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1985
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[1985] ZASCA 88
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S v Nkosi (240/84) [1985] ZASCA 88 (19 September 1985)
240/84
N v H
FALINSENDELINI MSILA NKOSI
and
THE
STATE
MILLER, JA :-
240/84
N v H
IN THE SUPREME COURT OF SOUTH
AFRICA
(AP
PELLATE DIVISION
) In the matter between:
FALINSENDELINI MSILA NKOSI
Appellant and
THE STATE
Respondent
CORAM
: MILLER, HEFER, et GROSSKOPF,
JJA
HEARD
: 17 SEPTEMBER 1985
DELIVERED
: 19 SEPTEMBER 1985
J
UDGMENT
MILLER , JA :-
The appellant was convicted by a Magistrate
of assault with intent to do grievous bodily harm and was
sentenced to
imprisonment for two years. His appeal to
the Natal Provincial Division against the conviction
and /
2 and sentence was dismissed, but leave was granted by the Court
a quo
to appeal to this Court. The main ground upon which such leave was
granted was that the appellant, whose intention it was to move
this Court for an
order setting aside the conviction and sentence to enable further evidence to be
led upon re-opening of the trial,
was considered by the Court
a quo
to
have a reasonable prospect of success in his quest for such an order. The Court
a quo
was not at fault in so rating the appellant's prospects; the
information placed before us by the appellant shows that at the trial,
upon
closure of the case for the State, the appellant's case was forthwith closed by
the attorney acting for him. This, according
to the appellant, was done without
his assent
and /
3.
and, indeed, against his wishes, for he had intended both to give
evidence himself and to lead other evidence in his defence. The
State does not
oppose the appellant's motion to have the trial re-opened so that further
evidence might be led. I consider that the
State's attitude in this regard is,
in all the circumstances, the proper one for it to adopt; it meets the
requirements of justice.
In the result, it is ordered that the conviction and
sentence are set aside and that the matter be remitted to the trial Court to
enable it to receive and consider such further evidence as may be placed before
it relevant to the appellant's guilt or otherwise
of the offence charged. In the
event that the trial cannot possibly be proceeded with by the judicial officer
who constituted the
Court at.
the /
4
the trial, the Attorney-General may, if he be so
advised,
charge the appellant
de novo
on the said charge before
a newly
constituted Court.
S MILLER
JUDGE OF APPEAL
HEFER, JA)
) CONCUR GROSSKOPF, JA)