THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 1153/20 21
In the matter between:
BRENDON STEPHEN GILCHRIST APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Gilchrist v The State (1153/20 21) [2025] ZASCA 57 (12 May 2025)
Coram: ZONDI AP, SCHIPPERS and HUGHES JJA , and PHATSHOANE and
MODIBA AJJA
Heard: 11 March 2025
Delivered : 12 May 2025
Summary: Criminal Law and Procedure – s 93ter(1) of the Magistrates ’ Court Act 32
of 1944 – appellant legally represented – record stating no assessors required –
compliance with s 93ter(1) – s 316(5) of the Criminal Procedure Act 51 of 1977 – leave
to adduce new evidence on appeal – State witness recanting evidence – no reasonably
acceptable explanation for not producing evidence at trial – appeal dismissed.
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__________________________________________________________________
ORDER
__________________________________________________________________
On appeal from: Gauteng Division of the High Court, Johannesburg ( Makhubele and
Molefe JJ concurring, sitting as court of appeal ):
1. The appellant’s application for leave to adduce further evidence on appeal is refused.
2. The appeal is dismissed.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
Phatshoane AJA ( Zondi AP, Schippers and Hughes JJA and Modiba AJA
concurring ):
Introduction
[1] The appeal has its origin in the Magistrates’ Court for the Regional Division of
Gauteng, Benoni (trial court) , where Mr Brendon Stephen Gilchrist , the appellant, was
arraigned on a count of murder and a count of possession of a firearm without a licence
in contravention of the Firearms Control Act 60 of 2000 . The State alleged that he
unlawfully and intentionally shot and killed Mr Thulani Khuzwayo (the deceased) on 26
January 20 16 at Daveyton, Etwat wa. He pleaded not guilty and advanced an alibi
defence. He claimed to have been at his home in Reiger Park during the fatal incident
and nowhere near Etwatwa .
[2] The trial court convicted the appellant on both counts on 28 March 2017 and
sentenced him on 12 June 2017 to 20 years ’ imprisonment for murder and five years’
imprisonment for the possession of the firearm . He so ught and was granted leave by the
trial court to appeal to the Gauteng Division of the High Court, Johannesburg ( high court )
against his conviction and sentence. The high court dismissed the appeal against
conviction and reduced the sentence of 25 years ’ imprisonment to 20 years . The present
appeal is with special leave of this Court against the appellant’s conviction only .
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[3] In this Court the appellant challenges the proceedings on the ground that the trial
court failed to explain the provisions of s 93 ter(1) of the Magistrates’ Court Act 32 of 1944
(MCA) .The appellant contends that he was unable to make an informed decision on
whether to waive his right to have a ssessors present for his trial. He further seeks an
order to introduce new evidence in terms of s 316(5) of the C riminal Procedure Act 51 of
1977 (CPA) on the basis that Ms Lindiwe Motaung ( Ms Motaung Jnr) , a State witness ,
made a statement in which she recanted her previous evidence implicat ing the appellant
in the commission of the offences. The appellant challenged the convictio n firstly, on the
basis that the trial court failed to apply the cautionary rule to the identification evidence
and erroneously rejected his alibi defence . Secondly, it was argued , that the State failed
to prove that the appellant was not the holder of a permit which entitled him to possess a
firearm . In the notice of appeal the appellant takes issue with the failure by the State to
call Mr Vasco Cloete to testify and contend s that this called for a n adverse inference to
be drawn against the State .
The fact s
[4] The appellant and Ms Motaung Jnr cohabited for a period of approximately 10
years and have two children , a boy and a girl aged 12 and 5 years respectively . The
couple’s relationship was marked by violence. When Ms Motaung Jnr paid her
grandparent s a visit the appellant would accost her aggressively . She terminated the
relationship two days prior to the incident in issue and moved out of their communal home
in Reiger Park to live with her grand parents in Etwatwa . The two minor children remained
with the appellant . On 26 January 2016 , during the day, she met the appellant in Golden
Walk, Germiston, a busy public space , to discuss the children ’s living arrangements . Later
that day the appellant phoned and attempted to dissuade her to go to work the next day ,
which she rebuffed. She arrived at her grandparental home around 19h30 that evening.
[5] Around 21h00, whilst Ms Motaung Jnr was in the company of her grand parents ,
the appellant was let into the house after identifying himself . He held a firearm in his hand.
