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CRIMINAL LAW

CASE INDEX

ADDITIONAL MAGISTRATE: TABANKULU

CONTACT: grnel@justice.gov.za (0846379166)

4. cases are summarized very briefly and it thus essential that users draw and read the entire case and this is in no way intended to be a complete guide to available case-law,

5. this guide will be updated monthly, and all additions and suggestions are welcomed.

The appellants appealed against a decision of the high court that had declared that s 1(1)(b) of the Criminal Procedure Act 51 of 1977 created strict liability (liability without fault) and was therefore unconstitutional, as an accomplice could be convicted of robbery with aggravating circumstances, as a result of this provision, even if she/he had no intent with regard to the existence of an aggravating circumstance such as the use of a dangerous weapon by another accomplice. The court also held that because an accused could be convicted even where there was reasonable doubt, the presumption of innocence was unjustifiably infringed. On appeal,

Held, that the high court had wrongly targeted the words 'or an accomplice' as the culprit in the constitutional deficiency it had identified. Its concern seemed to be that a person could be guilty of robbery with aggravating circumstances as an accomplice, without having intended the aggravating circumstances. The words 'or an accomplice' were irrelevant to this question. They said nothing about the requirement of intent. Even if the words were not present, two of the respondents in the present case could still be guilty of robbery with aggravating circumstances under the ordinary common-law rules of accomplice liability, assuming that intent regarding the use of a knife was not required, because one of the other respondents had wielded a knife. (Paragraph [25] at 446f–g.)

[zCIz]Case Information

A la Grange SC (with T Sidaki) for the first applicant.

3. ACCOMPLICE EVIDENCE

Molimi v S
[2008] JOL 21324 (CC)

The Supreme Court of Appeal had dismissed the applicant's appeal against his convictions. He therefore approached the Constitutional Court for leave to appeal against that decision.

The charges against the applicant arose out of an armed robbery at a store at which he was the manager. A shootout resulted in one of the group of robbers being killed, and two others surrendering. Those two implicated the applicant in the robbery in a statement made to the police.

Robiyana & others v S
[2008] JOL 22402 (Ck)

Keywords:

Ultimately, the appeal turned on the correctness of the trial court's acceptance of the evidence of an accomplice who was the primary source of incrimination. The appeal court could not fault the lower court in its assessment of the evidence.

As with the appeal against conviction, the appeal against sentence was found to be without merit.

Mini Summary:

Based on information provided by an accomplice of the accused, they were charged in connection with a hijacking of a taxi.

Criminal Procedure – Admissibility of evidence – Testimony of accomplice – Obtained after torture – Right to a fair trial – Absolute prohibition against torture – Evidence excluded – Appeal partially upheld The Constitution of the Republic of South Africa, 1996 – The Constitution of the Republic of South Africa, 1996, section 35 – The Constitution of the Republic of South Africa, 1996, section 35(3)

Mini Summary:

Criminal law– Murder– Conviction and sentence– Appeal

Mini Summary:

4. ACCSESSORY AFTER THE FACT

Street v S
[2008] JOL 22807 (SCA)

On appeal, it was held that in the light of contradictory evidence which had been led, the state had failed to prove beyond a reasonable doubt either that the appellant had been the person who had inflicted the fatal wound or that he had acted with a common purpose with the person who had done so. It was found that the appellant was an accessory after the fact to the deceased's murder, and he was sentenced to 5 years' imprisonment. He appealed against the conviction.

Held that the trial court was faced with two mutually destructive versions before the trial court as to who had been responsible for the fatal stab wound. The state alleged that it was the appellant, while the latter claimed that it was a person who had become involved in an altercation with the deceased. The trial court had found that the appellant had concealed the knife used to inflict the fatal wound, and that he had acted in collusion with the third party referred to above to conceal important evidence by furnishing incorrect statements. Those findings were not supported by any evidence. Therefore, the conclusion that the appellant was guilty as an accessory after the fact was not sustainable.

Mini Summary:

Having been convicted of murder and sentenced to 7 years’ imprisonment, the appellant appealed against his conviction and sentence.

DPP, KwaZulu-Natal v De Bruyn & others
[2009] JOL 23341 (KZP)

Keywords:

The court found that the only basis upon which review proceedings could be instituted was in terms of section 24(1) of the Supreme Court Act 59 of 1959. The section confers an inherent jurisdiction on the high court to review proceedings of any nature in inferior courts including criminal cases, subject however, to the proviso in subsection (2) of section 24 that this will not affect or derogate from other laws which deal with reviews.

As the prosecution must at all times be permitted to present its case, and was in this case prevented from doing so, the court found that a reviewable irregularity had occurred.

Criminal procedure – Assault with intent – Conviction and sentence – Review

Mini Summary:

Keywords:

Criminal procedure – Trial – Fairness of proceedings – Irregularity

The proceedings were set aside, and it was ordered that the matter be tried de novo before a different magistrate.

7. AMENDMENT TO CHARGE SHEET / ADDITIONAL CHARGES

The two accused were charged with and pleaded not guilty to an offence of housebreaking with the intent to steal and theft. During the course of the proceedings, whilst the state was presenting the evidence of the complainant, the prosecutor asked the court to amend or add to the charge a count of trespassing, on the basis that it had been covered in the testimony of the witness. Despite opposition, the magistrate informed the defence attorney that his objection to the proposed amendment was without merit, as trespassing was a competent verdict on the housebreaking charge. Without giving the accused an opportunity to plead to the new charge, the matter proceeded and the accused were convicted on a charge of trespassing in contravention of s 1(1) of the Trespass Act 6 of 1959. The matter was subsequently sent on review.

Held, that there was no provision in the Criminal Procedure Act 51 of 1977 which permits the joining of further charges in the same proceedings against an accused after evidence had already been adduced in the trial. The magistrate was therefore patently in error in granting the state leave to add the charge of trespassing. The convictions accordingly had to be set aside on review. (Paragraphs [6]–[9] at 612b – d.)

Mini Summary:

The appellant was convicted of unlawfully resisting or wilfully hindering or obstructing a police officer in the exercise of his powers or the performance of his duties or functions, and assault. He appealed against the convictions.

Keywords:

Criminal law – Inclusion in charge sheet of statutory provisions which had been declared unconstitutional – In terms of section 322(1) of the Criminal Procedure Act 51 of 1977, a court of appeal may allow the appeal if it thinks that the judgment of the trial court should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a failure of justice – Test for a failure of justice requires the appellate court to exclude from consideration all aspects of the trial that were affected or influenced by the irregularity and to evaluate only the evidence that remains unsullied

Of the view that there was no prospects of success on the merits, the Court refused leave to appeal.

S v Ndaba - 2003 (1) SACR 364 (WLD) – S86(1) amendment of charge sheet before judgment means before saying “guilty/not guilty” not before starting judgment. (highly debatable)

Mini Summary:

The accused was charged with two counts of murder. He pleaded not guilty and alleged that he was not present in the area of the crimes when they were committed.

Keywords:

Criminal procedure – Evidence – Statement by accused – Admissibility

Sv Abduragham Thebus & Moegemat Adams - Aug. 2003 (CCT 36/02) – court found on split decision that accused can not be questioned on reason for late disclosure of alibi as violates right to remain silent. If elects to say nothing in warning statement accused can’t be questioned on such election despite fact that subsequently offers alibi. The effect is that if the accused exercises an entrenched constitutional right he may not be prejudiced for such an election at a later stage of proceedings.

READ JUDGEMENT CAREFULLY. MINORITY DECISION IS FIRST!

Based on information provided by an accomplice of the accused, they were charged in connection with a hijacking of a taxi.

Held, that in accepting the evidence of an accomplice witness, it is not necessary that his evidence be true in all that he says. His testimony would suffice if it is to a large extent truthful and sufficient corroboration thereof exists. The court also referred to the need to exercise extreme caution in the examination of the veracity of an accomplice's evidence given the accomplice's peculiar position and knowledge. It decided that the accomplice's evidence in this case was reliable.

Mini Summary:

The admissibility of extra-curial statements of an accused against a co-accused in a criminal trial was the issue for determination in this case. The court was required to consider the rules governing the admissibility of hearsay evidence under the provisions of the Law of Evidence Amendment Act 45 of 1988 in the context of the right to a fair trial and the need to prevent procedural abuse.

The court went on to hold that the late admission of hearsay evidence against the applicant was prejudicial to him and not in the interests of justice.

Leave to appeal was granted.

The appellant, a former police officer, had been convicted on two counts involving the theft of two motor vehicles. During his trial, his accomplice, who was the chief state witness, testified that he, the accomplice, had been beaten and tortured before he had led the police to crucial evidence, viz, one of the stolen vehicles and a cash box which had contained R60 000. The appellant was sentenced to an effective 23 years' imprisonment. He appealed to the high court where the convictions were confirmed but the sentences were reduced to an effective 17 years' imprisonment. He now appealed to the Supreme Court of Appeal and the main issue before the court was whether the evidence given by the accomplice should have been excluded in terms of section 35(5) of the Constitution.

Held that under section 35(3) of the Constitution evidence must be excluded if it (a) renders the trial unfair; or (b) is otherwise detrimental to the administration of justice. A plain reading of the section suggests that it requires the exclusion of evidence improperly obtained from any person, not only from an accused. There was no reason of principle or policy not to interpret the provision in this way. It followed that the evidence of an accomplice could also be excluded. The absolute prohibition on the use of torture in both South African and international law demands that "any evidence" which is obtained as a result of torture must be excluded "in any proceedings". The torture had stained the evidence irredeemably and it had to be excluded. The conviction and sentences on charges relating to the theft of one of the two vehicles were set aside and the conviction for the theft of the other was confirmed. The sentences were reduced accordingly.

[zCIz]Case Information

Special review.

Keywords:

Criminal law – being found in possession of goods in regard to which there is a reasonable suspicion that they were stolen – whether accused person can be convicted on plea alone, without evidence being led Criminal procedure – admissions – what may be admitted – by accused person – accused may not admit facts which are within the peculiar knowledge of another person. Criminal procedure — plea — guilty plea — conviction on basis of plea — charge under s 125(a) of Criminal Code [Chapter 9:23] —conviction may not be recorded without leading evidence

11. AGE OF ACCUSED

S v Mbelo – 2003(1) SACR 84 (NC) – where age of accused or a complainant is in issue or relevant, evidence must be presented. Not sufficient to use hearsay or baptismal certificate. Formal admission by defense will be sufficient.

2011 AUGUST 10; SEPTEMBER 2

Culpable homicide—Sentence—Spousal violence—Death caused by assault on spouse—Court justified in taking into account prevalence of spousal violence in its area of jurisdiction—Can be treated as aggravating feature of case justifying substantial custodial sentence.

Mini Summary:

The appellant was convicted of the rape of a 14-year-old girl and was sentenced to 25 years’ imprisonment. He appealed against his conviction and sentence. The defence to the charge was an alibi defence.

Musiker v S
[2014] JOL 31280 (SCA)

Keywords:

The only issue in dispute was the identity of the complainant’s assailant. The appellant raised an alibi defence, alleging that he had been at home with his wife at the material time. The trial court took issue with the fact that the appellant’s wife was not called as a witness, and convicted and sentenced the appellant. He thereafter applied for and was granted leave to lead further evidence in terms of section 309B 5(a) of the Criminal Procedure Act 51 of 1977 to support his alibi defence and to appeal against both the conviction and sentence. The trial court resumed the trial and received the evidence of the appellant’s wife, which evidence corroborated the version of the appellant in all material respects. the magistrate expressed the view that the evidence was of no probative value, and was critical of the belated decision to lead the evidence of the appellant’s wife.

Held that the magistrate’s criticism was without merit. No fault could be attributed to the appellant with regard to the failure to timeously call his wife as a witness. The approach adopted by the magistrate failed to take into account the fact that it was the State that bore the onus to prove the guilt of the appellant. Once the appellant raised the alibi defence, that alibi had to be accepted unless it was proved to be false beyond reasonable doubt. That did not happen. What the trial court had before it was the evidence of the appellant, corroborated by that of his wife, that he had been at home at the relevant time, and the contradictory evidence of the two state witnesses, placing the appellant at the scene of the crime. Faced with two mutually destructive versions, the magistrate had no sound reason to prefer the evidence of the complainant to that of the appellant. Therefore, the conviction could not stand.

The appellant was convicted of murder, arising from a shooting incident, and sentenced to 18 years' imprisonment. At trial the appellant put forward an alibi defence, alleging that he had been at a social function in another suburb on the evening in question, and that he had, in any event, not had his firearm with him - he had left it in the safekeeping of a relative, A. On appeal against conviction it was argued that the forensic evidence, proving that the appellant's firearm had been used to commit the murder, ought to have been rejected; that his alibi evidence was reasonably possibly true; and that he could not have absented himself unnoticed from the function for the time necessary to commit the murder.

Held (per Davis J; Goliath J concurring), that the case was one which had to be determined upon an application of inferential reasoning. The trial court had correctly accepted the ballistics expert's evidence which proved that the appellant's firearm was the murder weapon. Only two people had had access to the firearm, the appellant and A. However, there had never been any suggestion that A had been anywhere other than at home on the night of the murder. In addition, nobody else had had access to the firearm or knew where it was. The evidence also showed that it was possible for the appellant to have absented himself from the function, commit the murder, and return. While there had been a suggestion that certain witnesses had seen him at the function for the duration of the evening, none of these had been called to give evidence and, accordingly, very little, if any, weight could be placed on their versions. There was, thus, no reasonable inference to be drawn other than that it was the appellant who had used his own firearm to commit the murder.Appeal dismissed.

Criminal law – Murder – Alibi defence – Onus of proof

Mini Summary:

Hadebe v S
[2008] JOL 22538 (T)

Keywords:

The complainant / witnesses identified the appellant, whom they knew well, by the light of his torch and by his voice, and gave a logical and coherent account of what had happened. The evidence appeared overwhelming. However the regional magistrate failed to give reasons for accepting the state evidence and rejecting the appellant's evidence, which was also logical and coherent.

The regional magistrate also failed to advert to problems in the state evidence. The witness in the rape count had told the doctor that she had been a virgin before the rape and that she had been raped by an unknown person, when in fact she knew the appellant and had had sexual intercourse with another man earlier on the same night. The doctor also made no finding that she had been raped. Furthermore, the appellant had not been arrested after the alleged crimes, but had been allowed to return to Johannesburg on 10 August 2004. If the witnesses had indeed identified the appellant as the perpetrator, there would have been ample time to arrest him. Yet the police did not do so. This indicated that the police were not informed that the appellant was the person who had committed the crimes. He was arrested only on 7 September 2004. The evidence of the witnesses that they knew on 8 August 2004 who had committed the crimes could therefore not be true.

Mini Summary:

The appellant was convicted of robbing the complainant at gunpoint of a cellphone and R850, and, in the absence of substantial and compelling circumstances, was sentenced to 15 years in jail.

Keywords:

Criminal procedure – Competence of legal representative – Robbery with aggravating circumstances – Alibi defence – Not led in chief – Not put to prosecution witnesses – Gross irregularity – Irregular conduct of presiding officer – Convictions set aside

Molaudzi v S
[2014] JOL 31800 (CC)

Keywords:

However, the Court did express its displeasure at the long delay in the hearing of the appeal before the full court.

S v TONKIN 2014 (1) SACR 583 (SCA)

E Killian for the appellant.

