Summary of Judgment

1. Introduction

These were automatic review proceedings in the High Court of South Africa (Cape of Good Hope Provincial Division), arising from criminal proceedings in the Magistrate’s Court, Mossel Bay. The review was undertaken in terms of section 302(1) of the Criminal Procedure Act 51 of 1977, after the record was prepared and forwarded to the High Court.

The parties were the State as prosecutor, and two accused persons, namely Riaan Isaacs (Accused 1) and Branville Franse (Accused 2). Both accused were unrepresented at trial.

The matter originated from charges of housebreaking with intent to steal and theft, and using a motor vehicle without the consent of the owner. Both accused pleaded guilty initially; however, during the plea proceedings the magistrate accepted Accused 1’s plea on both counts, and accepted Accused 2’s plea only on the second count, altering Accused 2’s plea on the first count to not guilty under section 113. The trial then proceeded jointly, culminating in Accused 2’s conviction on the first count as well. Sentences were imposed two days later. The magistrate expressed concern in an accompanying letter that the procedure may have been irregular, prompting judicial scrutiny on review.

The general subject-matter of the dispute on review concerned the procedural fairness and regularity of the trial, in particular whether it was permissible for the State to call Accused 1 as a witness against Accused 2 in the absence of a separation of trials, and whether any irregularity resulted in a miscarriage of justice.

2. Material Facts

Two accused persons were charged jointly with housebreaking with intent to steal and theft (count 1) and using a motor vehicle without the consent of the owner (count 2). Both accused were not legally represented.

On 22 April 2005, both accused pleaded guilty to both counts. Following questioning under section 112 of the Criminal Procedure Act 51 of 1977, the magistrate convicted Accused 1 on both counts on his plea. In respect of Accused 2, the magistrate convicted him on count 2, but in relation to count 1 the magistrate altered his plea to not guilty in terms of section 113, indicating that the plea could not be accepted as a proper basis for a conviction on that count.

After Accused 2’s plea on count 1 was altered to not guilty, the State did not apply for separation of trials, and the matter continued as a single joint trial. The State then called Accused 1 as a witness. Accused 1 indicated he was willing to testify and did so “freely and voluntarily”. He gave evidence in chief under the prosecutor’s questioning and was cross-examined by Accused 2.

Once Accused 1 had testified, the State closed its case. Accused 2 then testified in his defence, and no further evidence was led. The magistrate thereafter convicted Accused 2 on count 1, and two days later imposed sentences on both accused. The record was then prepared for submission to the High Court on review.

A material (and undisputed) procedural feature relied upon by the High Court was that no separation of trials was ordered at any stage, despite one accused having been convicted on pleas and the other facing a continued contest on count 1. Another material and undisputed fact was that the State, in those circumstances, called a co-accused (Accused 1) as a prosecution witness against Accused 2.

3. Legal Issues

The central legal questions were concerned with procedural regularity and the competence of witnesses in joint criminal proceedings, together with the effect of any deviation on the right to a fair trial.

The court was required to determine, first, whether the magistrate ought to have ordered a separation of trials, particularly in circumstances where one accused’s guilty plea was accepted and the other’s was not, and where both were unrepresented. This entailed an assessment of the court’s discretionary powers and established practice concerning separation in joint trials.

Secondly, and more decisively, the court had to determine whether the State could lawfully call Accused 1 as a witness for the prosecution against Accused 2 while Accused 1 remained an accused in the same (unseparated) proceedings, and whether Accused 1 was a competent witness for the prosecution in those circumstances.

Thirdly, the court had to decide whether allowing Accused 1 to testify for the State constituted an irregularity that so materially affected the fairness of the proceedings that it resulted in a miscarriage of justice, thereby necessitating the setting aside of Accused 2’s conviction(s) and sentence.

These issues largely concerned questions of law (competence of witnesses; correct procedural steps in joint trials) and the application of legal principles to the procedural facts of the case, coupled with an evaluative assessment of whether the irregularity was sufficiently prejudicial to vitiate the proceedings against Accused 2.

4. Court’s Reasoning

The High Court considered the procedure adopted after Accused 2’s plea on count 1 was altered to not guilty. It noted that, although separation of trials under section 157(2) of the Criminal Procedure Act 51 of 1977 is discretionary, it is an established practice that separation should follow where one accused is convicted on a guilty plea while another continues to trial on a not-guilty plea in the same matter. The court emphasised that the circumstances of this case were particularly sensitive because both accused were unrepresented, and held that the magistrate should, of his own accord (mero motu), have ordered separation notwithstanding the absence of any application by the prosecutor or either accused.

