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[1989] ZASCA 114
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S v Malindi and Others (115/89) [1989] ZASCA 114; [1990] 4 All SA 45 (AD) (25 September 1989)

IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
GCINUMUZI PETRUS MALINDI
First Petitioner
TSIETSI DAVID
MPHUTHI
Second Petitioner
NAPHTALI MBUTI NKOPANE
Third
Petitioner
TEBELLO EPHRAIM RAMAKGULA
.. Fourth Petitioner
SEKWATI JOHN MOKOENA
Fifth Petitioner
SERAME JACOB
HLANYANE
Sixth Petitioner
THOMAS MADIKWE MANTHATA
Seventh
Petitioner
HLABENG SAM MATLOLE
Eight Petitioner
POPO SIMON
MOLEFE
Ninth Petitioner
MOSIUOA GERARD PATRICK LEKOTA
Tenth
Petitioner
MOSES MABOKELA CHIKANE
Eleventh Petitioner
and
THE STATE
Respondent
Coram
: CORBETT C J, BOTHA J A et NICHOLAS A J A
Heard
: 24
AUGUST 1989
Delivered
: 25 SEPTEMBER 1989
JUDGMENT
NICHOLAS
A J A
/2
2
This is an application on petition for directions concerning
the prosecution of a criminal appeal.
The petitioners (who will be referred
to collectively as "the appellants") were 11 of 22 persons who were indicted in
the Transvaal
Provincial Division on charges of treason, alternativély
terrorism (in terms of s 54(1) of the
Internal Security Act
74 of 1982),
subversion (in terms of s 54(2) of that Act), murder and, after an amendment
granted on 4 November 1985, furthering
the objects of an unlawful organisation
(in terms of s 13 of that Act).
In terms of
s 145(2)
of the
Criminal
Procedure Act
51 of 1977
("the
Act"), the
trial judge VAN DIJKHORST J,
summoned two assessors to assist him in the trial. They were Dr W A Joubert,
formerly a professor of
law, and since 1980 an honorary professor of law, at the
University of South Africa; and Mr W F Krugel, the President
3
of the Regional Court for the Northern Transvaal.
The trial
began at Bethal on 16 October 1985, and continued at Delmas from 4 November. The
first two months were occupied with preliminary
legal argument. The accused
pleaded on 20 January 1986, and the first State witness was called on the
following day. The State case
closed in September 1986, and an application for
discharge resulted in three of the accused being acquitted. The defence case was
begun on 21 January 1987. On 15 November 1988 the learned judge began reading
the trial court's judgment. The seventh, ninth, tenth
and eleventh petitioners
were convicted of treason, and the first, second third, fourth, fifth, sixth and
eight petitioners were
convicted of terrorism.
The remaining eight accused
were acquitted. The first, seventh, ninth, tenth and eleventh petitioners were
sentenced to terms of imprisonment
which they are now serving on Robben
4
Island. The remaining petitioners received suspended
sentences.
The appellants made application to the trial judge for the noting
of special entries on the record in terms of
s 317
of the
Act and
for general
leave to appeal.
The trial judge made certain of the special entries sought,
but refused to make the others. He granted leave to appeal on the merits,
limited in certain respects, to those accused who had been convicted of treason,
and refused it to the others. The appellants intend
to petition the Chief
Justice for leave to appeal in respect of the areas in which leave was refused
by the trial judge.
The trial, which became known as the Delmas trial, is
believed to be the longest in South African legal history. It stretched over
37
months, during which
5
the court sat on 437 days. 278 witnesses: (152 for the
State and 126 for the defence) gave evidence. The record
of evidence and
argument comprises 459 volumes containing
27 194 pages. There are 1556
documentary exhibits which
are composed of 14 425 pages. There were put in at
the
trial 42 video and audio tapes, 5 rolls of 16 mm film and
numerous
photographs and maps. The trial court's judgment
took four days to deliver
and runs to over 1500 pages.
The hearing of the case in mitigation occupied
four days,
and the application for leave to appeal spanned three days.
The events which gave rise to the special
entries to which this
application relates, had their beginning
on 10 March 1987. When the court sat
on that day VAN
DIJKHORST J made an announcement. He said:
"Before the witness is sworn in, I would like to make a statement. It is the
case for the State that the ANC called
6
for the formation of a United Democratic Front which was to organise,
mobilise, condition, and politicise, inflame, indoctrinate,
co-ordinate and/or
activate the Black masses to participate in activities, deeds, projects, and/or
violence whereby the Republic
of South Africa is made ungovernable. It is the
State's case that the UDF was formed with its aims, the unlawful overthrow
and/or
endangerment of the lawful government by violence and/or threats of
violence and/or by other means which include or intend violence.
It is the
State's case that the UDF knows that it must unite, organise, mobilise,
politically incite, condition and/or activate the
Black masses to participate in
acts and/or violence whereby the Republic of South Africa is made ungovernable
and that, to attain
this goal,
inter alia
propaganda attacks
are used. It is the
State's case that the UDF adopted broad guidelines for a program of action and
in furtherance
7
of its aim to organise, mobilise and activate the Black masses around
day-to-day issues, certain campaigns were decided upon. On 5
and 6 November 1983
the National Executive Council discussed a strategy to further the ANC and South
African Communist party and/or
UDF's campaign against the new constitutional
policy of the government by a million signature campaign against the
constitution,
so it is alleged. It is alleged that this campaign was to improve
the organisational capabilities of activists and general organisation
of the
UDF, to strengthen affiliated organisations and to create enormous propaganda
against the government and its policies. This
is the State's case. It has to be
proved. I express no opinion on the State's chances in this respect. What is
clear is that the
million signature campaign is an important facet of the
State's case. It follows that it merits dispassionate and unfettered
consideration
by judge and assessors.
