S v Legoa (33/2002) [2002] ZASCA 122; [2002] 4 All SA 373 (SCA) (26 September 2002)

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[2002] ZASCA 122
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S v Legoa (33/2002) [2002] ZASCA 122; [2002] 4 All SA 373 (SCA); 2003 (1) SACR 13 (SCA) (26 September 2002)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case no: 33/2002
REPORTABLE
In the matter between:
LEGOA,
Michael
Appellant
and
THE
STATE
Respondent
Before:
Vivier JA, Streicher JA, Cameron JA, Brand JA and
Lewis AJA
Heard:
Friday 13 September 2002
Judgment:
Thursday 26 September 2002
Criminal law – Dealing in dagga – Minimum sentencing
legislation, Act 105 of 1997 – (i) Meaning of ‘value’ – (ii)
State
must prove elements of the form of offence contemplated in
Schedule before conviction
JUDGMENT
_______________________________________________________
CAMERON JA:
This is an appeal, with leave granted by this Court, against the
Eastern Cape High Court’s dismissal of an appeal against a

fifteen-year minimum sentence imposed in a regional court for
dealing in dagga valued at more than R50 000. Two questions are in
issue: the meaning of ‘value’ in the minimum sentencing
legislation; and whether at the trial of an accused charged with
dealing
the state is entitled prove the value in question after
conviction but before sentencing, so as to invoke the minimum
sentences.
On 6 June 1999 the appellant, then twenty-five years old, was
arrested near Aliwal North on the Lady Grey/Sterkspruit road. He
was found driving a motor vehicle belonging to his mother, stashed
with 261,3 kilograms of dagga (cannabis). Soon after, in the
Regional Court at Aliwal North, he was charged with dealing in a
prohibited substance in contravention of s 5(b) of the Drugs and
Drug Trafficking Act 140 of 1992 (‘the 1992 Act).
1
On the main count (there was an alternative count of unlawful
possession) the charge sheet read (my translation from the
Afrikaans):
‘
That the accused is guilty of the offence of
contravening section 5(b) read with sections 13(f), 17(e), 18, 19,
20, 21, 25 and 64
of Act 140 of 1992
in that on or about the 6 day of June 1999 at or near
Lady Grey Sterkspruit main road in the district of Aliwal North the
accused
wrongfully and unlawfully dealt in an undesirable
dependence-producing substance as contemplated in Schedule 2 of Part
III [of] Act
140 of 1992 namely 216,3 kg (cannabis – dagga).’
In a written plea of guilty in terms of
s 112(2)
of the
Criminal
Procedure Act 51 of 1977
2
the appellant, who was legally represented, pleaded guilty to the
main count. His statement recited all the statutory and factual
particulars in the charge sheet. It added that, in return for an
expected payment of R1 000, the appellant had been ‘hired by
a
certain lady’, whose names were to him unknown, to convey the
dagga from the Lesotho border to Aliwal North. There ‘he would
have handed the dagga to the lady for further distribution and sale
by her’. The correct weight of the dagga was admitted as
216,3
kg. There was no admission regarding value.
The State accepted the averments and facts set out in the
appellant’s plea. The statement was handed up to the presiding
magistrate
and the appellant was convicted as charged. Thereafter
the prosecution indicated that it would prove no previous
convictions,
but requested a postponement ‘to lead further
evidence in aggravation of sentence’.
Both the charge sheet and the admission of guilt made express
mention of the applicable penalty provision in the 1992 statute,
namely
s 17(e).
This specifies for dealing in dangerous or
undesirable dependence-producing substances a maximum sentence of 25
years’ imprisonment,
or ‘both such imprisonment and such fine as
the court may deem fit to impose’. But at the time the appellant
was charged that
provision had been superseded. In 1997 Parliament
adopted minimum sentences legislation in respect of such dealing.
The Criminal
Law Amendment Act 105 of 1997 (‘the 1997 Act’) s
51(2)(a)(i) now specifies that in the absence of ‘substantial and
compelling
circumstances’ justifying a lesser sentence, a first
offender convicted of ‘an offence referred to in Part II of
Schedule 2’
is liable to a minimum sentence of 15 years. The
portion of the Schedule in question specifies ‘Any offence
referred to in s
13(f)’ of the 1992 statute –
‘
if it is proved that –
(a) the value of the dependence-producing substance in
question is more than R50 000,00;
(b) the value of the dependence-producing substance in
question is more than R10 000,00 and that the offence was committed
by a person,
group of persons, syndicate or any enterprise acting in
the execution or furtherance of a common purpose or conspiracy; or
(c) the offence was committed by any law enforcement
officer.’
