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[2018] ZASCA 125
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Gumbi and Others v S (414/2017) [2018] ZASCA 125; 2018 (2) SACR 676 (SCA) (26 September 2018)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 414/2017
In the matter between:
LANGSTONE
REXSON
GUMBI
FIRST
APPELLANT
GEORGE
SIBANDA
SECOND
APPELLANT
MHLONGO
MCGINA
THIRD
APPELLANT
ALPHEUS
MDAWANDE
FOURTH
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Gumbi v The State
(414/2017)
[2018] ZASCA 125
(26 September 2018)
Bench:
Ponnan, Wallis, Mocumie and Molemela JJA and Mothle AJA
Heard:
31 August 2018
Delivered:
26 September 2018
Summary:
Criminal Procedure Act 51 of 1977
– incapacity of judge
after evidence but before judgment – trial must start de novo –
requirements –
s 215
read with
s 214
– contemplates a
witness-by-witness approach – not receipt of record of previous
proceedings.
ORDER
On
appeal from
: Gauteng Division of the High Court, Pretoria
(Potterill J sitting as court of first instance):
The
appeal is upheld and the convictions and sentences are set aside.
JUDGMENT
Ponnan
JA (Wallis, Mocumie and Molemela JJA and Mothle AJA concurring):
[1]
The appellants were indicted on a multiplicity of charges before the
Gauteng Division of the High Court, Pretoria. Although
the offences
were allegedly committed on 4 April 2007, the trial only commenced
some seven years later, during August 2014, before
Webster J. The
evidence of several witnesses was led in the main trial, as also two
admissibility trials. At the conclusion of
the latter, Webster J
provisionally admitted into evidence statements made by two of the
appellants. The appellants testified in
their defence and some called
witnesses. Thereafter, both the prosecution and defence submitted
written heads and were heard in
argument, at the conclusion of which
Webster J adjourned to consider his verdict. However, before a
verdict on any of the charges
had been determined, the judge became
incapacitated due to illness leaving his final conclusions
unpronounced.
[2]
The prosecutor then lodged what was described as an ‘application
for special review’ with the high court. It was
there stated:
‘
10. The
application seeks to obtain permission for a special review of the
matter by two (2) judges in chambers.
11. These honourable
judges are to consider whether or not, a judgment can be delivered in
the absence of the presiding officer
who heard the evidence during
the trial and whether same can be done without the parties having to
argue the matter again.
12. If the judges vested
with the matter are of the view that they are unable to deliver a
verdict that they make an order with
regards the finalisation of this
matter.’
[3]
The judges (Jordaan and Potterill JJ), who considered the
application, took the view that:
‘
2. From the outset
it is trite that review judges sitting in chambers can never
constitute a trial court; thus two judges cannot
give a judgment as a
trial court. These two judges were not seized with the trial and
there is no procedure that authorises two
judges to deliver a
judgment pursuant to evidence being led.
. . .
4. We are of the
opinion that in open court on 11 February 2016 a single judge can
place on record that the State and all
the accused, duly informed,
consent that the trial start
de novo
. The
de novo
trial
can then with consent of all the parties in terms of
s 215
of the Act
proceed on the evidence as recorded at the former trial. The
arguments of the parties of the formal trial can stand
or can be
supplemented at the parties’ request.’
[4]
The matter came before Potterill J on 11 February 2016. What occurred
on that day appears from the following extract from the
record:
‘
Court
:
. . . So in the main we agree that the matter must start
de novo
.
We cannot get to another conclusion. If the matter can proceed on the
record as it stands, then I would be able to do it in this
term. If
not, if it cannot happen like that, then a new judge would have to be
allocated to do it next term or whatever. So I do
not know Ms Johnson
is there any submissions from your side first of all?
Ms Johnson
: As the
court pleases M’Lady I acknowledge receipt of the
communication. I do understand the communication. I also understand
the predicament that both presiding officers were vested with in
chambers and I appreciate it that it cannot proceed on special
review. It is so that the trial can start
de novo
and the
state obviously then would have no objection to the trial starting
de
novo
. That being said I have insight into the provisions of
section 215
of the
Criminal Procedure Act and
in terms thereof the
exact record together with all of the exhibits that had been provided
for the special review, are in fact
the proceedings of the entire
trial. None of the parties had any objections to that entire record
as well as all the exhibits being
submitted for review, so I can see
no reason why any of the parties should object, obviously that is
their prerogative but I see
no reason why they should object because
in terms of
section 215
that is exactly and only what we will be
presenting to a presiding officer as though he or she were then
dealing with the trial.
