Brief Summary

Criminal Procedure — Duty to call witness — Section 186 of the Criminal Procedure Act 1977 — Refusal to subpoena witness — Appellants, convicted policemen, argued that trial court erred in not calling witness whose testimony was claimed to be essential for a just decision. The witness, Stanley van der Westhuizen, was present during the events leading to the charges of rape and kidnapping but was not called by the State. The trial court ruled that his testimony was not essential after the close of the State's case. The appellants contended that this refusal constituted a breach of the court's duty under section 186. The Supreme Court of Appeal held that the trial court's discretion in assessing the necessity of the witness's testimony was not properly exercised, warranting intervention on appeal as the witness's evidence could likely have affected the outcome of the case.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal appeal in the Supreme Court of Appeal concerning an alleged irregularity in the conduct of a trial, specifically the trial court’s refusal (and alleged failure) to secure the attendance of a witness under section 186 of the Criminal Procedure Act 51 of 1977.

The parties were E Gabaatlholwe (first appellant) and N Rammutle (second appellant), who had been tried together with a third accused (not an appellant), all of whom were policemen. The respondent was the State.

The procedural history was that the appellants were convicted of rape and kidnapping in the court a quo (Labuschagne J sitting with assessors) and were sentenced to life imprisonment for rape and ten years’ imprisonment for kidnapping. Leave to appeal was refused by the trial court and, on petition, by the Supreme Court of Appeal. Thereafter, at the request of counsel for the appellants (who had been accused 1 and 3 at trial), the trial judge made a special entry under section 317 of the Criminal Procedure Act 51 of 1977 recording the defence complaint that the refusal to subpoena a particular witness constituted an irregularity or was contrary to law. The appeal proceeded on that basis.

The general subject-matter of the dispute was whether the trial court was obliged, in the interests of a just decision, to subpoena (or cause to be subpoenaed) a witness, Stanley van der Westhuizen, whom the State had elected not to call and had made “available” to the defence, and whether the trial court’s refusal (or subsequent failure) to ensure his attendance undermined the fairness of the trial.

2. Material Facts

The complainant was a 21-year-old hairdresser. On the night of 26 March 1999, she met a friend, Stanley van der Westhuizen, at a dance hall (the Bundu Inn, Westonaria). On her account, she consumed one fruit-flavoured alcoholic drink while Van der Westhuizen drank whisky. After the venue closed, they went to the Sports Bar, arriving after midnight, where they again drank in similar quantities and danced. A quarrel occurred involving Van der Westhuizen and a former girlfriend. At about 03h30, the complainant asked Van der Westhuizen to take her home, but he refused because he was not ready to leave. The complainant then decided to phone her mother and walked alone to a nearby Shell garage for that purpose.

At the garage, the complainant asked the attendant to use a phone but was told it was inaccessible. Two uniformed policemen entered the shop. One offered to take her to Randfontein when she said she needed transport. Relying on the presence of a police uniform, she accompanied them and climbed into the back of a white Golf motor vehicle. It was common cause that the occupants were the three accused.

It was also common cause that shortly after leaving the garage the complainant fell asleep in the vehicle and that intercourse occurred in the police car at an isolated place on the outskirts of Randfontein within a relatively short time after departure.

On the complainant’s version, when she awoke the vehicle was not headed towards her home. She protested, after which a jacket was thrown over her head and held there, preventing identification. She was threatened and assaulted, including being struck in the stomach. The vehicle stopped, and she was raped three times on the back seat. Her rings were removed. She was later left in an unfamiliar place. She arrived home around 06h00, hysterical, without shoes and with only one sock, holding her panties.

The State called the garage attendant (Mokane), who testified that the complainant appeared to speak and walk normally at about 04h00, purchased chips, and left the shop with the second appellant. The defence did not meaningfully challenge the attendant’s evidence concerning her normal speech and gait or suggest that she showed signs of intoxication. The State also adduced evidence from the complainant’s mother and a crisis-centre worker about her distressed condition after the incident. The district surgeon (Dr Broughton) found injuries consistent with penetration and noted pain and tears; while he could not exclude consensual intercourse in difficult circumstances, he stated the injuries were not those he would ordinarily expect from consensual intercourse.

The defence case, as put in cross-examination, was that the complainant offered sex for money to one of the accused and that intercourse occurred by consent; the first appellant’s case included an alibi (that he had been taken home before intercourse occurred). Although intoxication was mentioned in cross-examination in a limited way (red eyes and smell of alcohol were put to the complainant), the defence did not advance a case that her conduct was driven by intoxication or that her recollection was unreliable because of inebriation.