The deceased asked him why he was armed. Without a response , the appellant lifted his
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gun-held hand and shot and killed Ms Motaung Jnr’s grandfather . The cause of death is
recorded in the autopsy report as a ‘penetrating gunshot wound chest and abdomen ’.
[6] Ms Motaung Jnr testified that soon after the shooting she pushed the appellant out
of the house . A skirmish ensued. A certain Ji ka, the appellant’s friend, intervened and
asked him what he had done . The appellant handed him the firearm . The appellant
proceeded to wrestle with Ms Motaung Jnr and strangled her. In the course of th e fray Ms
Matshidiso Motaung (Ms Motaung Snr) , confronted the appellant . She asked him what he
was doing . He fled the scene . Ms Motaung Jnr immediately called the appellant’s cousin,
one Dina , and informed her of the tragic incident and further enquired whether t he children
were safe .
[7] Ms Motaung Jnr further testified that the lighting in her grandparents’ house on the
night in question consisted of two candles , one in the kitchen and the other in the
bedroom . The appellant wore a grey cap with a patter n in front , a Pirates Soccer Club T-
shirt, Soviet brand pants , and black and white sneakers, the same clo thes he wore during
the day when he met Ms Motaung Jnr . As she ha d been in a relationship with the appellant
for over a decade, she said that she knows the way he speaks , and the way he walks
even if he comes from a distance and can identify him.
[8] Ms Motaung Snr materially corroborated her granddaughter’s evidence . She knew
the appellant since 2005. At some stage he lived with the Motaungs . On that fateful night
the appellant was dressed in a black T-shirt as described and wore a cap , which she later
picked up and handed over to the police . She also enquired why he had a firearm . This
was not met with a response. The appellant was two and a half metres away when he
shot and killed the deceased . Following the shooting , Ms Motaung Snr momentarily
blacked -out. When she came to , she went outside the house and found her
granddaughter wrestling with the appellant on the ground . The appellant had pinned her
granddaughter down . She enquired from the appellant what he was doing. He fled.
[9] The appellant ’s version is di ametrically opposed to that of the State . He alleged
that he never had any issues with the deceased and denied that he sh ot him. He was
5
nowhere near the deceased ’s house in Etwatwa on that fateful day . On 26 January 2016
at 12 h00 he had met Ms Motaung Jnr at her workplace in Germiston . They had an
argument regarding the children ’s custody but reached an agreement . At 18h00 he left
his home at Reiger P ark to purchase alcohol at his neighbour ’s house and return ed to
check on his children who were with his friend, Mr Vasco Cloete. At 20 h00 he took his
children to his mother , who lived in the same street , three houses away. He was back at
his house at 21 h00. He confirm ed that Ms Motaung Jnr called his cousin , Dina, and
report ed that he had shot h er grandfather around 21h00. Thereafter his cousins searched
for him and found him at his mother’s place and reported the shooting. He conceded that
on that day he wore a Pirates Soccer Club T-shirt, blue Soviet brand pants and black
shoes . He did not wear a cap and never wear s them as he takes pride in his hair styles .
He admitted that Ms Motaung Jnr would never make any mistake regarding his identity
because she knew him but maintained that she was falsely implicating him.
[10] Ms Joyce Gilchrist, the appellant’s mother , is wheelchair bound. She was called to
corroborate her son’s a libi. She testified that on 26 January 2016 from 20 h30 to 21h00
the appellant was at her house . He left at 21 h00 but came back at 21h30 because he
constantly checked on her to ascertain if she needed water or use of a bathroom . He
spent some time with her chatting , having coffee and watching televi sion. He did not
consume alcohol . Neither did he smell of liquor.
Proceedings in the trial court
[11] The trial court stated that the key issue was the identity of the perpetrator, which
required the application of the cautionary rules. The court was of the view that the
evidence regarding the identity of the appellant as the assailant , was correct . The
Motaungs and the deceased had an unimpeded view of the appellant when he entered
their house . Except for the cap, it was common cause what clothes he wore . Although the
visibility outside the house was poor , the assailant who entered the house had wrestled
with Ms Motaung Jnr . She had ample opportunity to observe him when they wrestled as
they faced each other . He throttled and pinned her down. She also recognised his voi ce
because he instructed Ji ka to take the firearm .
