Moloi and Others v Minister for Justice and Constitutional Development and Others (CCT 78/09) [2010] ZACC 2; 2010 (2) SACR 78 (CC) ; 2010 (5) BCLR 497 (CC) (4 February 2010)

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[2010] ZACC 2
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Moloi and Others v Minister for Justice and Constitutional Development and Others (CCT 78/09) [2010] ZACC 2; 2010 (2) SACR 78 (CC) ; 2010 (5) BCLR 497 (CC) (4 February 2010)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 78/09
[2010] ZACC 2
In the matter between:
MUSA JOE
MOLOI
......................................................................................
First
Applicant
GEORGE GRAHAM
MIDDELTON
......................................................................................
Second Applicant
MASOUD MSELEM
YUUNUS
......................................................................................
Third
Applicant
THABO LAWRENCE
MOHLALA
......................................................................................
Fourth
Applicant
and
MINISTER FOR JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
......................................................................................
First
Respondent
DIRECTOR OF PUBLIC PROSECUTIONS SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
......................................................................................
Second
Respondent
SENIOR MAGISTRATE KEMPTON PARK MAGISTRATE’S
COURT
......................................................................................
Third
Respondent
Decided on : 4 February 2010
JUDGMENT
THE COURT:
Introduction
Before us is an application brought on the basis of urgency for
direct access to this Court to set aside the convictions and

sentences imposed on the applicants by certain Magistrate’s
Courts, Kempton Park, in Gauteng for dealing in drugs in
contravention
of section 5(b)
1
read with sections 1,
2
13,
3
17,
4
18,
5
20,
6
21,
7
22
8
and 25
9
of the Drugs and Drug Trafficking Act
10
(the Act). All four applicants are serving prison terms at
Modderbee Correctional Centre, Benoni and do not have legal

representation. They also seek condonation for the late filing of
the application for leave to appeal and for their failure to
file
the prescribed number of copies of the application.
The applicants have
cited as first respondent, the Minister for Justice and
Constitutional Development; as second respondent,
the National
Director of Public Prosecutions; and as third respondent, the
Kempton Park Magistrate’s Court.
All the applicants
were charged with and convicted of dealing in drugs in terms of
section 5(b) read with the presumptions of
dealing in drugs found
in section 21(1)(a)(i), (b), (c) and (d) of the Act. In the
alternative, they were charged with the
possession of drugs in
terms of section 4(b) read with sections 21(1)(a)(i), (b), (c) and
(d) of the Act.
The first applicant
is Mr Musa Joe Moloi. He pleaded not guilty to the main and
alternative counts charged. He was, however,
found guilty on the
main count of dealing in drugs and sentenced to 12 years’
imprisonment.
The second applicant
is Mr George Graham Middleton. He pleaded guilty to all the
counts and was sentenced to 25 years’
imprisonment on the main
count of dealing in drugs. He successfully appealed to the High
Court against the sentence which
was reduced to 15 years’
imprisonment and backdated to 28 June 2006, being the original date
on which the sentence was imposed.
[6] The third applicant
is Mr Masoud Mselem Yuunus. He pleaded not guilty to all the
counts. However he was convicted on
the main count of dealing in
drugs and sentenced to 18 years’ imprisonment. After his
conviction, he unsuccessfully applied
to the Magistrate’s Court
for leave to appeal to the High Court. It is not clear on what
grounds the application for leave
to appeal was refused.
[7] The fourth applicant
is Mr Thabo Lawrence Mohlala. He pleaded guilty to all counts and
was convicted on the main count of
dealing in drugs and sentenced to
12 years’ imprisonment. His appeal against sentence was
dismissed by the High Court.
11
Reasons for dismissing the appeal do not form part of the record
before us.
Condonation for late
filing of the application
[8] The applicants seek
condonation for the late filing of the application for direct access
to this Court. The respondents do
not deal with the applicants’
request for condonation and from this it may be inferred that they
do not oppose condonation.
The applicants were convicted several
years ago. They do not provide a full explanation for the delay,
but advance reasons
only for the last few weeks’ lateness.