3
Despite defence opposition, the postponement sought was granted.
When the trial resumed, the State called the police officer

commanding the South African National Narcotics Bureau (SANAB) at
Queenstown, Capt van Niekerk, to testify about the value of the
dagga in question. He produced a nationwide survey of the
approximately two-score SANAB units, of which nine were in the
Eastern
Cape. Five of the Eastern Cape units had indicated
(consonantly with the findings of the survey as a whole) that dagga
had a street
value of about R1,00 per gram. One had shown a value
of R5,00 per gram, while another had shown R0,50 per gram. Returns
from
two of the Eastern Cape SANAB units, including the Aliwal North
unit, were not shown. Van Niekerk added that in his sixteen years
in SANAB, it had always been accepted, and his personal experience
confirmed, that the street value of dagga had remained relatively
static at R1,00 per gram, or R1 000,00 per kilogram. He emphasised
that this was the value of the dagga when sold at its ‘final
destination’.
Under cross-examination, Van Niekerk confirmed that in estimating
the value of the dagga in issue he had in mind its value as sold
by
the street dealer to the street consumer. He expressly agreed that
its value to the producer would be ‘much, much lower’
than R1,00
per gram. The weight seized in the appellant’s possession
constituted, he agreed, about 20 raw bags. This would
be worth to
the producer no more than R300,00 to R1 000,00 per bag (though on
occasion perhaps more). The total value of the dagga
seized would
be at most between R15 000 and R20 000.
In the regional court the only disputed issue was the value of the
dagga. The magistrate found that the state had established
the
‘potential value’ of the dagga as R1,00 per gram. Despite Van
Niekerk’s concessions, he held that the only feasible
approach was
potential value. While it was true that the price obtained for a
consignment could vary, it was up to an accused
to convince a court
that any other value applied. In the absence of substantial and
compelling circumstances, the appellant therefore
had to be
sentenced to fifteen years’ imprisonment.
On appeal to the Eastern Cape High Court, a second ground was argued
– that the appellant had not been ‘convicted’ of a scheduled
offence as contemplated in the 1997 Act. On the first issue, the
Court (Chetty J, Pillay J concurring) held that ‘value’ must
be
given ‘a meaning that could be applied to the ordinary everyday
facts associated with the illegal drug trade’. Since the
intended
target was the end user, it was the street value that must apply.
On the second point, the Court held that ‘the value
of the
dependence-producing substance is entirely irrelevant prior to
conviction’, and that the state did not have to prove value
before
conviction. For the reasons that follow, both conclusions are in my
view wrong.
‘
Value’ in the minimum sentencing legislation
Nearly a century ago Innes JA observed that the principle ‘that
the value of an article is, as a general rule, what it will fetch’
was well recognised. Accordingly, ‘the aim should be to estimate
what could be obtained for it; not what it cost or what its
utility
to the owner would be worth’.
4
‘What it will fetch’ relates of course to market value, which
Innes JA went on to describe as ‘the most uniform test, and
the
one easiest of practical application.’
‘Market value’, notoriously, means the price a willing buyer
pays a willing seller in an open market. In the present case,
the
magistrate and the Eastern Cape Division implicitly accepted this.
But the error they made was to assume that dagga sold in
bulk and
dagga sold in small quantities of 1 gram would sell at the same
price per gram. The conclusion is at odds with common
sense. In
any event there is no evidence to support the assumption. In fact
the evidence is to the contrary. The dagga was in
twenty bags, each
therefore weighing somewhat more than 10kg. Capt van Niekerk
testified that the value of such a bag was between
R300 and R1000.
At most, therefore, the dagga was worth R20 000. It may have been
worth considerably less – in any event, nothing
even close to the
R50 000 the minimum sentencing legislation prescribes.
On this ground alone the sentence imposed on the appellant was
incompetent. Although this conclusion is sufficient to dispose
of
the appeal, the course the proceedings took in the courts below and
the conclusions those courts reached on the second issue
necessitate
further examination.
Can the State prove the value of the dagga after conviction?
The 1997 minimum sentencing legislation requires for its application
that an accused must have been ‘convicted of an offence
referred
to’ in the Schedule.