The disputed factual component relevant to the appeal arose from the content attributed to Van der Westhuizen’s police statement. According to defence counsel, Van der Westhuizen would say that he and the complainant shared about ten drinks, that she was “gedrink” (affected by alcohol) but not unsteady, and that she had access to a phone at the Sports Bar. The complainant denied this version and maintained her account.

The defence requested the court, after the State closed its case, to subpoena Van der Westhuizen in terms of section 186, contending his evidence was necessary (particularly regarding the complainant’s sobriety). The trial court refused at that stage. The defence later indicated an intention to call Van der Westhuizen without a subpoena, but ultimately closed its case when the witness did not attend and no renewal of the section 186 request was pursued.

3. Legal Issues

The central legal questions were whether, on the facts before the trial court, Van der Westhuizen’s evidence “appeared to the court to be essential to the just decision of the case” as contemplated in section 186 of the Criminal Procedure Act 51 of 1977, such that the trial court was obliged to subpoena him (or cause him to be subpoenaed).

A further question was whether, even if refusal at the close of the State case could be justified at that stage, there was nonetheless a continuing duty on the trial court to ensure the witness was called later (despite the absence of an express renewal), given the defence’s later inability to secure his attendance without a subpoena.

The dispute principally concerned the application of legal standards to the factual context of the trial (namely, the content and apparent probative value of the proposed evidence, the stage of the proceedings, and the accused’s conduct in attempting to secure the witness), as well as the discretionary evaluation inherent in section 186 decisions and the limited basis upon which an appellate court may interfere.

4. Court’s Reasoning

The Court located section 186 within the broader role of the presiding judicial officer as an administrator of justice who must remain open-minded, impartial, and fair. Although section 186 empowers the court to call witnesses “at any time” during criminal proceedings, the Court emphasised that the need to call a witness in the interests of a just decision will often be less apparent at the end of the State case than after all evidence is complete. At that earlier stage, the court does not yet know whether the accused will testify and what disputes their evidence may generate; in that situation, the assessment involves assumptions based on the plea and cross-examination. This stage-sensitive uncertainty justified greater latitude to the trial court’s decision when the application is made immediately after the State closes its case.

The Court then explained the meaning of “essential to the just decision of the case” in section 186. It held that “essential” means more than potentially useful. The court must be satisfied, on an assessment of the evidence before it, that without hearing the particular witness it will be bound to conclude that justice will not be done in the result. This does not mean that a conviction or acquittal cannot follow; rather, it means the outcome would be reached without reliance on available evidence that would probably (not merely possibly) affect the result, and there is no explanation that justifies why such evidence was not placed before the court. The Court further indicated that where the proposed statement is equivocal or non-specific in relation to relevant issues, it becomes difficult to treat the witness as “essential” rather than of only potential value.

On appellate interference, the Court reaffirmed that because the section 186 assessment is entrusted to the presiding judge or magistrate, an appellate court will interfere only on very limited grounds. It also addressed the alternative situation where, post facto, it is contended that a witness was objectively essential and the trial court did not apply its mind to the question (for example, because it was not expressly called upon to do so later). In that event, the appellate court may intervene if satisfied that the witness was indeed essential. The Court accepted counsel’s submission that the special entry should be approached on a broader basis that included not only the refusal at the end of the State case but also an alleged later failure to act under section 186.

The Court rejected a preliminary argument by the State that evidence about the complainant’s drinking would be collateral and inadmissible. It held that, given the issues of consent (in relation to the second appellant) and presence/alibi (in relation to the first appellant), evidence about drinking could be relevant to inferences concerning consent and the complainant’s reliability, and was therefore admissible under the principles in the cases it cited.

Turning to the evaluation of Van der Westhuizen’s proposed evidence, the Court accepted that even taking his statement at face value, it did not point to a marked degree of intoxication. The term “gedrink” covered a range of meanings, and the assertion of shared consumption of “about ten drinks” was insufficiently specific to yield a meaningful conclusion without speculation. The Court also considered that Van der Westhuizen’s own conduct—as described—did not support a belief that the complainant was incapacitated, given that he was content to leave her at the tavern and did not take steps to ensure her safe return home.

The Court further reasoned that the surrounding objective evidence tended to indicate rational and purposive behaviour by the complainant: she walked to the garage, made enquiries, purchased chips, and the attendant observed nothing abnormal. Her reliance on a uniformed policeman for safety was treated as a rational explanation for entering the vehicle. The defence’s own presentation of its case did not meaningfully rely on intoxication: it was not suggested that her allegedly sexually forward conduct was caused by alcohol, and the first appellant’s evidence portrayed her as aware of what she was doing, which was inconsistent with a substantial intoxication thesis.