However, the court treated as the “more important issue” the propriety of permitting the State to call Accused 1 as a witness against Accused 2. It held that Accused 1’s willingness to testify was not determinative, because the decisive question was whether he was competent to be called as a witness for the prosecution in the existing procedural posture.

Relying on Ex Parte Minister of Justice: In Re Rex v Demingo and others 1951 (1) SA 36 (A), the High Court set out the principle that where a person pleads guilty to a joint charge and is convicted but not yet sentenced, that person may be called as a witness for the Crown against the co-accused only if there has been a separation of trials. The High Court reasoned that the competence of such a witness for the prosecution is contingent upon the procedural step of separating the proceedings, because without separation the person remains an accused in the same trial.

The court further analysed section 196(2) of the Criminal Procedure Act 51 of 1977, which addresses the position where an accused gives evidence in joint proceedings. It interpreted section 196(2) as clarifying that an accused is not a competent witness for the prosecution, but that if an accused testifies “upon his own application” (that is, in his own defence), such evidence is not inadmissible against a co-accused merely because the accused is not competent as a prosecution witness. On the facts, the difficulty was that Accused 1 was called by the State and testified in chief under prosecutorial examination, rather than testifying in his own defence. In the absence of separation, the State could not properly call him as a prosecution witness, and the magistrate should not have allowed this to occur.

Turning to the effect of the irregularity, the High Court held that the procedural deviation impacted the fair-trial rights of Accused 2. It reasoned that by allowing Accused 1 to be called as a prosecution witness, the trial court effectively became complicit in exposing Accused 2 to severe prejudice, and that this amounted to a miscarriage of justice. The court therefore concluded that the proceedings against Accused 2 could not stand.

The court distinguished the position of Accused 1. Although it was irregular to call him as a prosecution witness, the High Court held that Accused 1 suffered no prejudice from that irregularity, because he had been convicted on his own plea, and thus his conviction and sentence were capable of confirmation on review.

5. Outcome and Relief

The High Court confirmed the convictions and sentences of Accused 1 on both counts.

In respect of Accused 2, the High Court set aside the convictions and sentence on both counts, and directed that the case against him must commence de novo before a different magistrate.

No separate or additional costs order appears from the judgment, and the relief was framed in the form of review orders concerning convictions, sentences, and the requirement that proceedings against Accused 2 begin afresh.

Cases Cited

Ex Parte Minister of Justice: In Re Rex v Demingo and others 1951 (1) SA 36 (A)

S v Ntuli & Others 1978 (2) SA 69 (A)

S v Ndwandiwe 1970 (4) SA 502

Legislation Cited

Criminal Procedure Act 51 of 1977, section 112

Criminal Procedure Act 51 of 1977, section 113

Criminal Procedure Act 51 of 1977, section 157(2)

Criminal Procedure Act 51 of 1977, section 196(2)

Criminal Procedure Act 51 of 1977, section 302(1)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, in the absence of a separation of trials, the State was not permitted to call a co-accused (who had pleaded guilty and been convicted but not sentenced) as a prosecution witness against another accused in the same joint proceedings. The admission of such testimony constituted an irregularity that materially prejudiced Accused 2 and resulted in a miscarriage of justice, requiring that Accused 2’s convictions and sentence be set aside and the matter be heard afresh before another magistrate.

The court further held that the irregularity did not prejudice Accused 1, who had been convicted on his plea, and therefore Accused 1’s convictions and sentences were confirmed.

LEGAL PRINCIPLES

The separation of trials in joint criminal proceedings under section 157(2) of the Criminal Procedure Act 51 of 1977 is discretionary, but established practice supports separation where one accused is convicted on a guilty plea while another continues on a not-guilty plea, particularly where accused are unrepresented and procedural fairness concerns are pronounced.

A person who has pleaded guilty to a joint charge and has been convicted but not yet sentenced is a competent witness for the prosecution against a co-accused only after separation of trials has been ordered, consistent with Ex Parte Minister of Justice: In Re Rex v Demingo and others 1951 (1) SA 36 (A).

In joint proceedings, section 196(2) confirms that although an accused is not competent to be called as a prosecution witness against a co-accused, evidence given by an accused in his own defence may nevertheless be admissible against a co-accused, and admissibility in that context is not excluded merely because the accused is not competent for the prosecution.

Permitting the State to call a co-accused as a prosecution witness in the same unseparated trial may constitute an irregularity that undermines the fairness of the proceedings and, where it causes severe prejudice, may amount to a miscarriage of justice requiring the setting aside of the affected accused’s conviction and sentence and the recommencement of proceedings de novo before a different presiding officer.