Ordinarily an applicant who seeks condonation must furnish a
satisfactory explanation
for the delay for the full period of the
delay.
12
However, in this case, the applicants are incarcerated and without
legal representation. Given the passage of time, it is apparent

that the issues they raise have come to them recently. The issues
are of considerable constitutional importance. They concern
the
liberty of the applicants and may concern the liberty of others. In
the circumstances, condonation should be granted. We
should
emphasise that we are dealing only with condonation in relation to
direct access to this Court. Should the applicants
approach the
High Court on appeal, that court would be well placed to consider an
application for condonation for the late filing
of the appeal in
conjunction with the merits of the convictions.
[9] In respect of the
applicants’ failure to file the requisite number of copies of the
application, this Court notes that they
are serving prison sentences
at the Modderbee Correctional Centre; that they have no legal
representation; and that they do not
have access to amenities which
would have assisted them in complying with the Rules of this Court.
Their failure in this regard
is condoned.
Applicants’
submissions
[10] In this Court, the
applicants complain that their right to a fair trial has been
violated and that their convictions and
sentences fall to be set
aside because they were found guilty of dealing in drugs on the
strength of the presumptions on dealing
in drugs to be found in
section 21(1)(a)(i), (b), (c) and (d) of the Act. They submit that,
in the decision of
S v Bhulwana; S v Gwadiso
13
this Court found that the presumptions
in section 21(1)(a)(i) of the Act are unconstitutional and invalid,
and that for that reason,
their convictions fall to be set aside.
[11]
Section 21(1)(b) of the Act was
declared to be constitutionally invalid in
S v Ntsele
.
14
In
S v Mjezu
,
15
the provisions of sections 21(1)(c) and (d) were declared
unconstitutional. In
S v Manyonyo
,
16
this Court declared section 21(1)(c) to be unconstitutional and of
no force and effect. This Court stated further
17
that the finding in
S v Mjezu
, that the provisions of
sections 21(1)(c) and (d) were unconstitutional, “is clearly
correct”.
[12] The applicants also attach the review
judgment in
S v Phillipe Kouame Jean
18
in which Makume AJ (Mathopo J concurring) set aside a conviction of
dealing in drugs where it appeared that the state had relied
on the
constitutionally invalid provisions of section 21(1)(a)(i) of the
Act. The Court ordered that the accused be convicted
on the
alternative charge of possession of drugs in contravention of
section 4(b) of the Act and remitted the matter to the Magistrate’s

Court for fresh sentencing in accordance with the new conviction.
[13] The applicants drew our attention to the
decision in
S v
Tshali
.
19
In that case, the Cape High Court
held that a charge and a subsequent conviction that is based on a
statutory provision that has
been declared unconstitutional and
invalid is incompetent. It set aside the resultant convictions and
sentences.
Directions
[14] On 2 November 2009,
this Court issued directions to each of the magistrates who presided
in the criminal trial of the applicants.
The directions enquired:
whether the presumption in section 21 of the Act was relied upon
by the learned magistrate in convicting the applicants;
and
if section 21 of the Act was not relied upon, why was the charge
sheet not amended?
[15] The magistrates
concerned furnished this Court with reports which are couched in
identical terms. Their essence is that
each of the charge sheets
did refer to the presumption contained in section 21 of the Act;
that each charge sheet was put to
the accused in those terms for
purposes of pleading; and that even though the charge sheets
referred to section 21 of the Act,
the presumptions on dealing in
drugs were not relied upon and played no part in the convictions of
the applicants. In relation
to the amendment of the charge sheet
the learned magistrates confirmed that the charge sheets had not
been amended but drew our
attention to the provisions of section
86(4) of the Criminal Procedure Act
20
(CPA) which provides that “[t]he fact that a charge is not amended
as provided in this section, shall not, unless the court
refuses to
allow the amendment, affect the validity of the proceedings
thereunder.”