C Steyn for the state.

      'The applicant is granted leave to appeal to the Free State High Court, Bloemfontein, against his conviction of malicious injury to property in the Harrismith Magistrate's Court.'

Malgas and others v S
[2014] JOL 31551 (SCA)

Held that more than 8 years passed before the appeal was heard in the court below. The only ground of appeal that could be considered in this appeal was whether the 8 year delay from the imposition of sentence by the magistrate to the hearing of the appeal in the court below, in and of itself, justified a lighter sentence.

There can be no automatic alleviation of sentence merely because of the long interval of time between the imposition of sentence and the hearing of the appeal for those persons fortunate enough to have been granted bail pending the appeal. The appellants had adopted a supine attitude to the hearing of their appeal, and were to blame for the long delay in bringing this matter to finality. Their appeal was accordingly dismissed.

Convicted of murder, the appellant was sentenced to 15 years’ imprisonment. His appeal to the high court failed, but leave was granted to appeal to the present Court against conviction and sentence.

The appellant had fired a single shot at a person at a taxi rank, killing him. The question was whether the appellant was acting in self-defence, as alleged by him. Two state witnesses provided insight into the circumstances surrounding the shooting. One of them was an eye-witness to the shooting, and testified that the appellant had approached the deceased and when he was approximately three metres from him, produced a pistol from his waist, pointed it at the deceased who was then facing him, and shot him. The witness disputed the appellant’s contention that the deceased had produced a firearm which he pointed at the appellant shortly before the latter produced his and shot the deceased. He therefore disputed the appellant was acting in self-defence. The second witness did not witness the actual shooting, but testified that the appellant had followed the deceased to the back of the vehicle from which they just alighted. The witness then heard a gunshot and when he went to investigate, he saw the body of the deceased on the ground. Immediately after the shooting he saw the appellant run away from the scene whilst being chased by a crowd of people consisting mainly of other taxi drivers and owners.

Van der Merwe v NDPP A O 2011 (1) SACR 94 (SCA)

Before his trial on charges of contravening Exchange Control Regulations and of defeating the ends of justice could begin, the appellant launched an urgent application for a declaratory order that the Directorate of Special Operations (DSO) had acted outside its mandate by investigating the offences he was alleged to have committed. It was common cause that those offences did not constitute the 'serious and organised crime' that the DSO was mandated to investigate. The appellant argued that this conduct was therefore in conflict with the Constitution of the Republic of South Africa and invalid, and that it should be declared to be such. The High Court found, firstly, that the appellant had not established that the DSO had in fact driven the investigation against him; and, secondly, regardless of this aspect, that it would be inappropriate for it to decide the constitutional issue, which would best be left to the trial court. It dismissed the application, but made no costs order. The appellant appealed the dismissal, and the first and second appellants cross-appealed against the finding concerning costs. The Supreme Court of Appeal assumed, for purposes of its judgment, that the appellant had indeed established that the DSO had exceeded its mandate and that its conduct was thus inconsistent with the Constitution. The question to be decided was whether a court was obliged in such circumstances to issue a declaratory order, notwithstanding that no consequent relief was claimed.
Held , that the argument, that once a court found that conduct was unconstitutional it had to issue a declaratory order to that effect, was not supported by authority. This was not a constitutional issue that needed to be decided in the interests of justice. A court, faced with an unmeritorious forensic finesse, clothed in constitutional garb, and designed to delay or avoid pleading in a criminal trial, or to pre-empt the consideration of an admissibility question by the trial court, had a duty to refuse an order that would encourage preliminary litigation. An accused was not entitled to have his trial interrupted - or not begin at all - so as to have alleged irregularities reviewed by another court. It was the duty of the trial court to try the charge and to ensure a fair trial; if it did not, the conviction might be set aside. A court was not obliged to entertain a constitutional claim in a vacuum; thus, declaratory relief was not simply there for the asking. Since the appellant was asking for a declaration in vacuo , the court below had been correct to dismiss the claim, and the appeal must fail.
Held , further, regarding the cross-appeal, that the court below had considered the issue to be a serious constitutional one. It could not be said to have exercised its discretion not to award costs to the successful party capriciously or injudiciously; there were accordingly no grounds on which to interfere with its order in this regard. Appeal dismissed with costs.

Appeal—Generally—Reasonable prospects of success—Issue to be decided is whether the appellant has reasonable prospects of success on appeal, and not the merits of the appeal—Reasonable prospects of success present if a sound, rational basis exists for the conclusion that the appellant has prospects of success on appeal.

S v Marais 2010 (2) SACR 606 (CC)

Application for leave to appeal dismissed. Application for admission as amicus curiae not granted.

Case Information

Bail—Appeal against refusal of—From magistrates’ court to high court—Duty of prosecution—State counsel has a public duty to place all relevant facts before a court deciding an appeal—State in present case had failed in its duty when it did not file heads of argument and merely filed a notice to abide by the court’s decision.

Khauli & another v S
[2011] JOL 26779 (GNP)

Immediately after sentencing, the appellant applied for leave to appeal against both conviction and sentence, but his application was dismissed by the trial judge. Some five years later, he brought another application for leave to appeal, before a different judge. Leave to appeal was granted in respect of sentence only.

Held that the question was whether the court a quo was competent to entertain the appellant's second application after leave had been refused by the trial court against both conviction and sentence.

Criminal procedure – Bail application – Transcript of – Loss of transcript – Effect on appeal

Mini Summary:

S v Leve 2011 (1) SACR 87 (ECG)

The fundamental rule to be applied by a court of appeal is that, while the appellant is entitled to a rehearing, because otherwise the right of appeal becomes illusory, a court of appeal is not at liberty to depart from the trial court's findings of fact and credibility, unless they are vitiated by irregularity, or unless an examination of the record of evidence reveals that those findings are patently wrong. The trial court's findings of fact and credibility are presumed to be correct, because the trial court, and not the court of appeal, has had the advantage of seeing and hearing the witnesses, and is in the best position to determine where the truth lies. These principles are no less applicable in cases involving the application of a cautionary rule. If the trial judge does not misdirect himself on the facts or the law in relation to the application of a cautionary rule, but, instead, demonstrably subjects the evidence to careful scrutiny, a court of appeal will not readily depart from his conclusions.

Mini Summary:

The appellant was convicted on one count of abduction and five counts of rape and was sentenced to 1 year's imprisonment for the abduction and five terms of life imprisonment for the rapes, with all of the sentences to run concurrently.

The Court deemed an effective sentence of 18 years' imprisonment in respect of each of the four counts of rape to be appropriate, subject to the sentences running concurrently.

Mnisi v S
[2011] JOL 26770 (GNP)

The applicant then applied on notice of motion to the present court for leave to appeal to the Supreme Court of Appeal against his conviction.

Held that the above procedure was not proper and the way for the applicant to proceed was by way of a petition to the Judge President of the Supreme Court of Appeal in terms of the Rules of the Supreme Court of Appeal.

Mini Summary:

Having been convicted of robbery with aggravating circumstances and sentenced to 18 years' imprisonment, the applicant brought the present application for leave to appeal.

Keywords:

Criminal procedure – Sentence – Leave to appeal – Earlier refusal – Judge functus officio – Appeal

The limitation on the right of appeal contained in the Criminal Procedure Act has been declared constitutional. There was nothing in the Constitution that conferred the right on the High Court or the Supreme Court of Appeal to grant leave to appeal without having regard to the provisions and the structures created by the statutes and the Rules of Court. To hold otherwise would endanger the very core of the purpose of the intention of the Legislature to ensure a system in which swift justice is meted out to accused.

Therefore the granting of leave to appeal in the face of a previous refusal of such leave was a nullity and the case was not properly before the appeal court. The appeal was struck from the roll.

S v Katsiru – 2008 JOL 21158 (ZH) – deals with duty of presiding officer to comment on matters raised in notice of appeal. Not sufficient to simply adhere to decision without comment.

S v Sando – 2008 JOL 21156 (ZH) –procedure when Attorney – General does not oppose an appeal and appeal may be disposed of in chambers.

The appellant was convicted of housebreaking with intent to steal, theft and rape. He was sentenced to life imprisonment on the rape charge. He appealed against that sentence.

Held that in deciding whether to interfere with sentence on appeal, it had to be asked whether the sentence imposed was vitiated by a material misdirection, or was one which no reasonable court would have imposed.

Criminal procedure – Leave to appeal – Delay – Condonation – Missing record

Mini Summary:

1. S v CARTER 2014 (1) SACR 517 (NCK)

In dismissing an appeal by the appellant against his conviction and sentence in a regional magistrates' court for a number of counts, including kidnapping and attempted rape, the court remarked on a number of misdirections committed by the magistrate, including, seemingly, lack of appreciation by the magistrate that even the slightest penetration was sufficient to constitute the crime of rape. These misdirections had resulted in the appellant being convicted only of attempted rape and not of rape itself. The court pointed to the anomalous situation where the state was only entitled to appeal against the discharge of an accused on a point of law, and suggested that perhaps the time had come for the courts to enquire whether the state should not also be entitled to appeal against a discharge on the merits. The court ordered that a copy of its judgment be sent to a number of authorities for the purpose of possibly amending the law in this regard. (Paragraphs [6] at 520e – f and [32] at 529f – h.)

Appeal from convictions in a regional court and sentences imposed for a  H number of offences, including kidnapping and attempted rape.

Order

Criminal law – Murder – Sentence – Leniency – Appeal

Mini Summary:

The length of a period of imprisonment imposed on an offender reflects the gravity of the offence committed. The lengthy sentence imposed on the respondent was justified by the offence in this case. Wholly suspended sentences are designed to keep offenders out of prison in the hope that the suspended sentences hanging over their heads will deter them from future criminal conduct. A sentence may also only be suspended for no more than five years and its beneficial influence will be restricted to that extent. The longer the sentence of imprisonment, the less appropriate it will be for it to be suspended in its entirety.The court pointed to the brutal nature of the offence in casu. The trial judge misdirected himself by not taking proper account of all relevant considerations. The sentence was set aside and replaced with one of 12 years' imprisonment

DPP, Transvaal v Venter
[2008] JOL 21813 (SCA)

The victims in the murder charges were the two minor children of the respondent, while the complainant in the attempted murder charge was his wife.

Held that the present Court's power to interfere with sentence was limited. It could interfere with the sentence imposed by the court a quo if found that the court misdirected itself materially particularly in over-emphasising some factors and underplaying others. It could also interfere where there was no apparent misdirection but where the sentence was so light that it induced a sense of shock.

S v Mngoma
[2008] JOL 22122 (E)

Keywords:

The court remitted the case to the trial court so that the application for leave to appeal could be disposed of afresh.

16. ARREST AND DETENTION

Appeal from a decision in the Eastern Cape High Court, Grahamstown (Mageza AJ) in an action for damages. The facts appear from the reasons for judgment.

MJ Louw SC (with NJ Sandi) for the appellants.

Appeal from costs order made in an application for an interdictum de homine libero exhibendo in the North Gauteng High Court (Du Plessis AJ).

TP Kruger (with L le Roux) for the appellants. 

Mini Summary:

In November 2009, the respondent was arrested by the first appellant, and detained at a police station after he was implicated in the murder of his former wife. His attorney’s attempts to secure his attendance at court as soon as possible were in vain, as the first appellant informed him that he was entitled to detain the applicant for 48 hours before he had to be brought to court for the first time. The attorney therefore decided to approach the High Court. A court order was obtained, requiring the respondent to be taken to the Magistrates’ Court by a certain date. Although that was done, the matter was not heard because the Magistrate had taken the confession from the main state witness in the case. The application then went before the High Court which granted an order effectively releasing the respondent on certain conditions. The Court granted a costs order against the first appellant in his personal capacity. Leave to appeal was sought in respect of that costs order. Although the respondent conceded that the costs order against the first appellant should not have been made as the respondent had abandoned his prayer for costs against the first appellant, because the costs order was based on an alleged misinterpretation by the court below of the provisions of section 50 of the Criminal Procedure Act 51 of 1977, the appellant submitted that this Court should consider the merits of the matter. What was sought to be achieved was a definite interpretation of that section.

Keywords:

Criminal procedure – Arrest and detention – Unlawful arrest – Claim for damages – Dismissal of claim – Appeal

The court found that the second respondent's actions did not pass constitutional muster, and upheld the appeal.

17. ASSAULT COMMON

The accused was convicted of assault and sentenced to 12 months' imprisonment, conditionally suspended for 5 years. On review, the court asked whether the sentence was not excessive considering the fact that the accused was a first offender, and that the complainant (his wife) sustained no injuries.

Held that the magistrate's reasoning in sentencing the accused was open to question.

Criminal procedure – Assault with intent to do grievous bodily harm – Evidence of intent – Insufficient – Conviction set aside – Replaced with common assault – Sentence reduced and suspended

Mini Summary:

Criminal law – Assault with intent to do grievous bodily harm – Conviction and sentence– Review

Mini Summary:

18. ASSAULT GBH

Helm v S
[2014] JOL 32323 (WCC)

Leave to appeal was obtained in respect of the assault charges.

Held that the State bore the onus of establishing the administration of substances to the children, which substances were considered to be noxious. The Court was not persuaded that the State had established beyond reasonable doubt either, that the alleged substance was administered to the eight children in question, or that it was a noxious substance. Consequently, the appeal against the convictions was upheld and the convictions and subsequent sentences were set aside.

The accused pleaded guilty to a charge of assault with intent to do grievous bodily harm, and was convicted and sentenced to 18 months’ imprisonment.

Held on review that it did not appear on the record that the accused was apprised of his right to advance factors which the Court should take into account when considering sentence. In aggravation of sentence, the court a quo took into account that the accused did not lead a clean life hence he had a number of previous convictions which involved assault and domestic violence.

Held, that, on a proper interpretation of the section, it did not require an election by the prosecutor, as to the charge in respect of which the prosecution was to proceed, before the trial could proceed. It provided that the trial would proceed on the original charge/s, and, in other words, not on the lesser I charge/s, unless the prosecutor indicated otherwise. In the absence — as in the present case — of an indication by the prosecutor, the magistrate had correctly proceeded on the basis of the original charges against the accused, namely of assault with intent to do grievous bodily harm. (Paragraphs [40] — [41] at 470c – e.)

Held, however, that on the evidence, the charge had not been proven and the conviction had to be set aside. (Paragraph [46] at 471b.) J

Criminal procedure – Assault with police dog – Criminal Procedure Act, No 51 of 1977, s 49(1)(b) – Forfeiture of protection – Proof ofCriminal procedure – Evidence – Cautionary rule

Mini Summary:

S v Mereatlhe & others
[2008] JOL 22250 (T)

Keywords:

The court replaced the sentence with one of 2 years' imprisonment of which

S v Mazomba
[2009] JOL 23402 (ECB)

The acting senior magistrate submitted the case on special review on the grounds that the verdict of the magistrate was incompetent in that the essential elements of the crime of assault with intent to do grievous bodily harm were not included in the offence of contravention of a protection order which the accused had been charged with; and that the alternative of two years' imprisonment was disproportionate to the amount of the fine imposed.

Held that having gone through the record of proceedings and having considered the magistrate's submissions, the court agreed that the magistrate had indeed erred in convicting the accused of assault with intent to do grievous bodily harm in the circumstances of the case. The evidence proved the offence of common assault rather than assault with intent.