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[12] The trial court found that the evidence of the State witnesses was reliable and was
unpersuaded that they had any motive to falsely implicate the appellant. The trial court
dismissed the appellant’s version , which it found was inte rspersed with discrepancies . He
had created the impression that he had overindulged in the consumption of alcohol the
whole afternoon and the night of 26 January 2016 . However, his mother testified that the
appellant had neither consumed nor smell ed of alcohol on the day in question . The
appellant stated that he did not wear caps but gave a contradictory account on how his
cap came to be in possession of Ms Motaung Snr. The trial court accordingly rejected the
appellant’s alibi defence as not reasonably possibly true. The court found him guilty on
the count of murder and of unlawful possession of a firearm .
Proceedings in the high court
[13] The high court held that on the only material issue in dispute, the identity of the
perpetrator, there was sufficient corroborating evidence . It therefore concluded that the
trial court had correctly rejected the appellant’s alibi defence having carefully weighed the
evidence and applied the cautionary rules . The high court held that the appellant’s
evidence that the State witnesses had a motive to falsely implicate him was insupportable,
as there had been direct evidence linking him to the commission of the offences . The
contradi ctions in the State’s case regarding for instance , who would have spoken to the
appellant first when he entered the Motaungs ’ house , were immaterial. On these bases,
the high court dismissed the appellant’s appeal against his conviction .
Compliance with s 93 ter(1) of the MCA
[14] Section 93ter(1) of the MCA provides:
'The judicial officer presiding at any trial may, if he deems it expedient for the administration of
justice
(a) before any evidence has been led; or
(b) in considering a community -based punishment in respect of any person who has been
convicted of any offence,
summon to his assistance any one or two persons who, in his opinion, may be of assistance at
the trial of the case or in the determination of a proper sentence, as the case may be, to sit with
7
him as assessor or assessors: Provided that if an accused is standing trial in the court of a regional
division on a charge of murder, whether together with other charges or accused or not, the judicial
officer shall at that trial be assisted by two assess ors unless such an accused requests that the
trial be proceeded with without assessors, whereupon the judicial officer may in his discretion
summon one or two assessors to assist him.'
[15] In S v Gayiya1 (Gayiya ) this Court explained the effect of s 93ter(1) as follows :
'The section is peremptory. It ordains that the judicial officer presiding in a regional court before
which an accused is charged with murder (as in this case) shall be assisted by two assessors at
the trial, unless the accused requests that the trial proceed without assessors. It is only where the
accused makes such a request that the judicial officer becomes clothed with a discretion either to
summon one or two asse ssors to assist him or to sit without an assessor. The starting point,
therefore, is for the regional magistrate to inform the accused, bef ore the commencement of the
trial, that it is a requirement of the law that he or she must be assisted by two assessors, unless
he (the accused) requests that the trial proceed without assessors.'
[16] The above dictum in Gayiya was reaffirmed by this Court in Director of Public
Prosecutions, KwaZulu -Natal v Pillay2 (Pillay ) as a clear and unambiguous correct
statement of the law. However, in Pillay this Court observed that numerous high c ourt
judgments have addressed s 93 ter(1) of the MCA and sought to apply Gayiya with the
resul tant conflict in the interpretation and application of the section. It therefore became
necessary in Pillay to resolve the conflict. Pillay underscored that s 93 ter(1) does not
confer upon an accused person the right to be tried by a ‘properly constituted’ court, but
only a right to request that the trial proceeds without assessors. Once the request has
been made, the magistrate retains a discretion to summon one or two assessors to assist
the court, despite the request. The recitation of the concurring minority judgment in Pillay
below is concise and sets out insight fully the legal position on the construction of
s 93ter(1):3
1 S v Gayiya [2016 ] ZASCA 65 ; 2016 (2) SACR 165 (SCA) para 8.
2 Director of Public Prosecutions, KwaZulu -Natal v Pillay [2023] ZASCA 105; 2023 (2) SACR 254 (SCA) ;
[2023] 3 All SA 613 (SCA) para 10.
3 Ibid paras 57 -60.
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‘The proviso is silent on the manner in which an accused must be informed of the court's
composition; or whether a statement or confirmation by an accused's legal representative, that
the trial may proceed without assessors, constitutes compliance with the proviso. Sensibly
interpreted , however, as long as it appears from the record of the proceedings that an accused
has been informed of the proviso — by the magistrate or the accused's legal representative —
and that there is a formal request that the trial proceed without assessors, th ere will be compliance
with the proviso. Whether there has been such compliance is a question of fact to be determined
in light of the circumstances of the particular case.
In the case of an accused who is legally represented, it is implicit in a statement or request to the
magistrate that no assessors are required, that the accused has been informed of the proviso.
