgewing hof toe kom.”
The
Magistrate then went on to refuse the application. The
prosecutor then indicated that she was not going to close the State
case whereupon the Magistrate said he would close the State case for
her. The accused promptly closed their case and they
were
acquitted.
[20]
Following upon this verdict the Director of Public Prosecutions has
launched review proceedings
aimed at setting aside the acquittal and
seeking an order that she may reinstate the prosecution. A
number of submissions
have been made in support of the application.
I need mention in particular the issue of language. From the
outset it
was agreed by all concerned in the case that the language
of record would be Afrikaans. Accused No. 1 and 2 were
Afrikaans
speaking, their legal representatives likewise spoke
Afrikaans. The remaining five accused spoke IsiZulu. My
impression
was that the interpreter who interpreted from Zulu into
Afrikaans appeared to be competent and no complaint was lodged at any
stage
as to his competence to interpret in the Afrikaans language.
Problems however arose after Mrs Brown the prosecutor was threatened
and felt compelled to withdraw from the case. A Mr Zuma was
then designated to carry on with the prosecution. He is
not
Afrikaans speaking nor apparently does he understand that language.
The defence objected to the change in the language
of record on the
basis that the Magistrate had made an order that the case proceed in
Afrikaans. I am not sure that this
is a correct interpretation
of what occurred. It seems to me that all the parties agreed at
the outset that the case be conducted
in Afrikaans. Be that as
it may, I am of the view that no one had the right to as it were
debar Mr Zuma from appearing in
the case. He is an officer of
the Court duly designated by the Director of Public Prosecutions to
appear on her behalf and
he spoke one of the constitutionally
recognised languages. While I acknowledge that the change in
language may cause some
inconvenience and another interpreter would
have been required, there is no way in my view that any court in the
land can stop
an officer of the court from speaking an official
language during the course of any proceeding before it.
[21]
The circumstance surrounding Mr Zuma’s appearance and his
subsequent withdrawal from the
case cannot be said to have resulted
in any irregularity in the proceedings. Accordingly I say no
more about the language
issue at this stage.
[22]
The first question that arises is whether this Court is competent to
review proceedings of a
lower court where an accused has been
acquitted. It is evident that the provisions of
section 304
of
the
Criminal Procedure Act, No 511 of 1977
, would not be applicable
in casu
. It seems to me that the only basis upon which
review proceedings can be instituted is in terms of section 24(1) of
the Supreme
Court Act, No 59 of 1959, which states:
“
The grounds upon which the
proceedings of an inferior court may be brought under review before a
provincial division, or before
a local division having review
jurisdiction, are –
(a)
…
(b)
…
(c)
gross
irregularity in the proceedings; and
(d)
the admission of inadmissible
or incompetent evidence or the rejection of admissible or competent
evidence.”
Clearly
the section confers an inherent jurisdiction on the High Court to
review proceedings of any nature in inferior courts including
criminal cases subject however to the proviso in subsection (2) of
section 24 that this will not affect or derogate from other
laws
which deal with reviews.
[23]
The power to review proceedings where there has been an acquittal was
recognised in
S v Lubisi
1980 (1) SA 187
(T) at 188H Le Roux J
said:
“
I have come to the conclusion
that there exists an inherent power in a Supreme Court to correct the
proceedings of an inferior court
at any stage if it appears to be in
the interests of justice (see eg
R
v Marais
1959 (1) SA 98
(T);
Wahlhaus and Others v
Additional Magistrate, Johannesburg, and Another
1959 (3) SA 113
(A);
Singh v
Dickinson NO
1960 (1) SA 87
(N).)”
The
learned Judge also relied on the dicta of Ogilvie Thomson JA in the
Wahlhaus case (supra)
at 119-120 as follows:
“
It is true that, by virtue of
its inherent power to restrain illegalities in inferior courts, the
Supreme Court may, in a proper
case, grant relief – by way of
review, interdict or
mandamus
– against the decision of a magistrate’s court given
before conviction … This, however, is a power which is
to be
sparingly exercised.”