[16] The second
respondent is the Director of Public Prosecutions, South Gauteng
High Court, Johannesburg (DPP) who, in these
proceedings, is
represented by Mr Van Zyl. He opposes the application on a number
of grounds. First, he submits that this Court
has no jurisdiction
to hear the application because it does not raise a constitutional
issue. Second, he argues that it is not
in the interests of justice
for this Court to decide the specific issues the applicants raise as
a court of first and last instance.
He further submits that
although the charge sheets erroneously referred to section 21 of the
Act, the presumptions it provides
for were not relied upon or played
no part in the conviction of the applicants. The second respondent
makes common cause with
the attitude of the learned magistrates that
the fact that the charge sheets were not amended does not undermine
the fairness
of the trials of the applicants.
Does the applicants’
complaint raise a constitutional issue?
[17] The applicants’
complaint is that they did not receive a fair trial because the
charge that the prosecution put to them
and on which they were
convicted invoked an invalid statutory presumption. It is common
cause that the respective charges were
defective because they relied
upon a constitutionally invalid section and were not amended in
terms of the CPA.
21
The magistrates contend that although the charge sheets were not
amended the resultant convictions are valid because section
86(4) of
the CPA provides that a failure to amend a charge sheet before the
end of a trial does not in itself vitiate the proceedings
concerned.
[18] Section 86(1) of the
CPA plainly authorises the court to amend at any time before
judgment any conceivable defect in the
charge, including
the
inadvertent inclusion of the impugned section,
22
provided the accused will not be prejudiced thereby.
[19] Section 86(4) on the other hand provides that even if the
charge is not amended, the proceedings based on the defective
charge
may nevertheless remain valid. However, the question is whether
section 86(4) may be invoked if the accused may be prejudiced
by an
amendment not having been made. Pre-constitutional judicial
authority suggests not.
23
Whether the accused may be so prejudiced is dependent upon the
facts of each case. What is cardinal, however, is that prejudice,

actual or potential, will always exist unless it can be established
that the defence or response of the accused person would
have
remained exactly the same had the state amended the charge.
24
[20] The question whether
an accused person has been prejudiced by a defective charge in the
proper conduct of his or her case
speaks to the fairness of the
trial. Section 35(3)(a) of the Constitution guarantees every
accused person the right to a fair
trial which includes the right to
be informed of the charge with sufficient detail to answer it and
the warranty to be presumed
innocent until proven guilty.
25
[21] Whether the
applicants were afforded a fair trial is dependent, amongst other
requirements, upon the competence of the charge
on which they were
convicted. In
S v Tshali
26
it was held that a charge based in part on the presumption in
section 21 of the Act which had been declared invalid was
incompetent
and that the conviction could not, even on a plea of
guilt, be valid. A similar decision was reached in
S
v Phillipe Kouame Jean
.
27
[22] The DPP contends
that the application does not raise a constitutional issue because
although the charge sheet referred to
an invalid presumption, the
trial courts did not rely upon it for the convictions. This
contention cannot be supported. The
applicants’ complaint does
raise important constitutional issues on whether they have been
afforded a fair trial within the
meaning of section 35(3) of the
Constitution. The question whether the applicants have been
adequately informed of the charges
they were to face as required by
section 35(3)(a) of the Constitution entails, amongst other things,
a construction of section
86 and in particular of section 86(4) of
the CPA in the light of the fair trial rights entrenched in the
Constitution. The application
also raises the correctness of the
decisions in
S v Tshali
and in
S
v
Phillipe Kouame Jean
that the reference to the invalid
presumption of dealing in drugs renders the charge incompetent and
the ensuing conviction vulnerable.
[23] Put otherwise, the
question is whether the right to a fair trial will be infringed if
the charge sheet invoked invalid statutory
presumptions on dealing
in drugs. Would this be the case, even where the accused has
pleaded guilty and even where the accused
person has furnished a
written explanation in support of a plea of guilt? The further
question is whether in order to exercise
this right to a fair trial
it is necessary for the accused person to be informed of the precise
provisions of the Act upon which
the state seeks to rely? It may
also be asked whether it is permissible for the prosecution to leave
it to the accused to speculate
on the exact statutory provisions
which it will ultimately rely upon for conviction?