8
When I approached my learned assessors
to act in that capacity, I enquired whether
they had had any relationship with the
UDF. The answer was negative in
both
cases. Yesterday during the course of
the morning, accused no. 6 was
cross-
examined on the million signature campaign.
During the tea
adjournment in a discussion
of the case the learned assessor, Dr
W.A.
Joubert, informed me that he had
in fact participated in the million signature
campaign by signing one of
its declarations.
An example is
EXHIBIT AS1
document 2
which has as
its logo the UDF and on top
One Million Signature Campaign and then
the
following declaration is set out to
which the signatories subscribe :
'We, the freedom loving South Africans, declare for the whole world to know that
we reject apartheid, we support the struggle and
unity of our people against the
evils of apartheid, we stand for the creation of
a
9
non-racial democratic South Africa free of oppression, economic exploitation
and racism, we say no to the new constitution because
it will further entrench
apartheid and White domination, no to the Koornhof laws which will deprive more
and more African people
of their birthright, yes to the United Democratic Front,
UDF, and give it our full support in its efforts to unite our people in
their
fight against the constitution and Koornhof bills.' Whether the UDF's efforts to
unite the people in their fight against the
constitution, and
inter alia
the Black Local Authorities, that is the Koornhof bills, are unlawful and
treasonable is one of the main issues in this case. I was
perturbed at the
implication of these facts and considered the matter from all angles last night.
I also
10
consulted the learned judge-president
of the Transvaal Provincial Division.
I have regretfully come to the conclusion
that there is no option but to rule that
Dr W.A. Joubert has to recuse himself.
I hold that Dr Joubert has become unable
to act as assessor and in terms of Section
147 of the
Criminal Procedure Act, no.
>51 of 1977, I direct that the trial proceed
before the remaining members of the Court."
There followed an application by the accused for an order quashing the trial
on the ground
inter alia
that the dismissal of Dr Joubert had been made
without power and was wrong in law, and that in consequence the court was not
properly
constituted. In the alternative it was asked that the trial judge and
Mr Krugel recuse themselves from the trial.
In support of the application reliance
11
was placed on two affidavits by Dr Joubert (one, "the first
report", was annexed to the founding affidavit; the other,"the second
report",
was annexed to the replying affidavit.)
The hearing of the application
commenced on 30 March 1987. Before counsel for the accused began their argument,
VAN DIJKHORST J said
that he would like to place certain facts on record. He
then made a statement which covers some 16 pages. It was largely in reaction
to
Dr Joubert's reports. The learned judge referred to the relations during the
trial between Dr Joubert and himself, and the circumstances
which gave rise to,
and discussions preceding,his decision to exclude Dr Joubert from further
participation in the trial as an assessor.
The statement was in some respects
critical of Dr Joubert and of his competence as an assessor. It also dealt with
certain allegations
which had been made in the founding affidavit against Mr
Assessor
12
Krugel.
During the argument the defence received a further report from Dr Joubert ("the
third report") which was a response to the statement
made by the learned judge
on 30 March 1987. After argument, VAN DIJKHORST J ruled on 2 April 1987 that the
third report was inadmissible,
and that any direct or indirect reference to its
contents would not be permitted. He made a similar ruling in respect ' of
paragraph
6 of the second report. He indicated that it would not be permissible
to contradict what he had said in his statement in regard to
the events leading
up to the exclusion of Dr Joubert.
Defence counsel then informed the judge that in view of his rulings the accused
were not able to proceed with the application for
recusal.
The
application was then dismissed in
13
toto
on 2 April 1987. Reasons for judgment were handed
down on 10 April 1987. They are reported
sub nom
.
S v Baleka &
Others
(4) 1988 (4) SA 688 (T), and the judgment will be referred to
hereinafter as "the reported judgment".
During the application for the noting
of special entries on the record, there was tendered to the court an affidavit
to which a copy
of Dr Joubert's third report was attached. VAN DIJKHORST J
refused to accept this affidavit, stating that if it contained inadmissible
evidence it could not be placed before the court. As far as he was concerned,
the relevant special entry should be made on the question
whether in law the
trial court was correct in its ruling that the evidence was inadmissible. And in
his judgment on the application
for leave to appeal he said:
"As I firmly hold the view that my ruling
14
on admissibility is correct I will neither here nor in a
report in terms of
section 320
of the
Criminal Procedure Act 51 of 1977
refer to
these discussions (sc. the
in camera
discussions between judge and
assessors). I trust that I will be afforded an opportunity of replying to such
documents should the
Appellate Division find that they are admissible."
The learned judge ordered that a special entry be made on the record in terms
of paragraphs 1, 1.1, 1.2, 1.3, 1.4, 2, 3 and 7 of the
draft handed to the court
by the defence. These were set out in the judgment. Paragraphs 3 and 7 do not
arise in the present proceedings.
