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[1988] ZASCA 143
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Sefatsa and Others v Attorney-General, Transvaal (304/88) [1988] ZASCA 143; [1989] 4 All SA 336 (AD) (23 November 1988)
IN THE SUPREME COURT OF
SOUTH
AFRICA
APPELLATE DIVISION
In the matter
between:
MOJALEFA REGINALD SEFATSA
First Petitioner
REID
MALEBO MOKOENA
Second Petitioner
OUPA MOSES DINISO
Third
Petitioner
THERESA RAMASHAMOLA
Fourth Petitioner
DUMA JOSHUA
KHUMALO
Fifth Petitioner
FRANCIS DON MOKGESI
Sixth
Petitioner
and
ATTORNEY-GENERAL, TRANSVAAL
First Respondent
MINISTER OF
JUSTICE
Second Respondent
Coram
: RABIE ACJ, CORBETT, JOUBERT, HOEXTER et
VAN HEERDEN JJA
Heard:
Delivered:
7 September 1988. 23 November 1988
JUDGMENT RABIE ACJ
:
This is
an application for leave to appeal against the dismissal by Human AJ, sitting in
the Transvaal Provincial Division, of an
application to reopen a criminal trial
and to make a special entry on the record of the case. The facts relating to the
matter are
set out below.
The six petitioners were on 10 December 1985 found guilty by a court
consisting of Human AJ and two assessors of the murder on 3 September
1984 of Mr
Kuzwayo Jacob Dlamini, the deputy mayor of the town council of Lekoa. No
extenuating circumstances were found to exist
in the case of any of the
petitioners - who were respectively accused nos. 1, 2, 3, 4, 7 and 8 at the
trial - and they were accordingly
all sentenced to death. The petitioners were
also convicted on a charge of subversion in contravention of sec. 54(2) of the
Internal
Security Act, No. 74 of 1982. They were all sentenced to 8 years'
imprisonment on this count. Thereupon
3
they appealed, with the leave of
the trial Judge, to the
Appellate Division against their convictions and
sentences
on both the aforesaid counts. The appeals were heard by
this
Court on 2 November 1987 and were dismissed
in toto
on
1 December 1987: see
S v Safatsa and Others
1988(1) SA 868
(A).
On 16 March 1988 an application was brought before
Human AJ for a stay of the execution of the petitioners,
which had been
set for 18 March 1988, pending the
determination of an application for the reopening of the
trial. The application was granted subject to the proviso
that the application be brought by not later than 18 April
1988, failing which the stay would lapse. The application
to reopen the trial was launched by a notice of motion dated
15 April 1988, and the relief prayed for was an order that
the trial of the petitioners be reopened -
"(a) for the further cross-examination of the witness Joseph Motsumi
Manete;
4
(b)for the further cross-examination of any
other State or defence witness arising from and in the light of the further
cross-examination of Manete;
(c)for the hearing of any other or further
evidence which the Court, in
the exercise
of its discretion, may require to be
called;
(d)to re-appraise in the light of (a), (b) and (c) above, the convictions and
sentences of all the applicants".
Manete (referred to in paragraph (a) above), of whom more will be said later
in the judgment, gave evidence for the State at the aforesaid
trial and
implicated the fifth and sixth petitioners in the events of 3 September 1984
when the aforesaid Dlamini was murdered. See
the report of the judgment of this
Court in 1988(1) SA 868 at 872 C-G, 873 C-D, 876 C-H and 892 G-893 A.
In a notice of motion dated 1 June 1988 the petitioners stated that they
would at the
5
hearing of their application for the reopening of the trial
- which
hearing took place on 7 and 8 June - seek leave to
amend their notice of
motion of 15 April 1988 by asking for
the following additional relief:
"1. Condoning the Applicants' failure to
apply for a special entry to be made on the record either durlng their trial
or within the period of fourteen (14) days after their
convictions on charges of
murder and subversion in terms of an indictment issued by the Attorney-General
on the 27th August 1985;
2. Permitting the special entry hereinafter
stated to be made on the
record;
3. Directing the hearing of the evidence of
JOSEPH MOTSUMI MANETE and
JOHANNES
MONGAULE, in regard to their allegations,
as recorded in the
documents supporting
the Notice of Motion dated the 15th April
1988, that
they were threatened and
assaulted by members of the South
African Police
and were thereby procured
to give false evidence against the
Applicants at
the said trial;
6.
4. Directing the hearing of the evidence of MOHAMED SULIMAN BHAM and
AMICHARD SOMAN in regard to the statements made to them
by JOSEPH MOTSUMI MANETE
concerning his said treatment by the police and the truth of his evidence at the
trial;
5. Directing the hearing of such other evidence as this Honourable Court may
decide is required for the settling of the said special
entry;
6. Directing that after the hearing of the aforesaid evidence, and should such
evidence warrant it, a special entry be made on the
record of the trial as
follows:-
(a) the perjured evidence of the
witness, JOSEPH MOTSUMI MANETE, as procured by members of the South African
Police, has resulted in a fraud having been practised
on the trial court by such
members, thus constituting an illegality or
7
defect in the proceedings which has caused a failure of justice;
(b) the threats and assaults by members of the South African Police on JOSEPH
MOTSUMI MANETE and JOHANNES MONGAULE, reveallng as they
do, a systematic
intimidation and a systematic procuring of false evidence, show a fraudulent
system at work in regard to the whole
trial when read with the evidence given at
the trial, thus constituting an illegality or defect in che proceedings which
has caused
a failure of justice;
7. Directing the grant of alternative
relief."
The events which gave rise to the applications of 15 April 1988 and 1 June
1988 may be briefly stated at this stage. Manete, as I
have said, gave evidence
at the trial
8
in which he implicated the 5th and 6th petitioners in the murder of the
aforesaid Dlamini on 3 September 1984. In the course of the
trial counsel for
the defence, while in the process of cross-examining Manete, informed the Court
that he was in possession of a
statement which Manete had made to an attorney,
that it was
prima facie
a privileged statement, but that he wished to
cross-examine Manete on it. In reply to a question by the learned Judge counsel
indicated
that according to the sbatement Manete had not voluntarily implicated
accused nos. 7 and 8 (the 5th and 6th pecitioners), but had
been forced by the
police to do so. Manete objected to being cross-examined on the statement,
pleading that it was a privileged communication
which he had made to an attorney
when seeking legal advice. Human AJ upheld the objection and cross-examination
on the statement
was accordingly disallowed. This Court held that this ruling by
Human AJ could not be faulted: see 1988(1) SA at 876 G-H. The judgment
on
appeal, as stated above, was given on
9
1 December 1987. On 27 January 1988 Menete signed a document in which he
waived all privileges attaching to communications made by
him to an attorney, Mr
Mohamed Suliman Bham, during 1985 and 1986 in the course of their attorney and
client relationship. (According
to an affidavit made by the said Bham, Manete
made statements to him during September and October 1985, in February 1986, and
on
15 March 1988.) A similar waiver, relating to a statement made by Manete Lo
Mr Amichand Soman, an atcorney of Johannesburg, was signed
by Manete on 15 March
1988. Decails of the various statements made by Manete will be mentioned later
in the judgment.
Human AJ dismissed the application to reopen the trial and also refused the
application for the amendment of Che application set out
in the notice of motion
dated 1 June 1988. With regard to the dismissal of the applicacion for the
reopening of the trial, the learned
Judge held, briefly put, that he was
functus officio
, the accused in the trial
10
having been convicted and sentenced and their appeals having been dismissed
by the Appellate Division, and that he had no jurisdiction
to reopen the trial
for the hearing of further evidence. As to the refusal of the proposed
amendment, which was aimed at the hearing
of further evidence with a view to the
making of a special entry on the record of the trial, he held that the further
cross-examination
of Manete would be an exercise in futility and that the
granting of the application would be an abuse of the process of the court.
The
statements made by Manete which were before Iluman AJ are, in so far as
relevant, set out below.
On 11 May 1985, Manete consulted Mr Soman, who recorded what Manete said to
him in the following terms:
"I am 20 years old and I am presently living with my aunt in 65/3 Evaton
Road, Evaton. My permanent address is 2339. I am still a
student at FUBA doing
speech and drama. I completed my matric in 1983 at Mohlodi High School,
Sharpville.
11
In November 1984 I was arrested by the Security Police of Sebokeng. I was
detained for two days and then released. I was questioned
about the death of one
of the Councillors of Sharpville, a Mr Dlamini. I did not tell the police
anything. I refused. I was assaulted.
I was pushed against the wall, kicked and
punched on my face. The policemen who interrogated me were policemen dressed in
camouflage
outfits. I cannot recognise them now. I made no statement and I was
released.
On my release I was told to report the following Monday to the Sebokeng
Pollce Station. I went as instructed to. I cannot remember
the date. When I
arrived at the Police Station I was told to wait for the Security Police from
John Vorster Square. I waited for
three (3) hours but they did not arrive. I
took a taxi home and I was followed by the Security Police of Sebokeng. I went
to Shaledi's
motel and I played chess. While playing chess three white policemen
approached me and asked me to go to the Police Station
12
I refused because I had already been there. They
left me after telling me not to talk with the people.
I was again detained in
April 1985 by Krugersdorp Security Police. I was taken to Krugersdorp Police
Station. I was assaulted and
forced to write a statement about the Councillor
Dlamini. They wanted to know about the people who killed Mr.Dlamini. I made a
statement
and I mentioned Don Mokhesi and Duma Khumalo's names. These names were
given to (me) by the police and I was forced to write these
names in the
statement.