[24] We conclude that
this case presents an important constitutional issue on whether the
applicants were afforded a fair trial.
Interests of justice
[25] A finding that the
matter is a constitutional issue is not decisive of an application
for direct access. The application
may be refused if it is not in
the interests of justice for this Court to sit as a Court of first
and last instance. In considering
what is in the interests of
justice, prospects of success, although not the only factor, are
ineluctably an important factor
to be taken into account.
Are there reasonable
prospects that the convictions may be set aside?
[26] The applicants were
charged at times from 2002 to 2005 under section 5(b), which made
reference to the invalid section 21(1)
of the Act. The affidavit
filed on behalf of the DPP has conceded that the practice of
routinely formulating charge sheets relying
on the presumption in
section 21(1) still continues. Lamentably, the affidavit fails to
shed any light on why the practice continues
without correction. It
imputes this irregular formulation of charge sheets related to the
possession of or dealing in drugs
to probable error and oversight.
The seemingly endemic practice of framing charge sheets in this
manner, more than a decade
after the offending presumptions were
declared invalid, is cause for concern.
[27] All three
magistrates emphasise that they did not rely on the presumption of
dealing in drugs for convicting each of the
applicants. However,
the affidavit of the DPP and the reports compiled by the magistrates
proffer no explanation of why at the
start of the trial the accused
persons were required to plead to defective charges; why neither the
prosecution nor any of the
magistrates sought to amend the charge
sheets; and why their verdicts or judgments do not reflect a clear
disclaimer that the
invalid presumptions was not relied upon.
[28] The first and third
applicants did not proffer evidence in support of their plea of not
guilty. The residual enquiry is
whether, if the respective charge
sheets had been properly framed to exclude the offending
presumptions, they might well have
elected to mount their defence or
response to the charges differently. In
S v Hugo
28
it was held that where the state elects to make representations
on the charge sheet upon which it relies, the accused is entitled
to
regard these as exhaustive and to prepare his defence in respect of
these representations and no other. In
R v Alexander
,
29
quoted with approval in
S v Pillay
,
30
the purpose of the charge sheet was found to be
—
“
to inform the accused in
clear and unmistakable language what the charge is or what the
charges are which he has to meet. It
must not be framed in such a
way that an accused person has to guess or puzzle out by piecing
sections of the indictment or portions
of sections together what the
real charge is which the Crown intends to lay against him.”
[29] A court of appeal
may refuse to validate the proceedings in the light of the
potential, if not actual, prejudice the first
and the third
applicants may have suffered because of a defective charge sheet.
That court would be well positioned to explore
all relevant factors
on the record which point to prejudice or its absence flowing from
the defective proceedings. There is
thus some reasonable prospect
that on appeal, a court, being properly confronted with the
complaint the first and third applicants
make, may consider whether
to set aside convictions following on a plea of not guilty.
[30] The second and
fourth applicants pleaded guilty on the strength of the same
offending presumptions.
The second applicant’s
plea explanation, in particular, expressly includes an allusion to
section 21, thus perpetuating and
highlighting the prosecution’s
error.
31
He successfully appealed to the High Court, but only against the
severity of the imprisonment term. He did not appeal against
his
conviction and thus the appeal court did not deliberate on the
appropriateness of his conviction. A court of appeal, focused
on
the merits of the conviction through the prism of the applicants’
complaint, may refuse to validate the proceedings on the
grounds of
real or potential prejudice envisaged by section 86(4) of the CPA.
Therefore, second and fourth applicants too, despite
their
respective pleas of guilt, have a reasonable prospect that a court
of appeal may decline to uphold their convictions.
Court of first and
last instance and interests of justice?
[31] This, however, is
not the end of the enquiry into what is in the interests of justice.
Apart from prospects of success,
the applicants must show
exceptional circumstances justifying this Court granting them direct
access as a court of first and
last instance on the new challenge
they mount against their conviction. No other court has been
confronted with an appeal directed
at the merits of the convictions
and on the discrete grounds the applicants now advance.