The paragraphs which do arise read as
follows:
"1. Whether in connection with or during the proceedings, there were
irregular and/or
15
illegal departures from and infringements of the formalities, rules and
principles of procedure which the law requires to be observed,
in that it is
contended by the accused :
1.1 The trial judge wrongly construed section
147(1)
of the
Criminal
Procedure Act No
51 of 1977
as being applicable to the
circumstances
described in the statement
made by him on 10 March 1987, as a result
of
which, and without hearing any argument
thereon, he wrongly concluded that
he
had the power to rule that in such circumstances Dr W A Joubert had become
unable to act as assessor.
1.2 Thereafter, and on 10 March 1987 the
trial judge,purporting to act in
terms
of
section 147(1)
of the
Criminal Procedure Act No 51 of 1977
, and without
hearing any argument thereon, wrongly ruled that the assessor, Dr W A Joubert,
had to recuse himself and had become
unable to act as assessor,
notwithstanding
16
that no application for recusal had been made either by the State or the
accused, that Dr Joubert was not willing to recuse himself
and that he was
willing to continue as assessor.
1.3 Thereafter, having made such a ruling,
and without hearing any argument
thereon,
the trial judge irregularly continued
the trial before an improperly constituted court consisting of himself and the
remaining assessor Mr W F Krugel and/or
1.4 During the course of the application for
the quashing of the trial and
the recusal
of the trial judge alternatively the assessor
Mr W F Krugel, the trial judge having
made a statement on the morning of 30
March 1987, thereafter ruled that paragraph
6 of the second report of Dr W A Joubert,
and the whole of the third report (which
he refused to read notwithstanding the
fact that to his knowledge it had come
to the attention of the accused) were
inadmissible, and that the accused had
17
to accept the correctness of and could not contradict what he had put on record
in his statement, and thereby made it impossible
for the accused to rely on the
contents of the third report and paragraph 6 of the second report, and make
submissions which, but
for such ruling, would have been relevant to and relied
upon in the application for the quashing of the trial.
2. The trial judge's ruling in relation to the admissibility of Dr W A Joubert's
third report and paragraph 6 of his second report
and his ruling that the
correctness of the statement made by him on 30 March 1987 had to be accepted and
could not be contradicted,
precluded the accused from relying on evidence and
making submissions which, but for such rulings, would have been relied upon and
taken together with the other matters referred to in the affidavits filed in
support of the application, would have
constituted
18
good grounds for the recusal of the trial judge and the
assessor Mr W F Krugel."
Because of the magnitude of the trial and the complexity of the appeal, the
legal representatives of the appellants sought an interview
with the Chief
Justice in order to discuss matters relating to the procedure to be followed in
the prosecution of the appeal. The
interview took place on 22 February 1989.
Counsel for the appellants and representatives of the Attorney-General of the
Transvaal
were present. It was proposed by the appellants' counsel -that the
appeal on the special entries numbered 1 and 2 should be dealt
with separately
from and prior to the hearing of the main appeal, and on the basis of a
comparatively short record. This course was
opposed by the State, and it was
then indicated by counsel for the appellants that a substantive application in
this regard would
be made.
19
An order was thereafter made by the Chief Justice giving
directions in regard to the making of such substantive application, and
inter
alia
suspending the duty of the appellants to order and prepare copies of
the full trial record.
The appellants duly filed a petition in which they
prayed for an order as follows:
1.
That the special entries
numbered 1 and 2 made by the trial Court be argued in
limine
and
separately from the other issues in the main appeal.
2.
In the event of the relief in paragraph 1 above being granted, that
the papers contained in Annexure "A" to this Petition stand as
the record for
the purpose of
the adjudication of the two special
entries mentioned above.
3. Giving directions as to the further
20
prosecution of the appeal and the preparation and lodging of
the record in the light of the rulings made in respect of prayers 1 and
2 above,
and the order made by the Honourable the Chief Justice on 27
February 1989 "
In his opposing affidavit the Attorney-General asked :
1.
that prayer 1 of the
petition be refused;
2.
that prayer 2 be
refused and that, in the event of it being held that special entries 1 and 2
could be heard
in limine
, it be ordered that the petitioners
should
lay before the court a full record in terms
of the Appellate Division Rules.
Two preliminary questions arise. Has the
court the powers necessary to grant the relief claimed in prayers 1 and 2 of the
petition
? And, if so, what considerations should affect the exercise of such
powers?
Since there are no specific provisions
21
in the Rules of the Appellate Division, any such powers must
be sought elsewhere. Although the court does not possess inherent power
to
enlarge the substantive jurisdiction which it has by virtue of the
Criminal
Procedure Act
and
any other relevant statutory provisions (
Sefatsa &
Others v Attorney-General, Transvaal & Another
1989(1) SA 821 (A) at 834
E), "there is no doubt that the Supreme Court possesses an inherent reservoir of
power to regulate its
procedures in the interests of the proper administration
of justice." (
Universal City Studios Inc. and Others v Network Video (Pty)
Ltd
. 1986(2) SA 734 (A) at 754 G per CORBETT JA). The learned judge of
appeal there said that the dividing line between substantive and
adjectival law
is not always an easy one to draw, but that it was difficult to compose a closer
definition of the distinction than
that of Salmond
Jurisprudence 11
th ed
at 504 - "Substantive law is concerned with the ends
22
which the administration of justice seeks; procedural
law
deals with the means and instruments by which those ends are
to be
attained." (
ibid
at 754 H - 755 A).