I was forced to say that Rev. Moselane and other UDF leaders held meetings
and influenced people to protest against high rentals.
All these names were
furnished to me by police. I was questioned by two policemen and one was a
Schoeman. I was assaulted by the
other policemen and not Sohoeman. I was punched
about three times on the head. I was held for a day only (about a few hours) and
I was released after I made a statement as above.
Don Mogesi and Duma Khumalo are still in
13
Don Mogesi and Duma Khumalo are still in detention.
It is possible I may be called as a
State witness "
Don Mokhesi (Mokgesi) is the 6th petitioner, and Duma Khumalo, the 5th.
(Schoeman's reply to this statement, in so far as it relates
to him, will be
mentioned later in the judgment.)
In September 1985, shortly before the
commencement
of the trial (on 23 September 1985),
Manete went to see his
attorney, the aforesaid Bham. He had been served with a
subpoena to give evidence at the trial, and asked Bham what
the consequences would be if he failed to appear in Court to
testify. Bham advised him to testify. In the course of
their consultation Bham took a statement from Manete which
he recorded as follows (I have amended the date 1985,
wherever it appears in the statement, to read 1984: 1985 is
obviously an error):
"1. I was first detained by the police during October 1984. I was detained
for one
14
day at Krugersdorp police station. I was asked by two white men, where I was
on the 3rd September 1984. I replied that I was in the
township. I was told that
I was one of the persons who were responsible for the burning of the house of Mr
Dlamini, a community counsellor
and also his killing on that day. I denied this,
and stated that I was visiting a friend by the name of Mahlomo, in Sharpville.
The
police said that I was talking 'Kak' and threatened to detain me if I did
not tell them the truth. I repeated what I had stated earlier,
namely, that I
was not near the scene of the incidents relating to the burning of the house,
and said that I was visiting Mahlomo.
The interrogation continued for about two
hours.
2. About a few months ago this year, I was visited by a black policeman, who
told me to report at Sebokeng Police Station the next
morning, I was taken to
Krugersdorp police station again. At the station, I was interrogated by two
15
white policemen, who asked me again what I knew about the events of the 3rd
September 1984. They threatened to assault me and detain
me if I did not tell
them the truth. They also asked me if I knew two persons named Don Mogese and
Duma Khumalo. I initially denied
that I have any knowledge of these two men, but
later, under pressure, when I was threatened with assault, I admitted that I
knew
these persons.
3. After being threatened, I was
forced to
make the following statement:-
'On the 3rd September 1984, I went to visit my uncle, who had been looking
for employment for me. After I returned from my uncle's
place that morning, I
met a crowd of people. One of the persons in the crowd, known to me as Don
Mogese, told me to join the crowd.
There were all together about 100 people in
the crowd. Don Mogese was leading the crowd
16
towards Dlamini's house and he was shouting slogans such as 'Amandla' and
'People must come together and fight for the community'.
When the crowd arrived
at Dlamini's house, they surrounded the place and began throwing stones at the
house. Mr Dlamini came out
and fired shots at the crowd. After Mr Dlamini had
fired all his shots, he began running towards his neighbour's house. As he ran
he was confronted by the crowd who threw stones at him until he died'. I told
the police that the only persons I knew in the crowd
were Don Mogesi and Duma
Khumalo. I further said that as I was afraid, I ran away from the place and
before the pollce could shoot
me. I also said that one of the other persons who
were shot by Dlamini was a person known as Swag.
17
4. After making the above statement, I
signed it before the policemen. I
was
released that same day.
5. -
6.
The statement I made to the policemen that morning was not entirely
true. The following did take place on the 3rd September 1984,
to the best of my
knowledge.
7.
I went to Dlamini's house and
saw a crowd of people stoning the house. Amongst the people I saw were Khumalo
and Mosego. I saw both
of them throw stones at Dlamini's house, but I did not
see them actually pouring petrol on the house or stoning Dlamini himself.
I also
took part in the stone throwing, but I did not take part in the burning of Mr
Dlamini."
On 17 October 1985 Manete again went to
see Bham, According to an affidavit made by Bham, Manete told him that he had
given evidence
in Court. When Bham asked him what
18
he had said; Manete said that "he would write out the statement" and deliver
it to Bham the next day. He did so, and when Bham asked
him whether he would
depose to an affidavit "regarding the contents of the documents he had handed to
me", Manete agreed. Manete's
statement was then typed in affidavit form and
sworn to by him. The affidavit reads:
"1.
2.
On the 3rd day of September 1984, I went to my uncle's place. My
uncle had promised me that he would try to find a job for me. I arrived
at my
uncle's place, but he was not there.
3.
On my
way home, I met a group of people who were running away from the
police.
I also ran away and hid myself in the yard
of another house. I came out when the police had left. The crowds re-grouped
again. I decided
to take
another direction, but one of the people who was in the crowd stopped me. He
was Don Mogesi. He said to me 'where are you going why
don't you join the crowd
because we are fighting for the whole
19
community'. I was afraid and I decided to join the crowd.
4. We marched to the house of Mr. Dlamini, they were shouting that Motsivi was
shot by Mr. Dlamini in the thigh. When the crowd arrived
at the house of Mr
Dlamini, they were shouting slogans. Mr. Dlamini was standing outside with
another man and woman. They went in
the house when they saw the crowd. The crowd
surrounded the house and they threw stones at the house. Don Mokhesi told the
crowd
to surround the house and set it alight. Stones were thrown in the house
through the windows. Mr. Dlamini shot some bullets through
the windows.
5. Later on, Mr. Dlamini came out from the house and ran to the yard of his
neighbours, but some people caught him, but these people
were afraid, as he
still had his gun in his hand, so he managed
to
escape, but these people followed him. Some of the crowds were still throwing
stones at him. He managed to jump the fence, but
with difficulty as people
were
20
pulling him with his clothes.
6. After he jumped over the fence, some people who were standing in his
neighbour's yard caught him in front of the kitchen door
of his neighbour. Some
people threw him with stones, otherskicked him, as a result he fell. They
continued to hit him with stones,
others kicked him. One guy who was in the
crowd stabbed him with a knife at the back of his neck several times. After some
few minutes
two people pulled Mr. Dlamini with his legs, until they put him next
to his burning car. They placed some sponges on his body and
set them
alight.
7. Later the people put him in the boot of his car, but half of his body was in
the boot while the other half was outside. Before
the people put him in the
boot, they had tried first to place him on the bonnet, but his body fell
down.
8. After all this, I decided to run
away
because I was very scared and I thought
21
I can be shot. One of the people whom I
have noticed amongst the people who were throwing stones at the house of Mr.
Dlamini is Duma Khumalo, and I also know Swaar who was
shot in the hand, but I
did not see him throwing stones."
On 14 February 1986 Manete again saw Bham. He made a brief statement to him
in which he said that Mr Jordaan (of the Attorney-General's
office) spoke to him
before he gave his evidence at the trial. Jordaan told him, he said, that he
should not lie in Court, that he
should read the statement he made to the
police, and that he should not "consult a lawyer" because he was a State
witness. The statement
ends abruptly with the sentence "I did not tell the court
the whole truth", with no indication as to how far or in what respect(s)
his
evidence fell short of the truth.
Finally, in an affidavit dated 15 March 1988, Bham states that Manete said to
him on that day -
"that the evidence he had given at the
22
trial of the abovementioned accused was false and that he had not seen the
First and Second Applicants" - i.e. the 5th and 6th petitioners
in the present
proceedings - "at the scene of the crime",
and also that -
"the police had mentioned the names of
the First and Second Applicants to him
and instructed him to say in his evidence
that they were at the scene of the
crime."
Warrant-Officer Schoeman, a member of the South African Police, made an
affidavit in which he deals with some of the allegations made
by Manete in his
aforesaid statements. With regard to the statement of 11 May 1985, quoted above,
Schoeman says that he was one of
the investigating officers in the case and that
he was at no time attached to the security police. As to the events of 11
May
23
1985, Schoeman says
inter alia
:
"Die getuie was op geen stadium aangehou nie. Hy het vrywillig gekom en was
daar aangebring deur sy broer. Ek was nie op enige stadium
verbonde aan die
veiligheidspolisie nie. Die onderhoud met MANETE het plaasgevind en teenwoordig
was ekself en Sers. KWENAITE wat
meeste van die tyd aanwesig was. Die getuie was
hoegenaamd nie aangerand of gedreig of verplig om 'n verklaring af te lê
nie.
Daar was hoegenaamd geen druk uitgeoefen op die getuie nie. Na die beste
van my wete was hy wel aanvanklik bang om 'n verklaring
te maak en moes hy gerus
gestel word dat die Staat aansoek sou doen dat sy getuienis
in camera
afgelê sal word by die verhoor. Ek ontken ten sterkste dat die getuie
voorgesê of beinvloed was aangaande wat in sy verklaring
moes verskyn.
Dit is korrek dat DOW MOKGESI en DUMA KHUMALO in aanhouding was gedurende
April 1985. Ek ontken dat ek die name van die voormelde
twee persone aan die
getuie MANETE verskaf het. Ek kan nie
24
presies onthou hoe die gesprek verloop het nie. Ek kan nie die moontlikheid
uitskakel dat ek miskien aan die getuie 'n lys name sou
voorgehou het en hom sou
vra of hy enige van die gemelde persone op die betrokke toneel opgemerk het nie.
Ek glo nie dat dit is wat
in hierdie geval gebeur het nie. Wat ek positief kan
uitskakel is dat ek net hierdie twee name aan die getuie sou genoem het .