So I have no objection that we proceed in
that manner, as the court pleases.
. . .
Mr Geach
: . . . I
only came in afterwards and so I would like to study the record to
see whether on behalf of accused 1, 2 and 4 I could
properly agree to
the matter going ahead on the record. For those reasons simply that
the ruling should then simply be if any,
that the matter start
de
novo
before you, thank you M’Lady.
Court
: Yes, Mr
Dhlomo.
. . .
Mr Dhlomo
: Yes,
M’Lady I agree that the matter is to start
de novo
.
Court
: Okay.
Mr Dhlomo
: That is
the submission that I can make.
Court
: Okay. Mr Erasmus?
Mr Erasmus
: M’Lady
the only submission on behalf of accused 6 is that he supports the
State’s contention and the court’s
that the matter should
be held
de novo
and the court should act in terms of
[indistinct]. We have got no problem with the record that has been
admitted at a certain stage
during these proceedings [indistinct].
. . .
Mr Geach
: . . .
The problem is in light what my learned friends have to say there
will be no objection but I cannot obviously bind the accused
without,
in all fairness, without having seen the record myself.
Court
: I would
then infer that I postpone the matter now for the trial to start
de
novo
.’
. . .
Court
: But can we
now just ascertain I do not know if this is going to be a waste of
time but let me now do it that way. Is that now
just to start with
the trial? In other words to ascertain if now we can proceed in terms
of
s 215
or that I will make a ruling if you can do it in terms of
that?
. . .
Court
: I suppose
then I would not be able to exclude that if they want to bring a
further address as new counsel. That is the only reason
why I have
not put my foot down.
Ms Johnson
: If
that is – if he then decides after he has now had the record
that indeed he might want to bring a different application,
we inform
M’Lady timeously so that M’Lady does not then proceed to
prepare a judgment on the admitted record. Would
that then be fine?
. . .
Ms Johnson
: So if
you would indulge us then for a week. He will have the record by
Tuesday. I will ask if he can indicate by Friday. All the
parties
will communicate to the registrar.
Court
: Thank you
very much.
Ms Johnson
: And
say either if he is going to come with a further submission or M’Lady
he accepts the record, kindly proceed and prepare
judgment. As the
court pleases.
. . .
Court
: The matter
is then postponed to 14 March 2016 at 10:00. . . .’
[5]
On 14 March 2016 the following occurred:
‘
Court
:
Thank you Mr Erasmus. Okay as I understood it this matter was last
postponed so that Mr Geach could consider the record so that
we then
can proceed on the record or not. As far as I understood the other,
with the help of the other accused the record as it
stands was
admitted and we could proceed on the record. Is that correct Mr
Erasmus and Mr Dhlomo?
Mr Dhlomo
: Indeed
so M’Lady.
Mr Erasmus
: Okay.
Court
: I accept
then Mr Shabangu with Mr Geach not being here and I also heard in
chambers that he had informed you that he thought that
you were going
to come and note a judgment. Is that correct?
Mr Shabangu
: That
is correct M’Lady.
Court
: I then
accept that he then accepts the record in terms of
section 215
and
that there is no further argument that he wants to address to court.
May I accept that?
Mr Shabangu
:
M’Lady can accept that, however I have no instructions whether
he will have further comment . . . [intervenes]
Court
: Well I mean
if he wanted to come and note a judgment then I accept that he has
nothing further to say. Yes, all right, so I will
have to postpone
this matter for judgment because then we are already for judgment. I
have given, I am doing this in between my
other work, so I will have
to do it in recess. I do not know if counsel are available in recess.
. . .
Court
: It will be
a written judgment but obviously I will have to read it in. I may
just ask you to consider that perhaps I do not read
in the summary of
all the evidence because it does make the matter so much longer. Just
think and consider about it so long with
your clients, otherwise I
will read it all in and then also just please consider even
interpreter must be available to interpret
the judgment please
otherwise I waste the interpreter’s time. The matter is then
postponed to 7 April 2018 at 10 o’clock.