5
In this case the offence ‘referred to’ in the Schedule is that
of dealing in a dangerous dependence-producing substance ‘
if it
is proved that – (a) the value of the dependence-producing
substance in question is more than R50 000,00
’. The question
is whether the High Court’s conclusion that the value of the
substance in question relates solely to the question
of sentence and
is irrelevant before conviction, is correct.
In my view for three principal reasons it is not. First, the High
Court’s conclusion flies in the face of the wording of the
1997
statute. That wording in my view clearly indicates that for the
minimum sentencing jurisdiction to exist in respect of an
offence,
the accused’s conviction must encompass all the elements of the
offence set out in the Schedule. (This does not apply
when the
Schedule specifies an attribute not of the offence, but of the
accused, such as rape when committed ‘by a person who
has been
convicted of two or more offences of rape, but has not yet been
sentenced in respect of such convictions’.)
6
Second, even if the wording of the statute were open to more than
one interpretation (which in my view it is not) the grave injustice
that the contrary interpretation can cause compels the conclusion
that the elements of the offence must be established before

conviction. Third, the High Court’s conclusion is contrary to
established principle and practice in our criminal trial courts.
It is an established principle of our law that a criminal trial has
two stages – verdict and sentence. The first stage concerns
the
guilt or innocence of the accused on the offence charged. The
second concerns the question of sentence. Findings of fact
may be
relevant to both stages. However, those in the first stage relate
to the elements of the offence (or the specific form
of the offence)
with which the accused is charged. Those in the second mitigate or
aggravate the sentence appropriate to the form
of the offence of
which the accused has been convicted.
The application of this principle was complicated, but its essence
not affected, when the death sentence was compulsory for murder
without extenuating circumstances.
7
In such trials, the finding as to extenuation related to the first
stage (the verdict), though two phases were required within
the
first stage, since the onus to prove murder beyond reasonable doubt
rested on the State, while the onus of establishing extenuating
circumstances on balance of probabilities rested on the accused.
8
This meant that, once verdict had been pronounced on the accused’s
guilt or innocence (including in an appropriate case murder
with or
without extenuating circumstances), the question of sentence was one
for the judge alone, and not for the assessors.
9
Where the accused was charged with robbery, the question whether the
robbery was committed with aggravating circumstances had to
be
determined as part of the verdict – that is, as part of the
court’s finding on guilt or innocence in the first stage. The
aggravating circumstances were elements of the form of the offence
of robbery with which the accused was charged. Hence they had
to be
proved in the first stage of the trial, and the finding regarding
their presence or absence was part of the main verdict.
Their
presence or absence accordingly had to be decided by the judge with
the assessors (or, before the abolition of juries,
10
by the jury).
11
It is correct that, in specifying an enhanced penal jurisdiction for
particular forms of an existing offence, the legislature does
not
create a new type of offence. Thus, ‘robbery with aggravating
circumstances’ is not a new offence.
12
The offences scheduled in the minimum sentencing legislation are
likewise not new offences. They are but specific forms of existing
offences, and when their commission is proved in the form specified
in the Schedule, the sentencing court acquires an enhanced
penalty
jurisdiction. It acquires that jurisdiction, however, only if the
evidence regarding all the elements of the form of the
scheduled
offence is led before verdict on guilt or innocence, and the trial
court finds that all the elements specified in the
Schedule are
present. (As pointed out earlier, it is different when the element
specified in the Schedule relates not to the offence,
but to the
person of the accused, such as rape when committed ‘(iii) by a
person who has been convicted of two or more offences
of rape, but
has not yet been sentenced in respect of such convictions’.)
13
A related though distinct question, which has long caused
complexity,
14
has been whether the charge sheet should include reference to the
elements of the specific form of the offence with which the accused
is charged. This Court has in the past held that it is desirable
but not essential that the charge sheet should set out those
elements.
R v Zonele and others
15
was decided shortly after the Criminal Procedure Act 56 of 1955
was amended to make competent the sentence of death if ‘aggravating
circumstances’ were found in cases of robbery or housebreaking
with intent to commit an offence. In remarks that have a signal
bearing on the proceedings in the present case, Ramsbottom JA (with
whom Rumpff AJA concurred) said:
‘
Although
the presence of aggravating circumstances affects sentence only, it
is of great importance that a person charged with robbery
or with
housebreaking with intent to commit an offence should be informed, in
clear terms, that the Crown alleges and intends to
prove that
aggravating circumstances were present.