..".
In dealing with the statement made by Manete to Bham in
September 1985 (quoted above), Schoeman says
inter alia
:
"Ek wys verder daarop dat in hierdie beweerde verklaring meld MANETE na
bewering teenoor sy eie prokureur dat DON MOKGESI en DUMA
KHUMALO aanwesig was
op die toneel van die moord en dat hulle met klippe na die huis gegooi het. Ek
voer eerbiediglik aan dat dit
uit bogemelde duidelik is dat die name van MOKGESI
en KHUMALO nie van die polisie afkomstig was nie en dat die getuie hierdie name
aan sy eie prokureur gemeld het onder omstandighede waar daar geen sprake
kon
25
wees van intimidasie deur die polisie nie.
Ek wens daarop te wys dat in die weergawe wat in hierdie beweerde verklaring
verskyn ten aansien van die gebeure gedurende April 1985
toe die getuie wel 'n
verklaring gemaak het, beweer hy slegs dat hy
gedreig
was met aanranding.
Die vorige bewering dat hy
inderdaad
aangerand was word opsigtelik
weggelaat. Ten aansien van die bewering dat MANETE aan my sou gesê het dat
hy geen kennis het
van MOKGESI en KHUMALO nie, wens ek daarop te wys dat daar
geen dispuut is dat die getuie MANETE wel vir DON MOKGESI en DUMA KHUMALO
ken
nie. Ek ontken dat hy teenoor my op enige stadium betwis het dat hy hierdie
persone ken."
In discussing the statements made by Manete to Soman on 11 May 1985 and tc
Bham on 15 March 1988, Human AJ
26
referred to the statement Manete made to Bham in September
1985, shortly
before the trial was due to begin. It will be
recalled that in that statement
Manete again alleged (as he
had done in his statement of 11 May 1985) that he
had been
forced by the police to make a statement in which he
implicated the 5th and 6th petitioners in the attack on
Dlamini on 3
September 1984, but that he then went to say
what "did take place" on that day, viz.:
"I went to Dlamini's house and saw a crowd of people stoning the house.
Amongst the people I saw were Khumalo and Mosego (Mokgesi).
I saw both of them
throw stones at Dlamini's house, but I did not see them actually pouring petrol
on the house or stoning Dlamini
himself. I also took part in the stone throwing,
but I did not take part in the burning of Mr. Dlamini."
Human AJ pointed out that Manete made this statement to his attorney and that
one could accept that he made it freely and voluntarily.
This statement
implicating the 5th and 6th
27
petitioners, the learned Judge said, confirmed that Manete's testimony in
Court "was not false in that regard", and was supported
by the evidence of the
State witness Mabuti, who testified that the 5th and 6th petitioners were
present at the scene of the crime
and, it may be added, that they made petrol
bombs which were used in the attack on Dlamini's house. Mabuti, the learned
Judge said,
was a reliable witness whose evidence was accepted by the trial
Court.
With regard to the statement made by Manete to Bham on 14 February
1986 that "I did not tell the Court the whole truth", Human JA
remarked that
this statement was "not surprising because he never admitted at the trial that
he also took an active part in pelting
the house of Dlamini with stones."
Human AJ also pointed out that there was in the papers before him no
affidavit by Manete himself "that the evidence given by him at
the trial was
false or that the police instructed him to give false evidence against the
28
fifth and sixth applicants." As to the absence of such an
affidavit, the learned Judge said:
"The attorneys for the applicants claim that they could not obtain such an
affidavit because Manete is a State witness. The trial
and the appeal to the
Appellate Division have been concluded. Judgment was delivered in the Appellate
Division on 1 December 1987.
The reason advanced for the absence of such an
affidavit by Manete is to say the least, in my opinion, utterly unconvincing and
unacceptable.
The attorneys for the applicants were instrumental in obtaining
the waiver by Manete of his privilege pertaining to the statement
he had made to
Attorney Soman. They could have adopted the same procedure to obtain an
affidavit from him that the evidence he had
given at the trial was false and
that the police had procured him to give false evidence."
29
With regard to the witness Mongaule, Human AJ said that the
trial Court found his evidence to be untruthful and unreliable, and that
his
evidence was "completely disregarded in arriving at the verdict against the
applicants." "Assuming for the moment therefore in
favour of the applicants",
the learned Judge also said, "that he was coerced by the police to give false
evidence it follows that
this exercise failed". It is clear, I think, that it
was the view of Human AJ that the quality of Mongaule as a witness was such
that
the evidence which it was proposed that he should give could not in any way
justify the reopening of the trial or the making
of a special entry.
The petitioners applied to Human AJ for leave to appeal against his dismissal
of their aforesaid applications of 15 April 1988 and
1 June 1988. Leave was
refused. They then submitted a petition to the Chief Justice, seeking leave to
appeal against Human AJ's refusal
of leave to appeal. It was directed that the
petition should be considered by the
30
Court, and it is this petition which we now have before us .
The main issues which call for consideracion are
set
out in the following terms in the heads of argument
submitted on behalf of the petitioners:
"(a) Whether or not the trial court, alternatively, this court, has
jurisdiction to reopen the trial on che grounds advanced in the
court below. (It
will be contended on behalf of the petitioners Lhat the crial court,
alternatively this court, has inherent jurisdiction
to do so.)
(b) Whether or not the court below should have directed further evidence to
be heard in order to decide whether a special entry should
be made on the record
of the trial."
As to the question mentioned in (a), the
petitioners say in their heads of argument thac it was
contended on their behalf in the Court
a quo
that the Courc
had inherent jurisdiction "to regulate its own proceedings
so as to avoid or correct an injustice", but that Human AJ
31
held that the Court had no jurisdiction to set aside the verdict given by it
af the trial, or to order the reopening of the trial
and the hearing of further
evidence. Human AJ, it is said, based his finding on two main legel grounds,
viz. (1) the general rule
that a Court which has delivered judgment is
ordinarily
functus officio
, and (2) the remedy of
restitutio in
integrum
is, according to the judgment of the Appellate Division in the case
of
Mokoena v. Minister of Justice and Another
1968(4) SA 708, not
available in criminal cases. Counsel for the petítioners acknowledge in
their heads of argument that "on
the face of them" both these grounds
"constitute formidable obstacles to the granting of relief on the basis on which
it was originally
sought", but they submit that the Supreme Court has inherent
jurisdiction "to regulate its own procedures so as to do justice and
to prevent
the abuse of its procedures by a dishonest litigant", and that a superior court,
as distinct from an inferior court, has
a jurisdiction whích is "general
and unlimited
32
unless cut down or forbidden by law." In support of
these submissions they
cite the provisions of sec. 19(1)(a)
and sec. 19(3) of the Supreme Court Act,
No. 59 of 1959;
Herbstein and Van Winsen,
The Civil Practice of the
Superior
Courts in South Africa
, 3rd ed., p. 23; LAWSA, Vol 11,
para-
graphs 404-405, and the statement by Botha J in
Moulded
Components and Rotomoulding South Africa (Pty) Ltd
v.
Coucourakis and Another
1979(2) SA 457 (W) at 463 A that
"...
the Court will exercise an inherent jurisdiction whenever
justice requires that it should do so."
The aforesaid submissions are too widely
stated.
Sections 19(1)(a) and 19(3) of the Supreme
Court Act, No. 59
of 1959, read as follows:
"1(a) A provincial or local division shall have jurisdiction over all persons
residing or being in and in relation to all causes arising
and all offences
triable within its area of jurisdiction and all other matters of which it may
according to law take cognizance,
and shall, subject to
33
the provisions of subsection (2),
in addition to any powers or jurisdiction
which may
be vested in it by law, have
power -
(i) to hear and determine appeals
from all inferior
courts within its area of jurisdiction;
(ii) to review the proceedings of all such courts;
(iii) in its discretion, and at the instance of any interested person, to
enquire into and determine any existing, future or contingent
right or
obligation, notwithstanding that such person cannot claim any relief
consequential upon the determination.
(3) The provisions of this section shall not be construed as in any way limiting
the powers of a provincial or local division as
existing at the commencement of
this Act, or as depriving any such division of any jurisdiction which
could
34
lawfully be exercised by it at such commencement."
These provisions contain no indication as to what inherent
jurisdiction a
provincial or local division of the Supreme
Court possessed at the
commencement of the Act, or possesses
at the present time, and they are not
of assistance in
deciding the issue with which we are here concerned.
The
Moulded Components
case,
supra
, was
concerned with certain rules of Court. Botha J held that
the Court had inherent power to come to the assistance of a
party even although the ground on which he relied was not
specifically mentioned in the rule in question. The learned
Judge said (at 462 D-E):
"I do not consider that if justice demands such a course in appropriate
circumstances, the Court would decline to come to the assistance
of a party
where that party requires inspection of an object referred to in the opposing
party's affidavits, simply because Rule
36(6) is limited by its wording to
35
actions and does not expressly include within its ambit applications. If
justice requires an inspection of an object, in application
proceedings, I
consider that the Court will exercise an inherent jurisdiction to order
prcduction for such inspection, I should add,
however, that I have no doubt that
such a situation would be an unusual one and that this is a power that the Court
would exercise
very sparingly."