. . . It will then be
for judgment.’
[6]
On 7 April 2016 Potterill J delivered judgment in the matter. She
convicted the appellants of three counts of murder, two of
robbery
with aggravating circumstances, two of attempted murder and one of
malicious injury to property. On 22 August 2016 and
before the
appellants could be sentenced, their present counsel, who had since
replaced counsel previously on record, applied to
Potterill J for
leave to appeal against the convictions. In dismissing their
application for leave to appeal, the learned judge
stated:
‘
[9] The
circumstances set out in the application are that
section 215
of the
Act was not the correct procedure to adopt and because an incorrect
procedure was utilised, this constitutes an irregularity
that
automatically gives the applicants the right to appeal.
Section 215
of the Act only applies once the conditions of
s 214
were complied
with. The applications sets out a bold statement that the applicants
would suffer potential prejudice. When I confronted
counsel with this
bold statement he in fact changed his stance and argued that there
was actual prejudice. He could however not
inform the court as to
what the actual prejudice suffered was, in lieu of the reliance on a
correct transcribed record. In the
application on p16 the only
reference to prejudice is that the applicants’ bail has been
[withdrawn]. No reason was provided
as to why they did not apply for
bail awaiting sentencing procedures.
[10] The State on the
other hand has argued that this application is an abuse of process.
In order for the court to grant the application
for special leave it
must ensure that the requirements of
s 317
of the Act was met. This
was not done.
Section 215
is applicable if the original or prior
proceedings were declared a nullity and the trial starts
de novo
.
Section 214
is not applicable as the original proceedings was never
part of any preparatory proceedings. It was the same persons upon the
same
charges where the prior trial had to start
de novo
.
. . .
[13] In the application
before me there is no indication that there was a failure of justice
because the accused were not guilty
beyond reasonable doubt. Not a
single assertion is made that the convictions are wrong. Logically no
findings were made on demeanour
as I had not seen the witnesses;
demeanour is in any event a tricky horse to ride. Rulings pertaining
to the admissibility of the
statements were given in a clear and
unambiguous manner in the judgment. The reliance on
S v Mayisa
1983 (4) SA 242
(T) reiterates the point that a matter will only
be irregular if there is “’n ernstige onreg teenoor die
beskuldigde
tot gevolg sal hê indien dit nie gedoen word nie.”
I therefore find that the irregularity, if there was such, did not
lead to the conviction or trial being unfair. Accordingly this does
not constitute exceptional circumstances where an application
for
special leave must be allowed.’
[7]
I accept unequivocally the argument that in a case such as this,
through the fault of neither the prosecution nor the defence,
great
inconvenience and expense could be caused if the proceedings up until
Webster J’s incapacity were held to be aborted.
Potterill J
conceived that
s 215
(read with s214) of the Criminal Procedure Act
51 of 1977 (the Act) found application and could be invoked to
overcome the problem.
A consideration of some importance is the
difficulty in applying the language of the two sections to the facts
of this case. I
do not find it necessary to define the exact scope of
those sections as I am satisfied that in applying it as she did,
Potterill
J misconceived the position and that the proceedings in
convicting the appellants amounted to an irregularity.
[8]
Section 215 seeks to place evidence given at a former criminal trial
on exactly the same footing as that given at a preparatory
examination. It reads:
‘
The evidence of a
witness given at a former trial may, in the circumstances referred to
in section 214, mutatis mutandis be admitted
in evidence at any later
trial of the same person upon the same charge.’
Section
214, in turn, provides:
‘
The evidence of
any witness recorded at a preparatory examination –
(a) shall be admissible
in evidence on the trial of the accused following upon such
preparatory examination, if it is proved to
the satisfaction of the
court -
(i)
that the witness is dead;
(ii)
that the witness is incapable of giving evidence;
(iii)
that the witness is too ill to attend the trial; or
(iv)
that the witness is being kept away from the trial by the means and
contrivance of the accused; and
(v)
that the evidence tendered is the evidence recorded before the
magistrate or, as the case may be, the regional magistrate, and
if it
appears from the preparatory examination record or it is proved to
the satisfaction of the court that the accused or, as
the case may
be, the State had a full opportunity of cross-examining such witness;
(b) may, if such witness
cannot, after a diligent search, be found for purposes of the trial
of the accused following upon such
preparatory examination, or cannot
be compelled to attend such trial, in the discretion of the court,
but subject to the provisions
of subparagraph (v) of paragraph (a),
be read as evidence at such trial, if it appears from the preparatory
examination record
or it is proved to the satisfaction of the court
that the accused or, as the case may be, the State had a full
opportunity of cross-examining
such witness.’