S v Mbele
[2008] JOL 21276 (E)

Keywords:

S v Livi
[2008] JOL 21284 (E)

Keywords:

S v Jama
[2008] JOL 21714 (E)

Keywords:

Held that the intention to do grievous bodily harm was not proven. The accused did not stab the complainant with a knife. It could not be inferred that the accused had subjectively foreseen the possibility that the complainant could be seriously injured or that she had reconciled herself with that possibility.

The conviction was replaced with one of common assault, and the sentence substituted by a sentence of a fine of R400 or 14 days imprisonment.

Mini Summary:

In the regional court, the appellant was convicted on one count of rape and was sentenced to eight years' imprisonment, two of which were conditionally suspended. The matter was sent on special review in terms of section 204(4) of the Criminal Procedure Act 51 of 1977 as the magistrate had not applied the relevant minimum sentencing provisions of the Criminal Law Amendment Act 105 of 1997. On review, the sentence was set aside and the matter remitted to the magistrate to impose sentence afresh. The appellant was then sentenced to the prescribed minimum sentence of ten years’ imprisonment. On appeal, the high court dismissed the appeal against conviction, but upheld the appeal against sentence to the extent that the sentence of 10 years’ imprisonment was set aside and replaced with a sentence of eight years’ imprisonment, two of which were conditionally suspended.

An examination of the facts and the probabilities led the Court to conclude that neither party’s version was favoured. The facts did not assist with the determination of the narrow issue of consent. They did not support either the state’s case or the appellant’s defence. In those circumstances, it could not be said that there was proof beyond reasonable doubt and the appellant was therefore entitled to an acquittal.

The appeal was upheld, and the conviction and sentence were set aside.

In May 2004, an attack on a house left four dead and one survivor sustaining 25 gunshot wounds. The survivor (“the complainant”) identified one of the assailants (“Moosa”), and he and the two appellants were subsequently convicted of four counts of murder and one of attempted murder. The first appellant was sentenced to an effective 20 years’ imprisonment, while the second appellant was effectively sentenced to life imprisonment.

Both appellants appealed against their convictions on the basis of the insufficiency of the evidence against them, and the first appellant also appealed against his sentence.

In the face of all the evidence adduced by the state, the appellants and Moosa had decided not to testify in their own defence.

Held that in order to determine the correctness of the convictions and the sentence imposed, it was necessary to have regard to the material parts of the evidence adduced by the state and to the factors associated with sentencing.

It was submitted on behalf of the appellants that because of the conflict in the evidence of the appellants’ respective girlfriends, both of whom were state witnesses, a successful prosecution was precluded. The submission was held to be fallacious. The second appellant’s girlfriend’s evidence was rightly rejected.

The present court agreed with the trial court that the state had produced weighty evidence against the appellants, which called for an answer. The appellants had been in the company of Moosa, against whom the evidence was damning. On the evidence before the court, the inference was irresistible, in the absence of an explanation from them, that they were with him at all relevant times. The evidence against the appellants established their association with Mr Moosa in the perpetration of the murders. It undoubtedly called for an answer, which was not forthcoming. Consequently, both appeals against convictions had to fail.

“In these few lines there is no mention of the appellant’s personal

circumstances, and the magistrate seems to have had regard only to

furnish reasons for their decisions. Nonetheless, in terms of s1 of the

Constitution, the rule of law is one of the founding values of our

It explains to the parties, and to the public at large which has an

interest in courts being open and transparent, why a case is decided as

whether or not the order of the lower court is correct. And finally, it

provides guidance to the public in respect of similar matters. It may

Division,

Chetty J, with whom Dambuza J agreed, stated:

exigencies of time. This no doubt contributed to the obfuscation of the

triable issues for the judgment proceeds on the assumption that the

that the complainants, for reasons of their own, had conspired to falsely

incriminate them. Consequently, the court was called upon to analyze

Criminal procedure – Murder trial – Assessors – Election of accused

Mini Summary:

Zuma v NDPP
[2008] JOL 22416 (N)

Keywords:

The crux of the dispute was whether the applicant was entitled to make representations to the prosecuting authorities before the decision was taken to prosecute him. It was common cause that the applicant was not afforded an opportunity to make representations. The obligation to hear representations forms part of the audi alteram partem principle.

Addressing the question of the nature of the proceedings, the court concluded that the application was in the nature of a civil review. The court went on to express the opinion that the executive might have interfered in the decision to prosecute the applicant.

Mini Summary:

After the accused was convicted of rape, the defence attorney informed the court that she had not been given an opportunity to address the court prior to judgment. The trial court therefore referred the case to the present court on special review, with the request that the judgment be set aside and the case remitted to it so that the defence could be afforded the opportunity to deliver closing argument, before judgment be delivered.

S v Sekoere
[2012] JOL 29358 (FB)

Keywords:

The court pointed out that cases involving minor children sentenced in terms of the Child Justice Act, like all other cases envisaged in section 302, are not automatically reviewable where the accused minor child was legally represented. The present matter did not call for the exercise of the court’s inherent powers of review

I however need to inform you of the outcome on a case which is set out under Criminal Law Index Para 21: Automatic Review

Ms.Ezra J. Morrison

Magistrate

23. BAIL

Sewnarain v S
[2014] JOL 31611 (SCA)

Held that section 60(11)(a) of the Criminal Procedure Act 51 of 1977 being applicable, the appellant had to satisfy the court a quo that exceptional circumstances existed which in the interests of justice permitted his release on bail. The court a quo found that a reasonable prospect of success in the review application is an indispensable criterion which the appellant failed to show, and that in any event the appellant did not show exceptional circumstances as contemplated in section 60(11)(a).

The present Court held that a reasonable prospect of success on appeal or review in itself does not entitle an applicant to bail. The question therefore was whether the court a quo erred in finding that the appellant did not prove exceptional circumstances. The only circumstance relied upon by the appellant that could possibly be regarded as exceptional, was the allegation that because his financial resources had been exhausted he would only be able to retain his present legal team and expert witnesses in order to conduct the review application properly, if he was allowed to recommence his bus building and repair business in order to generate income and that he would be able to do so almost immediately after his release. However, there was no evidence to support that allegation. In fact, the available evidence suggested the contrary.

Mini Summary:

The appellant was standing trial on several counts of robbery with aggravating circumstances, attempted robbery with aggravating circumstances, attempted murder and the unlawful possession of a firearm and ammunition relating to an armed robbery of a petrol station. The appellant was arrested on the day of the robbery, namely 24 December 2008 and had been in custody ever since. The trial commenced on 12 November 2009 and the state had not yet concluded its evidence. During March 2011 the appellant applied to be released on bail. Bail was refused and an appeal to the high court was dismissed. That led to the present appeal.

There was no indication that the appellant would not stand trial. Instead, the evidence suggested the contrary. In the premises, the Court below was wrong in not concluding that the appellant had succeeded in showing that exceptional circumstances were present that, in the interests of justice, permitted his release.

The appeal was upheld and the appellant released on bail of R5 000 subject to certain conditions.

In November 2009, the respondent was arrested by the first appellant, and detained at a police station after he was implicated in the murder of his former wife. His attorney’s attempts to secure his attendance at court as soon as possible were in vain, as the first appellant informed him that he was entitled to detain the applicant for 48 hours before he had to be brought to court for the first time. The attorney therefore decided to approach the High Court. A court order was obtained, requiring the respondent to be taken to the Magistrates’ Court by a certain date. Although that was done, the matter was not heard because the Magistrate had taken the confession from the main state witness in the case. The application then went before the High Court which granted an order effectively releasing the respondent on certain conditions. The Court granted a costs order against the first appellant in his personal capacity. Leave to appeal was sought in respect of that costs order. Although the respondent conceded that the costs order against the first appellant should not have been made as the respondent had abandoned his prayer for costs against the first appellant, because the costs order was based on an alleged misinterpretation by the court below of the provisions of section 50 of the Criminal Procedure Act 51 of 1977, the appellant submitted that this Court should consider the merits of the matter. What was sought to be achieved was a definite interpretation of that section.

Held that section 50(1) provides for an arrested person to be brought to a police station as soon as possible and be informed of his or her right to institute bail proceedings. If such an arrested person is not released because no charge is to be brought against him or bail is not granted to him, he shall be brought before a lower court as soon as reasonably possible, but not later than 48 hours after the arrest. If the period of 48 hours expires outside ordinary court hours or on a day which is not an ordinary court day, the accused shall be brought before a lower court not later than the end of the first court day.

Criminal law – Bail – Refusal of bail – Appeal – Section 60(11)(a) of the Criminal Procedure Act 51 of 1977 – Appellant had to adduce evidence that satisfied the court that exceptional circumstances existed which in the interests of justice permitted his release – Unexplained delay by state in concluding its case taken together with weakness of State’s case constituting exceptional circumstances which in the interests of justice permitted the release of accused on bail

Mini Summary:

The state’s case, whilst described by it as a strong one, was not shown to be so before the Court. The state had not managed, in a period of two and a half years, to complete the evidence of their alleged strong case in the trial court. The inordinate delay in presenting the asserted strong case on behalf of the state was unexplained. In the circumstances, the delay since the trial started in November 2009 was significant and called for an explanation that had not been forthcoming.

There was no indication that the appellant would not stand trial. Instead, the evidence suggested the contrary. In the premises, the Court below was wrong in not concluding that the appellant had succeeded in showing that exceptional circumstances were present that, in the interests of justice, permitted his release.

Mini Summary:

The appellants were arrested on charges of robbery with aggravating circumstances and theft, arising out of the armed robbery of a business. They applied to be released on bail but were refused. The present appeal was noted against the judgment refusing them bail.

Keywords:

Criminal procedure – Bail – Bail money – Deceased accused

In the present case, the bail money therefore had to be repaid to the deceased’s brother.

Ramaisa v S
[2012] JOL 29081 (FSB)

Held that the issues for determination were whether the appellant had convinced the Court on a balance of probabilities that the interest of justice did not require his detention; whether the magistrate exercised her discretion to grant bail wrongly; and if so, whether the present Court was sufficiently persuaded that that was so, without imposing its view on the court a quo.

In an appeal against the refusal of the bail, no matter what the appeal court’s own views are, the real question is whether it can be said that the magistrate who had the discretion to grant bail, exercised that discretion wrongly. Bail has to be granted except where this was not in the interest of justice. In terms of section 60(9) of the Criminal Procedure Act 51 1977, in considering whether the interests of justice permit the release from detention of an accused, the court shall decide the matter by weighing the interests of justice against the right of the accused to his personal freedom and in particular the prejudice he is likely to suffer if he were to be detained in custody, taking into account various factors set out in the section. The magistrate did not consider the provisions of section 60(9) in arriving at her conclusion and overlooked some important aspects.

2010 AUGUST 12, 16

Bail—Evidence adduced at bail proceedings—Admissibility of at subsequent trial—Section 60(11B)(c) of Criminal Procedure Act 51 of 1977—Duty of court to warn accused where accused intends to use affidavit.

[2011] JOL 23140 (Tk)

Keywords:

In opposing the application, the second respondent relied on several points in limine. The court considered each one, and found none to have any merit. It was conceded by the second respondent’s representative that in such an event, the application would fall to be upheld.

The first respondent’s decision was set aside and the second respondent was directed to surrender herself to the Investigating Officer within 72 hours.

The appellants were facing four counts of contravening the Drugs & Drug Trafficking Act 140 of 1992. They appealed against the dismissal of their applications for bail. The grounds of appeal were that the regional magistrate had erred in not granting them bail on the basis of new facts put before the court, pertaining to delays in the prosecution of their trial and the strength of the case against them.

Held that section 60(11)(a) of the Criminal Procedure Act 51 of 1977 applied to the bail application of the first appellant who was charged with a schedule 6 offence. The section required him to adduce evidence which satisfied the court that exceptional circumstances existed which, in the interests of justice permitted his release on bail. Section 60(11)(b) was applicable to the other appellants as they were charged with a schedule 5 offence. The section required them to adduce evidence which satisfied the court that the interests of justice permitted their release on bail.

Mini Summary:

In the wake of the widely reported Fidentia saga, the first applicant was arrested and released on bail of R1 million. Subsequently, the third respondent issued and authorised two warrants for the arrest of both applicants on new charges.

The application was dismissed.

Patel v Magistrate Chokwe & others
[2008] JOL 22228 (T)

Held that every arrested person has a right to be released on bail and such right may be limited if found to be in the interest of justice to so do. Furthermore, every arrested person has a right to appeal to the Higher Courts against the refusal of granting of bail. The remedy available to the applicant herein was to appeal against the refusal to grant bail by the first respondent. The application to review and set aside the first respondent's decision could therefore not succeed.

Zulu v S
[2008] JOL 22247 (T)

He was charged with robbery with aggravating circumstances. The State drew to the court's attention that he also faced 44 other charges.

Held that the appellant was facing serious charges which fell under schedule 6 of the Criminal Procedure Act 51 of 1977 and as a result, section 60(11)(a) of the Act applied. Section 60(11)(a) contemplates an exercise in which the balance between the liberty interests of the accused and the interests of society in denying the accused bail being resolved in favour of the denial of bail unless exceptional circumstances are shown by the accused to exist. In a bail application, the onus rests on an accused person to prove the existence of such "exceptional circumstances".

Mini Summary:

An application for bail had to be decided by the court in the present case.

S v Khan – 2003(1) SACR 636 (TPD) – accused granted bail despite being foreigner. Court had regard to seriousness of offence and summed up factors to be considered.

S v C – 1998(2) SACR 721 (SCA) – court gave interpretation of application of phrase “ exceptional circumstances” relating to Schedule 6 offences. Held that court must simply exercise exceptional care when considering the usual circumstances.

Criminal law – Fraud – Tax offences – Application for bail – Refusal of – Appeal

Mini Summary:

The appeal was dismissed.

Petersen v S
[2008] JOL 21655 (C)

Held that section 60(11)(a) of the Criminal Procedure Act 51 of 1977 makes it clear that the onus is on the accused to adduce evidence, and hence to prove to the satisfaction of the court, the existence of exceptional circumstances of such a nature as to permit his or her release on bail. The court must also be satisfied that the release of the accused is in the interests of justice.

In the present case, the appellant relied on new facts which she alleged had come to light after her previous bail applications had been decided upon. In such circumstances, the court had to be satisfied, firstly, that such facts were indeed new and, secondly, that they were relevant for purposes of the new bail application. They could not constitute simply a reshuffling of old evidence or an embroidering upon it.