It is
desirable that the facts which the Crown intends to prove as
constituting aggravating circumstances should be set out in the
indictment, as was done in the present case. Without laying down any
rule, I venture to suggest, for the consideration of
Attorneys-General,
that it might be good practice to go further and,
in addition, to allege specifically that the accused is charged with
robbery (or
with housebreaking with intent to commit an offence) in
which aggravating circumstances were present. …
When an
accused pleads guilty to either of these charges, and it appears from
the indictment that the Crown intends to prove that
aggravating
circumstances were present, the presiding Judge will, of course,
satisfy himself that the accused intends to admit not
only that he is
guilty of the offence charged, but also that the aggravating
circumstances were present. Unless the facts alleged
to constitute
aggravating circumstances are formally admitted they must be proved,
and it is, naturally, essential that the exact
extent of the
admissions should be ascertained. …
It
is hardly necessary to remark that even though the accused has
pleaded guilty the presiding Judge has the inherent power to enter
a
plea of not guilty if for any reason he deems it advisable in the
interests of justice to do so.’ (323B-F)
Under the common law it was therefore ‘desirable’ that the
charge sheet should set out the facts the State intended to prove
in
order to bring the accused within an enhanced sentencing
jurisdiction. It was not however essential.
16
The Constitutional Court has emphasised that under the new
constitutional dispensation, the criterion for a just criminal trial
is ‘a concept of substantive fairness which is not to be equated
with what might have passed muster in our criminal courts before
the
Constitution came into force’.
17
The Bill of Rights specifies that every accused has a right to a
fair trial. This right, the Constitutional Court has said,
18
is broader than the specific rights set out in the sub-sections of
the Bill of Rights’ criminal trial provision.
19
One of those specific rights is ‘to be informed of the charge
with sufficient detail to answer it’.
20
What the ability to ‘answer’ a charge encompasses this case
does not require us to determine. But under the constitutional
dispensation it can certainly be no less desirable than under the
common law that the facts the State intends to prove to increase
sentencing jurisdiction under the 1997 statute should be clearly set
out in the charge sheet.
The matter is however one of substance and not form, and I would be
reluctant to lay down a general rule that the charge must in
every
case recite either the specific form of the scheduled offence with
which the accused is charged, or the facts the State intends
to
prove to establish it. A general requirement to this effect, if
applied with undue formalism, may create intolerable complexities
in
the administration of justice and may be insufficiently heedful of
the practical realities under which charge sheets are frequently
drawn up.
21
The accused might in any event acquire the requisite knowledge from
particulars furnished to the charge
22
or, in a superior court, from the summary of substantial facts the
State is obliged to furnish.
23
Whether the accused’s substantive fair trial right, including his
ability to answer the charge, has been impaired, will therefore
depend on a vigilant examination of the relevant circumstances.
The question thus remains whether the accused had a fair trial under
the substantive fairness protections afforded by the Constitution.

In this regard, the judgment of the Full Court of the Transvaal
Provincial Division in
S v Seleke
,
24
though delivered before the Constitution, remains instructive. The
Full Court held under the provisions of the Dangerous Weapons
Act 71
of 1968 that although it was desirable for the charge to contain
reference to the penalty, this was not essential, and its
omission
not irregular: the test was whether the accused had had a fair
trial (681-2). The Full Court observed (my translation
from the
Afrikaans):
‘
To ensure
a fair trial it is advisable and desirable, highly desirable in the
case of an undefended accused, that the charge sheet
should refer to
the penalty provision. In this way it is ensured that the accused is
informed at the outset of the trial, not only
of the charge against
him, but also of the State’s intention at conviction and after
compliance with specified requirements to
ask that the minimum
sentence in question at least be imposed.’ (682H)
Dealing with the question of verdict, the Full Court held that for
the enhanced penalty provisions to be applicable the use of
a
‘dangerous weapon’ as defined had to be proved in the course of
the State case against the accused (again my translation):
‘
The use of a “dangerous weapon” as intended in s
4 (1) of the Act must be proved by the State in the course of the
State’s case.
The finding of the trial court that the weapon in
fact complies with the description in s 1, can only be made if (a)
the accused
is timeously, and, in all cases where the accused is
unrepresented, with full information about the implications, warned
that the
State before sentencing will make such a claim; (b) the
accused has been granted a proper opportunity to put his side of the
case
by way of cross-examination, evidence, representations, etc; and
(c) the court in considering this aspect through its own examination
of the object in question, or, if it is not before court, by
descriptive evidence, is sure beyond reasonable doubt that it,
objectively
speaking, does in fact fulfil the statute’s
description.
The emphasis we place on this portion of the proceedings
is justified by the drastic difference that it may make to sentence.’