[32] Their application
for direct access is sketchy; not unexpected of litigants who are
applying to this Court without legal
representation. They urge this
Court to hear and determine their application urgently and as a
court of first instance because
they may have been improperly
convicted and imprisoned on an incompetent charge. The DPP contends
that the interests of justice
do not require this Court’s
consideration of the matter as there are other appropriate remedies
that remain available, which
include an appeal to the High Court.
[33] The deprivation of
one’s liberty on a conviction that may not be sustained on appeal
is always an urgent matter. However,
the power to grant litigants
direct access outside the Court’s exclusive competence is one this
Court rarely exercises, particularly
where a High Court has
jurisdiction in constitutional matters such as this one. Besides,
the views of the High Court on criminal
justice matters that may
arise on appeal would be of assistance to this Court, should the
matter reach this Court again. We
are not persuaded that anything
is likely to prevent the High Court from urgently considering the
appeal. In the result, it
would not be in the interests of justice
to bypass the High Court and grant the application for direct access
at this stage.
Legal representation
or assistance
[34] The Registrar of
this Court is directed to furnish a copy of this judgment to the
head office of Legal Aid, Johannesburg,
the Law Society of the
Northern Provinces and to the Society of Advocates, Johannesburg, in
addition to the applicants and the
respondents, with the request
that they consider whether any of their members would be amenable to
providing legal assistance
and representation to the applicants,
should they wish to prosecute an appeal against their convictions.
Order
[35] In the result the
Court makes the following order:
(a) The application for condonation is granted.
(b) The application for direct access is dismissed.
Ngcobo CJ, Moseneke DCJ,
Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J,
Skweyiya J, Van der Westhuizen J and
Yacoob J.
1
Section 5(b) provides:
“
No
person shall deal in—
(b)
any
dangerous dependence-producing substance or any undesirable
dependence-producing substance”.
2
Section 1 provides the following definition:
“‘
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”.
3
Section 13 provides:
“
Any person who—
(a) places any drug in the possession, or in or on the
premises, vehicle, vessel or aircraft, of any other person with
intent
that the latter person be charged with an offence under
this Act;
(b) contravenes a provision of section 3;
(c) contravenes a provision of section 4(a);
(d) contravenes a provision of section 4(b);
(e) contravenes a provision of section 5(a); or
(f) contravenes a provision of section 5(b),
shall be guilty of an offence.”
4
Section 17 provides:
“
Any person who is convicted of an offence under this
Act shall be liable—
(a) in the case of an offence referred to in section
16, to a fine, or to imprisonment for a period not exceeding
twelve months,
or to both such fine and such imprisonment;
(b) in the case of an offence referred to in section
13(a) or (c), to such fine as the court may deem fit to impose,
or to
imprisonment for a period not exceeding five years, or to
both such fine and such imprisonment;
(c) in the case of an offence referred to in section
13(e), to such fine as the court may deem fit to impose, or to
imprisonment
for a period not exceeding 10 years, or to both such
fine and such imprisonment;
(d) in the case of an offence referred to in section
13(b) or (d), 14 or 15, to such fine as the court may deem fit to
impose,
or to imprisonment for a period not exceeding 15 years,
or to both such fine and such imprisonment; and
(e) in the case of an offence referred to in section
13(f), to imprisonment for a period not exceeding 25 years, or to
both
such imprisonment and such fine as the court may deem fit to
impose.”
5
Section 18 provides:
“
If in any prosecution for an offence under this Act
it is proved that a sample which was taken from any substance by
means or
in respect of which the offence allegedly was committed
possesses particular properties, it shall be presumed, until the
contrary
is proved, that any such substance possesses the same
properties.”
6
Section 20 provides:
“
If in the prosecution of any person for an offence
under this Act it is proved that any drug was found in the immediate
vicinity
of the accused, it shall be presumed, until the contrary is
proved, that the accused was found in possession of such drug.”