The inherent power of the court to regulate
its own procedure is
epitomized in A D
Rule 13
, which
provides -
"13. The court may, for sufficient cause shown, excuse the parties from
compliance with any of the aforegoing rules and may give such
directions in
matters of practice and procedure as it may consider just and expedient." It is
plain that the remedies sought by
the appellants are procedural remedies and do not concern
the court's
substantive jurisdiction.
In their first prayer the appellants
ask in effect that the appeal on the
ground of the irregularities
and illegalities stated in special entries 1 and
2 should
23
be heard at a preliminary hearing, and that the issues in the
main appeal should stand over for later decision, if that should prove
necessary.
This court is in principle strongly opposed to the hearing of
appeals in piecemeal fashion. (See
R v Adams and Others
1959 (3) SA 753
(A) at 763 B - F: S
v Naude
1975(1) SA 681 (A) at 695 H). An exception
may be made, however, where unusual circumstances call for such procedure
(
Adams
,
loc
.
cit
;) or in "enkele gevalle van 'n besondere
aard" (
Naude
,
loc
.
cit
). An illustration is afforded by the
recent decision in
Gqeba & Others v The State
1989 (3) SA 712
(A). In
that case, after a protracted trial before a judge and two assessors, in the
course of which one of the assessors had been
discharged, seven of the fourteen
accused were convicted of murder and sentenced to death. They appealed against
the convictions
and sentences,
24
and also on a special entry of an irregularity alleged to have
stemmed from the discharge of the one assessor during the trial. When
the appeal
was called on 16 May 1989, an application was made for the postponement of the
appeal on the merits, on the ground that
the appellants' counsel had not had
sufficient time to master the lengthy record. The court granted the
postponement, but in the
special circumstances of the case, agreed to hear the
appeal on the special entry. On 24 May 1989 the appeal was allowed and the
convictions and sentences were set aside.
There are no reported cases which
discuss the factors which may influence the court to direct that an appeal be
heard in stages. Guidance
may, however, be obtained from the judgment of MILLER
J in
Minister of Aqriculture v Tonqaat Group Ltd
1976(2) SA 357 (D &
C L D). The learned judge was there dealing with an application under
25
subrule (4) of
rule 33
of the Rules of the Supreme
Court,
which deals with an analogous situation in trial actions.
The sub-rule is in these terms :
"(4) If it appears to the court
mero motu
or
on the application of any party that there is, in
any pending action, a question of law or fact which it would be convenient to
decide
either before any evidence is led or separately from any other question,
the court may make an order directing the trial of such
question in such manner
as it may deem fit, and may order that all further proceedings be stayed until
such question has been disposed
of."
Some of the points made by MILLER J in the course of his judgment were these.
Substantial grounds should exist for the exercise of
the power. The basis of the
jurisdiction is convenience — the convenience not only of the parties but
also of the court. The
advantages and disadvantages likely to follow upon
the
26
granting of an order must be weighed. If overall, and with due
regard to the divergent interests and considerations of convenience
affecting
the parties, it appears that the advantages would outweigh the disadvantages,
the court would normally grant the application.
When deciding an application
under the sub-rule, the court is not called upon to give a decision on the
merits. But it must consider
the cogency of the point concerned, because unless
it has substance a separate hearing would be a waste of time and costs.
So,
the court should not grant an application for a separate hearing "unless there
appears to be a reasonable degree of likelihood
that the alleged advantages
would in fact result" (at 364 H).
There is a similar rule in England. It is
discussed in
Halsbury's Laws of England
, 4th ed. Vol 37, pp
366-371.
Sec
484
(p367) states that the court
27
has wide powers to order the separate trial of separate
issues, and continues
"Under these powers the court is enabled, in appropriate circumstances, to
isolate particular issues or questions for separate trial,
and thus avoid, or at
any rate reduce, the delay and expense in preparing for the trial of unnecessary
questions or issues. An order
should therefore be made for the separate trial of
a preliminary point of law or other issue which, if decided in one way, is
likely
to be decisive of the litigation, and it is not necessary that the
decision should be such as to dispose of the entire action whichever
way it is
decided."
The appellant's second prayer is for an
order that, in the event of prayer 1 being granted, the papers contained in
Annexure "A" to
the petition stand as the record for the purpose of the
adjudication of special entries 1 and 2.
28
An appeal on a special entry
lies in pursuance of ss (1) of
s 318
of the
Criminal Procedure
Act
51 of 1977
, which provides
:
"(1) lf a special entry is made on the record, the person convicted may
appeal to the Appellate Division against his conviction on
the ground of the
irregularity or illegality stated in the special entry if, within a period of
twenty-one days after entry is so
made or within such extended period as may on
good cause be allowed, notice of appeal has been given to the registrar of the
Appellate
Division and to the registrar of the provincial or local division,
other than a circuit court, within whose area of jurisdiction
the trial took
place, and of which the judge who presided at the trial was a member when he so
presided."