Having been charged with kidnapping and murder, and released on bail, the appellant was subsequently arrested again, this time on charges of corruption and defeating or obstructing the administration of justice. These charges arose from an alleged attempt to destroy certain evidence relating to the kidnapping and murder charges. His application for bail on the latter charges was refused, essentially on the grounds that there was a likelihood that the appellant would again attempt to interfere with the evidence. An appeal to the High Court against this refusal was dismissed. The Deputy Director of Public Prosecutions (DDPP) then decided to combine the two sets of charges against the appellant, and to arraign him in the High Court, which meant that the appellant would have to remain in custody as an awaiting trial prisoner for some seven months more than he would have if the trial had been held in the magistrates' court. This anticipated delay formed the grounds for a further bail application and, that application having failed, for a further appeal to the High Court. It was contended on his behalf that the magistrate had failed to have proper regard to the effects of the DDPP's decision to arraign him in the High Court; and that the delay occasioned thereby had unfairly prejudiced the appellant by adversely altering his personal circumstances.
Held , that the court could not interfere with the magistrate's decision, unless it was shown that he had misdirected himself in some way. It might have been so that the State had led no evidence to justify its decision to move the matter to the High Court, but there was nothing in s 60 of the Criminal Procedure Act 51 of 1977 that required magistrates presiding over bail applications to scrutinise the procedures chosen by the State to prosecute offenders. In the absence of proof that the State had acted mala fide, delays caused by decisions of the prosecution were not in themselves reason for finding that an arrested person was entitled to bail. Although the appellant had already spent a considerable time in custody, it could not be said that the passage of time had diminished the likelihood of the appellant's flight or of his making further attempts to interfere with the evidence.
Held , further, concerning the assertion that the appellant's business was losing money because of his absence, and that his wife and son had to live on less than what they had been accustomed to, that financial loss was an inevitable conclusion of the incarceration of any gainfully employed person. However, the evidence did not show that the appellant's dependants would starve if he were not released to fend for them. While the moving of the case would prolong and exacerbate the privations of his dependants, in the absence of bad faith on the prosecution's part, or of any fresh evidence relating to the appellant's personal circumstances, it could not be found that the magistrate had erred in finding that these circumstances were outweighed by the possibility that the appellant might evade trial or tamper with the evidence. Appeal dismissed.

Case Information - Appeal against the refusal of bail. The facts appear from the judgment of Grogan AJ.

The accused in this matter had been arraigned for trial on an indictment containing two charges of the murder of his wife and paraplegic son. He was granted bail pending the finalisation of his criminal trial, but died before the trial in a road accident.

The question for decision was whether the provisional forfeiture of the bail money that was deposited for the benefit of the deceased should be confirmed or whether it should be repaid to the deceased’s brother who had paid it.

Keywords:

Criminal law – Bail pending appeal against conviction – Section 321 of the Criminal Procedure Act 51 of 1977 – Appeal against refusal of bail – A trial court’s refusal of bail will be reversed only where the court failed to bring an unbiased judgement to bear on the issue, did not act for substantial reasons or exercised its discretion capriciously or upon a wrong principle – Where court not satisfied with appellant’s prospects of success on appeal, or that she was not a flight risk, appeal dismissed

Regarding whether or not the appellant posed a flight risk, the Court shared the trial court’s concerns about the lack of detail regarding the personal circumstances of the appellant. The burden of establishing exceptional circumstances justifying her release on bail rested on the appellant. Yet, she adduced insufficient facts regarding her financial affairs and her ties with South Africa. Very little was known about her, and there was no guarantee that even stringent bail conditions would provide an adequate safeguard against the risk of abscondment in the circumstances. Her appeal was accordingly dismissed.

26. BALANCE OF PROBABILITIES

Convicted on a charge of murder, and sentenced to 15 years’ imprisonment, of which five years were suspended on certain conditions, the appellant appealed against conviction only.

It was common cause that the deceased in the murder count died as a result of a gunshot fired from the appellant's licensed fire-arm.

Keywords:

Criminal law – Rape – Appeal against conviction – Onus of proof – Trial court committing a fatal misdirection in rejecting appellant’s version merely because it was improbable – An accused’s version can only be rejected if the court is satisfied that it is false beyond reasonable doubt – Where evidence favours either version, an accused is entitled to an acquittal

Held that the narrow issue on appeal was that of consent.

A perusal of the magistrate’s analysis of the evidence revealed that he had applied the incorrect standard of proof. In appearing to have rejected the appellant’s version on the basis that it was improbable, the magistrate committed a fatal misdirection. In criminal matters the state must prove its case beyond reasonable doubt. An accused’s version can only be rejected if the court is satisfied that it is false beyond reasonable doubt. An accused is entitled to an acquittal if there is a reasonable possibility that his or her version may be true. A court is entitled to test an accused’s version against the improbabilities. However, an accused’s version cannot be rejected merely because it is improbable. The magistrate, in his judgment, did not point to any improbabilities in the appellant’s version, and the present Court was of the opinion that there were none.

2002(1) SACR 654 (C)

DESAI J, ordered the surgical removal of a bullet from the leg of an accused for purposes of ballistic tests. The SAPS had obtained a search warrant to search for the bullet and it was ordered that they may use such reasonable force as was necessary, inclusive of a surgical procedure. The accused had refused to consent to the surgical procedure.

29. CASE LAW

Nontela v DPP, Umtata – 2003 (2) SACR 205 (TkD) – practitioner has duty to bring to court’s attention any authority of which he is aware and is relevant to the determination of the relevant dispute whether or not such authority is in his client’s favor or not.

Mini Summary:

Convicted of the murder of a 15-year-old boy, the appellant a farmer, was sentenced to 12 years' imprisonment. He appealed to the present court.

On the appeal against sentence, the court highlighted the aggravating circumstances, such as the sustained and vicious attack of the appellant against the defenceless deceased. It was of the view that the sentence imposed was on the lenient side, and declined to uphold the appeal.

S v Counter - 2003 (1) SACR 134 (SCA) – accused shot deceased who died later due to complications in hospital. Dealt with novus actus. Still murder!

The appellant's father had been convicted of murder and sentenced to a lengthy term of imprisonment. The incident underlying that conviction was a shooting of the appellant’s mother and sister by his father whilst under the influence of alcohol.

Suing the respondent for damages, the appellant based his claim on the contention that the police were negligent in failing to take the steps available to them in law to deprive the appellant's father of his firearms. According to the appellant, had that been done, the tragedy regarding his family would not have occurred.

The appellant's action required the court to extend the common law action for damages for loss of support to a person in the position of the appellant. The claim for loss of support was alleged to have occurred in consequence of the incarceration of the breadwinner. The court pointed out that that cannot give rise to a claim. The deprivation of the breadwinner's liberty, which rendered him incapable of supporting the appellant, was a consequence of the law simply having taken its course.

The appeal was dismissed.

Criminal law – Rape – Conviction and sentence – Appeal

Mini Summary:

Keywords:

Criminal law – Rape – Conviction and sentence – Appeal

The complainant's evidence in this case was highly unsatisfactory. It could not be said, based on her testimony, that the State had proven the guilt of the appellant beyond reasonable doubt.

Consequently, the court made the order which it did.

Mini Summary:

The appellant was convicted on two counts of rape and was sentenced to two terms of life imprisonment, which were to run concurrently. The present appeal was against the convictions and sentence.

The irregularities referred to above, singularly or cumulatively were of such a nature that they resulted in justice not having been done, and the appellant not having a fair trial.

The appeal was upheld and the convictions and sentence wet aside.

Kolea v S
[2013] JOL 30790 (SCA)

Keywords:

The appellant contended that as he was charged and convicted under section 51(2) of the Act, it was not thereafter open to the respondent to invoke a completely different sub-section, ie section 51(1), which provides for a more severe sentence. It was contended further that the Regional Court was competent to impose a sentence in terms of section 51(2) of the Act, read with Part III of Schedule 2, and had no authority to refer the matter to the High Court for sentencing. The Court pointed out that the accused’s right to be informed of the charge he is facing, and for there to be sufficient detail to enable him to answer it, is underpinned by section 35(3)(a) of the Constitution, which provides that every accused person has a right to a fair trial. If the State intends to rely on the minimum sentencing regime created in the Criminal Law Amendment Act, that should be brought to the attention of the accused at the outset of the trial. In this case, the State’s intention to rely on and invoke the minimum sentencing provisions was made clear from the outset. The charge sheet expressly recorded that the appellant was charged with the offence of rape, read together with the provisions of section 51(2) of the Act. The Court was therefore satisfied that the appellant, who was legally represented throughout the trial, well knew of the charge he had to meet and that the State intended to rely on the minimum sentencing regime created in the Act.

In appealing the conviction, the appellant challenged his identification as one of the perpetrators of the rape. However, the Court found the evidence to prove that the appellant had been properly identified.

Criminal law – Inclusion in charge sheet of statutory provisions which had been declared unconstitutional – In terms of section 322(1) of the Criminal Procedure Act 51 of 1977, a court of appeal may allow the appeal if it thinks that the judgment of the trial court should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a failure of justice – Test for a failure of justice requires the appellate court to exclude from consideration all aspects of the trial that were affected or influenced by the irregularity and to evaluate only the evidence that remains unsullied

Mini Summary:

Daniels and others v S
[2012] JOL 29258 (SCA)

Keywords:

In the present case, the inclusion in the charge sheet of a reference to the unconstitutional provisions did not exercise an adverse influence on the conduct of the trial. The Court was not persuaded that the irregularity occasioned by the unconstitutional reference to the reverse onus presumptions in the charges caused the applicants to refrain from testifying in their own defence. The evidence of their guilt was overwhelming and they knew that the state did not intend to rely on the invalid presumptions. The inference drawn was that they decided to take a chance on escaping conviction by relying on the technical irregularity.

Of the view that there was no prospects of success on the merits, the Court refused leave to appeal.

Upon his conviction on a charge of rape, the appellant was sentenced to 15 years’ imprisonment. Leave to appeal was eventually obtained solely in respect of sentence. The high court then set aside the sentence, and replaced it with a sentence of life imprisonment. The further appeal against sentence was with the leave of the court below.

Due to the numerous errors on questions of law and procedure which occurred from the inception of the case, at the hearing of the present appeal, both parties agreed that the appeal should succeed and that the order made by the court below should be set aside.

The appeal was upheld and the sentence replaced with one of 10 years’ imprisonment

Mphukwa v S
[2012] JOL 29031 (ECG)

Held on appeal that it was apparent from the indictment that although the appellant was charged with rape, the contents of the indictment revealed the commission of attempted rape. No rights to legal representation were explained to the appellant immediately before and after the charge had been put to him. Instead, before evidence was led the court repeated the explanation of the two charges. The error in the charge resulted in the appellant being convicted of rape, a more serious offence, than that of attempted rape to which he had pleaded at the beginning of the trial.

The right to legal representation is constitutionally guaranteed, and must be properly explained to the accused by the court. In the present case, there was no evidence to suggest that the appellant was encouraged to exercise his right to legal representation. The failure to inform an accused of his right to legal representation and/or the availability of legal aid, does not necessarily have the effect of vitiating the proceedings in a criminal trial. To constitute a fatal irregularity warranting the setting aside of the proceedings there must be proof of substantial prejudice to the accused or a miscarriage of justice. It was clear that a fatal irregularity had occurred in this case.

Mini Summary:

The appellant was convicted of housebreaking with intent to assault and assault with intent to do grievous bodily harm, and was sentenced to three years’ imprisonment, one year of which was conditionally suspended.

Ngumbela v S
[2008] JOL 21934 (E)

Keywords:

In terms of section 86(1), the amendment of a charge involves the exercise of a discretion on the part of the trial court. Amendment on appeal is not simply a matter of this court substituting its discretion for that of the magistrate. The court of appeal must effect the amendment to the charge which the magistrate ought to have effected, but in quite different circumstances and with fewer procedural powers than the magistrate had to abate the potential prejudice to the accused. The court refused the amendment.

As the second charge was linked to the first, the appeal was allowed in respect of that conviction also.

Keywords:

Criminal procedure – Robbery with aggravating circumstances – Conviction and sentence – Appeal – Irregularities in trial

The appeal was allowed and the conviction and sentence set aside.

S v De Vries & others
[2008] JOL 21658 (C)

Held that the applicants were asking the court not to consider the merits of the evidence adduced by the State and the accused, but to rule on technical points. Should the challenges prove successful the court was being asked to disregard all of the evidence that had been led since the inception of the trial. It was being asked to review the regularity of its own proceedings, which was not a power which the court could arrogate to itself.

The only possible remedy that was available to the accused seeking, at such a late stage to challenge the validity of the authorisation, without objection on the first day of trial, was to seek a special entry of irregularity or illegality in terms of section 317 of the Criminal Procedure Act 51 of 1977. However, the court found that they had not made out a case in that regard, and dismissed the application.

Mini Summary:

The appellant was convicted on 22 charges of criminal defamation and sentenced to 3 years' imprisonment suspended for 5 years and, to 3 years' correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act 51 of 1977. Leave to appeal was granted, with the court stipulating that that argument would be required on the question whether the crime of defamation is still extant, and if so whether it is consonant with the Constitution.

S v Goliath
[2015] JOL 32716 (ECG)

Keywords:

Held that once a child sentenced to compulsory residence in a Child and Youth Care Centre has been admitted thereto, the Child Justice Court which sentenced that child becomes functus officio, its jurisdiction having been fully and finally exercised. The only basis therefore upon which that child’s sentence could be interfered with would be by way of review or appeal. Absent that, the presiding officer has no jurisdiction to impose an alternative sentence upon the child in question. In the light of the closure of the relevant facility the sentence imposed upon the accused had to be set aside and the case remitted to the regional magistrate for sentencing afresh.

S v Ngubeni
[2014] JOL 31539 (GSJ)

Held on review that at the commencement of the trial, there was an error in the age of the accused, which error only became known after the conviction stage. In terms of the Child Justice Act 75 of 2008, the child had to attend a preliminary enquiry to establish whether he could be diverted from the criminal justice system.

All the proceedings held in the matter were set aside.

The accused, a 16-year old boy, pleaded guilty to housebreaking with intention to steal and theft. He was sentenced in terms of section 76(1) of the Child Justice Act 75 of 2008 to three years’ compulsory residence at a child and youth care centre providing a programme designed for the reception, development and secure care of children as contemplated in section 191(2)(j) of the Children’s Act 38 of 2005. The matter came before the present Court on automatic review.

Held that the automatic review regime in our criminal justice system is limited, in its application, to cases in which the accused was not legally represented at the proceedings which resulted in the sentences envisaged in section 302(1) of the Criminal Procedure Act 51 of 1977. Any argument to the effect that an interpretation which excludes a child who was legally assisted at the relevant trial from the purview of section 302(1) as read with section 85(1) of the Child Justice Act defeats the clear intention of the legislature to afford children additional protection, and loses sight of the fact that not all children in conflict with the law are afforded additional protection in the form of automatic review.

Mini Summary:

After the accused was convicted of theft, it emerged during sentencing that he was 16 years old and not 18 as indicated in the charge sheet. The magistrate referred the case on special review, with the request that the conviction be set aside so that the accused could be dealt with in terms of the Child Justice Act 75 of 2008.

Juvenile offenders—Sentence—Committal to child- and youth-care centre—Reviewability of sentence—Sentence subject to review, whether child legally represented or not—Child Justice Act 75 of 2008, ss 76 and 85.

S v Z and four other cases – 1999(1) SACR 427 (ECPD) – gave an extensive exposition of principles governing, and options available in sentencing juvenile offenders. Court considered as juveniles, all persons under age of 21, not just 18. Is inappropriate to impose imprisonment, including suspended imprisonment on juvenile unless a pre-sentence (probation officers) report has been obtained.

Mini Summary:

The appellant was convicted on two counts of rape and was sentenced to two terms of life imprisonment, which were to run concurrently. The present appeal was against the convictions and sentence.

The irregularities referred to above, singularly or cumulatively were of such a nature that they resulted in justice not having been done, and the appellant not having a fair trial.

The appeal was upheld and the convictions and sentence wet aside.