7
Section 21 provides:
“
(1) If in the prosecution of any person for an
offence referred to—
(a) in section 13(f) it is proved that the accused—
(i) was found in possession of dagga exceeding 115
grams;
(ii) was found in possession in or on any school
grounds or within a distance of 100 metres from the confines of such
school grounds
of any dangerous dependence-producing substance; or
(iii) was found in possession of any undesirable
dependence-producing substance, other than dagga,
it shall be presumed, until the contrary is proved,
that the accused dealt in such dagga or substance;
(b) in section 13(f) it is proved—
(i) that dagga plants of the existence of which plants
the accused was aware or could reasonably be expected to have been
aware,
were found on a particular day on cultivated land; and
(ii) that the accused was on the particular day the
owner, occupier, manager or person in charge of the said land,
it shall be presumed, until the contrary is proved,
that the accused dealt in such dagga plants;
(c) in section 13(e) or (f) it is proved that the
accused conveyed any drug, it shall be presumed, until the contrary
is proved,
that the accused dealt in such drug;
(d) in section 13(e) or (f) it is proved—
(i) that any drug was found on or in any animal,
vehicle, vessel or aircraft; and
(ii) that the accused was on or in charge of, or that
he accompanied, any such animal, vehicle, vessel or aircraft,
it shall be presumed, until the contrary is proved,
that the accused dealt in such drug.
(2) For the purposes of subsection (1)(a)(ii)—
“‘
school’ means any educational institution,
except a university, a college of education or a technikon, where
full-time education,
including pre-primary education, is provided to
pupils;
‘
school grounds’, in relation to a school, means
land, whether it is contiguous or not, buildings or accommodation,
sporting
or other facilities used for or in connection with the
activities of the school.”
8
Section 22 provides:
“
If in the prosecution of any person for an offence
referred to in section 14(a) it is proved that the accused was found
in possession
of any property which was the proceeds of a defined
crime, it shall be presumed that the accused knew at the time of the
acquisition
of such property that it was the proceeds of a defined
crime, unless he proves—
(a) that he acquired that property in good faith; and
(b) that the circumstances under which he acquired
that property were not of such a nature that he could reasonably
have been
expected to have suspected that it was the proceeds of a
defined crime.”
9
Section 25 provides:
“
(l) Whenever any person is convicted of an offence
under this Act, the court convicting him shall, in addition to any
punishment
which that court may impose in respect of the offence,
declare—
(a) any scheduled substance, drug or property—
(i) by means of which the offence was committed;
(ii) which was used in the commission of the
offence; or
(iii) which was found in the possession of the
convicted person;
(b) any animal, vehicle, vessel, aircraft, container or
other article which was used—
(i) for the purpose of or in connection with the
commission of the offence; or
(ii) for the storage, conveyance, removal or
concealment of any scheduled substance, drug or property by means of
which the offence
was committed or which was used in the commission
of the offence;
(c) in the case of an offence referred to in section
13(e) or (f), any immovable property which was used for the purpose
of or
in connection with the commission of that offence, and which
was seized under section 11(1)(g) or is in the possession or custody

or under the control of the convicted person, to be forfeited to the
State.
(2) Anything forfeited under subsection (1) shall, if
it was seized under section 11(1)(g), be kept or, if it is in the
possession
or custody or under the control of the convicted person,
be seized and kept—
(a) for a period of 30 days from the date of the
declaration of forfeiture; or
(b) if any person referred to in section 26(1) has
within the period contemplated in paragraph (a) made an application
to the
court concerned regarding his interest in such thing, until a
final decision has been rendered in respect of any such
application.”
10
140 of 1992.
11
The appeal was dismissed on 22 March 2007 by Blieden and Tsoka JJ in
the South Gauteng High Court.
12
Van
Wyk v Unitas Hospital and Another
[2007] ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC)
at para 22.
13
[1995] ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC).
14
[1997] ZACC 14
;
1997 (2) SACR 740
(CC);
1997 (11) BCLR 1543
(CC).
15
1996 (2) SACR 594
(NC).
16
[1999]
ZACC 14
;
1999
(12) BCLR 1438
(CC)
.
17
Manyonyo
above n
16 at para 11.
18
High Court, Witwatersrand Local Division, as it then was, Case No
301/2008, 16 April 2009, unreported.
19
2007 (2) SACR 23
(C).
20
51 of 1977.
