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[2015] ZAWCHC 30
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S v Anthony (SHF 27/14) [2015] ZAWCHC 30 (20 March 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE NO. SHF 27/14
DATE: 20 MARCH 2015
REPORTABLE
MAGISTRATE’S
SERIAL NO. 23/2015
HIGH COURT REF. NO. 15
296
In the matter between:
THE STATE
And
DILLON
ANTHONY
..............................................................................................................
ACCUSED
REVIEW JUDGMENT DELIVERED ON FRIDAY,
20 MARCH 2015
DLODLO, J
[1] The above matter served before me
by way of special review brought in terms of section 304 A of the
Criminal Procedure Act 51 of 1977
as amended. The presiding
magistrate requires the intervention of this Court in circumstances
where a material error has occurred
in his handling of the above
criminal trial. He requires that the conviction of the accused be set
aside and the matter remitted
to himself so that he should again
consider the evidence apart from the evidence of a certain witness in
respect of whom he made
an error.
[2] The magistrate’s request is
as follows:
“Geliewe kennis te neem dat die
betrokke saak voor die Agbare Hersienings Regter geplaas word vir die
oorweging van die tersydestelling
van die skuldigbevinding weens die
volgende redes:
1) Die Hof het nagelaat om ‘n
getuie, Granville Sassman, geroep ingevolge artikel 186 van die
Strafproses Wet, Wet 71 van
1977 (hierna verwys as die Wet), in te
sweer soos verlang deur artikel 162 van die Wet.
2) Die Hof het die genoemde getuie se
oningesweerde getuienis ook in ag geneem by die skuldigbevinding op
16 September 2014, en
dus het die verrigtinge nie ooreenkomstig die
reg geskied nie.
Gevolglik word dit respekvol versoek
dat die Agbare Hersienigs Regter die skudlgibevinding ter syde stel.
Dat die getuienis van
die oningesweerde getuie, Granville Sassman,
ook tersyde gestel word. Die Agbare Regter word versoek om dit te
oorweeg om daarna
die verrigtinge terug te verwys na die hof vir
uitspraak op grond van die oorblywende enkel staatsgetuie se
getuienis.
Die oorsig word betreur. Ek vra om
verskoning oor die ongerief wat die oorsig veroorsaak.”
[3] The accused in the instant matte
faced a charge of murder (read with the provisions of
section 51
(2),
52A
and
52B
of the
Criminal Law Amendment Act 105 of 1997
) before the
Regional Court. He was legally represented by an attorney, Ms Naudé.
He tendered a plea of not guilty to the
charge and thereafter
exercised his constitutionally enshrined right to remain silent.
Certain admissions were recorded in terms
of
section 220
of the
Criminal Procedure act. The prosecution announced closure of the
State case upon completion of evidence by one witness,
Paul Johnson.
The defence moved an application for the discharge of the accused in
terms of
section 174
of the Criminal Procedure act. Responding to
this application the prosecutor inter alia said the following:
“Agbare, ek sal nie sê daar
is geen getuienis voor die Hof, wat die Hof die beskuldigde aan
hierdie misdryf voor die
Hof skuldig kan bevind word nie, of selfs
enige bevoegde uitspraak op hom skuldig te kan bevind nie. Daar is
wel op die beskuldigde
se eie weergawe het die beskuldigde gesê
die oorledene het….(tussenbeide)…..Hy sê dat die
oorledene het
hom teen die bors geslaan.” In short the
prosecution held the view that there was enough evidence before Court
to put the
accused person to his defence. The
section 174
application
was dismissed by the presiding magistrate. The defence then proceeded
to close its case without leading any evidence.
It is at this stage
of the proceedings that the magistrate referred the parties to the
provisions of
section 186
of the
Criminal Procedure Act. Acting
in
terms of the latter section, the magistrate caused one Granville
Sassman to be subpoenaed as a witness.
[4]
Section 162
of the
Criminal
Procedure Act provides
as follows:
“162 (1) Subject to the
provisions of
section 163
and
164
, no person shall be examined as a
witness in criminal proceedings unless he is under oath, which shall
be administered by the presiding
judicial officer or, in the case of
a Superior Court, the presiding judge or the registrar of the Court,
and which shall be in
the following form:
“I swear that the evidence that I
shall give shall be the truth, the whole truth and nothing but the
truth, so help me God.”
(2) If any person to whom the oath is
administered wishes to take the oath with uplifted hand, he shall be
permitted to do so.”
[5] It is plain from the above
provisions that in the magistrate’s court it is only the
magistrate presiding over the matter
who is authorised to administer
the oath. The requirement is simply mandatory. This is so important
such that when proceedings
are interrupted by the adjournment, it
remains obligatory to merely remind the witness that he or she is
still under oath.
Section 163
talks to affirmation in lieu of oath.