This is because judicial officers “act on the assumption that a duly admitted lawyer is competent” ,
as stated by this Court in S v Halgryn [2002 (2) SACR 211 (SCA)]. Legal competence necessarily
entails knowledge of the law and, in this case, the proviso. It can therefore be accepted that a
legal representative wou ld inform the accused of the proviso, explain its requirements, and that,
when the representative informs the court that assessors are or are not required, the accused has
understood what has been explained to him or her, unless, in the exceptional case, s omething
emerges which suggests otherwise.
…
Counsel's authority over the suit, however, does not detract from the mandatory requirements of
the proviso. But the proviso does not preclude a situation, for example, where the legal
representative advises the accused that in his or her view, and in the interests of the accused,
the trial should proceed without assessors. A court should not look behind a decision in a trial
made by counsel in good faith and in the best interests of the client, save only to prevent a
miscarriage of justice. If the accused accepts that advice, the legal representative would advise
the court that assessors are not required, and there would be compliance with the proviso. And,
in such a case, it cannot be suggested that “the accused never made a request [that the court]
not sit with assessors” . Neither is it necessary for the record to reflect that the “legal representative
explained the proviso to him” — that is a given.’ (Citations omitted).
[17] The record shows that from 29 January 2016 up to the stage that the appellant
was requested to plead to the charges on 29 A ugust 2016 there were several remands
for bail and further investigation . From 5 February 2016 t he appellant was represented by
Mr Mashitoa , who also assisted him with his bail application . Mr M ashitoa withdrew as
9
the appellant’s legal representative on 2 June 2016 as he had not been placed in funds.
From 1 August 2016 Ms Clarence represented the appellant . However, p rior to Ms
Clarence ’s engagement Ms Bhamjee had appeared for the appellant on 15 June 2016 ,
before magistrate Cox , who also conducted the rest of the appellant’s trial . The
magistrate’s handwritten notes of that date read as follows:
‘Accused present.
No Assessors required.
Remanded to 01/08/2016 [for] trial. Accused bail extended + warned 08h30.
(Mrs Bhamjee confirms).’
[18] The appellant’s counsel submitted that the trial court’s entry of ‘No Assessors
required ’ was insufficient compliance and not an indication that the appellant was
appropriately informed that it was a requirement that the magistrate presiding must be
assisted by two assessors unless the appellant request ed otherwise. The legal principles
adverted to above disposes of the initial question whether there had been adequate
compliance with s 93 ter(1). The statutory c ompliance had never been an issue in the trial
court or in the high court. It is raised for the first time in this appeal. This, the State took
issue with and contended that it is being placed in a disadvantageous position.
[19] An appeal court can deal with an issue that was not raised and not considered by
the lower courts only in exceptional circumstances. A court will not entertain a n ovel issue
on appeal where it causes prejudice or unfairness to the other party.4 The judgment
appealed against must be tested against issues which were placed before the court that
granted it because an appeal corrects mistakes in the decision of th at court .5 What th e
above entry by the magistrate demonstrate s is that the appellant’s legal representative in
the trial court was alive to the requirement of the employment of assessors and had
confirmed with the magistrate that the assessors were not required.
4 DB v CB [2024] ZACC 9; 2024 (5) SA 335 (CC) ; 2024 (8) BCLR 1080 (CC) para 49 .
5Tiekiedraai Eiendomme (Pty) Ltd v Shell South Africa Marketing (Pty) Ltd [2019] ZACC 14; 2019 JDR
0719 ; 2019 (7) BCLR 850 (CC) para 31 .
10
The a pplication to introduce new evidence in terms of s 316(5) of the CPA
[20] The three well -settled substantive requirements for reopening a case after a
criminal conviction are: (a) there must be an adequate explanation for the delay ; (b) the
evidence must be probably true and reliable ; and (c) if admitted, the evidence must lead
to a substantive reversal of the outcome of the case.6
[21] The State filed a statement on appeal by the investigating officer, W/O Peter
Mathebula, to the effect that Ms Motaung Snr passed away. On the death certificate ,
attached to the statement , it appears that she died on 1 June 2019 due to natural causes.
I am of the view that t his evidence is admissible and relevant to the consideration of th e
appellant’s leave to introduce new evidence . In the affidavit the appellant deposed to on
12 November 2021 in terms of s 316(5) of the CPA , he stated that Ms Motaung Jnr paid
him a visit in prison and confessed that she had given false evidence against him in the
trial court. She recanted the evidence that the appellant had comm itted the offences for
which he was convicted and sentenced.