[9]
Section 215
of the Act requires that the trial be of the same person upon the
same charge. Logically therefore the section can only
find
application to a situation where the prior proceedings amount to a
nullity and, in consequence, new proceedings are instituted.
In that
regard, it is important to distinguish between criminal proceedings
and the trial as such, which is only a part of the
entire criminal
proceedings.
[1]
It having been
accepted that the matter had to commence
de
novo
,
it was for the prosecution to decide whether proceedings should be
instituted in respect of the same offences on the original
indictment, amended if necessary, or upon any other charge.
[2]
The need for the prosecution to reconsider the indictment in this
case was clear, given that one of the accused absconded during
the
trial and another was acquitted by Potterill
J.
[10]
Criminal
proceedings in a superior court commence with the service of an
indictment on the accused and its lodgement with the registrar
of the
court (s 76). In terms of s 105 the charge must be put to an accused
by the prosecutor before the trial is commenced.
[3]
As soon as the charge is put to an accused he or she must plead to
it. The plea determines the ambit of the dispute between the
accused
and the prosecution. It is only after the accused has pleaded to the
charge that the
lis
is
established between the accused and the prosecution.
[4]
It is the function of the prosecuting authority, not the court, to
decide the charges upon which an accused should be brought to
trial
and the function in that regard extends up to the time when a plea is
tendered and the decision has to be made whether the
plea is to be
accepted or not.
[5]
The
acceptance of the plea by the prosecutor at the commencement of the
trial is:
‘
a
sui
generis
act
by the prosecutor by which he limits the ambit of the
lis
between
the State and the accused in accordance with the accused’s
plea. . . That the
lis
is
restricted by acceptance of the plea appears from ss 112 and 113. The
proceedings under the former are restricted to the offence
“to
which he has pleaded guilty” and the latter must be read within
that frame.
[6]
In
this case none of that occurred. Potterill J simply picked up where
Webster J had left off. That was impermissible and the failure
to
follow the steps outlined above meant that no new trial was commenced
and the proceedings were invalid from the outset. Nonetheless,
it is
desirable to deal with the approach of Potterill J to ss 214 and 215
of the Act.
[11]
When the
requirements of s 214 are satisfied and it is established that the
witness is dead, incapable of testifying, too ill to
attend the trial
or being kept away from the trial by the accused, under subsection
(a) the court has no discretion in regard to
the admissibility of the
evidence, which it must receive.
[7]
If the witness cannot be found after diligent search or cannot be
compelled to attend the trial, subsection (b) gives the court
a
discretion. In this regard it is important to note that our courts
have long recognised that the discretion must be exercised
guardedly
and in a way that will not be prejudicial to the accused.
[8]
The factors which should influence the judicial exercise of the
discretion were summarised in
R
v Stoltz
[9]
as
follows:
‘
The court should
look at the nature of the evidence sought to be put in. If, for
instance, it conflicts with other evidence in the
case, if from
cross-examination the evidence as recorded would seem to leave a
doubt, and generally where from the nature of the
evidence much would
depend on the credibility of the witness, so that a jury should have
an opportunity of judging for themselves
thereon from the appearance
and demeanour of a witness, the court should be very slow in
admitting the evidence under this section.’
[12]
On the face
of the record, the enquiry postulated by s 214 was not undertaken by
the learned judge.