Courts
have however been reluctant to follow
Lubisi’s case
(supra)
. In
S v Makopu
1989 (2) SA 577
the Court was
confronted with a situation where an accused had pleaded not guilty
to a charge of housebreaking with intent to commit
an offence
unknown. Evidence was led before a magistrate. This
magistrate was transferred before the case was completed
and it was
postponed on a number of occasions for further evidence.
Eventually it came before a second magistrate who refused
an
application for a further postponement and ordered that the case
should proceed before him in terms of
section 118
of the
Criminal
Procedure Act. The
second mentioned magistrate had not realised
that evidence had already been led in the case. The State was
not ready to proceed
and the magistrate deemed the State to have
closed its case and he acquitted the accused. Jones J said the
following at 577I:
“
There can be no doubt that all
this was irregular.
Section 118
does not apply. The case
should have been completed before Mr Luwes. There is, however,
no provision in the
Criminal Procedure Act 51 of 1977
which empowers
me to remedy the situation. I have been referred to the
decision of
S v Lubisi
1980 (1) SA 187
(T) where it was held that in these very
circumstances the Supreme Court may in the exercise of its inherent
jurisdiction and in
the interests of justice set aside an acquittal
and order that trial be resumed before the original magistrate.
While it
is correct that the interests of justice include justice to
the prosecution as well as the accused, there are a number of policy
considerations which underlie our criminal law which may be raised to
support an argument that, even if the Court has the inherent
power to
make this sort of order, it should not do so. I refer, for
example, to the policy considerations which require certainty
and
finality in criminal cases, or which limit the State’s right to
appeal, or which preclude a second prosecution where
fresh evidence
is found. Be that as it may, I am quite satisfied that I should
not exercise an inherent jurisdiction to set
aside an acquittal
without first hearing the accused …”
Jerold
Taitz in his work “The Inherent Jursidiction of the Supreme
Court” 1985 Edition commented on
Lubisi’s case
at
page 83 and more particularly on the finding by the learned Judge
that there exists an inherent power in a Supreme Court to correct
proceedings of an inferior court at any stage if it appears to be in
the interests of justice:
“
Certainly
S
v Lubisi
is an unusual case
and one which some may consider a dangerous precedent.”
In
S v Makriel and Others
1986 (3) SA 932
Lubisi’s
case
was not approved.
Marais J (as he then was) held that the decision was flawed because
the accused was not afforded an opportunity
of making representations
to the Court. The learned Judge expressly did not decide the
issue under what circumstances an
acquittal could be reviewed.
[24]
The advent of our new constitutional dispensation has cast a whole
new dimension on this enquiry.
Section 35(3)(m) of the
Constitution of the Republic of South Africa 1996 states:
“
Every accused person has a
right to a fair trial which includes the right 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.”
The
Director of Public Prosecutions review is aimed at setting aside the
acquittal verdict and reinstating the prosecution.
The question
that arises is whether the so-called “double-jeopardy”
protection of section 35(3)(m) comes into play.
Put simply are
the accused’s fair trial rights infringed if this Court were to
set aside the acquittal?
[25]
Now the dicta of Jones J in
Makopu’s case (supra)
are
entirely apposite to the question posed. The Constitution
envisages that an accused person charged with a criminal offence
is
entitled to finality one way or the other – either being found
guilty or not guilty. If an accused is found not
guilty, for
example, as a result of a deficiency in the evidence led by the
State, he or she should not be harassed by a second
prosecution.
The interests of justice proclaim that there should be finality in
criminal proceedings. Louise Jordaan
in a very learned and
helpful article published in the Comparative and International Law
Journal of Southern Africa, Volume 32
of 1999, has dealt in detail
with the issue of double jeopardy. At page 2 of this article
she quotes what she characterises
as “the most comprehensive
summing up of the rationale of double jeopardy protection” from
the US Supreme Court case
of
Green v US
[1957] USSC 146
;
355 US 184
(1957) at
187-188:
“
The underlying idea, one that
is deeply ingrained in at least the Anglo-American system of
jurisprudence, is that the State with
all its resources and power
should not be allowed to make repeated attempts to convict an
individual for an alleged offense, thereby
[1] subjecting him to
embarrassment, expense and ordeal and compelling him to live in a
continuing state of anxiety and insecurity,
as well as [2] enhancing
the possibility that even though innocent he may be found guilty.”