(685A-D)
These principles were illuminatingly applied in regard to the 1997
statute’s minimum sentencing provisions in
S v Nziyane
.
25
There the scheduled offence was possession of a semi-automatic
weapon, which for a first offender similarly carries a minimum

15-year sentence. The charge sheet averred possession of a Norinco
pistol, and specified that this was a semi-automatic weapon.

However, in its verdict the trial court, though observing that it
was common cause that a Norinco pistol was in general a
semi-automatic
weapon, failed to make a specific finding to this
effect. Only after the conviction was entered did the State lead
expert evidence
establishing that the pistol the accused possessed
was in fact semi-automatic. The Court correctly laid emphasis on
the 1997 Act’s
requirement that the accused must be
convicted
of the scheduled offence. The minimum sentencing provisions
therefore did not apply. Although the legislature had not created
new offences, it had to appear at conviction that elements in
question were present. Botha J observed (I translate):
‘
The words in my opinion convey the meaning that the
facts that must be present to make the minimum sentence compulsory
must be established
at conviction in the sense that they must be
included in the facts on which the conviction is based.’ (609
d
)
Botha J concluded that the nature of the weapon was
res judicata
after conviction. Where the accused pleads not guilty, the State’s
allegation in the charge sheet puts the matter in issue at
the
trial, so that after verdict the State can no longer lead evidence
on this issue (610
b
-
d
). These conclusions seem to me
clearly right.
In the present matter, the accused pleaded guilty. The State
accepted not only his plea, but the facts set out in his s 112
statement.
That statement included express allusion to the penalty
provision under the 1992 Act. After the accused was convicted there
could
thus be no question of applying the minimum sentencing
provisions of the 1997 statute. As Holmes JA pointed out in
S v
Sparks
–
‘
Indeed, on a plea of guilty being entered, the
“trial” ends, since there are then no further issues to be tried
in regard to verdict
…’
26
The issues affecting verdict in the present trial were thus
concluded when, after the State had accepted the appellant’s plea,
the Court found him guilty on the basis of it. The appellant was
not warned that the minimum sentencing legislation might be invoked.
In fact, the charge sheet misled him as to the applicable penalty
by referring only to the 1992 Act. The trial court, in convicting
him, did not question him or satisfy itself (as enjoined by
Ramsbottom JA) as to the elements of the form of the offence to
which
he was pleading guilty. It was therefore highly unfair to
confront the appellant thereafter with the minimum sentences. More

signally, the trial Court in any event lacked jurisdiction entirely
to impose the minimum sentence.
Sentence
The sentence imposed on the accused must therefore be set aside.
The accused has been in custody since his arrest on 6 June 1999.
He
was sentenced on 27 August 1999. In view of the sentence I consider
appropriate under the penalty provisions of the 1992 statute,
the
further delay caused by remitting the matter to the trial court to
impose sentence itself would be unfair to the accused.
Given the amount of dagga, the appellant’s avowedly intermediary
role in its transportation, his clean record, and the remorse
indicated by his plea of guilty, I am of the view that a sentence of
five years’ imprisonment would be adequate.
Order
The following order is made:
The appeal succeeds.
The sentence imposed on the appellant is set aside.
In its place there is substituted:
‘The accused is sentenced to five years’ imprisonment, antedated
in terms of
s 282
of the
Criminal Procedure Act 51 of 1977
to the
date on which he was originally sentenced, 27 August 1999.’
E CAMERON
JUDGE OF APPEAL
VIVIER JA )
STREICHER
JA ) CONCUR
BRAND JA )
LEWIS AJA )
1
Section 5 of the 1992 Act prohibits dealing in dependence-producing,
dangerous dependence-producing or undesirable dependence-producing
substances. Sub-sections 13(e) and (f) make contravention of the
prohibition on dealing a criminal offence. Section 5 provides
(subject to exceptions not relevant) that ‘No person shall deal in
–
(a) any
dependence-producing substance; or
(b) any dangerous
dependence-producing substance or any undesirable
dependence-producing substance’.
Section 1 provides that
‘”deal in”, in relation to a drug, includes performing any act
in connection with the transhipment,
importation, cultivation,
collection, manufacture, supply, prescription, administration, sale,
transmission or exportation of the
drug’.
Part III of Schedule 2 to
the Act classifies ‘Cannabis (dagga), the whole plant or any
portion or product thereof, except dronabinol
[(-)-transdelta-9-tetrahydrocannabinol]’ as an ‘undesirable
dependence-producing substance’.