The remarks of Botha J were, as I have said, made with regard
to a rule of
Court, and it is unnecessary to consider the correctness thereof. It is
sufficient to say that Courts have on occasion
adopted what would seem to be a
rather accommodating approach in the interpretation or application of rules of
Court. This approach
is well illustrated, I think, by the statement of Gardiner
J P in
Cohen & Tyfield v. Hull Chemicel Works
1929 CPD 9
at 11 that:
"Just as the Court has the power to make a Rule, so it has an inherent power,
when just cause is shown, to do something
which is not provided by the
Rule."
36
The passages in Herbstein and Van Winsen,
The Civil Practice of the
Superior Courts in South Africa
, and LAWSA, to which we were referred by
counsel, while generally to the effect (as stated in Herbstein and Van Winsen)
that a superior
court "may do anything which the law does not forbid", do not
provide authority for the contention advanced by the petitioners in
the present
case, viz. that a superior Court which has tried and convicted a person of an
offence may thereafter reopen the trial
and hear further evidence. There is, as
will be shown below, direct authority to the effect that a Court cannot do
so.
A superior court - including this Court - is a creature of statute, and it is
not correct to state, as a general proposition, that
it has a jurisdiction which
is general and unlimited unless cut down or forbidden by law. In
Rex v. Milne
and Erleigh
(6) 1951(1) SA 1(A), an applicant asked this Court to set aside
his convictions and sentences on the ground that the trial Judge,
who sat with
two
37
assessors, was biassed. It was contended on his behalf that
the
proceedings were by way of review and that the Appellate
Divísion had
an "inherent jurisdiction to consider the
application" (p.5 H). Centlivres CJ
said (at 5
i.f.
-6):
"This Court was created by the South African Act and its jurisdiction is to
be ascertained from the provisions of that Act as amended
from time to time and
from any other relevant statutory enactment. There is no provision in that or
any other Act conferring a review
jurisdiction in criminal matters on this
Court."
And also (at 6 E):
"No authority was quoted for the proposition that a Court such as this Court,
which was created by statute, has any jurisdiction beyond
what is conferred on
it by statute."
Centlivres CJ (at 7B) raised the question whether this Court
38
could "assume a jurisdiction in certain cases in order to see
that justice is done", but he expressed no opinion thereon.
In
R v.
Sibande
1958(3) SA 1 (A) Schreiner JA referred to the
decision in
Rex
v. Milne and Erleigh, supra
, regarding the
jurisdiction
of this Court in the following terms (at 4H-5):
"It seems to me to follow from
Rex v. Milne and Erleigh
that if any
extraordinary jurisdiction in criminal cases remains, which seems to be very
doubtful, it must be limited tó rare
cases such as those in which a
Provincial Division has dealt with a matter over which it had no jurisdiction.
Even in the case of
an order made without jurisdiction it would seem that the
special entry procedure might be available; if this were so it would rule
out
the assumption of an extraordinary jurisdiction in such cases (see
Rex v.
Milne and Erleigh
,
loc. cit.
)."
In
The State v. Mofokeng
1962(3) SA 551 (A) Williamson JA, delivering
the judgment of the Court, said the following (at 558 C-F) regarding an
extra-statutory
jurisdiction of this Court:
39
"It was contended on behalf of the appellant that even if a special entry was
wrongly made and accordingly there was strictly no appeal
shown to be competent
to this Court under sec. 365 (1), yet nevertheless this Court should come to the
aid of the appellant to prevent
a possible miscarriage of justice. Counsel
rightly conceded that any extra-statutory jurisdiction this Court may have
possessed previously
in criminal matters, disappeared after the amendment of Act
31 of 1917 by Act 37 of 1948; see
Rex v. Milne and Erleigh
(6),
1951 (1)
S.A. 1
(A.D.) at p. 6. In R.
v. Sibande
,
1958 (3) S.A. 1
(A.D.) at.p. 4
F, Schreiner, J.A., makes mention of a very guarded reference at p. 7 of the
former case by Centlivres, C.J., of the
possible existence of a jurisdiction
which it was suggested this Court might assume 'in order to see that justice is
done'. No such
jurisdiction has yet been found to be still vested in this Court.
This position was maintained in Act 56 of 1955. In terms of sec.
362 (2) of this
Act it is specifically provided that
40
an appeal lies in criminal cases to this Court 'only as provided in secs. 363
to 365 inclusive and not as of right'; these sections
cover appeals by leave,
appeals on specíal entries and proceedings on the reservation of a
question of law."
Reference may also be made to
S v. Heller
1970(4) SA 679(A),
where
the question of the círoumscription of the powers of the Supreme Court in
criminal matters is dealt with at some length
(see at 684 G-686 G).
The cases
referred to immediately above would seem to show, in my opinion, that it is the
settled view of this Court that its jurisdiction
in criminal matters is
determined by statute, i.e. the Criminal Procedure Act and suoh other relevant
statutory provisions as there
may be. The position would
a fortiori
be
the same in the case of other Courts.
With regard to the specific point with which we are concerned at the moment,
i.e. whether Human AJ was correct in holding that he
had no jurisdiction to
reopen the case and
41
hear further evidence as he was requested to do by the petitioners in the
application of 15 April 1988, there are several decisions
of this Court in which
it has been held that when a trial Judge has given a final judgment, he has no
jurisdiction to reconsider
or to alter it. In
S v. Fisher en 'n Ander
1969(2) SA 632(A) three persons were convicted of murder and sentenced to death.
In the course of his evidence regarding the question
of extenuating
circumstances the third accused stated that it was he who killed the deceased
and that the other two accused took
no part in the murder. After they had been
sentenced, the first two accused sought leave to appeal on the ground that the
trial Court
should in the light of the evidence given by the third accused,
which was not contested by the State, have altered its finding of
guilty in
terms of the provisions of sec. 187(2) of the Criminal Procedure Act, No. 56 of
1955.
This Court held that the trial Judge was correct in holding that the trial
Court's conviction of the accused was a final
42
judgment and that the Court could not thereafter reconsider or alter it,
whether by virtue of its general inherent jurisdiction ("algemene
inherente
bevoegdheid") or in terms of sec. 187(2) of Act 56 of 1955. In
S
v.Augustine
1980(1) SA 503(A) the accused, charged with murder, was found
guilty of culpable homicide, After he had been convicted but before
sentence was
imposed, the trial Judge was asked for leave to appeal because it appeared that
the person whom the accused had allegedly
stabbed to death was still alive. The
trial Court heard evidence showing that the person who had allegedly been killed
was still
alive and postponed the imposition of sentence. The accused was then
granted leave to appeal. This Court, referring to the decision
in
S v. Fisher
en 'n Ander
,
supra
, said that the trial Court was
functus
officio
as far as the conviction of culpable homicide was concerned and that
it did not have jurisdiction to set aside the conviction. In
S v. Leeuw
1980(3) SA 815(A) at 823 A Rumpff CJ, referring to the case of Estate Garlick
v.
43
Commissioner for Inland Revenue
1934 AD 499
, held that when
a trial
Court has found a person guilty, it is normally
functus officio
, and that the rule in Roman-Dutch law is
that, save for a few exceptions (none of which is here
relevant), the judgment of e Court cannot be altered by the
Court itself.
The view that a trial Court does not have
jurisdiction to alter a final judgment given by it, also
appears from judgments of this Court in which it recommended
to the authorities that trial Judges should, in appropriate
cases, be accorded power to reopen criminal proceedings and
hear fresh evidence. One of these cases is
S v. Zondi
1968(2) SA 653(A), where Ogilvie Thompson JA said (at 655
BD):
"Before dealing with the merits of the appeal, I refer to two preliminary
matters. The first is that, in order to achieve a re-opening
of the trial, the
only procedure available to appellant's advisers was the one which they have
followed - namely, to approach this
Court
44
on appeal after leave granted in that behalf. This procedure, as was rightly
remarked by Kennedy, J., in granting leave in the present
case, is cumbersome
indeed; and delay is inevitably inherent in it. This procedural question has
been mentioned by this Court on
previous occasions (see
S. v. E.
,
1965
(4) S.A. 526
(A.D.) at p. 530E and
S. v. Njaba,
1966(3) S.A. 140 (A.D.)
at p. 145C) and is, I understand, receiving attention. I venture to express the
hope that the necessary steps
will soon be taken to accord trial Judges power -
in appropriate cases and applying the principles applicable to these matters as
laid down by this Court - to re-open criminal proceedings and hear fresh
evidence." These judicial observations led to the enactment
of
sec.
316(3) and (4) of the Criminal Procedure Act,No 51 of
1977,
which empowered a court hearing an application for leave to
appeal
to receive further evidence, provided that certain
pre-requisites were satisfied. These statutory provisions
45
were not applicable in the present case in that the application to reopen did
not, and could not, accompany an application for leave
to appeal. it could not
do so because an application for leave to appeal had previously, after the
conclusion of the trial before
Human J in December 1965, been granted; and this
of oourse had led to the appeal being heard by this Court towards the end of
1987.
The appeal procedure had thus been exhausted and there was consequently no
scope for the employment of the procedure laid down by
sec. 316(3) and (4). (Cf.
R v. Sibande, supra
, at 6 E. See also
S v. Masinda en 'n Ander
1981(3) SA 1157 (A) at 1164 E-H, where it is pointed out that sec. 316(3) of Act
51 of 1977 does not give full effect to the suggestion
made by Van Blerk JA in
S v. Njaba
,
supra
.)
With regard to the decision of Human AJ that he had no jurisdiction to reopen
the case for the hearing of further evidence, there
is a further point which
should be borne in mind. It is this: The application to reopen the case was
46
case was made after an appeal against the judgment of the
trial Court had been dismissed by this Court. This means that the case which
Human AJ was asked to reopen was not only one in which he had become
functus
officio
and which he was, for that reason, not able to reopen, but one in
which an appeal against his judgment had been dismissed. As indicated
above, he
would not have been entitled to reopen the case after he had convicted the
accused (see
S v. Fisher en 'n Ander
,
S v. Augustine
and
S v.