The learned author rightly observes
at page 2:
“
It is apparent that the
guarantee serves the basic values on which all constitutional rights
of detained and accused persons are
based: (1) the minimisation of
the possibility that an innocent person be convicted; and (2)
treatment of the individual with dignity
and respect. It has
been suggested that the consideration that the innocent should be
protected from wrongful conviction
‘lies at the core of the
[double jeopardy] problem.”
[26]
The right not to be tried for an offence for which he/she has been
acquitted must in my view
be interpreted in accordance and be
consistent with the principles of our criminal law pertaining to
autrefois acquit
. These can be stated in summary
form to be the following : -
[27]
An accused can only invoke such plea if the acquittal was on the
merits. If his/her conviction
was quashed on appeal because of
an irregularity of such a nature that it can be said he/she was never
in jeopardy of being convicted,
this will not be regarded as an
acquittal on the merits.
[28]
In
State v Moodie
1962 (1) SA 587
(A) at 596 Hoexter
ACJ said : -
“
However that may be, I am of
opinion that in our common law the
exceptio
rei judicatae
cannot
succeed unless it is based on a final judgment on the merits.”
See also
S
v Naidoo
1962 (4) SA
348
AD.
[29]
The question that presents itself in the present case is whether
indeed the accused have been
acquitted on the merits as understood by
the authorities. I answer this question in the negative
for the following
reasons.
[30]
Plainly the verdict of not guilty was triggered off by three
important incidents in the
case. Firstly, the
magistrate’s decision to release Sithole from undergoing any
further cross-examination.
Secondly, to expunge this
uncompleted testimony and thirdly to constructively close the State
case. In my view the
first of these decisions was flawed
which gave rise to an irregularity in the proceedings.
The witness at no stage
indicated that he was reluctant to give
evidence. The tenor of his representations and indeed that of
the prosecutor on his
behalf was that he was not in a fit mental
state to proceed with his testimony. There were
sufficient indications that
he was suffering from some mental or
psychological stress. By the same token a judicial
officer in the position of
the magistrate was not able to evaluate
his condition and form a view that he was malingering.
That judgment ought
to have been made by experts. It is
true to say that the State should have made arrangements to put this
type of evidence
before the Court and in that regard it was at fault.
[31]
I do not think however that this failure or omission on its part
should have been visited with
the ultimate sanction, as it were, of
discharging the witness and refusing any further postponements.
The magistrate
ought in my view to have directed that a proper
enquiry be instituted by the appropriate experts as to determine the
condition
of the witness and more particularly whether he was in a
mentally fit state to proceed with his evidence.
[32]
There is obviously a constitutional duty to ensure that accused
persons receive a fair trial
and such trial should be concluded as
expeditiously as possible. However this must be
weighed and balanced against
the community
’
s
interest in ensuring that wrongdoers be prosecuted. The
National Prosecuting Authority represented by its duly appointed
prosecutors is entrusted with that important constitutional function
(section 179(2) of the Constitution).
[33]
It follows from this that the prosecution must at all times be
permitted to present its case.
In this instance it
was effectively prevented from doing so, in circumstances which in my
view constitute a gross irregularity
in the proceedings.
This Court is entitled to exercise its inherent powers to
review in terms of section
24(1) of the Supreme Court Act (
supra
)
and set aside the verdict.
[34]
I propose therefore the following order : -
1.
The verdict of not guilty brought in by the Regional
Magistrate of Vryheid on 4th July 2007 is hereby reviewed
and set aside.
2.
In the event that the applicant decides to continue with
the prosecution against the second to eighth
respondents, such prosecution
is to commence
de
novo
before another judicial officer.
GYANDA J
:
LOPES AJ
:
LEVINSOHN DJP
:
It is so ordered
DATE
OF HEARING:
30 JANUARY 2009
DATE
OF JUDGMENT 24 MARCH 2009
COUNSEL FOR
APPLICANT
MR C. S. MLOTSHWA
INSTRUCTED
BY DIRECTOR
OF PUBLIC PROSECUTIONS,
PIETERMARITZBURG
COUNSEL
FOR RESPONDENTS