[22] In her recanting statement Ms Motaung Jnr s tated that her grandmother had forced
her to give a statement to the police that she had witnessed the appellant shoot the
deceased , which was untrue . She also stated that she had committed perjury which led
to the appellant’s conviction and sentence. She said that her grandmother used her ‘raw
emotions over the recent break -up between [herself] and Mr Gilchrist as a tool to get [her]
to agree to the terrible act of sending an innocent man [to] prison ’. She further stated that
her evidence in the trial court was manufactured by her grandmother as an act of revenge
against the appellant and s he went along with that plot.
[23] Around April 2018, approximately ten months after his trial , Ms Motaung Jnr
informed the appellant that her evidence at the trial was untrue . What is crucial is a
consideration of whether the evidence would probably be true, reliable and lead to a
substantive reversal of the convi ction. The appellant solely relies on the recantation
6 S v Marais [2010] ZACC 16; 2010 (2) SACR 606 (CC) ; 2011 (1) SA 502 (CC); 2010 (12) BCLR 1223
(CC) para 21.
11
affidavit. On this score Smalberger JA in S v H7 quoted the following seminal passage s
by Centlivres CJ i n R v Van Heerden and Another8:
‘“I can see no reason why the Court should accept at their face value affidavits made by persons
who allege therein that they gave perjured evidence at the trial. ”
[Centlivres CJ] went on to add (at 372H -373A):
“It is not in the interests of the proper administration of justice that further evidence should be
allowed on appeal or that there should be a re -trial for the purpose of hearing that further evidence,
when the only further evidence is that contained in affidavits made after trial and conviction by
persons who have recanted th e evidence they gave at the trial. To allow such further evidence
would encourage unscrupulous persons to exert by means of threats, bribery or otherwise undue
pressure on witnesses to recant their evidence. In a matter such as this the Court must be
extre mely careful not to do anything which may lead to serious abuses in the administration of
justice. ”
Centlivres CJ quoted with approval from a judgment of Denning LJ in Ladd v Marshall [1954] 3
All ER 745 at 748 to the effect that:
“A confessed liar cannot usually be accepted as credible. To justify the reception of the fresh
evidence, some good reason must be shown why a lie was told in the first instance, and good
ground given for thinking the witness will tell the truth on the second occasion. ”’
[24] What must be considered where the evidence sought to be introduced is only a
recantation affidavit , is ‘some credible evidence aliunde which suggests that the evidence
originally given was false ’.9 In this case t here is no other independent evidence apart
from Ms Motaung Jnr’s affidavit whose veracity is incapable of being verified because Ms
Motaung Snr , who is posthumously maligned, cannot rebut the allegations in the
recanting affidavit .
[25] In my view, i t is questionable that the evidence contained in the affidavit is truthful.
Ms Motaung Jnr’s evidence concerning the shooting, was detailed and corroborated in
material respects by her grandmother. There was no doubt in her mind that the appellant
had shot her grandfather. She said that he had worn th e same clothes which he wore
7 S v H 1998 (1) SACR 260 (SCA) at 264 F-264J .
8 R v Van Heerden and Another 1956 (1) SA 366 (A) at 372B .
9 S v H at 264 J.
12
when he met her earlier that afternoon. She described this clothing in detail , as well as
her struggle with the appellant outside the house after he had shot the deceased . Their
discussion about the children at the meeting earlier that day, is common cause. She knew
Jika to whom the appellant handed the gun and said that he often visited them when she
was living with the appellant. She immediately called the family out of concern for the
children’s safety. All of t his was no made -up story.
[26] It is probable that Ms Motaung Jnr may have made the statement for an ulterior
motive. After all, the appellant is the father of her children. What weighs heavily against
the probity of the statement is that Ms Motaung Jnr responded with alacrity fo llowing the
shooting. She immediately , at approxim ately 21 h00, called the appellant’s family to report
that he committed the offences . The sudden reaction by Ms Motaung Jnr and her fear for
her children’s safety shows that she had no time to hatch a plot with her grandmother to
falsely implicate the appellant . In any event, Ms Motaung Jnr could never have feared for
her children’s safety if the scheme was only directed at incriminating the appellant. In
addition, Ms Motaung Jnr also accompanied the police to the appellant’s h ouse short ly
after the murder .
[27] It is not in the interests of the administration of justice that issues of fact, once
judicially investigated and pronounced upon, should lightly be reopened .10 That said ,
there is no reasonable possibility of Ms Motaung Jnr’s affidavit being the truth. It follows
that the appellant’s application to lead fresh evidence on appeal must fail.
