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[2014] ZAWCHC 65
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Sias v S (A 471/12) [2014] ZAWCHC 65 (2 May 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
High
Court Case No: A 471/12
DATE:
02 MAY 2014
In the matter
between:
ANGELO
SIAS
.............................................................
Appellant
And
THE
STATE
.............................................................
Respondent
Court: Judge
Allie et Judge Cloete
Heard: Friday, 2
May 2014
Delivered:
Friday, 2 May 2014
JUDGMENT
CLOETE J:
[1] The appellant,
who had pleaded not guilty, was convicted as charged on one count of
rape, and on 28 April 2010 was sentenced
to 8 years imprisonment.
[2] On 8 March 2011
the appellant was granted leave by the court a quo to appeal against
both his conviction and sentence. The main
ground upon which leave
was granted was that in an affidavit seemingly deposed to by the
complainant on 24 February 2011 she admitted
that she had laid a
false charge of rape against the appellant in order to punish him for
leaving her for another woman. The aforementioned
affidavit was
placed before the court a quo when application was made on behalf of
the appellant for leave to appeal. This much
is clear from the
magistrate’s judgment when granting leave to appeal when she
stated that:
‘Alhoewel daar
in u aansoek om verlof tot appél sekere gronde is wat nie
feitelik heeltemal korrek is nie, is dit van
belang van onder punt 10
daar aangedui word dat die klaagster in hierdie saak tydens die
verhoor van die saak in haar aflê
van haar beëdigde
verklaring of haar getuienis onder eed volgens die dokument wat
ingehandig is nie die waarheid gepraat het
nie en dit is ʼn
aangeleentheid wat wel nie deur die hof gelaat kan word nie.’
[3] S 309B(5) and
(6) of the Criminal Procedure Act 51 of 1977 (‘the CPA’)
sets out the procedure to be followed where
an application for leave
to appeal to a lower court is accompanied by an application to adduce
further evidence. S 309B(5)(b) stipulates
that an application of this
nature must be supported by an affidavit stating that: (i) further
evidence which would presumably
be accepted as true, is available;
(ii) if accepted the evidence could reasonably lead to a different
decision or order; and (iii)
there is a reasonably acceptable
explanation for the failure to produce the evidence before the close
of the trial. S 309(5)(c)
provides that the court granting such an
application for further evidence must: (i) receive that evidence and
further evidence
rendered necessary thereby, including evidence in
rebuttal called by the prosecutor and evidence called by the court;
and (ii)
record its findings or views with regard to that evidence. S
309B(6) stipulates that any evidence received under subsection (5)
shall, for the purposes of a subsequent appeal, be deemed to be
evidence taken or admitted at the trial in question.
[4] S 316 of the CPA
contains a similar procedure but applies only to situations where an
accused is convicted of an offence by
a High Court (see s 316(1)(a),
(5) and (6)).
[5] In the present
matter the appellant’s legal representative did not make
application to the court a quo for leave to adduce
further evidence
when the appellant sought leave to appeal from that court. He simply
handed in the affidavit in which the complainant
seemingly recanted
her testimony. There was accordingly no application to adduce further
evidence which the court a quo was required
to consider, and no such
application has been made at any subsequent date. Again, the
appellant’s legal representative has
merely attached the
complainant’s affidavit to his heads of argument filed in this
appeal.
[6] S 22 of the
erstwhile Supreme Court Act 59 of 1959 provided that a court having
appeal jurisdiction had the power:
‘(a) On the
hearing of an appeal to receive further evidence, either orally or by
deposition before a person appointed by
such division, or to remit
the case to the court of first instance, or the court whose judgment
is the subject of the appeal, for
further hearing, with such
instructions as regards the taking of further evidence or otherwise
as to the division concerned seems
necessary….’
[7] S 19 of the
Superior Courts Act 10 of 2013 (‘the SCA’, which came
into effect on 23 August 2013) contains similar
provisions (see s
19(b) and (c)). However s 1 of the SCA now specifically excludes from
its operation an appeal in any matter regulated
in terms of the CPA
(i.e. an appeal such as that which is before us) or in terms of any
other criminal procedural law. Furthermore,
and having regard to s 52
of the SCA, it is unclear whether the appellant’s appeal falls
within the meaning of ‘proceedings
pending’ in any court
at the date of commencement of the SCA. S 52(1) stipulates that such
proceedings must be continued
and concluded as if the SCA had not
been passed (subject to s 27 thereof, which is not relevant for
present purposes). S 52(2)
stipulates that proceedings must, for
purposes of the section, be deemed to be pending if ‘at the
commencement of this Act,
a summons had been issued but judgment had
not been passed’ [my emphasis]. This implies that ‘pending
proceedings’
refers to civil proceedings only, particularly
when regard is had to the specific exclusion of criminal appeals in s
1 of the SCA.