The Court also held that there was no reason Van der Westhuizen’s evidence would necessarily have been accepted as reliable. The statement raised questions that might warrant scepticism, such as why, if the complainant had access to a phone at the Sports Bar, she would leave to find another, and why Van der Westhuizen did not confirm she had reached her mother or ensure her safe departure. The trial court, having observed the complainant’s testimony and being aware of criticisms advanced against her, was entitled to form a prima facie view that these matters were not significant in relation to whether she had consented, and that there was no evident reason for her to fabricate them.

In addition, the Court considered the overall probabilities opposing consent, even if some alcohol consumption were assumed. These included the complainant’s determination to get home, the improbability of making sudden sexual overtures to unknown uniformed policemen, the detailed account of the assault including the use of a jacket to prevent identification and the knife-related scratch for which the accused offered no explanation, her distressed condition on arrival home, and the medical evidence. The Court concluded that criticisms of her credibility were not fairly separable from, and could be rationally explained by, the traumatic circumstances.

In this context, the Court held that the trial judge was justified in viewing liquor as playing no meaningful role and in concluding that Van der Westhuizen was not essential or even material to a just decision. The refusal to subpoena him at the stage when the application was made was therefore not shown to be wrong, still less unreasonable.

Finally, as to the alleged later “failure” to call the witness, the Court considered that the evidence subsequently led by the appellants added nothing that would have altered the initial assessment of the limited role of alcohol in the events. The defence’s lack of diligence in subpoenaing the witness itself, its failure to renew the request when difficulties arose, and the contextual nature of the judge’s initial ruling (limited to the stage at which it was made) supported the conclusion that no breach of section 186 was established.

5. Outcome and Relief

The Supreme Court of Appeal dismissed the appeal. The convictions and sentences imposed by the court a quo therefore remained in place.

No costs order is recorded in the judgment, and the operative relief was confined to dismissal of the appeal.

Cases Cited

R v Hepworth 1928 AD 265.

S v Rall 1982 (1) SA 828 (A).

S v Gerbers 1997 (2) SACR 601 (SCA).

R v Zackey 1945 AD 505.

S v Seheri en Andere 1964 (1) SA 29 (A).

S v B and Another 1980 (2) SA 946 (A).

S v Green 1962 (3) SA 886 (A).

S v Sinkankanka 1963 (2) SA 531 (A).

Legislation Cited

Criminal Procedure Act 51 of 1977, section 186.

Criminal Procedure Act 51 of 1977, section 317.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Court held that the duty in section 186 to subpoena a witness arises only where the evidence of that witness appears to the court to be essential to the just decision of the case, meaning evidence that would probably affect the outcome and whose absence would mean justice is not done. The determination is primarily for the trial court, particularly when the application is brought at the close of the State case, and appellate interference is limited.

On the facts, the proposed evidence from Van der Westhuizen about the complainant having been “gedrink” and the amount consumed was not sufficiently specific or compelling to be regarded as essential, was not shown to be likely to alter the credibility assessment or probabilities on consent, and did not justify intervention either on the basis of the initial refusal or an alleged later failure to act. The appeal was accordingly dismissed.

LEGAL PRINCIPLES

Section 186 of the Criminal Procedure Act 51 of 1977 empowers and obliges a criminal court to subpoena (or cause the subpoenaing of) a witness only where that witness’s evidence appears to the court to be essential to a just decision. “Essential” is not equated with “useful” or “potentially helpful”; it requires a judicial assessment that, without the evidence, the court would reach its verdict without available evidence that would probably affect the result, and without an adequate explanation for the witness’s absence.

The assessment under section 186 is sensitive to the stage of proceedings. When a section 186 request is made at the close of the State case, the necessity for calling the witness is often less apparent because the court cannot yet know what the defence evidence will place in dispute. This circumstance supports a wider margin for the trial court’s evaluative judgment at that stage.

Because the section 186 decision is entrusted to the presiding judicial officer’s evaluation, an appellate court will interfere only on limited grounds. Where it is contended after the fact that a witness was objectively essential and it appears the trial court did not apply its mind to the question, an appellate court may intervene if satisfied that the witness was indeed essential on an objective assessment.

In considering whether a witness is essential, the court may take account of the specificity and clarity of the proposed evidence, whether it directly bears on the issues, and the diligence with which the party seeking the witness has attempted to secure that witness’s attendance. The parties’ views may be canvassed, but the ultimate inquiry remains whether the evidence is essential to achieving a just decision on the case as it stands.

S v Gabaatlholwe and Another (96/2002) [2002] ZASCA 149; [2003] 1 All SA 1 (SCA) (28 November 2002)