The accused was convicted in a magistrates' court of indecent assault and was sentenced to 10 years' imprisonment. An appeal against the conviction and sentence to the high court was dismissed. In a further appeal the court requested further argument from the parties on the issue whether there had been proper compliance with the provisions of s 163 read with the provisions of ss 162 and 164 of the Criminal Procedure Act 51 of 1977. The issue arose concerning the evidence of the complainant who was 14 years old at the time of the trial, but who was 8 years old when the offence was allegedly committed. The record showed that the magistrate merely asked the complainant how old he was; what the date of his birth was; and what grade he was in, before asking the appellant's legal representative whether he accepted that the complainant was a competent witness. When the legal representative confirmed that the complainant was a competent witness the magistrate proceeded to ask the complainant whether he believed in God and whether he believed that he would be punished if he told lies after swearing to tell the truth. The complainant answered in the affirmative to these questions and he was then sworn in.

Held, that it could be accepted that the magistrate managed to determine merely from such an elementary line of questioning pertaining to the complainant's age, date of birth and level of education that the complainant was competent to testify. Furthermore, the appellant's legal representative was not qualified to express an opinion on the complainant's competency. It is not clear on what basis his opinion was solicited by the magistrate, nor on what basis he expressed it. (Paragraph [7] at 402g–h.)

Peter v S
[2011] JOL 26680 (ECG)

Keywords:

Held that the eye witness had a good opportunity to observe the perpetrator. The court found that the trial court had correctly accepted her identification of the appellant.

As regards sentence, the court found no grounds for departing from the sentence imposed by the trial court.

Mini Summary:

Convicted of the rape of his six-year-old daughter, the appellant appealed against his conviction and sentence.

Criminal procedure – Rape – Conviction – Appeal

Mini Summary:

The only ground on which the appeal was upheld, was on the failure of the magistrate to conduct an inquiry to determine whether the complainant and another witness understood the distinction between truth and fabrication.

Swartz v S
[2008] JOL 22396 (C)

He appealed against his conviction.

Held that presiding officers are required, when dealing with young witnesses, to determine whether they have the necessary competency to testify. In the present case, the regional magistrate was required to determine whether the witness, a child of seven years of age at the time of the trial, was a competent witness to give sworn evidence in terms of section 162 of the Act.

Criminal procedure – Criminal justice system – Cases involving children – Rights of children – Protection of

Mini Summary:

36. CHILDREN’S COURT MATTERS

Botha v Dreyer (now Möller)
[2008] JOL 22809 (T)

Held that there is no legislation which specifically regulates the position of compulsory blood or DNA testing in parental disputes. The court was of the view that such testing could play an important role in establishing the truth. Just as courts deploy methods of compulsion to arrive at the truth in a variety of causes, there should be no overriding reason in principle or policy impeding the exercise of their inherent power and authority, as upper guardian or otherwise, to order scientific tests in the interests of discovering the truth and doing complete justice to all parties involved in a suit.

The court found that the applicant did have a positive interest in establishing whether he was the child's father. It then turned to consider whether it would be in the best interests of the child for her paternity to be established with certainty. That question was answered in the affirmative. The application was thus granted.

In two cases, which were consolidated for purposes of this judgment, the accused were convicted of raping girls under the age of 16 years. The court raised certain constitutional issues mero motu. Essentially the court questioned whether the present provisions of the Criminal Procedure Act 51 of 1977 that require child victims and child witnesses to testify under oath and in an adversarial procedure, were compatible with the Constitution of the Republic of South Africa, 1996, which requires in section 28(2) that the interests of children shall be paramount under any circumstances. The same question was raised in respect of section 52(2) and 52(3)(d) and (e) of the Criminal Law Amendment Act 105 of 1997, the application of which could require the child to testify more than once.

Held that the Constitution protects the rights of children and makes a child's best interests of paramount importance in every matter concerning a child.

Keywords:

Family law – Parent and child – Maintenance – Attachment of money

Held that section 28(2) of the Constitution of the Republic of South Africa provides that the child's best interests are of paramount importance in all matters concerning the child. The Maintenance Act 99 of 1998 has also put mechanisms in place to ensure the recovery of maintenance from recalcitrant parents.

Although the respondent showed a willingness to fulfil his maintenance obligations, the court found it to be in the child's best interests for the application to be granted.

The parties herein were divorced in 2004, and the respondent was awarded custody of the minor child born of the marriage. The respondent was granted access rights to the child. In the present application, the applicant contended that the respondent was in breach of the divorce order in that she was not allowing the applicant reasonable access to the child as she had not given him her telephone number. He was also unhappy about a decision taken by the respondent, without his knowledge, to place the child in a remedial school. He therefore sought an order of contempt of court against the respondent.

Held that the applicant was required to prove his case beyond a reasonable doubt. Once the prosecution had established the existence of the order; its service on the accused; and non-compliance, if the accused failed to furnish evidence raising a reasonable doubt whether non-compliance was wilful and mala fide, the offence will be established beyond reasonable doubt.

Mini Summary:

In a divorce action between the parties, the issue in dispute was the interpretation and application of section 7(2) of the Divorce Act, which confers a discretion upon the court to make a maintenance order in favour of one spouse against the other.

S v Modiba
[2014] JOL 31535 (GSJ)

Keywords:

On the evidence as a whole the dispute was a narrow one. It was whether the state had managed to discharge the onus it had in proving the guilt of the accused beyond a reasonable doubt, regard being had to the totality of the evidence.

An accused can be convicted of a crime based on circumstantial evidence. Two cardinal rules of logic apply to such evidence. Firstly, the inference that the accused committed the various offences must be consistent with all the proved facts. If not, the inference cannot be drawn. Secondly, the proved facts should be such that they exclude every reasonable inference from them save that it was the accused who was the perpetrator. Applying those principles, the Court found the accused guilty of all the charges except for those of unlawful possession of a firearm and ammunition.

Criminal law – Murder – Robbery with aggravating circumstances – Conviction and sentence – Appeal – Evidence – Circumstantial evidence – Rules

Mini Summary:

The evidence of the appellant was conflicting as to how he came into possession of the items.

The fundamental rule to be applied by a court of appeal is that while the appellant is entitled to a rehearing, because otherwise the right of appeal becomes illusory, a court of appeal is not at liberty to depart from the trial court’s findings of fact and credibility, unless, they are vitiated by irregularity, or unless an examination of the record of evidence reveals that those findings are patently wrong. Those principles are apposite to cases where circumstantial evidence is relied upon.

Mini Summary:

A robbery perpetrated on a municipality resulted in a person being fatally shot. The appellant was charged with murder and robbery with aggravating circumstances. The state alleged that he had acted in concert with certain others and in furtherance of the execution of a common purpose to commit the crimes. as there was no direct evidence of such participation by the appellant, the respondent urged the court to consider the circumstantial evidence tendered and to infer there from that there was such participation.

Keywords:

Criminal law – Doctrine of common purpose – Accused may be convicted on basis of common purpose if they were present where the violence was being committed; they were aware of the offence; they intended to make common cause with the perpetrator of the offence; they manifested their sharing of a common purpose with the perpetrator by themselves performing some act of association with the conduct of the perpetrator; and they had the requisite mens rea concerning the unlawful outcome at the time the offence was committed – Criminal law – Murder – Appeal against conviction and sentence – First appellant’s appeal failing in that guilt established beyond reasonable doubt by eye witnesses and medical examiner – Criminal law – Sentence – Appeal against sentence – Cumulative effect of sentences rendering it too severe – Ordering that the sentences run concurrently serving the objects of sentencing – Criminal procedure – Application for postponement – Refusal of application – Whilst a court will generally be slow to refuse a postponement because of the adverse consequences which might arise, a litigant who seeks such indulgence must nonetheless satisfy the court fully that it should condone his non-preparedness –

At the commencement of the present appeal hearing, the first appellant applied for a postponement of the matter on the basis that he had not been able to raise sufficient funds to engage counsel of his choice to represent him in court.

Held that the first appellant had been notified of the date of hearing about six weeks in advance and had rejected his attorneys’ advice to apply for legal aid. More than two years had passed since leave to appeal was granted, and no explanatory affidavit was forthcoming from the first appellant. Whilst a court will generally be slow to refuse a postponement because of the adverse consequences which might arise, a litigant who seeks such indulgence must nonetheless satisfy the court fully that it should condone his non-preparedness. As the first appellant failed to satisfy the Court on any of those grounds, the Court refused the application and ordered that the hearing proceed.

However, the case of the second and third appellants was different. Although they participated in the first stage of the incident, involving mere fisticuffs, there was nothing in their actions thereafter that indicated an intent to associate themselves with the stabbings. There was no basis to conclude that they intended the stabbing of Conrad and the deceased and made common cause therewith. They should, therefore, not have been convicted for those offences.

It remained for the Court to determine whether the sentences imposed by the magistrate on the first appellant were appropriate. The Court took into account the fact that the magistrate had taken cognisance of the first appellant’s youthful age and clean record and had cautioned himself against ever-emphasising the sentencing element of deterrence. Against that was the fact that the deceased was robbed of his life in a senseless incident. The Court agreed that the first appellant was convicted of very grave offences which warranted the imposition of substantial custodial sentences.

Criminal law – Appeal against conviction – Unlawful possession of firearm – Whether state had established that the appellant possessed the firearm jointly with the passenger who was found in possession thereof – state had to prove that the appellant had the necessary mental intention (animus) to possess the firearm – Court finding no facts from which it could be inferred that the appellant had the necessary intention to exercise possession of the firearm through his passenger or that the latter had the intention to hold the firearm on behalf of the appellant –

Mini Summary:

Applying the principles set out in case law, the court concluded that there were no facts from which it could be inferred that the appellant had the necessary intention to exercise possession of the firearm through his passenger or that the latter had the intention to hold the firearm on behalf of the appellant. The conviction and sentence imposed in respect thereof were thus set aside.

S v Cele
[2013] JOL 30688 (GSJ)

Held that central issue was whether the State had proved beyond a reasonable doubt that the accused was one of the two men who robbed and killed the deceased, as well as making an attempt on the life of a surviving victim.

The State bears the onus of proving the guilt of the accused beyond reasonable doubt. There is no reverse onus on the part of the accused to prove his innocence. An accused is entitled to be acquitted if there exists a reasonable possibility that he might be innocent regard being had to the totality of the evidence.

Criminal law – Robbery – Murder – Unlawful possession of firearm and ammunition – Conviction – Sentence – Appeal

Mini Summary:

The appropriate category within which the murder fell was part 2 of Schedule 2 to the Criminal Law Amendment Act 105 of 1997. In respect of first offenders, the prescribed minimum sentence was 15 years' imprisonment. The sentences imposed by the trial court were set aside and replaced with reduced sentences.

S v Bacela & another
[2008] JOL 21998 (Ck)

Held that the evidence established that the accused committed the crime of housebreaking with intent to steal and theft, and not a conviction of housebreaking with intent to rob and robbery or even of any attempt to commit the offence of robbery. The evidence also established that the first accused stabbed the deceased and inflicted three wounds to his chest. He stated he was aware that in stabbing the deceased in the chest it would cause his death. The court was satisfied therefore that he had murdered the deceased. As there was not evidence that the second accused knew what the first accused was going to do, he was acquitted on the murder charge.

S v MWASE AND OTHERS 2011 (2) SACR 462 (FB)

Appeal from a sentence imposed in a magistrates' court. The facts F appear from the reasons for judgment.

Mbanyaru & another v S

The appellants appealed against their convictions and sentences (18 and 14 years respectively) for murder and attempted murder for shooting to death the driver of a motor vehicle and shooting and injuring the person in the passenger seat.

Held that while the trial court correctly rejected the alibi defence of the appellants and accepted the evidence of two state witnesses who saw both accused running away from the scene of the shooting, the court erred in finding that both accused were armed. Only the 1st appellant was armed. There was, however, no evidence that the second appellant had intended to make common cause with first appellant or had manifested a common purpose by performing some act of association with the conduct of first appellant or had the necessary mens rea. The only incriminating evidence against the second appellant was that, after the shooting, he ran away with the first appellant, who was armed. The mere presence and running away from the scene of the crime with the perpetrator, did not meet the requisites for common purpose.

Sv Abduragham Thebus & Moegemat Adams - Aug. 2003 (CCT 36/02) – Constitutional court found that common law doctrine of common purpose not unconstitutional. Discussed principle in detail.

S v Toubie 2004(1) SACR 550 (WLD) – robbery & possession firearms. Accused all doing different things in robbery. Intent the same. Ones act attributed to all. All guilty robbery etc.

S v Mgabhi
[2008] JOL 21734 (D)

Keywords:

Held on review that the term of 3 years' imprisonment should be replaced with one of 1 year's imprisonment. The court was also dissatisfied with the terms upon which the magistrate suspended that further period of imprisonment, namely the condition that the accused compensate the complainant in the amount of R30 000 at a rate of R1 000 per month. It was clear that the accused was in no position to pay such a compensatory amount, and that his father would have to pay the amount. The magistrate had no power to make such an order against the father.

Secondly, it was impermissible to make the award of compensation subject in the alternative to a sentence of imprisonment.

Criminal procedure – Criminal proceedings – Application for review

Mini Summary:

Keywords:

Criminal procedure – Competence of legal representative – Robbery with aggravating circumstances – Alibi defence – Not led in chief – Not put to prosecution witnesses – Gross irregularity – Irregular conduct of presiding officer – Convictions set aside

S v Stevens 2003(2) SACR 95 (TPD) – candidate attorney appears without right of appearance. Proceedings irregular even if refused permission by principal to apply for certificate. Matter sent on review and set aside.

S v Mafu + 2 Case no. A1105/2005 (WLD) – this was an appeal where the representation on trial was pathetic. The court had no hesitation to find the representation incompetent. The question that fell to be answered was whether such incompetence led to a failure of justice. In this case it clearly did. The appeal succeeded. The presiding officer also descended into the arena to such an extent that it rendered the trial per se unfair.

The three appellants, who were Zimbabwean citizens, had been charged with robbery with aggravating circumstances for assaulting their victim in a spaza shop where they robbed him of his cell phone and passport. The defence that they were not in the spaza shop only came to light during the prosecutor's cross-examination of them; their own legal representative had failed to lead this evidence during chief, and he had failed to put this evidence to the state's witnesses during his cross-examination of them. The appellants were convicted as charged and each sentenced to 13 years' imprisonment. In this appeal the issue was the competence of their legal representative.

Held that a court is entitled to see and hear the reaction of state witnesses when they are told that the accused, who they have identified as the perpetrators, were in fact elsewhere and could not have committed the crime. It is also important for the court to know that the alibi defence will be raised because the court will then know that the whole question of identification "comes acutely into the foreground", and a cautionary rule becomes applicable. It is also important for the prosecution to know that such a defence will be raised in order for the prosecution to verify the correctness of it. The failure of the appellant's legal representative had been inexcusable and a breach of rudimentary duty. He never disputed the fact that had been informed about this defence and had referred to it in his closing address. His failure constituted a gross irregularity that went "to the very ethos of justice and notions of fairness". The record also showed that the magistrate had been prejudiced against the appellants; the questions put by the court had not been for purposes of clarification but for the purpose of pressurizing them into saying things the court wanted them to say. They amounted to judicial harassment. The cumulative effect of the two types of irregularities vitiated the proceedings in the court a quo. The convictions and sentences were set aside.