Ss (2) of
s 318
governs the transmission of the record. It reads:
29
"(2) The registrar of such provincial or local division shall
forthwith after receiving such notice give notice thereof to the
attorney-general
and shall transmit to the registrar of the Appellate Division a
certified copy of the record, including copies of the evidence, whether
oral or
documentary, taken or admitted at the trial and of the special entry: Provided
that with the consent of the accused and the
attorney-general, the registrar
concerned may, instead of transmitting the whole record, transmit copies, one of
which shall be certified,
of such parts of the record as may be agreed upon by
the attorney-general and the accused to be sufficient, in which event the
Appellate
Division may nevertheless call for the production of the whole
record."
(There are similar provisions in ss (5) of
s 316
, which deals
inter
alia
with appeals, rule 5(5) of the Appellate Division Rules and rule 52 of
the Supreme Court Rules.)
30
The Attorney-General has not consented to the transmission of
parts of the record as proposed by the appellants. His attitude throughout
has
been that special entries 1 and 2 cannot be adjudicated upon without a
consideration of the whole of the indictment and all of
the evidentiary material
before the trial court. It was submitted in argument on his behalf that this
court has no power to grant
dispensation from the peremptory provisions of s
318(2), which, it was contended, give the Attorney-General a right to have the
complete
trial record before the Appellate Division. In my opinion it is not now
material whether the sub-section is peremptory or directory
in its terms. Nor is
it correct to say that the sub-section confers a "right" on the
Attorney-General. What the proviso does is to
give the Attorney-General the
power to withhold his consent. The consequence of his not consenting is
merely
31
that the proviso cannot operate. The substantive portion of
the sub-section does not trench at all on the inherent power of the Appellate
Division to regulate its own practice and procedure in the interests of the
administration of justice. It is directed to the registrar
of the provincial or
local division concerned, and does no more than provide for the transmission of
the record to the Appellate
Division. In
Republikeinse Publikasies (Edms)
Bpk. v Afrikaanse Pers Publikasies (Edms) Bpk
1972(1) SA 773 (A), RUMPFF J A
said at 783 A - D:
"In verband met die vraag wat appellant presies moes gedoen het nadat
respondent sy aansoek gestaak het, is dit wenslik om te herhaal
wat in die
algemeen van toepassing is, nl. dat die Hof nie vir die Reëls bestaan maar
die Reëls vir die Hof. Uitspraak
wat hieraan uitdrukking
32
gee, is die in
Ncoweni v Bezuidenhout
,
1927 C.P.D. 130
, waar o.a.
gesê word:
'The rules of procedure of this Court are devised for the purpose of
administering justice and not of hampering it, and where the
Rules are deficient
I shall go as far as I can in granting orders which would help to further the
administration of justice. Of course
if one is absolutely prohibited by the Rule
one is bound to follow this Rule, but if there is a construction which can
assist the
administration of justice I shall be disposed to adopt that
construction.'
Met verwysing na hierdie uitspraak het WILLIAMSON, R., hom soos volg
uitgedruk in
Brown Bros. Ltd. v Doise
1955 (1) S.A. 75
(W) op bl. 77:
33
'In my view this is a case where
the Rules of Court as framed
do not provide for one particular
set of circumstances which can
arise, and I think that the
Court has inherent power to
read the Rules applicable to
the procedure of the Court in
a manner which would enable
practical justice to be
administered and a matter to
be handled along practical lines'".
The same principle must apply in a case where it is a statutory provision
relating to procedure which falls to be interpreted. The
Appellate Division is
not prohibited by s 318(2) from deciding what material it should consider in
order to decide an appeal, and
it is inconceivable that the legislature,in
enacting ss(2), intended thereby to oblige the court to consider an appeal only
on the
basis of the complete record.
34
A practice direction approved by the Appellate Division in May
1938 provides some precedent for the course proposed. S 372 of the
Criminal
Procedure and Evidence Act
31 of 1917 (which was then in force) dealt with
the reservation of a question of law. In the 5th (1946) edition of Gardiner
&
Lansdown's
South African Criminal Law & Procedure
, the
following appears (vol 1 p 354):
"The following procedure upon the reservation of a question of law under S
372, or the granting of a special entry under
370, Act 31
, 1917, was approved by
the Appellate Division in May, 1938 :-When in a criminal case a superior court
reserves a question of law
for decision by the A.D. in terms of S
372, Act 31
,
1917, the registrar of the trial court shall forthwith notify the registrar of
the A. D. thereof (by telegram if the A.D. is in
session at the time) and
forward
35
to him a copy of such question reserved, and as soon as
possible thereafter forward 8 copies of the record of the proceedings, including
a certified copy. Where the question reserved is one of law, not dependent on
the construction of the evidence, and facts are necessary
for its determination,
and such facts are agreed upon or stated by the trial judge, copies of only such
portions of the record as
may be agreed upon, or as the trial judge may direct,
shall be prepared."
The conclusion is that the court has the power to grant the relief claimed in
prayer 2 of the petition.
As to factors which may affect the exercise of the
power, see
Zieve v National Meat Supplies Ltd
1936 A D 466.
Each case
must depend on its own particular facts.
36
To justify the court in ordering the omission of the evidence
or a part thereof, it must clearly appear that what is proposed to be
omitted
does not and cannot affect the point to be decided.The onus in this regard is on
the applicant (at 470). Although the court
is always desirous of welcoming and
encouraging the simplification of proceedings and the saving of costs, it has no
right to make
orders for the cutting down of a record unless there is clear
proof of no prejudice to the other party (at 471).