[10]
One is
accordingly left completely in the dark as to whether she purported
to act under subsection (a) or (b) of s 214. It bears
emphasis that
the section contemplates a witness-by-witness approach. There was,
moreover, no ruling by the learned judge in respect
of the
admissibility of the evidence of each witness or what factors weighed
in the exercise of her discretion. What is more, the
learned judge
did not consider whether the proper exercise of her discretion
required her to first peruse the evidence of each
witness or to
afford counsel a proper opportunity to address her in argument on the
dangers presented by the receipt of the evidence
of each such
witness. After all, the fact that the evidence satisfies the
requirements of s 214 is no assurance that the evidence
must
necessarily be relied upon. The other rules, such as those relating
to relevance and opinion as well as the rules for evaluating
the
weight of the evidence still need to be applied. It was thus
important for Potterill J to properly identify the dangers inherent
in the receipt of the evidence and the extent to which those dangers
could be reduced.
[13]
It is clear
that save as is otherwise expressly provided by the Act, evidence in
a criminal trial is, in terms of s 161, required
to be given
viva
voce
.
The section decrees that witnesses shall give their evidence
viva
voce
,
the only exceptions being those expressly permitted by the Act.
Section 214 is one such exception. That section however does not
authorise receipt of the record of the previous proceedings
(including a host of documentary exhibits) upon its mere adduction.
S
v Nzuza
[11]
disapproved
of the admission of evidence given at a preparatory examination as
evidence at a subsequent trial, otherwise than in
accordance with the
provisions of the Act. Although judicial proceedings may be proved by
producing a copy of the record of those
proceedings,
[12]
such record does not, without more, constitute
prima
facie
proof
of any fact it contains.
[13]
It follows that as the evidence adduced before Webster J was not
properly admitted under the Act, it did not constitute evidence
against the appellants at the subsequent trial before Potterill
J.
[14]
Even if the
irregularities identified above in paras 9 and 10 could be
overlooked, the result was that there was no evidence at
all upon
which the appellants could have been convicted.
[15]
What is more, neither the appellants nor their counsel could by their
acquiescence validate the invalid procedure adopted by the
learned
judge in the present
case.
[16]
[14]
It is manifest that convictions resulting from proceedings conducted
in this way cannot stand. Where, as here, there has been
such a gross
departure from the established rules of procedure that the appellants
have not been properly tried, this is
per se
a failure of
justice (
S v Moodie
1961 (4) SA 752
(A) at 758E-G). As the
convictions were a clear miscarriage of justice, it is open to the
prosecution to re-indict the appellants,
if so advised. It is not for
this court, as was suggested by counsel for the State, to remit the
matter for trial afresh. Rather,
it is for the State to decide
whether it will re-indict the appellants.
[15]
In the result, the appeal is upheld and the convictions and sentences
are set aside.
__________________
V
M Ponnan Judge of Appeal
APPEARANCES:
For
Appellants: A C Klopper
Instructed
by:
Moldenhauer
Attorneys, Pretoria-North
Hill
McHardy & Herbst Inc., Bloemfontein
For
Respondent: A Johnson
Instructed
by:
Director
of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
S v Thomas
1978 (1) SA 329
(A) at 334; S v Swanepoel
1979 (1) SA 479
(A) at
[2]
See s 324 of the Act.
[3]
The provisions of s 105 are peremptory. S v Mamase
2010 (1) SACR 121
(SCA) par 7.
[4]
S v Zuma
2006 (2) SACR 69
at 74c; S v Mamase at par 6.
[5]
S v Cordozo 1975 (1) SA 635 (T).
[6]
S v Ngubane 1985 (3) 677 (A) at 683E-F.
[7]
R v Rautenbach
1949 (1) SA 135
(A) at 143.
[8]
See inter alia R v Andrews
1920 AD 290
at 294; R v Dladla 1961 (3)
SA 919 (D).
[9]
R v Stoltz
1925 WLD 38
at 39.
[10]
See for example S v Sexwale (2)
1978 (3) SA 788
(T), where various
decisions on the point are usefully collected.
[11]
S v Nzuza 1963 (3) SA 631 (A).
[12]
Section 235.
[13]
S v Machaba
2016 (1) SACR 1
(SCA) para 27; Director of Public
Prosecutions, Transvaal v Viljoen
2005 (1) SACR 505
(SCA) para 33.
[14]
S v Serobe
1968 (4) SA 420
(A) at 426C-F.
[15]
S v Nzuza
1963 (3) SA 631
(A) at 635H.
[16]
S v Nzuza at 635H.