21
Section 86 of the Criminal Procedure Act provides:
“
(1) Where a charge is defective for the want of any
essential averment therein, or where there appears to be any
variance between
any averment in a charge and the evidence adduced
in proof of such averment, or where it appears that words or
particulars that
ought to have been inserted in the charge have been
omitted therefrom, or where any words or particulars that ought to
have been
omitted from the charge have been inserted therein, or
where there is any other error in the charge, the court may, at any
time
before judgment, if it considers that the making of the
relevant amendment will not prejudice the accused in his defence,
order
that the charge, whether it discloses an offence or not, be
amended, so far as it is necessary, both in that part thereof, where

the defect, variance, omission, insertion or error occurs and in any
other part thereof which it may become necessary to amend.
(2) The amendment may be made on such terms as to an
adjournment of the proceedings as the court may deem fit.
(3) Upon the amendment of the charge in accordance with
the order of the court, the trial shall proceed at the appointed
time
upon the amended charge in the same manner and with the same
consequences as if it had been originally in its amended form.
(4) The fact that a charge is not amended as provided
in this section, shall not, unless the court refuses to allow the
amendment,
affect the validity of the proceedings thereunder.”
22
See section 21(1)(a)(i), (b), (c) and (d) above n 7.
23
Section 180 of the former Criminal
Procedure Act 56 of 1955 (former CPA) provided:
“
(1) Whenever, on the trial of any charge, there
appears to be any variance between the statement therein and the
evidence offered
in proof of such statement, or if it appears that
any words or particulars that ought to have been inserted in the
charge have
been omitted, or that any words or particulars that
ought to have been omitted have been inserted, or that there is any
other
error in the charge, the court may, at any time before
judgment, if it considers that the making of the necessary amendment
in
the charge will not prejudice the accused in his defence, order
that the charge (whether or not it discloses an offence) be amended,

so far as it is necessary, both in that part thereof where the
variance, omission, insertion, or error occurs and in every other

part thereof which it may become necessary to amend.
(2) The amendment may be made on such terms (if any) as
to postponing the trial as the court thinks reasonable.
(3) Upon the amendment of the charge in accordance with
the order of the court, the trial shall proceed at the appointed
time
upon the amended charge in the same manner and with the same
consequences in all respects as if it had been originally in its
amended form.
(4) The fact that a charge has not been amended as
provided in this section shall not, unless the court has refused to
allow the
amendment, affect the validity of the proceedings
thereunder.”
In
S v Nyathi
1978 (1) SA 289
(T) at 291A, the High Court found
that the provisions of section 86 of the current CPA are materially
similar to the provisions
of section 180 of the former CPA.
In
S v Kearney
1964 (2) SA 495
(A) at 503D, the court held that section 180(4)
of the former CPA could not “
be
invoked where the variance is important or the accused may be
prejudiced.” This view was endorsed in
S v Nyathi
at
291A-B.
24
S v Pillay
1975 (1) SA 919
at 922D.
25
See section 35(3)(a) and (h) of the Constitution.
26
Above n 19 at para 11.
27
Above n 18.
28
1976 (4) SA 536
(A).
29
1936 AD 445
at 457.
30
Above n 24 at 922A.
31
The section 112 statement of the second applicant states:
“
1. I the undersigned George Graham Middleton do
hereby affirm that I am the accused in this matter.
2. The facts herein contained are within my personal
knowledge and are to the best of my knowledge and belief both true
and correct
save where it appears otherwise from the context.
3. I plead guilty to the charge of dealing in drugs
laid against me and I do so freely and voluntarily without being
influenced
thereof.
4. On or about 4 September 2005, at or near
Johannesburg International Airport in the district of Kempton Park,
I did unlawfully
deal in dangerous dependants producing substance to
wit 631.4 grams of cocaine a derivative from cacao leaf, by
importing and
or exporting.
5. .
. .
6. .
. .
7. I further
admit that I am guilty of contravening
Section 5(b) read with sections
1, 15, 17, 18, 20,
21
and
25 of Act 140/1992, as amended.” (Emphasis added.)