Mini Summary:

The accused was charged with one count of assault with intent to do grievous bodily harm and another count of theft. The trial magistrate convicted the accused on the count of assault but on the count of theft convicted him not of theft but of malicious injury to property. The evidence supported the conviction of assault. The reason for the magistrate not convicting on the count of theft was that the accused did not, in fact, steal the property of the complainant but threw his merchandise, which consisted of vegetables, on to the ground where it was trampled upon by the accused and passers-by. Some of the persons who were passing by helped themselves to the merchandise on the ground.

Criminal law – Robbery with aggravating circumstances – Conviction and sentence – Appeal

Mini Summary:

Keywords:

Criminal procedure – Conviction – Special review – Competent verdicts – Theft – Malicious injury to property

Johnson v S
[2008] JOL 22050 (T)

Keywords:

The appeal was dismissed.

S v Msiza
[2008] JOL 22047 (T)

Held that the accused could be found guilty of theft despite not having being warned of the competent verdict.

Held further that the conviction of theft warranted a heavy sentence in the light of the accused's previous convictions of housebreaking with intent to steal and theft; three of theft and one of possession of presumably stolen property

Criminal procedure – Robbery – Competent verdict – Assault – Accused not warned beforehand – Irregularity not prejudicial – Assault conviction confirmed Criminal procedure – Sentencing – Youth – No pre-sentence report – Sentence set aside – Matter remitted for sentencing afresh

Mini Summary:

1. S v RAGHUBAR 2013 (1) SACR 398 (SCA)

The accused was convicted in a magistrates' court of indecent assault and was sentenced to 10 years' imprisonment. An appeal against the conviction and sentence to the high court was dismissed. In a further appeal the court requested further argument from the parties on the issue whether there had been proper compliance with the provisions of s 163 read with the provisions of ss 162 and 164 of the Criminal Procedure Act 51 of 1977. The issue arose concerning the evidence of the complainant who was 14 years old at the time of the trial, but who was 8 years old when the offence was allegedly committed. The record showed that the magistrate merely asked the complainant how old he was; what the date of his birth was; and what grade he was in, before asking the appellant's legal representative whether he accepted that the complainant was a competent witness. When the legal representative confirmed that the complainant was a competent witness the magistrate proceeded to ask the complainant whether he believed in God and whether he believed that he would be punished if he told lies after swearing to tell the truth. The complainant answered in the affirmative to these questions and he was then sworn in.

Appeal from a decision on appeal in the KwaZulu-Natal High Court (Nicholson J and Vahed AJ). The facts appear from the reasons for judgment. 

S v Dladla 2011 (1) SACR 80 (KZP)

Criminal procedure – Rape – Conviction – Appeal

Mini Summary:

The only ground on which the appeal was upheld, was on the failure of the magistrate to conduct an inquiry to determine whether the complainant and

Swartz v S
[2008] JOL 22396 (C)

He appealed against his conviction.

Held that presiding officers are required, when dealing with young witnesses, to determine whether they have the necessary competency to testify. In the present case, the regional magistrate was required to determine whether the witness, a child of seven years of age at the time of the trial, was a competent witness to give sworn evidence in terms of section 162 of the Act.

Criminal procedure – Assault with intent – Conviction and sentence – Trial proceedings – Errors

Mini Summary:

44. COMPUTER GENERATED EVIDENCE

S v Harper - 1981(1) SA 88 (D) – Requirements for proving admissibility of documents other than those covered by Section 212 is dealt with in detail. Dealt with microfilms and computer print outs.

If an accused places the body of her child in a bucket at her house it is not

enough for a ‘disposal’ of a body of a child in a contravention of section 113(1)

and (3) of the General Law Amendment Act 46 of 1935 in that she had unlawfully

and with the intent to conceal the fact of the birth of a child, attempted to dispose of

of 1935.

13

a bucket at my house. The child was prematurely born and was dead at birth.

3. I know my actions were wrong and unlawful. I have remorse for my actions."

prosecutor informed the court that no written authorisation existed but that the

Director of Public Prosecutions had given verbal permission for the prosecution to

Magistrate was not convinced of the validity of the prosecution.

2. Senior State Advocate A.J. Fourie wrote an opinion with which Deputy Director of

child

(1) Any person who, without a lawful burial order, disposes of the body of any newly

that the child in question died before its body was disposed of.

(3) The institution of a prosecution under this section must be authorised in writing

failure to obtain written authorisation prior to a prosecution can be (or was in this

instance) ratified by the Director of Public Prosecutions, the conviction ought

be possible, that there had, in casu, been a written authorisation ratifying the

institution of the prosecution prior to conviction. Consequently the accused could not

child. According to the plea explanation quoted above, the accused, however, only

admitted that she lied to a sister at the clinic about the fact that she gave birth. She

disposal" of the body of a child. In casu there was no admission by the accused that

she either disposed or attempted to dispose of the body. The Magistrate could

"Now, the provision of the law, sec. 113 of the General Law Amendment Act 46 of

1935, which defines the crime with which accused stands charged, uses the word

where it is intended by the party placing or putting it there that it should remain. Here

the evidence shows that accused put the child's dead body in the box; we are

the body is not in our view a disposition in the sense intended by the legislature. In

the case relied upon by the Crown of Rex v Smith {1918 CPD 260) the facts went far

thereby attempted to dispose of the body. Reference was made to S v D 1967(2) SA

537 (W) wherein it was remarked that it is notorious that many mothers of newly

which only consisted of the admissions by the accused, does not prove a disposal of

the body nor of an attempt to do so. The accused may have formed an intention to

based on the fact that in order for a conviction to follow, there must be evidence,

which includes admissions in terms of section 112 (2) of the Criminal Procedure Act,

[Chapter 57] which applied in that case, and which is similar to its South African

counterpart, is one that has reached a stage of development, irrespective of the

11. In S v Manngo 1980 (3) SA 1041 (V) van Rhyn CJ was concerned with an

offence of concealment of birth in contravention of s 113 of Act 46 of 1935. The

stage of maturity at the time of birth that it might have been born a living child. He

found that in that instance it was clear that the foetus could not have been

Act, Chapter 57 (R), a child must be regarded as one whose birth is required to be

registered in terms of the Births and Deaths Registration Act, Chapter 30 (R). It was

16

and thus a viable child. Consequently, so it was submitted, the conviction can for this

time of birth that it might have been born a living child. In casu there was no

evidence regarding the duration of the pregnancy nor of the viability of the

46. CONCURRENT SENTENCES

Khubheka v S
[2014] JOL 32414 (GJ)

Held that having regard to the evidence, the Court found no merit in the appeal against the convictions.

As far as sentence was concerned, it was found that the court a quo took into account all relevant factors and did not commit any misdirection, material or otherwise, in sentencing the appellant on the first count. However, as counts 2, 3 and 4 all arose from the same set of facts, the court a quo should have ordered the sentences on those counts to run concurrently. Its failure to do so amounted to a misdirection, entitling the court of appeal to interfere with a portion of the order on sentence imposed by the court a quo. The effective sentence thereafter was one of 15 years’ imprisonment.

The appellant was convicted of murder and robbery with aggravating circumstances. In respect of the robbery with aggravating circumstances he was sentenced to 15 years’ imprisonment. It was ordered that 5 years of the sentence on the robbery count run concurrently with the sentence of 25 years, thus resulting in an effective term of 35 years imprisonment. The underlying incident was the murder of a policeman by the appellant and the taking of his service pistol.

In appealing against his sentence, the appellant contended that the Court had erred in failing to take into account the fact that the appellant had just been sentenced to a lengthy sentence in another case when he was sentenced in the present matter.

Keywords:

Criminal law – Robbery with aggravating circumstances – Appeal against sentence – Failure to order sentences to run concurrently resulting in sentence which was shockingly inappropriate – Interests of justice requiring concurrency of portions of sentences imposed on two counts

The present Court highlighted the aggravating factors of the case, and agreed that punishment and deterrence are factors that come to the fore in determining an appropriate sentence. However, neither of the incidents constituted the most violent type of robbery which would warrant an effective sentence of 30 years’ imprisonment. The effective sentence of 30 years’ imprisonment was therefore regarded as shockingly inappropriate. It was concluded that the interests of justice would be served by ordering 12 years of the sentences imposed on each count to run concurrently. That would oblige the appellant to serve an effective 18 years’ imprisonment. The appeal was upheld to that extent alone.

47. CONDONATION

[zCIz]Case Information

B Appeal from a decision in the Free State High Court (Ebrahim J and Jordaan J) refusing an application for condonation for the late prosecution of an appeal against convictions and sentences in a regional magistrates' court. The facts appear from the judgment of Navsa JA.

Mini Summary:

The appellant was convicted on one count of abduction and five counts of rape and was sentenced to 1 year's imprisonment for the abduction and five terms of life imprisonment for the rapes, with all of the sentences to run concurrently.

The Court deemed an effective sentence of 18 years' imprisonment in respect of each of the four counts of rape to be appropriate, subject to the sentences running concurrently.

48. CONFESSIONS

The accused was charged with two counts of murder. He pleaded not guilty and alleged that he was not present in the area of the crimes when they were committed.

None of the three witnesses for the State had actually seen the accused at the scene of the crime. However, the State sought to prove an alleged confession made by the accused to a police officer within the meaning of section 217(1) of the Criminal Procedure Act 51 of 1977. The accused objected to the reception of the confession on the basis that it was inadmissible, in that he was assaulted and threatened to make a statement.

Keywords:

Criminal procedure – Murder – Housebreaking – Robbery with aggravating circumstances – Conviction – Appeal – Confession – Admissibility

Held that the admissibility of confessions is governed by section 217 of the Criminal Procedure Act 51 of 1997. The onus of proof rests on the State to prove beyond a reasonable doubt that a confession was freely and voluntarily made by the accused, in his sober senses and in the absence of undue influence.

Having regard to the evidence, the court was not satisfied that the State had proved, beyond a reasonable doubt, that the accused were not unduly influenced to make the confessions.

Mini Summary:

The admissibility of extra-curial statements of an accused against a co-accused in a criminal trial was the issue for determination in this case. The court was required to consider the rules governing the admissibility of hearsay evidence under the provisions of the Law of Evidence Amendment Act 45 of 1988 in the context of the right to a fair trial and the need to prevent procedural abuse.

The court went on to hold that the late admission of hearsay evidence against the applicant was prejudicial to him and not in the interests of justice.

Leave to appeal was granted.

S v Sonpra – 2004(1) SACR 278 (TPD) – accused forgot to switch off cell phone. Not held to be required intent for contempt conviction.

S v Ntshwence 2004(1) SACR 506 (TPD) – accused has all rights as if normal trial i.e. right to legal representation. No formal charge sheet required.

The parties herein were divorced in 2004, and the respondent was awarded custody of the minor child born of the marriage. The respondent was granted access rights to the child. In the present application, the applicant contended that the respondent was in breach of the divorce order in that she was not allowing the applicant reasonable access to the child as she had not given him her telephone number. He was also unhappy about a decision taken by the respondent, without his knowledge, to place the child in a remedial school. He therefore sought an order of contempt of court against the respondent.

Held that the applicant was required to prove his case beyond a reasonable doubt. Once the prosecution had established the existence of the order; its service on the accused; and non-compliance, if the accused failed to furnish evidence raising a reasonable doubt whether non-compliance was wilful and mala fide, the offence will be established beyond reasonable doubt.

Criminal law – Rape – Sentence – Appeal

Mini Summary:

52. CORRECTION OF SENTENCE / JUDGMENT

S v Tengwa & another
[2011] JOL 27805 (ECG)

In sending the case on special review, the magistrate explained that she had intended to sentence both accused to six months’ imprisonment on the first count, and to sentence the second accused to a R2 000 fine or six months’ imprisonment, conditionally suspended on the second count. However, she had mixed up the charges in sentencing.

Held that for the sake of clarity, the sentences were altered on review, to reflect the magistrate’s intention.

Sentence—Correction of—Amendment of in terms of s 298 of Criminal Procedure Act 51 of 1977—Amendment not permissible where original sentence not wrong—Not permissible to alter sentence 20 days after sentence imposed.
Housebreaking with intent to steal and theft—Sentence—Lengthy term of imprisonment—Accused convicted on six counts and sentenced to ten years’ imprisonment on each count—Although offence serious and prevalent in division, court overemphasised the seriousness of the offence—Sentence replaced with sentence of three years’ imprisonment on each count, to run concurrently.

S v Stefane
[2011] JOL 27803 (ECG)

After conviction and sentence, the magistrate referred the case on review, with advice that the accused had been charged and convicted under the wrong section of Act 140 of 1992.

Held that while an amendment of the charge sheet might be proper on review, it would not be proper for the case to be remitted as that would prejudice the accused. The state was afforded an opportunity to present its case and should not be given two bites at the cherry.

Mini Summary:

The accused were charged with assault with intent to do grievous bodily harm. The second accused was also charged with malicious damage to property. The first accused was convicted as charged, while the second accused was convicted of common assault.

Criminal procedure – Housebreaking with intent to steal – Theft – Sentence – Amendment to sentence – Appeal

Mini Summary:

The amendment in this case had the effect of imposing additional terms to the sentence. The sentence was not shown to be wrong, and the time for amendment in terms of section 298, had passed.

The amendment was set aside. The court deemed the rest of the sentence to be too severe. It therefore replaced it with one of four years’ imprisonment.

Mini Summary:

Having pleaded guilty, the appellant was convicted of fraud and sentenced to five years' imprisonment of which three years were suspended on appropriate conditions. He appealed against his sentence.

Criminal procedure – Correctional supervision – Sentencing

Mini Summary:

54. CORRUPTION

Lephowane v S
[2011] JOL 27963 (ECG)

In 2002, an investigation was launched into driving licence centres. A forensic investigator testified that the appellant had initiated a meeting with him, via a driving instructor, and had discussed the possibility of the investigator making the investigation into the appellant disappear in exchange for payment. The appellant then paid the investigator R10 000, which the investigator handed over to the police. Two subsequent meetings between the appellant and the investigator were recorded by the police through devices concealed on the person of the investigator. The appellant was later arrested.

According to the appellant, he had met with the investigator solely for the purpose of discussing the investigations and in particular the investigation regarding those officers under his jurisdiction. He denied that money had exchanged hands at the meetings or that he had entered into any form of corrupt dealing.

Keywords:

Criminal law – Corruption – Conviction and sentence – Appeal

With regard to both conviction and sentence, the magistrate properly applied the correct approach. The appeal was thus dismissed.

Clarke & another v S
[2009] JOL 23391 (KZP)

Held that the present case involved the concept of trapping or entrapment. The court set out the principles involved in such cases. It then found that the magistrate in this case had erred in formulating the test applicable to entrapment cases. A further error was committed when the magistrate appeared to transfer the onus of proof from the state to the appellants.

The court found that the state had not discharged the onus of proof in respect of the first appellant, and his appeal was upheld.

Mini Summary:

The appellants were convicted of corruption and the state obtained an order from the High Court requiring the appellants to pay to the State the value of three benefits which the High Court held to constitute proceeds of crime, as contemplated by the Prevention of Organised Crime Act 121 of 1998 ("the Act"). That order formed the subject of the present appeal – the appellants contesting the validity of the confiscation order.