In other words when one reads
section 162
supra with
section 163
it
becomes apparent that provision is made for different religions. It
is very important that all witnesses in the criminal proceedings
take
the oath or make an affirmation. S v Naidoo
1962 (2) SA 625
(A) comes
to mind. In that case the interpreter swore in the witnesses but he
himself was not sworn in. Consequently the then Appellate
Division
held that the evidence by witnesses sworn in by such interpreter was
not acceptable. It is important to follow the provisions
of the Act
and not to delegate to anyone else the duty to swear in witnesses in
circumstances where it is obligatory that it be
done by the presiding
officer. Even the prosecutor is not competent to administer the
prescribed oath. See: S v Bothma
1971 (1) SA 332
(C). It is important
to note that administration of the oath to witnesses whether it be a
criminal or civil case, is essential
for the admissibility of the
evidence they give.
[6] In the instant matter the witness
whose evidence was not under oath is a witness called by the Court in
terms of
section 186
of the
Criminal Procedure Act. One
may pose a
rhetorical question – why did the magistrate bother to call a
witness at all? The answer is simply that the magistrate
is so
empowered as the administrator of justice.
Section 186
and
section
167
(relating to the recalling of witnesses by the Court) together
give the Criminal Court an inquisitorial role. That must not be
condemned but it must be hailed. It is to be borne in mind at all
times that a criminal trial is not a game where one side simply
must
take advantage or claim a benefit out of an omission or an error that
came about as a result of the other side. As stated
by Curlewis JA in
an old case R v Hepworth
1928 AD 265
at 277 “A judge’s
position in a criminal trial is not merely that of an umpire to see
that the rules of the game are
observed by both sides. A judge is an
administrator of justice, he is not merely a figurehead, he had not
only to direct and control
the proceedings according to recognised
rules of procedure but to see that justice is done.”
[7]
Section 186
of the
Criminal
Procedure Act provides
that the court may at any stage of criminal
proceedings subpoena or cause to be subpoenaed any person as a
witness at such criminal
proceedings if the evidence of such a
witness appears to the Court essential to the just decision of the
case. Having referred
to Curlewis JA’s remarks in R v Hepworth
supra, I hasten to add that whilst the inquisitional role of the
Court is to be
understood and welcomed, presiding officers must
resort to exercising their powers under
section 186
rather sparingly.
I say so because on the one hand the Court searches for the facts but
on the other a perceptibly even handed
trial is and remains the goal.
Also see Hiemstra’s Criminal Procedure page 23-15 (commentary).
The Court must not place itself
in a position where a perception may
reasonably arise that it is bending too much in favour of the State
to the prejudice of the
accused person. I say so in that more often
than not such witnesses are those that tend to close the gap in the
State case. The
bottom line is that criminal cases must be well
investigated and competently prosecuted. That shall render it
unnecessary for the
Court to resort to the exercise of its powers
under
section 186
of the
Criminal Procedure Act. Of course
the
section has both discretionary and mandatory components. It is trite
that Courts exercise their discretionary powers judicially
and
reasonably.
[8] The magistrate presiding in the
instant matter was thus perfectly within his rights to act in terms
of
section 186
in order to secure the evidence he thought would
enable him to administer justice properly in the case before him.
Where he made
a mistake is that he then failed or omitted to act in
terms of
section 162
in respect of this particular witness. I venture
to say it is indeed a fatal mistake. For all intends and purposes the
evidence
of that particular witness, because it is unsworn, is
vitiated by that error. It must be regarded as though it never
existed. Evidence
in criminal proceedings may only be adduced under
oath, under affirmation and under warning.
[9] I am concerned that the presiding
magistrate requires only that I set aside the conviction of the
accused and remit the proceedings
to him so that he considers the
evidence led in this case afresh without the evidence by the
section
186
witness. I mean the magistrate had already pronounced guilt
against this accused. If allowed to deal with this matter again in my
view, justice may not be seen to have been done. If say he again
convicts the accused, the latter may justifiably think games are
being played with him. I mean it does not make sense to an ordinary
accused person that he is told the Court finds him guilty of
an
offence charged and then he hears “no a mistake has crept into
your case we shall send your matter to the High court to
set aside
your conviction.” When the High court has found the mistake to
be so fatal that it is warranting the setting aside
of the
proceedings the accused must not be faced with a scenario that may
place him in a position to think he is “a ball
that is kicked
from one side to the other and again to the first side”. He
simply shall not understand what is going on.
[10] In my view, once one grievous
error is made by the trial magistrate and this Court finds that error
so material that it qualifies
to vitiate the proceedings, it is not
only a part of the proceedings that shall be affected but the
proceedings as a whole. The
whole case was poisoned by this material
error. If this Court were to set aside the conviction and remit the
matter back on the
basis proposed by the magistrate that would only
mean that we have only expunged from the record of proceedings the
evidence by
a
section 186
witness. The point is that proceedings as a
whole have been contaminated by this fatal error. The conviction the
magistrate is
asking me to set aside in the instant matter, is in
truth, “fruit of the poisoned tree.” The only correct way
of handling
the matter is, in my view, to review and set aside the
proceedings as a whole and remit the matter back to be tried de novo
and
at the discretion of the Director of Public Prosecution before a
magistrate other than Magistrate TR Cloete.
[11] In the circumstances I make the
following order:
(a) The proceedings before Magistrate
TR Cloete under case number SHF 27/2014 are hereby reviewed and are
set aside.
(b) The matter must be tried de novo at
the discretion of the Director of Public Prosecution before a
different presiding officer.
DLODLO, J
TRAVERSO, DJP