Leeuw
, mentioned above), and, this being so, it is difficult to see how he
could have had jurisdiction to do so after his judgment had,
in effect, been
confirmed by the Appellate Division when it dismissed the appeal against it.
This takes me to the case of
Mokoena v. Minister of Justice and
Another
,
supra
. It was an application for leave to appeal against a
judgment in which an exception to a summons had been upheld. The applicant,
Mokoena, was convicted of murder and sentenced to death. He appealed to
47
the Appellate Division, but his appeal was dismissed. He then petitioned the
State President for commutation of the sentence of death.
The petition was
refused. Thereupon he instituted an action against the respondents in which he
alleged that his conviction had been
obtained fraudulently by the perjured
evidence of three State witnesses, and that this evidence had been procured and
instigated
by the police officer who investigated the murder, while he was
acting within the course and scope of his employment as the servant
or agent of
the first respondent (the Minister of Justice). He alleged, also, that this
evidence was of such materiality that, but
for it, the trial Court would
inevitably have acquitted him, and he claimed that his conviction and sentence
should, therefore, be
set aside. In reply to a request for further particulars
Mokoena stated that it was not alleged that the prosecutor had acted
frauduiently.
At the hearing of the application counsel for Mokoena acknowledged
that Mokoena's real claim was one for
48
restitutio in integrum
which would, if upheld, leave
the
Attorney-General at liberty to prosecute again on the same
charge. The
defendants in the action (the respondents in the
application) excepted to
Mokoena's summons on the following
grounds (see 710 G-H of the report of the judgment);
"1. (a) The Court has no power or jurisdiction in a civil action to set aside
a conviction and sentence in a criminal case.
(b) The rights of an accused person are
governed entirely by the provisions of the Criminal Procedure Act, 56 of
1955, as amended, and the Court cannot exercise a civil jurisdiction
to compete
with or override a judgment or order or sentence given in a criminal case.
2. The Court has no power or jurisdiction, in this particular case, to set
aside the conviction and sentence because the fraud relied
on is that of a
witness and not that of a party. The fraud of a servant of a party cannot in
these circumstances be equated with
the fraud of a
49
party (who is in fact alleged to be quite innocent of the fraud)."
The Court
a quo
came to the conclusion "that no remedy for
restitutio in integrum
on the ground of fraud or perjured evidence exists
in our criminal law" (see at 711 A of the report) and accordingly upheld the
exception.
The question which the Court had to decide was whether an appeal
against the order upholding the exception had a reasonable prospeot
of
success.
Steyn CJ, after a review of common law authorities and cases declded in our
courts, held that our law does not recognize a remedy
of
restitutio in
integrum
in criminal cases and that a convicted person whose case has been
finally disposed of (as was that of Mokoena when his appeal was
dismissed)
cannot therefore claim, by instituting an action for restitution, to have his
case reopened in order to prove that he
was convicted on false evidence. (See at
716 G-H and 717 C-D.) He accordingly held that there was no prospect
50
that an appeal against the upholding of the exception could succeed. (See at
717 C-D.) It is to be observed that Steyn CJ came to
the conclusion that he did
despite Mokoena's allegation that he was convicted on perjured evidence procured
and instigated by the
investigating officer, and that he found it unnecessary to
deal with the question whether the investigating officer's alleged fraudulent
conduct was to be ascribed to the State as a litigant. It is to be inferred from
this, in my opinion, that Steyn CJ was of the view
that even if Mokoena had, as
alleged by him, been convicted on perjured evidence which had been procured by
the investigating officer,
and even if the alleged fraudulent conduct of the
investigating officer were to be ascribed to the State as a party, Mokoena would
nevertheless not have been entitled to claim that his conviction and sentence
should be set aside.
Regard must also be had to what Steyn CJ said in
51
the last paragraph of his judgment (at 717 D-H). It reads
as follows:
"Whatever the merits of the applicant's allegations in this matter may be,
these proceedings draw attention to what may be regarded
as a deficiency in our
criminal procedures. There is substance in the submission on behalf of the
applicant that the issues and investigations
incidental to the functions of the
State President in his exercise of the prerogative of mercy, differ materially
from those in a
court, where examination and cross-examination are the essential
instruments for arriving at the truth beyond reasonable doubt. Depending
on the
nature of the case, it may well be an advantage if a petition by a condemned
person, based on evidence discovered after the
recognised judicial procedures
have been exhausted or are no longer available, oould be referred by the State
President, if so advised
after the usual departmental enquiries into the facts,
to the trial Court for the hearing of further evidence
52
and a report thereon. That would be a
resuscitaton of a similar procedure under
the common law, which has fallen into
disuse. The effect would be that the
doors of our Courts would at no stage be
closed to an innocently condemned person
beyond the possibility of a re-opening.
It would be a procedure which could not
be readily abused, and merits, I would
suggest, consideration by the
Legislature."
It seems to me that it is to be inferred from what is said in this passage,
and from the decision at which the Court arrived, that
it was the view of this
Court that its jurisdiction relating to appeals and the reopening of a criminal
trial is governed entirely
by the provisions of the Criminal Procedure Act, and
that consequently, when it has dismissed an appeal, it has no further
jurisdiction
in the matter. If this Court had at all thought that it had, after
its dismissal of an appeal, an inherent jurisdiction to order
the reopening of a
trial, it would, I think, have made
53
mention thereof and would not, as it did, have recommended to the authorities
the adoption of a procedure as suggested in the last
paragraph of its judgment.
It is reasonable to assume, I think, that it was this recommendation which
ultimately led to the adoption
of
sec. 327
of the
Criminal Procedure Act, No. 51
of 1977
.
As to the decision in
Mokoena
's case, reference may also be
made to the judgment of the Cape Provincial Division in
Hoosain v. Attorney
General
,
Cape
(1) 1988(4) SA 137 (C) in which Howie J (with whom
Burger J agreed) rightly held that
S v. Titus
1984(1) SA 505 (C) was
wrongly decided. In the latter case a single Judge of the same Division held
(without referring to
Mokoena
's caae) that the Supreme Court has an
inherent jurisdiction to order the reopening of a criminal case when there is
reason to believe
that a conviction has been obtained as a result of perjured
evidence, even after all appeals have been dismissed or leave to appeal
has been
refused.
54
It is contended on behalf of the petitioners that their application for the
reopening of their trial is not barred by the decision
in
Mokoena
's case.
Their submission is that they do not claim
restitutio in integrum
, but
are asking the Supreme Court to exercise its inherent jurisdiction to regulate
its proceedings by way of carrying out a re-appraisal
of their convictions in
the light of further evidence which tends to show that the trial Court was the
victim of fraud. The submission
is untenable. In their application dated 15
April 1988 the petitioners seek an order directing that their trial be
"reopened" for
the purpose of hearing certain evidence, and that their
convictions be re-appraised in the light of such evidence. The object of
the
application is clearly to have the trial reopened with a view to the ultimate
setting aside of their conviotions. Merely to reopen
and reconsider the case,
without more, would be a pointless exercise.
The petitioners also contended that the
55
ratio decidendi
in
Mokoena
's case is limited to the
proposition that an action for
restitutio in integrum
does not lie in a
criminal case, and that the decision does not purport to limit the inherent
jurigdiction of the Supreme Court.
I have already indicated that it is to be
inferred from the judgment in
Mokoena
's case that the powers of this
Court are governed entirely by the provisions of the
Criminal Procedure Act, and
that when this Court has dismissed an appeal against a conviction it has no
further jurisdiction in the matter which would entitle
it to entertain
proceedings. aimed at setting aside the conviction.
In the alternative to
their contention that Human AJ had jurisdiction to reopen the trial, the
petitioners submitted that this Court
has an inherent jurisdiction which it
should exercise in the present case. It will be apparent from what I have said
above that in
my view this Court has no jurisdiction as is contended for by the
petitioners. In support of their contention counsel referred us
to the case
56
of one
Lesley Sikweyiya
, where the facts were as follows. Sikweyiya
was convicted of murder and sentenced to death. He asked the trial Judge for
leave to
appeal, but it was refused. He then petitioned the Chief Justice for
leave to appeal, and was thereafter informed that leave was
refused. About ten
days later (on 26 November 1979) he was notified that leave to appeal had been
granted, and in due course his
appeal was heard. It is contended that this
withdrawal of the refusal of leave and the substitution of an order granting
leave could
only have been done in the exercise of this Court's inherent
jurisdiction to act in order to avoid the doing of an injustice, and
that it
provided support for the petitioners' contention in this case. The submisslon
cannot be sustained. Records of this Court
relating to the matter reveal the
following. The Chief Justice referred the petition for leave to appeal to a
member of this Division
(see
sec. 316(7)
of the
Criminal Procedure Act, No. 51
of 1977
, as worded at that time) who, after considering it,
57
refused leave to appeal. Sikweyiya was so notified. About ten days later the
same Judge cancelled his refusal of leave and granted
leave. Sikweyiya was then
notified that leave had been granted. There was no judgment by this Court on the
matter. The decision of
the Judge when he refused leave was, in terms of
sec.
316(9)
of the
Criminal Procedure Act, No. 51 of 1977
, "final", and the granting
of leave thereafter therefore appears to have been contrary to the provisions of
sec. 316(9).