DPP (KZN) v Henry & others
[2008] JOL 21802 (SCA)

Keywords:

Held that in awarding costs, a court of first instance exercises a judicial discretion and a court of appeal will interfere only if the exercise of that discretion is vitiated by misdirection or irregularity, or if there are no grounds on which a court, acting reasonably, could have made the order in question.

In the present matter, the State should have made its intentions clear from the outset. Its failure to do so had misled the first respondent, and therefore the costs order was justified.

Criminal law – Tender of counterfeit banknotes – Contravention of section 34(1)(b) of South African Reserve Bank Act 90 of 1989 – Whether offering to sell counterfeit banknotes where all parties were aware that notes were counterfeit, amounted to an unlawful “tendering” as envisaged by section 34(1)(b) – As the word “tender in section 34(1)(b) must be construed as an action whereby counterfeit money is offered as genuine currency, there was no unlawful tender as envisaged by section 34(1)(b) – Words and phrases – “Tender” – Section 34(1)(b) of South African Reserve Bank Act 90 of 1989 – Tender in the latter section must be construed as an action whereby counterfeit money is offered as genuine currency

Mini Summary:

57. COURT ORDERS

Visse v Visse 2008 JOL 21235 (C) – interpretation of court order. Unilateral departure not permitted. Order to pay maintenance continued to be of force despite fact that recipient 30 years old. Fact that retarded meant still dependant.

The applicant and respondent had been married until their divorce in 2000. In terms of the divorce settlement agreement, the applicant obtained sole custody of the child born of the marriage, and the respondent was to pay maintenance in respect of the child.

Both parties had a drug addiction. While the applicant was on a rehabilitative programme, the respondent's addiction had caused him to lose his job, and he was currently unemployed.

William v S
[2014] JOL 32143 (GP)

Keywords:

Held that it was highly opportunistic of the appellant to take advantage of the unavailability of the record of the proceedings and to submit that the conviction be set aside. The appellant was not prejudiced by the irregularity occasioned by the failure to comply with the reconstruction of the record and the conviction had to be confirmed.

There was a reconstructed record in respect of the sentence. Such record was available to the appeal court to enable the Court to dispense justice through a fair trial. The appeal was proceeded with on the reconstructed record and there was no failure of justice. The defects in the record were not so serious that a proper consideration of the appeal was not possible. However, the Court found no merit in the appeal against sentence.

Mini Summary:

Pursuant to his conviction on a charge of murder, the applicant was sentenced in the High Court to life imprisonment. Leave to appeal against his conviction and sentence having been refused, the applicant now approached the present Court for such leave.

Keywords:

Criminal procedure – Record of proceedings – Missing record – Special review

The appellants were convicted of robbery with aggravating circumstances on the strength of expert evidence identifying them as the persons photographed committing a bank robbery. In an appeal against their convictions and sentences of 12 years' imprisonment each, the court of appeal was confronted with the complication that the trial court's record of the proceedings relating to sentence was incomplete. Only one of the three appellants could recall evidence led at the trial and therefore participate in reconstruction of the record.

Held, that the court was entitled to receive evidence in terms of the enabling statutes, ss 304(2)(b) read with s 309B(3) of the Criminal Procedure Act 51 of 1977, and s 22 of the Supreme Court Act 59 of 1959 and then only in exceptional circumstances. The circumstances in the present matter were exceptional: the appellants were present, legally represented, agreeable to leading fresh evidence, and it was a relatively simple matter for the mitigating circumstances to be placed before this court, those circumstances not having been disputed by the State. If this procedure were not followed, it would result in a remittal of the matter to the magistrates' court — with the need to summons the appellants (from the various prisons in which they were resident) with the view to hearing precisely the same evidence, which would be a substantial waste of time and costs. It was accordingly ruled that the evidence of the second appellant (who could assist the appellate court with reconstruction) was to be received in the form of reconstruction of the record and in the form of fresh evidence, while the evidence of the other two appellants (who could not assist the appellate A court with reconstruction) was also to be received, as fresh evidence.

S v Zenzile 2009(2) SACR 407

It was held that such reconstruction must be done in open court, with all the parties, including the original legal representative and prosecutor being present to express on record that the reconstruction accords with their recollection or notes of the evidence tendered at the trial.

Mini Summary:

The appellant was convicted of robbery with aggravating circumstances and sentenced to 15 years’ imprisonment. He appealed against both conviction and sentence with leave of the court, granted on petition.

Keywords:

Criminal procedure – Robbery with aggravating circumstances – Conviction and sentence – Appeal – Reconstruction of record

Held that the court is entitled to receive evidence in exceptional circumstances. The circumstances which served before the court in the present matter were exceptional. The court therefore received the evidence (adduced by the second appellant only) as part of the reconstruction process.

In the appeal against conviction, the only question was whether or not the appellants were the persons who perpetrated the crime. The principle basis upon which the conviction rested was the production at the trial of pictures of the three perpetrators of the crime. After considering expert evidence, the court agreed with the trial court that the appellants had been correctly identified.

Mini Summary:

Convicted of assault with intent to do grievous bodily harm, the accused was sentenced to 3 years' imprisonment. This case, together with others, were referred for review with the recommendation that the conviction and sentence be set aside on review and that the matter be tried de novo should the prosecution decide to do so.

Mini Summary:

The accused was convicted and sentenced on a charge of assault with the intent to do grievous bodily harm. When the matter went on automatic review, the record was missing.

Nyabo v S
[2008] JOL 22823 (SCA)

Keywords:

The central issue was the identification of the appellant as the perpetrator of the offences.

Held that while the trial court purported to endorse the correct legal approach to assessing evidence in such cases, it in fact, was guilty of misdirection in its assessment.

S v Mafalandiso – 2003(1) SACR 583 (SCA) – court dealt in depth with purpose of witness statements taken by police and evaluation of discrepancies in evidence of witnesses in court verse their statements. Court must note statement not taken subject to cross-examination and should have regard to language and cultural differences between witness and person taking statement. VERY IMPORTANT CASE IN NUMEROUS RESPECTS

Morgan v S
[2008] JOL 22838 (SCA)

The charges related to an incident in which one person was fatally shot and shots were fired at another person. The appellant denied involvement in the incident, relying on an alibi defence. However, the trial court rejected the alibi defence in favour of the evidence of state witnesses who placed the appellant at the scene of the crime. An appeal resulted in his sentence being reduced to an effective term of imprisonment of 15 years.

The present court granted the appellant special leave to appeal against the conviction.

The appeal was accordingly dismissed.

Robiyana & others v S
[2008] JOL 22402 (Ck)

Held that one of the grounds of appeal was that the trial court, having made no specific adverse findings based on credibility of the appellants, should not have rejected their evidence. The present court held that the fact that the trial court did not articulate or particularise demeanour findings as regards the appellants was of no great significance and did not constitute misdirection.

Ultimately, the appeal turned on the correctness of the trial court's acceptance of the evidence of an accomplice who was the primary source of incrimination. The appeal court could not fault the lower court in its assessment of the evidence.

Criminal procedure – Indecent assault – Child complainant – Competence as witness – Enquiry

Mini Summary:

The appeal was upheld.

S v Bruiners – 1998(2) SACR 432 (SEC) – in order to discredit state witness on basis of his affidavit, is necessary that there be a material deviation from his affidavit before any negative inference can be drawn.

The appellant, who had been convicted of raping a woman, had denied the charge: he testified that intercourse had been with her consent. One of the appellant's companions corroborated his version and the medico-legal report was inconclusive. The regional magistrate's court sentenced the appellant to the minimum sentence of ten years' imprisonment in terms of the Criminal Law Amendment Act 105 of 1997. He appealed against conviction and sentence.

Held that the appellant's version had been corroborated in all material respects. The magistrate's judgment lacked analytical content and she had failed to make any credibility findings. In these circumstances an appeal court has to "do its best on the material on record" and it cannot proceed on the assumption, inter alia, that there was no misdirection in the process of reaching the decision that was reached, or that the court a quo had cogent reasons for accepting the witnesses who implicated the appellant. An extract from the transcript showed that in some respects the complainant's evidence was fundamentally incompatible with material aspects of her own version of the events that took place that night. The appellant's version was reasonably possibly true, and it was more probable than the complainant's version. The conviction and sentence were set aside.

Mini Summary:

An altercation between the appellant and the complainants in February 2010, led to the appellant’s being charged and convicted of crimen iniuria and assault. He was sentenced to payment of a R6 000 fine, or 12 months’ imprisonment, wholly suspended on certain conditions. His appeal before this Court was directed at his conviction.

The State bore the onus to prove the guilt of the appellant beyond reasonable doubt and that there was no duty on the appellant to convince the Court of the truthfulness of any explanation which he gave. If his explanation was found to be reasonably possibly true, the Court would have no reason to reject it. The Court was not impressed with the appellant’s testimony, finding him to be less than honest in presenting his version of events. His witnesses were also shown to be lacking in partiality in their recounting of the incident. The Court confirmed that the trial court was correct in finding that the appellant uttered the words allegedly used, and further that he had intended to and did in fact humiliate, denigrate and injure the dignity of the complainants.

The appeal was dismissed.

Held, that, where an accused person pleaded guilty and handed in a written statement in terms of s 112(2) of the Criminal Procedure Act 51 of 1977, detailing the facts on which his plea was premised, and the prosecution accepted the plea, the plea so explained and accepted constituted the essential factual matrix on the strength of which sentence should be considered and imposed. Such an essential factual matrix could not be extended or varied in a manner that adversely impacted on the measure of punishment as regards the offender. The facts, as pleaded and accepted, supported the contention that the urination, ingestion and vomiting were all simulated. Simulated offensive conduct towards the complainants was, without their consent, made to look real. In that secret depiction lay the iniuria — indeed the video was not evidence of the iniuria, it was iniuria. It has to be accepted that the two groups were performing, in other words, play-acting. To the extent that the court a quo found otherwise, it materially erred.

Held, further, that, in the circumstances, the court a quo could not have approached the matter of sentence anyhow save on those facts plus the undisputed facts whereby those facts were amplified by the prosecution and defence during the course of closing arguments. It was however clear from the original as well as supplementary reasons for judgment that the court a quo did not approach the sentencing on such factual premise; instead reckoning that, because the appellants had not expressly taken issue with the racial averments embodied in the charge-sheet, such averments were tacitly admitted and thus constituted facts on which sentence could be validly premised. This reasoning was materially flawed and the finding relative to racism, which the court a quo regarded as a strongly aggravating factor, was a monumental misdirection.

Raliphaswa v Mugivhi & others
[2008] JOL 21570 (SCA)

Keywords:

Held that in the absence of consent or a search warrant, police officers are entitled to search an individual only in circumstances authorised by section 22(b) of the Criminal Procedure Act 51 of 1977, namely when it is believed, on reasonable grounds, that a warrant will be issued if applied for and that the delay in applying for a warrant would defeat the object of the search.

In the present case, the appellant was subjected to an invasive and humiliating search which amounted to an iniuria, without probable cause. The court upheld the appeal, and awarded the appellant R25 000 as damages.

The appellant was convicted on 22 charges of criminal defamation and sentenced to 3 years' imprisonment suspended for 5 years and, to 3 years' correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act 51 of 1977. Leave to appeal was granted, with the court stipulating that that argument would be required on the question whether the crime of defamation is still extant, and if so whether it is consonant with the Constitution.

Held that the doctrine that law may be abrogated by disuse is well established in our law. It therefore had to be determined whether the South African community tacitly consented that defamation should no longer constitute a criminal offence. The court was unable to draw such a conclusion.

[zFNz] Flynote : Sleutelwoorde

Crimen injuria - What constitutes - Serious violation of dignitas - Element validly subject to criticism F that it is nebulous - Courts nonetheless obliged to make considered value-judgments, from case to case, to determine when insult sufficiently serious to amount to offence.

The Constitution of the Republic of South Africa Act 108 of 1996 enshrines and affirms the democratic values of human dignity, equality A and freedom. It is regrettable that some members of society still cling to stereotyping people, or harbour idiosyncrasies of sexual superiority or inferiority, or believe in some form of domination or quaint local, unwritten rules or cultural practices. These, however, cannot be exercised in a manner that is inconsistent with any provision of the B Bill of Rights. Accordingly, a statement attributing to a complainant a characteristic, on the basis of which the Bill of Rights forbids the denigration of its citizens ( in casu , an assertion that the complainant, a man, spoke 'like a three months' pregnant woman'), although it may be personally offensive to the complainant by reason of such beliefs, cannot be elevated to the offence of crimen injuria . (Paragraphs [22] and [23] at 392 g - j .) C

S v Seweya – 2004(1) SACR 387 (TPD) - violation of dignitas must be of serious nature and not of a trifling nature.

Mini Summary:

Two applications were consolidated and heard together in the light of the similarity in the relief claimed as well as the applicable legal principles on which the claims were based.

The Court held that section 77(6)(a), in limiting or threatening the rights to freedom of the person and the rights of children, was unconstitutional and could not be saved by the limitations clause. Insofar as an accused person with a mental disability may be detained for an indefinite period in unwarranted circumstances, the impugned provisions fell to be declared inconsistent with the Constitution and invalid.

S v Pedro
[2014] JOL 32061 (WCC)

The matter was referred to the present Court on the ground that the accused had never pleaded to the charge of culpable homicide and that a finding of not guilty should not have been made in terms of section 78(6)(a). The review judge was requested to set aside the acquittal but to confirm the order made in terms of section 77(6)(a)(ii).

The present Court requested oral arguments on whether the second psychiatrist on the assessment panel should have been a psychiatrist expressly appointed by the court for the accused; whether, in the absence of any request and direction to the contrary, the Magistrate was required to appoint a private psychiatrist as a third psychiatrist on the panel; whether, in view of the finding of the psychiatrists that the accused was not fit to stand trial, the entering of a not guilty verdict was correct; and whether, given that the accused was charged with culpable homicide, the detention order should have been in terms of sub-paragraph (i) rather than sub-paragraph (ii) of section 77(6)(a).

Keywords:

Criminal Law – Attempted murder – State witness disappeared during cross-examination – Evidence disregarded – Gangsters – Shotgun

The Magistrate found the evidence of Solomon and De Klerk to be reliable and that there was no misdirection on the part of the trial court. However, the sentence was amended to six years’ imprisonment.

Larry v S
[2014] JOL 31966 (WCC)

Held that on appeal, the appellant alleged that the trial court had prevented his attorney from properly conducting his defence. A reading of the record showed that the magistrate at times kept a tight rein on the appellant’s attorney’s cross-examination but nevertheless gave him a full opportunity to cross-examine the complainant and her witness, including cross-examination on alleged discrepancies between the complainant’s statement to the police and her viva voce evidence. It could not be found that there was a material irregularity in the trial.

The remaining grounds of appeal were that the magistrate erroneously found that the evidence of the complainant was sufficiently satisfactory and credible to secure a conviction and that she failed to take proper cognisance of the value of the evidence of the appellant’s witness, that she over-emphasised the discrepancies in the evidence of the appellant and failed to properly apply the onus that rested on the state. The Court found no merit in any of the said contentions, and dismissed the appeal.

The accused was convicted of assault with the intent to do grievous bodily harm, and sentenced to a term of 6 months’ imprisonment which was wholly suspended for a period of 3 years on certain conditions.

Held on review that the rights of the accused to cross-examination were not properly explained. That was conceded by the magistrate.