2
Section 112(2) provides that ‘If an accused or his legal adviser
hands a written statement by the accused into court, in which
the
accused sets out the facts which he admits and on which he has
pleaded guilty, the court may, in lieu of questioning the accused
under subsection (1) (b), convict the accused on the strength of
such statement and sentence him as provided in the said subsection
if the court is satisfied that the accused is guilty of the offence
to which he has pleaded guilty: Provided that the court may
in its
discretion put any question to the accused in order to clarify any
matter raised in the statement.’
3
The 1997 Act’s minimum sentencing provisions were brought into
effect on 1 May 1998. Their operation has from time to time been
extended, most recently from 1 May 2001 for a further two years
(Proc R29 in GG 22261 of 30 April 2001).
4
Pietermaritzburg Corporation v South African Breweries Ltd
1911 AD 501
515. See too de Villiers JA at 522.
5
The wording of the 1997 statute was amended, in respects immaterial
to this appeal, by Act 62 of
2000.
6
Act 105
of 1997, Schedule 2, Part I
7
Section 277
of the
Criminal Procedure Act 51 of 1977
was amended to
abolish the compulsory death sentence for murder without extenuating
circumstances by s 4 of the Criminal Law Amendment
Act 107 of 1990,
which came into operation on 27 July 1990.
8
S v Sparks
1972 (3) SA 396 (A) 404.
9
S v Lekaota
1978 (4) SA 684
(A).
10
By the Abolition of Juries Act 34 of 1969.
11
S v Jacobs
1961 (1) SA 474
(A),
S v Sparks
1972 (3) SA
396 (A) 404.
12
S v Moloto
1982 (1) SA 844
(A) 850C-D, per Rumpff CJ: ‘Roof,
of poging tot roof, met verswarende omstandighede is nie ‘n nuwe
sort misdaad wat deur die
Wetgewer geskep is nie. Dit bly steeds
roof, of poging tot roof, maar volgens art 277(1)(c) [of Act 51 of
1977] van verleen die
aanwesigheid van verswarende omstandighede aan
die Verhoorregter ‘n diskresionere bevoegdheid om by
skuldigbevinding die doodvonnis
op te le.’
13
Act 105 of 1997, Schedule 2, Part I
14
See
ex parte the Minister of Justice: in re R v Masow and Another
1940 AD 75.
15
1959 (3) SA 319
(A).
16
See too
S v Moloi
1969 (4) SA 421
(A) 424A-C, per van Winsen
AJA.
17
S v Zuma and others
[1995] ZACC 1
;
1995 2 SA 642
(CC) para 16, drawing a
contrast with
S v Rudman and Another
;
S v Mthwana
1992
(1) SA 343
(A) 377; and see
Sanderson v Attorney-General, Eastern
Cape
1998 (2) SA 38
(CC) para 22, per Kriegler J.
18
S v Zuma and others
[1995] ZACC 1
;
1995 2 SA 642
(CC) para 16.
19
Constitution s 35(3)(a) to (o).
20
Constitution s 35(3)(a).
21
See the remarks of Borchers J in
S v Blaauw
1999 (2) SA 295
(W) at 301
h
-302
b
.
22
Section 87
of the
Criminal Procedure Act, 51 of 1977
, read with
s
85(1)(d).
23
">
23
Section 144(3)
provides: ‘(a) Where an attorney-general under
section 75
,
121
(3) (b) or
122
(2) (i) arraigns an accused for a
summary trial in a superior court, the indictment shall be
accompanied by a summary of the substantial
facts of the case that,
in the opinion of the attorney-general, are necessary to inform the
accused of the allegations against
him and that will not be
prejudicial to the administration of justice or the security of the
State, as well as a list of the names
and addresses of the witnesses
the attorney-general intends calling at the summary trial on behalf
of the State: Provided that-
(i) this provision shall
not be so construed that the State shall be bound by the contents of
the summary;
(ii) the attorney-general
may withhold the name and address of a witness if he is of the
opinion that such witness may be tampered
with or be intimidated or
that it would be in the interest of the security of the State that
the name and address of such witness
be withheld;
(iii) the omission of the
name or address of a witness from such list shall in no way affect
the validity of the trial.’
24
1976 (1) SA 675
(T) (Cillie JP, Marais and Le Grange JJ).
25
2000 (1) SACR 605
(T) (Botha J, du Plessis J concurring).
26
1972 (3) SA 396
(A) 404C-D.