It hardly needs saying that a Court cannot have an inherent
jurisdiction which would entitle it to act contrary to an express provision
of
an Act of Parliament.
Sikweyiya
's case cannot, therefore, be regarded as
authority for the petitioners' submission.
Counsel also referred us to a passage in the judgment of Galgut AJA in
S
v. Matshoba and Another
1977(2) SA 671(A) as providing support for the
petitioners'
58
contention as to the inherent jurisdiction possessed by this Court. One of
the appellants in that case, who had been convicted of
murder and sentenced to
death, applied to the trial Judge for leave to appeal against his sentence. Such
leave was granted. At the
hearing of the appeal the question was raised whether
the said appellant could be permitted to appeal against his conviction. Galgut
AJA, after referring to the provisions of sec. 369(2) of the Criminal Procedure
Act, No. 56 of 1955, said (at 677H):
"The words in this sub-section are explicit. They deal only with sentence.
They preclude the Appeal Court from enlarging the ambit
of an appeal against the
sentence so as to include an appeal against the conviction. I pause to say
59
that it may well be that in an exceptional and proper case the Appeal Court,
being as it is the ultimate Court of the land, might
decide to assume a
jurisdiction not expressly provided for in the statute. I express no
opinion."
The passage is obviously not authority for the petitioners'
submission as
to the inherent jurisdiction possessed by this
Court. The learned Judge said,
after all, that he expressed
no opinion on the question mentioned by him. The
suggestion
made by the learned Judge was, it may be noted, rejected by
this Court in the case of
S v. Langa en Andere
1981(3) SA
186. It was contended in that case, on the strength of the
remarks made by Galgut AJA, that this Court could permit the
appellants, who hed been granted leave to appeal against
their sentences by the trial Court but whose applications for
leave to appeal against their convictions had been refused,
to appeal against their convictions as well. Wessels JA
rejected the submission and said that sec. 322(2) of the
Criminal Procedure Act, No. 51 of 1977
- like its
60
predecessor, sec. 369(2) of the Criminal Procedure Act, No. 56 of 1955 - gave
the Court no authority to accede to the appellants'
submission and that they
could not be allowed to appeal against the convictions. The Court went on to say
that the appellants were
not without a remedy since this Court could postpone
the hearing of the appeal to enable them to petition the Chief Justice for leave
to appeal against their convictions in terms of
sec. 316
of the
Criminal
Procedure Act, No. 51 of 1977
.
In view of the aforegoing I consider that the
Transvaal Provincial Division had no inherent jurisdiction to reopen the trial,
and
that this Court also has no such jurisdiction.
I turn now to the petitioners' application for leave to lead further evidence
with a view to having a special entry, as referred to
above, made on the
record.
The relevant sections in the
Criminal Procedure Act, No. 51 of 1977
, are
sections 317
and
318
. They
61
provide, in so far as relevant for present
purposes, as
follows:
"317. (1) If an accused thinks that any of the proceedings in connection with or
during his trial before a superior court are irregular
or not according to law,
he may, either during his trial or within a perlod of fourteen days after his
conviction or within such
extended period as may upon application (in this
section referred to as an application for condonation) on good cause be allowed,
apply for a special entry to be made on the record (in this section referred to
as an application for a special entry) stating in
what respect the proceedings
are alleged to be irregular or not according to law, and such a special entry
shall, upon such application
for a special entry,be made unless the court to
which or the judge to whom the application for a special entry is made is of the
opinion that the application is not made
bona fide
or that it is
frivolous or absurd or that the granting of the application would be an abuse of
the process of the court.
(2) Save as hereinafter provided, an application for condonation or for a
special entry shall be made to the judge who presided at
the
62
trial or, if he is not evaiiable,
to any other judge of the
provincial or local division of which that judge was a member when he so
presided.
(4) The terms of a special entry shall be seCCled by the court which or the
judge who grants the application for a special entry."
"318. (1) If 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."
Human AJ dismissed the application on the facts. I propose, however, first to
consider the question whether
63
he could in law have entertained and granted the application
for a special entry after the petitioners' appeals against their convictions
had
been dismissed by this Court.
Counsel for the first respondent contended that proceedings by way of a
special entry are in essence review proceedings (see
Rex v. Milne and
Erleieh
,
supra
, at 7 A-B), and that such proceedings cannot be
brought in the form of a special entry relating to an accused's conviction after
an appeal against the conviction has been dismissed by this Court (see
R v. D
and Another
1953(4) SA 384 (A) at 390 F-391 D;
R v. Parmanand
1954(3)
SA 833(A) at 838 D;
Coopers (South Africa)(Pty) Ltd v. Deutsche Gesellschaft
für Schadlingsbekampfung MBH
1976(3) SA 352 (A) at 368 H-369 E). The
contention is, briefly put, that when this Court has dismissed an accused's
appeal against
his conviction the last word has been spoken on that issue; that
this Court is
functus officio
when it has given its judgment on appeal,
and that there is no procedure for dealing with a special
64
entry once an appeal has been dismissed.
The petitioners contended (i)
that the fact that an appeal on the merits has already been disposed of is no
bar to a subsequent application
for a special entry, save where the matter
complained of in the special entry is substantially the same as a matter raised
in the
appeal (which, they say, is not the position in the present case),and
(ii) that there is ample authority for the view that evidence
may be adducod
"after verdict" in order to show that there has been a material irregularity not
apparent on the face of the record.
As authority for contention (i), we were
referred to
R v. Nzimande
1957(3) SA 772 (A) at 774 F775 F and
S v.
Sibande
1958(3) SA 1 (A) at 5 H-6 C; and, as authority for contention (ii),
to
R v. Nzimande
,
sunra
, at 774 B-C, 775 A-B;
S v. Alexander
and Others
(1) 1965(2) SA 796 (A) at 805 B-E;
S v. Mushimba en Andere
1977(2) SA 829 (A) at 836 D-G;
R v. Knight
1935 AD 342
at 344-345; _R
v. Velshi
1953(2) SA 553 (A) at 561 A-D;
R v. Matsego and Others
1956(3) SA 411 (A) at 415 A-C, and
S v. Mkhise
:
S v.
65
Mosia
;
S v. Jones
;
S v. Le Roux 1988(2)
SA 868(A).
I proceed to consider the contentions advanced by the petitioners.
As to contention (1) above,
R v.Nzimande
,
supra
,
is not authority for counsel's submission . There had been
no dismissal of an appeal in that case. An application for I
leave to appeal in terms of
sec. 363
of the Criminal
Procedure Act, No. 56 of 1955 (the predecessor of sec. 316
of the present
Criminal Procedure Act) had
been dismissed,
and Schreiner JA pointed out that while the refusal of leave
to appeal in terms of
sec. 363
meant that there could be no
appeal as envisaged in that section, it did not mean that a
special entry could not be made. In dealing with the
question whether a special entry could be made, the learned
Judge distinguished between the refusal of leave to appeal
and the dismissal of an appeal. He said (at 774 H-775);
"The cases do not throw light on the question whether the refusal of leave to
appeal is for present purposes equivalent to the dismissal
of an
66
appeal. In my view it is not. The refusal, like the grant, of leave to appeal by
this Court or one of its members is final
(sec. 363
(7)), but this only means,
as I understand the provisions, that the question of leave to appeal under
sec.
363
is finally answered by the grant or refusal of leave. Where leave has been
refused that channel is closed."
This passage is not
authority for the view that the Court considered that a special entry would have
been permissible if leave to
appeal had been given and the appeal had been
dismissed. It seems to me that if the learned Judge had thought that the
dismissal
of an appeal did not prevent the making of a special entry he would
not have taken the care he did to say that the refusal of leave
to appeal was
not the same thing as the dismissal of an appeal when the question of the making
of a special entry is considered.
R v. Sibande
,
supra
, is also not
authority for counsel's submission. There had not been a dismissal of an appeal
in that case. The applicant, to whom
leave to appeal had been
67
refused by the trial Judge, and also by the Chief Justice in
terms of sec.
363 of the Criminal Proredure Act. No. 56 of :
1955. appplied for a special
entry and for leave to lead
further evidence. This Court held that the
conduct of which
the applicant complained, viz. perjured evidence, was not
a
matter for a special entry and that, as far as the hearing
of further
evidence was concerned, the Court's jurisdiction
rested upon its having an appeal before it, and that there
was no appeal
before it because leave to appeal had been
refused with final effect under sec. 363.
With regard to contention (ii) above, i.e., that there is ample authority
that evidence may be adduced "after verdict" in order to
show that there has
been a material irregularity, it is true that the cases show that evidence with
a view to applying for a special
entry may be adduced after an accused has been
convicted and sentenced, but none of the cases cited by counsel was one where
leave
to lead
68
evidence or to make a special entry was sought after an appeal to the
Appellate Division had been dismissed. I have already said what
the position in
R v. Nzimande
,
supra
, was.
S v. Alexander and Others
,
S
v. Mushimba en Andere
,
R. Velshi
and
R v. Matsego and Others
,
mentioned above, were all appeals on special entries made after the accused had
been convicted, but in no case had there previously
been an appeal which was
dismissed by the Appellate Division. In
S v. Mkhisi
,
S v. Mosia
,
S v. Jones
and
S v. Le Roux (also
mentioned above and all reported
in 1988(2) SA 868) there had also been no appeals before special entries were
made. It may be added
in regard to these cases, also, that they were of an
unusual kind. The accused in each of these cases was defended by someone who
had
not been admitted to practise as an advocate, and this Court held that that fact
constituted such a fundamental irregularity
as to nullify all
the trial proceedings. The situation was therefore the same as if the accused
had not been tried at all. (This reminds
69
one of the statement of Schreiner JA in
R v. Sibande
,
supra
,
at 4
i . f .