Annexure "A" to the
petition comprises some 430 pages. It includes a copy of the indictment as
originally served and deals mainly
with the events which gave rise to the
exclusion of Dr Joubert and the subseguent application for quashing and recusal,
and with
the making of the special entries. The petition alleges that special
entries 1 and 2 deal with discrete issues in the trial;
37
that the appeal thereon is capable of being argued separately;
and that for its adjudication only the contents of Annexure "A" are
relevant or
necessary. It says that if the procedure envisaged is followed there will be an
immense saving in expense. The estimated
cost of preparing the trial record,
which will comprise about 40 000 pages of evidence and documentary exhibits, is
between R388
000 and R480 000.The cost of briefing counsel in an appeal on the
complete record would be enormous in comparison with the cost involved
in an
appeal on a record limited to special entries 1 and 2. The procedure will also
have the beneficial result of an expeditious
resolution of the issues. A
decision on these special entries, if favourable to the appellants, would
probably dispose of the entire
appeal. If so, there would have resulted a
considerable saving of time, namely
38
1.
the time
which would have been occupied in the preparation of the entire
record;
2.
the time which would have been
required for preparation by counsel on both sides;
and
3. the time which would have been
occupied in
reading the whole record by the judges who are to hear the appeal. If, on the
other hand, the appeal on the two special
entries were to be dismissed, there
would have resulted no prejudice to the State or waste of the time of the court
as a result of
the separate hearing, because these matters would have had to be
considered in any event if the whole appeal were to be heard at
one stage. The
only disadvantage could be one suffered by the appellants, who would have had to
wait for a longer period for the
appeal to be finally disposed
39
of. They say in the petition that they accept that risk.
In
dealing with the cogency of the arguments relating to the special entries, it
must be emphasized that it is no part of the functions
of the court at this
stage to make any finding on the merits. The only enquiry now is whether there
is sufficient substance in the
contentions raised on behalf of the appellants to
justify a separate hearing.
Special entry 1.1
relates to the proper
interpretation of
s 147(1)
of the
Criminal Procedure Act
>,
51 of
1977, which provides:
"(1) If an assessor dies or, in the opinion of the presiding judge, becomes
unable to act as assessor at any time during a trial,
the presiding judge may
direct-(a) that the trial proceed before the
remaining member or members of
the
court; or
40
(b) that the trial start
de novo
, and for the purpose summon an assessor
in the place of the assessor who has died or has become unable to act as
assessor."
The appellants' contention is that, as a
matter of law, the learned trial judge could not, on the basis of the facts
sét out
in his statement of 10 March 1987, properly have formed the
opinion that Dr Joubert "had become unable to act as an assessor at any
time
during (the) trial". Two points are made: he was not "unable to act" within the
meaning of
s 147(1)
; and, such inability to act as there may have been existed
before the trial began.
These points were dealt with by VAN DIJKHORST J in
the reported judgment at pp 691 E to 693 F. The argument on behalf of the
appellants
on the other hand was in outline the following.
41
The words "unable to act as assessor" when properly
interpreted in the light of the context and the purpose and history of the
provision,
do not cover the situation which arose in the present case. While Dr
Joubert might have been subject to an application by wáy
of the
excepti
o
recusationis
(or
exceptio judicis suspecti
) at the
instance of the State or the defence, the legislature did not, in enacting
s
147(1)
, intend to empower a trial judge to exclude an assessor from further
participation in the trial because in the judge's view he ought
to recuse
himself. The use of the word "unable" points to physical or mental incapacity
short of death. An assessor is a member of
the court, who is sworn "that he will
on the evidence placed before him give a true verdict upon the issues to be
tried". It is only
when he
cannot
perform that role and function that he
is unable to act as assessor; it is not enough that he
ought
42
not
to act. Even if Dr Joubert was liable to
impeachment
(which was not conceded), that did not mean in itself that he could not give
a true verdict. Furthermore the words "becomes unable
to act as an assessor at
any time during the trial" contemplate an incapacity which arises,and not merely
one which becomes known,
during the trial. Any incapacity
of Dr Joubert to
act as an assessor (if there was such) existed before the trial began.
In terms of the proviso to s 145(2) of the Act, where the offence in respect
of which an accused is on trial is an offence for which
the sentence of death is
competent, the presiding judge shall, if he is of the opinion that, in the event
of a conviction and having
regard to the circumstances of the case, the sentence
of death may be imposed or may have to be imposed, summon two assessors
43.
to his assistance. These requirements are peremptory, and
"unless in the opinion of the trial judge concerned the possibility of a
death
sentence can be discounted he is obliged to appoint two assessors".
S v
Malinga
1987(3) SA 490 (A) at 495 I - J). The appellants were charged
inter alia
with crimes for which the death sentence was competent. VAN
DIJKHORST J thought it right to summon two assessors to his assistance.
When
they were duly sworn, the appellants thereupon became entitled to have their
case considered by every member of the fact-finding
tribunal. The effect of the
exclusion of Dr Joubert was to deny that right to the appellants (cf
R v
Price
1955(1) SA 219 (A)), with the result that the convictions were a clear
miscarriage of justice.