In addition, ch 31 of the CPA applies only to appeals
from a decision of the High Court and thus s 322(1)(c) thereof, which
falls
within ch 31, and confers upon a court of appeal the power to
‘…make such order as justice may require’ does
not
apply in the present case.
[8] It seems
therefore that as a court hearing an appeal in a criminal case we no
longer have the power to receive further evidence
or to remit the
matter to the court a quo with instructions for the hearing thereof.
However this does not mean that we cannot
afford the appellant the
opportunity to apply to the court a quo to adduce such further
evidence before it, should the interests
of justice so require.
[9] There is a line
of authorities, all of which pre-date the Constitution, to the effect
that the mere fact that a witness has
recanted the evidence which he
gave at the trial is insufficient to allow further evidence to be
adduced; there must be proof aliunde
that the evidence now sought to
be adduced will be credible: see Erasmus: Superior Court Practice at
A1-57 and the authorities
cited at fn 5.
[10] In S v N
1988
(3) SA 450
AD at 464D-H the court stated the following:
‘ The
situation created by a recanting witness was dealt with by this Court
in R v Van Heerden and Another (supra) where Centlivres
CJ made the
following statement (at 372H-373A):
“To accept at
their face value affidavits made by material witnesses who allege
therein that they knowingly gave false evidence
at the trial would
leave the door wide open to corruption and fraud. It is not in the
interests of the proper administration of
justice that further
evidence should be allowed on appeal or that there should be a
re-trial for the purpose of hearing that further
evidence, when the
only further evidence is that contained in affidavits made after
trial and conviction by persons who have recanted
the evidence they
gave at the trial. To allow such further evidence would encourage
unscrupulous persons to exert by means of threats,
bribery or
otherwise undue pressure on witnesses to recant their evidence. In a
matter such as this the Court must be extremely
careful not to do
anything which may lead to serious abuses in the administration of
justice.”
And in S v W
1963 SA
516
(A) Ogilvie Thompson JA said (at 524E):
“…The
mere circumstance that a witness called at a trial has subsequently
made a statement inconsistent with his evidence
will seldom in itself
be sufficient ground for reopening a concluded trial…” ’
[11] The question
that nonetheless arises is whether, by ignoring the existence of the
complainant’s affidavit in this appeal,
the appellant may be
deprived of his right to a fair trial enshrined in s 35(3) of the
Constitution. Put differently, simply because
the appellant’s
legal representative failed to follow the required procedure as set
out in s 309B of the Act, should this
have the effect that the door
must forever be closed to the appellant? In posing this question, I
do not suggest that the affidavit
of the complainant which was
tendered by the appellant when he applied for leave to appeal in the
court a quo should be accepted
at face value. Nor do I suggest that
it should be entertained or considered without any formal application
to adduce further evidence.
My concern is rather that a consideration
by this court of the merits of the appeal, without affording the
appellant an adequate
opportunity to make application to the court a
quo for the hearing of further evidence, could well deprive him of
his right to
a fair trial (which, in terms of s 35(3)(o) of the
Constitution, includes the right of appeal to, or review by, a higher
court).
Furthermore, s 12(1) of the Bill of Rights affords every
person the right to freedom, which includes the right not to be
deprived
of freedom without just cause. Although I accept the
principle of finality in litigation, it is nonetheless my view that,
if this
court were to effectively deprive the appellant of the
opportunity to which I have referred, a failure of justice could
result
due to the particular circumstances of this matter.
[12] S 173 of the
Constitution provides inter alia that the High Courts have the
inherent power to protect and regulate their own
process.
Furthermore, there is nothing in s 309B of the CPA which renders it
mandatory for an application to adduce further evidence
to be made
simultaneously with an application for leave to appeal; and at no
other time. The section specifically refers to the
word ‘may’,
i.e. that an application for leave to appeal may be accompanied by an
application to adduce further evidence.
This indicates that, in
principle at least, such an application may be made at any stage, and
will be considered by the trial court
concerned on its merits.
[13] We have also
granted condonation for the appellant’s failure to prosecute
his appeal timeously.
[14] In the result I
propose the following order:
1. The appellant’s
appeal against his conviction and sentence is postponed sine die;
2. The appellant is
granted leave to apply to the court a quo to adduce further evidence
relating to the affidavit seemingly deposed
to by the complainant on
24 February 2011;
3. Should the
appellant fail to launch the application referred to in paragraph 2
above within 60 calendar days from date hereof,
or such extended
period as the court a quo may allow, the appeal may again be
re-enrolled for hearing.
J I CLOETE
ALLIE J
I agree and it is
so ordered.
R ALLIE