, that it seemed to follow from
Rex v.
Milne and Erleigh
,
supra
, "that if any extraordinary jurisdiction in
criminal cases remains, which seems to be very doubtful, if must be limited to
rare cases
such as those in which a Provincial Division has dealt with a matter
over which it had no jurisdiction".) In
Rex v. Knight
,
supra
, the
accused asked the trial Judge who had convicted him of certain offences to make
a special entry. The Judge refused to do so,
and the accused then applied to the
Appellate Division for a
mandamus
directing the Judge to make such entry.
The application was refused. It was not a case where an appeal had previously
been dismissed
by the Appellate Division.
In the course of my reading while preparing this judgment, I happened on a
case in which Rumpff CJ expressed a view (to be mentioned
presently) which would
seem to lend support to the contention chat an accused may appeal on a special
entry after his appeal on the
merits has been
70
dismissed by this Court. It is the case of
S v. Swanepoel
1979(1) SA
478 (A), in which the applicant sought leave to appeal against a trial Court's
refusal to make a special entry on the record
of the trial. The applicant had
previously been convicted of murder and sentenced to death.
He appealed to
this Court, but the appeal was dismissed. He then went back to the trial Court
and asked it to make a special entry,
alleging that his trial had been conducted
in terms of the
Criminal Procedure Act, No. 51 of 1977
instead of the Criminal
Procedure Act, No. 56 of 1955, and that this constituted an irregularity which
was of such a fundamental
nature that it nullified his trial and the appeal
which followed thereon. It appears from the judgment of Rumpff CJ (at 486 A-C)
that counsel for the State raised ("geopper") the question whether this Court
had jurisdiction to consider the application, but that
he did not contend that
it did not have jurisdiction. Rumpff CJ stated that, because of the attitude
taken up by the State, he found
it unnecessary to
71
decide whether the Court had jurisdiction or not, but that
he would assume, for the purposes of the application, that
the Court did
have jurisdiction. After saying this, he
proceeded to say (at 486 B-C);
"Ek sou in elk geval nie sonder grondige rede genee wees nie om te bevind dat,
hoewel daar 'n appèl op die meriete van 'n
saak was, 'n verdere verlof
tot appèl op grond van 'n ernstige onreelmatigheid uitgesluit is, terwyl
daar miskien eanvaarbare
redes mag bestaan vir die laat aansoek tot die tweede
appèl, op grond van 'n ernstige onreelmatigheid, wat vantevore nie bekend
mag gewees het nie."
It is clear that this was not a
considered opinion on the question whether the Court had jurisdiction or not.
The Court, as indicated,
did not hear argument on the matter, and the learned
Chief Justice did not consider the cases relating to the question of the Court's
jurisdiction which counsel for the State mentioned in his written heads of
argument. (See at 482 C-E of the report.) It is clear,
too, that the view
72
expressed by Rumpff CJ did not form part of the Court's decision on the
application. The application was dismissed on the ground that
the trial
proceedings had not been irregular as alleged by the applicant, As will appear
from what is said below, I am of the view
that the dismissal of an appeal on the
merits has the effect that there can be no subsequent appeal on the ground of an
alleged irregularity,
even if such irregularity is discovered only after the
dismissal of the appeal - in the same way as there can be no second appeal
on
the merits on the ground of fresh evidence discovered after the dismissal of an
appeal.
It appears from the aforegoing that there is no judgment of this Court in
which it has been held that a special entry may be made
after an appeal against
a conviccion has been dismissed by this Court, and I am of the opinion that the
Legislature did not intend
that a special entry relating to a conviction could
be made after the dismissal of an appeal against that conviction. Sec.
315(2)
73
of Act 51 of 1977 provides that an appeal to the Appellate
Division shall lie only as provided in sections 316 to 319 of the Act. Sec.
316 is in wide terms and clearly contemplates appeals
on factual and legal
grounds. Sec. 317(1) provides for the making of a special entry relating to an
irregularity or illegality in
the proceedings at a trial, and sec. 318 provides
that a person who has been convicted may appeal to the Appellate Division on the
ground of the irregularity or illegality stated in the special entry. Sec. 319
provides for appeals on reserved questions of law.
The special entry procedure
is designed to furnish an accused who has been convicted with a ground on which
he can appeal against
his conviction, in the same way as, say, an alleged lack
of sufficient evidence would constitute a ground on which he can appeal.
The
procedure is a useful, or perhaps even necessary, one when the irregularity
or
74
illegality complained of is discovered only efter the conclusion of the
trial. The procedure need not, however, be followed when the
irregularity or
illegality appeers from the record of the case, for in such an event the
irregularity or illegality can be made the
ground of an appeal under sec. 316 of
Act 51 of 1977. (See e.g.
R v. Nzimande
,
supra
, at 775 A-D.)
Sections 316 and 318 therefore both contemplate an appeal against a conviction.
They do not provide for different remedies,
but merely for different ways of
bringing an appeal before the Court, the one (under sec. 316) based on a point
of law or fact which
appears on or arises from the record of the case, and the
other (under sec. 318) on an irregularity or illegality in the proceedings
at
the trial. But, as I have indicated, an irregulerity or illegality in the
proceedings which appears from the record can be made
a ground of appeal in an
appeal as contemplated in sec. 316. All this being so, I am of the view that
there cannot be an appeal against
a conviction on a special entry under sec. 318
after an appeal against that conviction has already been
75
dismissed in an appeal as contemplated in sec. 316. A second appeal against a
conviction, based on a special entry after an appeal
against it (as
contem-plated in sec. 316) has already been dismissed, would create a situation
which the Legislature could not have
contemplated, and ior which it made no
provision. Suppose e.g. that this Court were to be asked to hear such a second
appeal and
that it were to be of the view that the appeal has merít.
Would it be entitled to set aside the conviction although it dismissed
an appeal
against it in an earlier appeal and thereby in effect confirmed the judgment of
the trial Court? And would the Court, if
it thought that the second appeal was
one that ought to succeed, have the power to eet aside the order made by it in
the earlier
appeal? In my view the answer to these questions, which can arise if
there were to be more than one appeal against a conviction,
is clearly "no".
Sec. 322 of Act 51 of 1977, which deals with the powers of this Court on appeal,
does not contemplate
76
the hearing of such a second appeal, and it does not confer
on the Court a
power to set aside its dismissal of an appeal
in earlier proceedings. Sec.
322(1) reads as follows;
"322. (1) In the case of an appeal against a conviction or of any question of
law reserved, the court of appeal may -
(a) allow
the appeal if it thinks that the
judgment of the trial court should be set aside on the ground of a wrong
decision of any question of law or that on any ground there
was a failure of
justice ; or
(h) give such judgment as ought to have been given at the trial or impose
such punishment as ought to have been imposed at the trial;
or
(c) make such other order as justice may requíre:
Provided that, notwithstanding that the court of
77
appeal is of opinion that any point raised might be decided in favour of the
accused, no conviction or sentence shall be set aside
or altered by reason of
any irregularity or defect in the record or proceedings, unless it appears to
the court of appeal that a
failure of justice has in fact resulted from such
irregularity or defect."
The subsection
contemplates, in my view, the hearing of a
single appeal in which all the
grounds on which an appellant
relies are adjudicated on at the same time.
In view of the aforegoing I am of the opinion that the Transvaal Provincial
Division did not in law have jurisdiction to accede to
either of the
applications of the petitioners, and that this Court also does not have the
power to grant the relief sought by the
petitioners.
In view of my aforesaid conclusion it is unnecessary for me to deal with the
finding of Human AJ that, on the facts, the petitioners
did not make out a case
for the making of a special entry. In view, however, of the arguments that were
addressed to us on the facts
of the case, and because counsel for the
petitioners tendered to the Court
78
an affidavit made by Manete after Human AJ had given his judgment, it may be
advisable to state my views on the matter.
The affidavit to which I have just referred was deposed to on 16 June 1988,
i.e. some 5 days after Human AJ had given his judgment.
It cannot therefore be
relied on as a ground for saying that Human AJ erred when he referred to the
absence of an affidavit by Manete
in giving the reasons for his judgment, and
strictly speaking we are not entitled to take account of it in considering
whether leave
should be granted to appeal against the learned Judge's judgment.
I shall nevertheless refer to it after I have dealt with the views
of Human AJ
on the facts of the case. I have already quoted from the various statements by
Manete and have also set out what the
learned Judge said in regard thereto. I
therefore need not repeat at any length what has already been said above.
In dealing with the statements made by Manete,
79
counsel for the first respondent contended that Manete made
contradictory
statements as to whether he was assaulted by
the police. In his statement of
11 May 1985 Manete said
that he was assaulted by the police and that he was
forced
to make the statement. In the statement which he made to
his
attorney in September 1985 he stated that he had been
"threatened with
assault", and not that he had actually been
assaulted. Human AJ did not refer
fo these seemingly
contradictory statements in his judgment, and I do
not
propose to dwell thereon. What weighed heavily with Human
AJ was the
statement which Manete made to his attorney in
September 1985 in which he
stated that he would tell the
attorney what actually happened on the day
Dlamini was
murdered. It will be recalled that he said in his statement
of
11 May 1985 that he was assaulted by the police, that the
names of the 5th
and 6th petitioners were mentioned to him
by the police, and that he was
"forced to write these names
in the statement." In September 1985,
80
after he had been subpoenaed to give evidence at the trial, he went to see
his attorney and told him that what he had previously said
to the police was
"not entirely true," and that he would now tell what "did take place" on the day
of the murder. He then said, as
has been indicated above, that he went to
Dlamini's house on that day, that he saw the 5th and 6th petitioners among the
people present
there, and that he saw both of them "throw stones at Dlamini's
house", but that he did not see them "actually pouring petrol on the
house or
stoning Dlamini himself." In this statement Manete placed the 5th and 6th
petitioners at the scene of the crime, and, in
doing so, he contradicted his
statement of 11 May 1985 in which he said that the police gave him the names of
the 5th and 6th petitioners
and forced him to write those names in the
statement.