The complaint covered by
special entry 1.2
.
was two-fold: the requirements of procedural fairness were not observed in
relation to the forming of his opinion
44
by the trial judge; and the trial judge misdirected
himself
on the facts when forming the opinion.
The second complaint relates to the merits
of the opinion: it was
contended that there were no sufficient
grounds for the recusal of Dr
Joubert. The Attorney-General's
representatives submitted that a decision on
this complaint
could not be made without a consideration of the
importance
to the State case of the Million Signature Campaign (which
was
referred to in the trial judge's statement on 10 March
1987) and that this would require a consideration of the whole
record. In
order to meet the objection the appellants
asked, during the hearing of the
application, for the
amendment of special entry 1.2 so as to read:
"1.2 Thereafter, and on 10 March 1987, the trial judge, purporting to act in
terms of
section 147(1)
of the
Criminal Procedure Act, No. 51 of 1977
, acted
irregularly
45
by ruling, without hearing any argument thereon, that the
assessor Dr W.A. Joubert, had to recuse himself and had become unable to
act as
assessor, notwithstanding that no application for recusal had been made either
by the State or the accused, that Dr Joubert
was not willing to recuse himself
and that he was willing to continue as assessor."
The object of the amendment was to exclude from the special. entry the ground
of complaint relating to the merits of the opinion,
and to leave only the
complaint that the opinion was formed in disregard of the rules of procedural
fairness. The application for
amendment was not opposed by the Attorney-General
and it will be granted.
The complaint which remains was dealt with in the
reported judgment at 693 F - 694 C. The learned trial judge was of the view (at
693 J) that the parties had
46
no right to be heard before the judge formed his opinion, and
they had no ground for complaint if they were not heard.
The argument of the appellants to the contrary was in outline the following.
The requirement that a party to litigation should be
heard on all matters in
which he has an interest, is fundamental to all legal systems. Two basic
requirements of natural justice,
expressed in the injunction
audi alteram
partem
, are that notice of intended action must be given to persons who may
be prejudicially affected by the exercise of a particular power,
and that they
should be afforded a proper opportunity to be heard. The
audi alteram
partem
rule is not excluded by the provisions of
s 147(2).
The forming of
the opinion referred to in
s 147(2)
was a matter which might prejudicially
affect the accused: it is the jurisdictional fact on which
47 the power to
exclude an assessor depends. It is implicit
in the sub-section that once the opinion has been formed,
the trial judge
is under a duty to exercise the power by adopting
one of the two courses of
action which are set out.
S.147(1)
necessarily implies that in order to form
the opinion, the
trial judge must be possessed of information enabling
him
to do so. There was therefore a duty resting on the judge
before
reaching his opinion to notify Dr Joubert and the
accused of such
information, and to afford an opportunity
to Dr Joubert to defend himself and
to afford to the accused
an opportunity to be heard. (Cf
R v Nqwevela
1954(1) SA 123
(A)). The learned trial judge formed his opinion
mero motu
and in
private, without informing Dr Joubert or the accused
what he proposed to do,
and without affording either of
them the opportunity of being heard. This constituted
a departure from
established rules of procedure so gross that
48
it had the result that the accused were not given a proper
trial.
Special entry 1.3
concerned the decision of the trial judge,
after he had made his ruling that Dr Joubert was unable to act as an assessor,
to continue
the trial before a court consisting of himself and the remaining
assessor.
This was dealt with in the reported judgment at 695 B - D. The
learned judge said that he did not regard it as a requirement laid
down by the
Act to afford the parties a hearing before deciding to invoke paragraph (a) of S
147(1).He did not call upon the parties
to address him in this regard as he did
not think it possible that any accused, after having been through a trial of
some 17 months,
would prefer to start
de novo
. And he did not believe
their protestations at the later stage to be genuine in this respect.
The main submissions made on behalf of
49
the appellants were these. Having formed the opinion that Dr
Joubert was unable to act as an assessor, the trial judge was faced with
three
choices: to order the trial to proceed before the remaining members of the court
(in terms of para (a) of s 147(1)); to order
the trial to start
de novo
,
and for that purpose to summon an assessor in the place of Dr Joubert (para
(b)); or to direct that the trial be stopped and the
proceedings be quashed (in
the exercise of his inherent power). (Cf
R v Matsego & Others
1956(3)
SA 411 (A) at 417 H). His choice was a matter which affected the composition of
the trial court, in which the accused were
vitally interested, and on which they
had a right to be heard. The learned judge was not entitled to assume that the
accused would
not prefer to start
de novo
. The fact that they made an
application to quash the proceedings made it clear that they did prefer to have
the trial start
de novo
. The
50
failure to give the accused a hearing was therefore an
irregularity which vitiates the convictions.
Special entries 1.4 and 2
arise out of the learned judge's ruling that Dr Joubert's third report and
paragraph 6 of his second report were inadmissible and
could not be received in
êvidence; and that the contents of the statements made by the learned
judge were not open to contradiction.