The merits of the appeal
[28] In this Court the appellant questioned the reliability of the State witnesses ’
identification . He contended that the State’s witnesses’ observation was of a limited
duration and the visibility was poor as one candle light provided insufficient illumination in
the room . As shown above, the trial court carefully addressed the point . It would be
superfluous to regurgitate the issue . Sight should also not be lost of the fact that, as is
apparent from the judgment of the high court , counsel for the appellant ha d conceded,
10 S v Liesching and Others [2016] ZACC 41 ; 2017 (2) SACR 193 (CC) ; 2017 (4) BCLR 454 para 50 .
13
correctly in my view , that the witnesses had properly identified him. The record shows
that on his own version, Ms Motaung Jnr had correctly identified him as the shooter:
‘You and Malindi [Ms Motaung Jnr] have been in a relationship for quite some time now?....Yes
Basically, she cannot make a mistake regarding your identification?...No
Even if it is during the night[indistinct]….I think so.’
[29] Where the trial court does not misdirect itself on the facts or the law in relation to
the application of a cautionary rule but demonstrably subjects the evidence to careful
scrutiny, as the trial court did in this case, a court of appeal will not readily depart from its
conclusions .11 The high court correctly found that the trial court , in a carefully considered
judgment, could not be faulted for having concluded that the appellant was positively
identified as the assailant .
[30] The appellant persists in the appeal with his alibi defence and contends that the
trial court’s evaluation of his evidence lacked detailed scrutiny . An insuperable stumbling
block to his alibi defence and h is allegation of being falsely implicated , as I have already
discussed , is that Ms Motaung Jnr’s action s following the murder did not evince th ose of
a person who conspired to falsely incriminate him.
[31] The evidence shows that the appellant’s alibi was a complete fabrication , which
the trial court justifiably rejected. The effect of a false alibi is that the trial court should
treat the accused's evidence as if they had never testified. See S v Shabalala12 where it
was held:
'It was proved beyond any reasonable doubt that the appellant's alibi was false. The effect of the
falseness of an alibi on an accused's case is to place him in a position as if he had never testified
at all.'
[32] Regarding count 2 , it was argued that the State did not prove the elements of the
offence as it at no stage presented evidence that the appellant was not the holder of a
permit or a licence that authorised him to possess a firearm . However, c ounsel for the
11 S v Leve [2009] ZAECGHC 61; 2011 (1) SACR 87 (ECG) at 90H.
12 S v Shabalala 1986 (4) SA 734 (A) at 736C -736D.
14
appellant conceded in his heads of argument that this aspect was never raised in the
application for leave to appeal before us . Additionally , it does not appear that this was
raised in the high court. The witnesses observed him holding a firearm . He shot the
deceased. Nothing prevented the appellant from produc ing a firearm licence, permit or
authorisation if he had one. Regard being had to the evidence as a whole , the trial court
correctly convicted him on count 2.
[33] Lastly , the appellant took issue with the failure by the State to call Mr Vasco Cloete
and contended that this called for a negative inference to be drawn. It is within the
discretion of the prosecutor to decide which witnesses to call as part of the State case.
The duty of the prosecutor, 'to see that all available legal proof of the facts is presented',
is discharged by making the evidence (and not only the witnesses subpoenaed by the
State) available to the accused's legal representatives.13 The State made Mr Cloete
available to the defence . After the close of the State’s case the defence indicated their
intention to call Mr Cloete as a defence witness but for reasons unknown , he was not
called. I fail to see how a negative inference can be drawn against the State . Nothing
turns on this aspect . On the aforegoing exposition , no cogent criticism can be sustained
on the high court ’s dismissal of the appeal against the conviction on both counts.
[34] The following order is therefore made:
1. The appellant’s application for leave to adduce further evidence on appeal is
refused.
2. The appeal is dismissed.
_________________
M V PHATSHOANE
ACTING JUDGE OF APPEAL
13 S v Van der Westhuizen [2011] ZASCA 36 ; 2011 (2) SACR 26 (SCA) para 13 , quoting the words of Rand
J of the Supreme Court of Canada in Boucher v The Queen [1955] SCR 16 .
15
Appearances:
For appellant: F Van As
Instructed by: Pretoria Justice Centre
C/o Bloemfontein Justice Centre
For respondent: G J C Maritz
Instructed by: National Director of Public Prosecutions , Pretoria
C/o National Director of Public Prosecutions, Bloemfontein.