Apropos this statement of September 1985 and the evidence given by Manete at
the trial, Human AJ stated that at the time whcn the
applications were argued
before him,
81
i.e. on 6 and 7 June 1988, there was no affidavit by Manete saying that "the
evidence given by him at the trial waw false or that
the police instructed him
to give false evidence against the fifth and sixth applicants" (quotation from
the judgment). There was,
of course, also no affidavit or statement of any kind
before the Court in which an explanation was offered of his statement, which
was
proffered as the truth, that he saw the 5th and 6th petitioners at the scene of
the crime, whereas he had previously said that
he was forced by the police to
implicate them. Human AJ, as indicated above, rejected the explanation offered
by the petitioners'
attorneys for the absence of an affidavit, viz. that they
could not obtain such an affidavit because Manete was a State witness.
The
learned Judge pointed out that the Appellate Division delivered its judgment in
the appeal on 1 December 1987 and that the petitioners'
attorneys had thereafter
been instrumcntal in obtaining from Manete a waiver of all privileges relating
to communications made
82
by him to his attorneys. I do not think it can be said that the learned Judge
erred in rejecting the explanation offered by the attorneys
for the petitioners.
The following may be added in this regard. Counsel for the first respondent
pointed out (and it was not disputed
in any way) that on 17 March 1988, when
Human AJ heard the petitioners' application for a stay of their execution on the
next day,
counsel representing the first respondent submitted to the Court that
one would have expected the petitioners' attorneys to have
obtained an affidavit
from Manete concerning the allegations he made in his statement of 11 May 1985,
and that the petitioners' legal
representatives could not have been in any doubt
after that date (i.e., 17 March 1988) that they were free to take an affidavit
from
Manete. It is to be observed in this connection, also, that the fact that
Mongaule testified for the State at the trial did not dissuade
the petitioners'
attorneys from obtaining an affidavit from him for the purpose of the hearing
before Human AJ in June 1988.
83
This takes me to the affidavit to which
Manete
deposed on 18 June 1988. Manete says, in
paragraph 3 of this
affidavit, that he made it to and in the presence of
his
attorney, Mohamed Bham. I refer, first, to paragraphs 7,
8, and 9 of
the affidavit which relate to the consultation
which Manete had with Bham in
March 1985. (Bham says the
consultation was on 15 March 1985, whereas Manete
says it was
on 16 March 1988.) They read as follows:
"7. When I last consulted my Attorney on the l6th March 1988, I told him that
I had falsely implicated these two persons (Khumalo
and Mokgesi) in my evidence
to the Court.
8.
I had further told him that
I had done so because I had been assaulted by the Police at the time and
instructed to make a statement
implicating these two
persons.
9.
However, when I consulted my
Attorney,
I was not willing to give
him a statement
84
to this effect, as I was afraid of being
charged with perjury and being imprisoned."
What is said in paragraphs 7 and 8 corresponds with the statement made to
Bham on 15 March 1988, to which I referred above. 15 March
1988, it may be noted
here, was the first occasion on which Manete stated that his earlier statements
that he saw the 5th and 6ch
petitioners at the scene of the crime were untrue.
As for paragraph 9, it is not clear to me precisely what Mahete intends to say.
According to Bham, Manete told him on the occasion of their consultation on 15
March 1988 that the evidence he had given at the trial
was false; that he had
not seen the 5th and 6th petitioners at the scene of the crime; that the police
mentioned the names of these
two petitioners to him, and that they instructed
him to say in his evidence that he saw them at the scene of the crime. Manete's
statement in paragraph 9 that he was not willing to give Bham "a statement to
this effect" does not,
85
therefore, seem to make sense, nor does his statement that he did not give
Bham such a statement because he was afraid of being charged
with perjury. If
one supposes that Manete had in mind an affidavit when he used the word
"statement", and, also, that he had in mind
contradictory statements made on
oath when he referred to perjury, it is still difficult to understand how he
could have been afraid
of being charged with perjury. The statement which he
made on 11 May 1985 was not on oath, and the one he made to his attorney in
September 1985, in which he said that he saw the 5th and 6th petitioners at the
scene of the crime, was also not on oath. The only
statement on oath made by him
was the one which he made in October 1985, in which he furnished his attorney
with an account of what
he had testified at the trial. He could not possibly
have thought that this statement could form the basis of a charge of
perjury.
In paragraphs 12, 13 and 14 of the affidavit Manete states that he was
present when Dlamini was killed; that he
86
did not see any of the petitioners at or near the scene of
the crime; that
his evidence at the trial that the 5th and
6th petitioners were present when
Dlamini was killed was not
true, and that he gave such evidence because he
had been
assaulted by the police and instructed to implicate those two
petitioners in the crime. This is substantially the same
as what he said
to Bham on 15 March 1988 and corresponds with
what he says in paragraphs 7
and 8 of hís affidavit. No more
need be said about it.
Paragraph 15 of the affidavit relates to
the
statement Manete made to his attorney in
September 1985. It
reads as follows:
"The statement I made to my attorney during Soptember 1985, when I stated
that I saw Duma Khumalo and Don Mokgesi near the scene of
the crime throwing
stones at the deceased's house is also not true. I was afraid I may be charged
with perjury, if I deviated from
what I was told by the Police to say.'
87
This is all he says about the matter, and in my view it cannot in any way be
regarded as an explanation of why he told his attorney
that he saw the 5th and
6th petitioners at the scene of the crime. The statement could not possibly have
been prompted by a fear
of being charged with perjury, as alleged by him. He had
not previously made a statement on oath to the police, and he had not yet
given
evidence at the trial. The statement was made to his own attorney, and it was
not on nath. Furthermore, although he says that
he made the statement because he
feared that he might be charged with perjury if he deviated from what he had
been told by the police
to say, he in fact deviated, to some extent at least,
from what the police had allegedly told him to say by ascribing to the 5th
and
6th petitioners a lesser role in the events of 3 September 1984 than what the
police had ailegedly wanted him to do. I am of
the opinion, therefore, that the
affidavit offers no explanation as to why Manete told his attorney what he did,
and that it furnishes
no reason for
88
doubting that he told his attorney what he had in fact seen, and not what he
had allegedly been forced by the police to say.
In view of all the aforegoing
I am of the opinion that the decision of Human AJ as to the facts of the case
relating to Manete cannot
be faulted, and that nothing that is said in the
affidavit of Manete, which was not before the learned Judge, can serve to
disturb
that finding.
It remains to refer to a further point concerning
the statement made by Manete on 11 May 1985. In the course
of his argument that it was essential that further
cross-examination of Manete should be allowed, counsel for
the petitioners referred us to a passage in the judgment of
Botha JA in the appeal in which he said (at 876D) that -
".... if this Court were to decide that the trial Judge had erred in
disallowing Manete's cross-examination a re-appraisal of the
entire case would
be called for, leaving aside the evidence of Manete."
89
It was also pointed out to us that in his judgment on the
application for
the stay of executlon, which was delivered
on 17 March 1985, Human AJ
referred to the aforesaid passage
in the judgment of Botha JA and said that
Manete's statement
of 11 May 1985, which had been made available to him,
Manete
having "waived his privilege", -
"may affect the guilt of the first two applicants (nos. 7 and 8 at the
trial); it may affect the others."
The aforesaid observacions by Botha JA and Human AJ should be seen in proper
perspective by having regard to the circumstances in
which they were made. Botha
JA's knowledge of the concents of Manete's statement of 11 May 1985 was limited
to a passage in the record
of the trial in which counsel for the defence told
Human AJ that the statement was to the effect that Manete implicated the 5th and
6th petitioners (accused nos. 7 and 8) in the offence because the police had
told him to do so. Botha JA did not know of the
90
statement that Manete made to his attorney in September 1985 in which he
said, as indicated above, that he saw the 5th and 6th petitioners
at the scene
of the crime. As for the statement made by Human AJ, his judgment contains no
reference to the statement of September
1985, and it does not appear that his
attention was directed to it.
With regard to the contention that the trial should be reopened for the
purpose of hearing further evidence from Mongaule, I do not
think it can be said
that Human AJ erred in any way in the conclusion to which he came on the matter,
and it is not necessary to
say anything more about it.
In view of all the aforegoing the application for leave to appeal cannot
succeed.
During argument before us it emerged that the applicants had already
unsuccessfully addressed the State President by way of a petition
pursuant to
the provisions of sec. 327 of Act 51 of 1977. It was common cause, however, that
if this application should be dismissed,
it would not
91
preclude the applicants from addressing the State President
anew by means of a fresh petition.
The application is dismissed.
P J RABIE
ACTING CHIEF JUSTICE.
CORBETT JA
JOUBERT JA Concur.
HOEXTER JA
VAN HEERDEN JA