The defence had sought to rely on
materiaï in Dr Joubert's reports both in support of the application to
quash the trial, and
in support of the application for the recusal of the trial
judge, alternatively of Mr Assessor Krugel. The effect of the rulings,
so they
informed the trial judge, was to make it impossible for them to continue with
the recusal application. (Here special entry
2 has application). The rulings
also reduced the thrust of the appellants' argument for quashing. (Here special
entry 1.4
51 has application.) At the end of the argument in this
court
counsel for the appellants stated that they would not ask
for the inclusion of special entry 2 in any order the court
might make on
the petition. Consequently is it unnecessary
to consider it further.
VAN DIJKHORST J dealt with the admissibility
of the material concerned at pp 701 E - 704 H of the reported
judgment. He
said that, wisely, counsel for the accused
did not dispute the existence of
the rule that it is against
public policy that there should be a disclosure
of private
discussions and deliberations between judge and assessors
on
the case before them, (at 702A). In this regard he
conceived the case of a jury to be analogous (at 702 B).
He said that
contradiction of the detailed facts which the
judge had put on record could not be allowed. "It would
put the credibility of the court itself at issue. Such
52 a situation is unthinkable. It is also against public policy." (at 703 F -
G).
Counsel for the appellants submitted that the rule of public policy
concerning the inadmissibility of statements by jurors to impeach
a verdict has
no application to the present case. Here it was incumbent on the trial judge,
once he had placed the 'facts' on record,
to admit evidence in contradiction
thereof. The rulings bear directly upon the fairness of the trial, and upon the
propriety of the
trial judge continuing to hear the case. Hence the
irregularities fall into the first category of irregularities mentioned in
S
v Moodie
,
(1961 (4) SA 752
(A) ) and have
per se
resulted in a
failure of justice. In
Moodie
's case HOLMES J A said at 758 F - G that
the following rules may be stated in regard to irregularities and the guestion
whether they
have resulted in a failure of justice:
53
"(1) The general rule in regard to irregularities is that the
Court will be satisfied that there has in fact been a failure of justice
if it
cannot hold that a reasonable triai Court would inevitably have convicted if
there had been no irregularity.
(2) In an exceptional case, where the
irregularity consists of such a
gross
departure from established rules of procedure
that the accused has
not been properly
tried, this is
per se
a failure of justice,
and
it is unnecesary to apply the test
of enquiring whether a reasonable trial Court would inevitably have convicted
if there had been no irregularity.
(3) Whether a case falls within (1) or (2)
depends upon the nature and
degree of
the irregularity."
It seems that the reference in counsel's argument to the first
54 category was an error; the justification put forward in the
petition for the hearing of a preliminary appeal on the special
entries on
the basis of a limited record was that the general
rule referred to in
category (1) is not applicable.
CONCLUSION
In my opinion this case
is of the exceptional kind which justifies the making of an order for the
hearing of the appeal in two stages.
For the reasons advanced by the appellants,
it falls into a very special category. The proposed course would be convenient
to all
parties and the court, and it would not result in
disadvantage to
anyone. (A consideration not so far mentioned is the fact that some of the
appellants are serving sentences of imprisonment.
If their convictions are to be
set aside, that should be done at the earliest stage possible.)
Special entries 1.1, 1.2 and 1.3, at
55
least, raise points of substance which, if decided in favour
of the appellants, will probably be decisive of the appeal. The arguments
advanced in support of them are cogent. (The argument in regard to special entry
1.4 is not as strong and even if it should be decided
that the learned judge's
rulings were erroneous, it may well be held that such rulings were not
irregularities of the kind referred
to in category (2) in
Moodie
's
case.)
So far as the record is concerned, the Attorney-General's
representatives did not at the end of the argument contend that adjudication
of
an appeal on special entry 1. as amended would require consideration of anything
more than Annexure "A".
Ex abundanti cautela
, however, it will be made
clear in the order that it is open to the State to make application to the court
hearing the preliminary
appeal to supplement Annexure "A" with other material
which
56
is shown to be relevant to the issues in such appeal.
The following order is made:
1. Special entry 1.2 is amended by the substitution therefor of the
following:
"1.2 Thereafter, and on 10 March
1987, the trial
judge, purporting to act in terms of
section 147(1)
of the
Criminal Procedure
Act, No 51 of 1977
, acted irregularly by ruling, without hearing any argument
thereon, that the assessor Dr W A Joubert, had to recuse himself and had
become
unable to act as assessor, notwithstanding that no application for recusal had
been made either by the State or the accused,
that Dr Joubert was not willing to
recuse himself and that he was willing to continue as assessor."
57
2.(a) It is directed that the appeal on special entry No 1 as
amended be heard as a preliminary appeal separately from the main appeal.
(b)(i) The record for the purpose of the adjudication of the appeal on the
said special entry shall be Annexure "A" to the petition.
(ii) Leave is granted to the State to apply to the court
hearing the preliminary appeal for leave to supplement
the record being Annexure "A" with material which
is shown to be relevant to the issues in such
appeal.
3. In regard to the application in Case No
54/89,
the date on or before which a petition seeking leave
to
58
appeal upon grounds not granted by the trial judge shall be filed, is
extended to the date fixed by the court hearing the preliminary
appeal when
giving its decision thereon;
(b) the duty of the appellants to order and prepare copies of the full trial
record for the main appeal is suspended pending the outcome
of the preliminary
appeal and the outcome of the petition for leave to appeal referred to in
sub-paragraph (a) hereof.
H C NICHOLAS A J A
CORBETT C J concur. BOTHA A J