Criminal procedure – Rights of accused – Right to cross-examination – Failure to complete cross-examination – Irregularity – Review

Mini Summary:

Criminal procedure – Cross-examination – Witness – Trial-within-trial

Mini Summary:

Bramwell v S
[2015] JOL 32688 (ECG)

Keywords:

Held that the magistrate’s acceptance of the testimony of a witness as expert evidence constituted a misdirection. The magistrate considered the witness to be an expert in motor vehicle accident reconstruction, despite argument on behalf of the defence that the witness was not an expert in that field.

Culpable homicide consists of unlawfully and negligently causing of the death of another person. The state will bear the onus of proving not only that the appellant was negligent but also that such negligence caused the death of the deceased.

Keywords:

Criminal law – Culpable homicide – Conviction and sentence – Appeal

Culpable homicide consists of unlawfully and negligently causing of the death of another person. The state will bear the onus of proving not only that the appellant was negligent but also that such negligence caused the death of the deceased.

Accepting that upon seeing a pedestrian start to cross the road a reasonable motorists would foresee that he could cause the death of the pedestrian if he came into collision with him, the question was what steps a reasonable motorist would take to guard against that result. There was no evidence as to whether the deceased looked in the direction of the approaching traffic, whether he stopped at the white lines dividing the lanes or whether he hesitated upon approaching the line. There was thus no evidence produced by the State which would indicate that the appellant had deviated from those steps which the reasonable man would have taken.

Criminal law – Culpable homicide – Sentence – Appeal

Mini Summary:

S v Dougherty 2003 (2) SACR 36 (WLD) – difference between dolus and culpa – liability when accused thinks wrongly that in danger and how that excludes dolus but can still be culpa.

66. CUSTOM

Having pleaded guilty, the appellant was convicted of murder and sentenced to life imprisonment. He obtained leave to appeal against his sentence.

Held that in an appeal against sentence, the court of appeal should be guided by the principle that punishment is pre-eminently a matter for the discretion of the trial court and the court of appeal should be careful not to erode that discretion. A sentence imposed by a lower court should only be altered if an irregularity took place during the trial or sentencing stage; the trial court misdirected itself in respect of the imposition of the sentence; or the sentence imposed by the trial court could be described as disturbingly or shockingly inappropriate.

S v MBATHA 2012 (2) SACR 551 (KZP)

An accused who has cultivated dagga (even if it was only for his personal use) is guilty of dealing in dagga in contravention of section 5(b) of Act 140 of 1992.

[4] According to the evidence of Warrant Officer Singh, one could see that the tree had been taken care of as it was cleaned and maintained and there were no weeds in the yard. Moreover, the yard was well fenced and there is an access gate allowing access into the premises. The accused was taken with the dagga found, to a pharmacy where the dagga was weighed and thereafter to the offices of the South African Police Services at Dundee where the dagga was handed into evidence into the SAP13 register.

[5] The evidence led by the State in this regard was not challenged at all by the

The accused was sentenced to 18 [eighteen] months imprisonment wholly

suspended for a period of 3 [three] years on condition that he is not again convicted of contravening Sections 5(b) or 4(b) of Act, No. 140 of 1992 committed during the period os suspension and in addition he was ordered to pay a fine of R1 000-00 [one thousand rand] or in default thereof to undergo 6 [six] months imprisonment. The dagga was declared forfeited to the State.

In this particular case the Court had been dealing with a number of review cases

inter alia the review case of the State v Isaak Mashinini who, like the accused in the present matter under consideration was found in possession of a solitary dagga plant and based on a similar definition of “deal in” in the 1971 Act, he was convicted of dealing in dagga and his conviction and sentence were confirmed. The Provincial Division had to deal with the selfsame query as in the case under consideration, namely whether or not the possession of one dagga plant amounted to dealing in the substance which the Transvaal Provincial Division answered in the affirmative and confirmed the conviction and sentence. It is indeed instructive that the headnote in S v Kgupane en Andere reads:-

[10] In the matter of State v Guess, however, the Court questioned whether the

State succeeded in establishing beyond a reasonable doubt, the factual premises so as to give rise to the presumption contained in Section 10(1)(b) that the appellant dealt in 85 dagga plants in contravention of Section 2(a) of the Act and, if so, whether the appellant succeeded in rebutting the presumption by proving on the balance of probabilities that he did not cultivate the dagga plants. The Court concluded that the State proved beyond a reasonable doubt that the appellant was in possession of the dagga plants and therefore the Court a quo ought to have properly convicted him of the alternative charge under Section 2(b) of having being in possession of 85 dagga plants and not of dealing therein.

having received a judicial interpretation must, when used in the same context in the Act of 1925, bear that interpretation unless a contrary meaning is indicated …”

The principle of interpretation in the Barras decision, (although it was not specifically referred to), was followed by the Appellate Division (as it then was) in the matter of The Minister van Justisie v Alexander 1975 (4) SA 530 (A) at 550 in the Judgment of Corbett JA where he stated:-

Kgupane en Andere it is quite clear that the intention of the Legislature was that in its pursuit of the sharks that unfortunately some minnows may be caught in the

same net. [13] It is instructive, in this regard, that the State of Maine in the United States in it’s statutory definition of “cultivation” defines it as:-

activity associated with agriculture. There is no reason why the primary meaning

should not be applied considering that the Act makes serious inroads on the rights of owners.”

12 on the basis that such a definition would do justice to the case of a dagga user who grew a solitary plant to satisfy his own needs and cannot really be deemed a dealer.

This in my view, is merely based on the sympathy felt for a user who is not in actual fact a dealer. To put into perspective this attitude one would have to, in due course, extend this “extended definition” to the situation of a manufacturer of mandrax or cocaine who has a laboratory at home and manufactures small amounts for his own consumption. This could definitely never have been the intention of the Legislature. It is abundantly clear that the intention of the legislature was to stop the production and supply of drugs when it enacted Act No. 140 of 1992 and defined “deal in” as it did in Section (1) of the Act.

[16] In my view, would be wrong as his act of cultivation falls full square within the definition of the phrase “dealing in” in the Act and he has, in my view, correctly been convicted of dealing in dagga.”

68. DANGEROUS WEAPONS

Held, further, that the establishment of the fact that the arrestor held the belief referred to in the proviso in s 49(2) was a separate enquiry from another requirement stipulated by the provision, namely that the arrestor's belief had to be based on reasonable grounds. This meant that, if it were shown that the arrestor held the belief contemplated in the proviso in s 49(2), but it were not shown that there were reasonable grounds for that belief, the use of force will also have been outside the ambit of s 49 and, therefore, unlawful. However, if there were no evidence that the arrestor subjectively held the belief contemplated in the proviso, then the enquiry as to whether there were reasonable grounds was not even proceed to, but fell away.

Held, further, that, in this case, the defendant had failed to lead evidence that the arrestor held the belief which the proviso in s 49(2) required the arrestor to have held before deadly force could be used on a suspect. Accordingly, the arrestor's conduct — firing shots at the car in which the plaintiffs were travelling, and wounding the first and second plaintiffs — fell outside the ambit of s 49(2) and was unjustified and unlawful.

Keywords:

Delict – Iniuria – Claim for damages

In the present case, the appellant was subjected to an invasive and humiliating search which amounted to an iniuria, without probable cause. The court upheld the appeal, and awarded the appellant R25 000 as damages.

Hoho v S
[2008] JOL 22420 (SCA)

Held that the doctrine that law may be abrogated by disuse is well established in our law. It therefore had to be determined whether the South African community tacitly consented that defamation should no longer constitute a criminal offence. The court was unable to draw such a conclusion.

The crime of defamation consists of the unlawful and intentional publication of matter concerning another which tends to injure his reputation. The court found that the crime of defamation is not inconsistent with the Constitution.

72. DIAMOND AND GOLD DEALING / POSSESSION

Van der Berg & another v S
[2008] JOL 21925 (C)

Having been caught in an undercover trap, the appellants contended that the police had gone further than permitted in terms of the statute; that the trapping operation did not accord with the guidelines applicable to such traps; and that the evidence arising from the trap ought to have been excluded by the trial court.

Held that the question on appeal related to the application of section 252A of the Criminal Procedure Act 51 of 1977 which deals with traps and undercover operations.

S v Dolo 1975 (1) SA 641 (Tk)

Where the following was stated by Munnik CJ, as he then was, at 643G – H:

failure to do so in these circumstances, would mean that the State is

bound by the witness’ denial and therefore the making of the previous

Perumal & others v National Director of Public Prosecutions
[2012] JOL 29088 (SCA)

Keywords:

Held that an application for forfeiture of assets in terms of section 48(1) requires a court to find, on a balance of probabilities, that the property concerned is either an instrumentality of an offence or the proceeds of unlawful activities. For the respondent to establish its allegations against the first appellant in application proceedings, its case had to comply with the well-known principles established in Plascon-Evans Paints Limited v Van Riebeeck Paints (Pty) Ltd. Consequently, the issue on appeal was whether the trial court correctly concluded that the undisputed allegations in the Founding Affidavit, taken with the appellants’ allegations in the answering affidavits that were not clearly untenable, established, on a balance of probability, that the first appellant was indeed a drug dealer and that he acquired the identified assets from the proceeds of his drug dealing activities.

The Respondent’s Founding Affidavit stated that the first appellant had been under investigation by various members of the then Directorate of Special Operations for drug-related offences for almost 20 years. Several of the investigators deposed to the affidavits that constituted the founding papers against the appellants. Despite the extensive investigation, the most that the respondent’s case amounted to was the raising of suspicion. All the affidavits relied upon by the respondent fell short of the basic principles that pertain to evidence on affidavit.

S v Harper - 1981(1) SA 88 (D) – Requirements for proving admissibility of documents other than those covered by Section 212 is dealt with in detail. Dealt with microfilms and computer print outs.

S v Tshabalala -1999 (1) SACR 412 (C)

Criminal law – Murder – Intention – Dolus eventualis – In firing at deceased, in face of foreseeable possibility that bullet might strike him, appellant was guilty of murder – Criminal law – Onus of proof – State must prove its case beyond reasonable doubt and no onus rests on an accused person to prove his innocence – Criminal law – Sentence – Appeal – Misdirection by trial court, in court focusing exclusively on the mitigating factors instead of balancing them with the aggravating factors – Appeal court justified in interfering with sentence

Mini Summary:

The trial court made certain credibility findings in arriving at its conclusion. The present Court was not at liberty to interfere with such findings.

On the issue of sentence, the Court confirmed that sentencing or punishment is pre-eminently a matter of discretion of the trial court. The prescribed minimum sentence provisions of the Criminal Law Amendment Act 105 of 1997 applied in this case. The trial court found substantial and compelling circumstances to exist, warranting a sentence less that the prescribed minimum one. An appeal court should be slow to interfere with the trial court’s discretion. An appeal court may interfere provided the discretion has not been judicially and properly exercised and the sentence is vitiated by irregularity, misdirection or is disturbingly inappropriate. In this case, it was found that the trial court focused exclusively on the mitigating factors instead of balancing them with the aggravating factors. The trial court erred in finding that substantial and compelling circumstances existed. The appeal against conviction and sentence was dismissed, and the court set aside the sentence and imposed a sentence of 15 years’ imprisonment.

Charged with murder, rape and robbery, the appellant pleaded not guilty to murder, guilty to rape and guilty to theft. He was convicted based on his plea, and was sentenced to life imprisonment on the murder count, 20 years’ imprisonment on the rape count and 6 months’ imprisonment on the theft count. The present appeal was against conviction and sentence.

In the appeal against conviction, the appellant contended that the statement in terms of section 112(2) of the Criminal Procedure Act 51 of 1977 did not contain the requisite details. As far as the murder count was concerned, the appellant argued that the offence was not established as the State had failed to lead evidence to prove intent.

The sentence of 20 years’ imprisonment on the rape count was described in the indictment as falling under section 51(1)(a) of the Criminal Law Amendment Act. That could not be correct as there is no such section. The only part of the Act that might be relevant was section 51(2)(b) which refers to Part III of the Schedule. That section prescribes a sentence of not less than 10 years for a first offender unless there are substantial and compelling circumstances to justify a lesser sentence as contemplated in section 51(3) of the Act. The disparity between 10 years and 20 years was highlighted by the court, which set the sentence aside, finding no justification for the disparity. The sentence was replaced with one of 10 years’ imprisonment.

The Court ended by commenting on the unacceptable delays in the prosecution of criminal appeals in the High Court from which this matter came. However, the Court’s reference to systemic delays was controverted in a dissenting judgment.

S v Bacela & another
[2008] JOL 21998 (Ck)

Keywords:

77. DOMESTIC VIOLENCE

S v Ngubeni
[2008] JOL 22245 (T)

Held that the magistrate's reasoning in sentencing the accused was open to question.

The present court emphasised that while domestic violence is a serious offence which must be deterred, it is important to also mark the distinction between actual domestic violence and normal assault (which might occur in the domestic environment).

Mini Summary:

The accused, who had assaulted his 74-year-old mother with an iron rod for refusing to hand over her pension money, pleaded guilty to a charge of contravening a protection order which had been issued under the provisions of the Domestic Violence Act 17 of 1998. At the trial, the original protection order was not produced. However, the magistrate had questioned the accused under section 112(1)(b) of the Criminal Procedure Act 51 of 1977 in terms of his plea and, after conviction, had sentenced him to 18 months' imprisonment, of which 9 months were conditionally suspended.

Criminal procedure – Prosecution – Authorisation of National Director of Prosecutions

Mini Summary:

The court agreed with the appellant that once the prosecution is authorised in writing by the national director there can be no reason, provided the accused has not pleaded, why the further prosecution of the accused on racketeering charges would not be lawful, even if the earlier proceedings were to be regarded as invalid for want of written authorisation. Thus, once the written authorisation to prosecute was granted, the prosecution was lawful in terms of section 2(4) of the Act.

The appeal was upheld.

The accused was convicted on a charge of contravention of section 113(1) read with section 113 (2) and (3) of the General Law Amendment Act 46 of 1935 in that she had unlawfully and with the intent to conceal the fact of the birth of a child, attempted to dispose of the body of the said child.

Before convicting the accused the magistrate enquired from the prosecutor whether the Director of Public Prosecutions had authorised the prosecution in writing as required by section 113(3) of the General Law Amendment Act. The matter stood down and was then postponed and on resumption the prosecutor informed the Court that no written authorisation existed, but that the Director of Public Prosecutions had given verbal permission for the prosecution to proceed. The prosecutor submitted that verbal permission constitutes compliance with section 113(3) of the Act. The magistrate found the accused guilty but also referred the matter for special review regarding the issue of whether the permission to prosecute can be verbal or whether it should be writing.

S v Jason
[2011] JOL 26902 (ECG)

Keywords:

80. DRIVERS LICENCE

1. S v BOTHA 2013 (1) SACR 353 (ECP)

Keywords:

Criminal procedure – Traffic violation – Conviction and sentence – Review

The order made in respect of section 34 was set aside and the matter was remitted to the magistrate to ascertain whether or not the accused had a driving licence, to explain the provisions of section 35 (2) (if applicable) and section 35(3) to the accused, and thereafter to make such order as he considered appropriate.

S v TSHABALALA 2011 (2) SACR 505 (KZP)

Keyser v S
[2012] JOL 29392 (SCA)

Keywords:

Held that a criminal conviction can only be set aside on the ground of irregularity after consideration of the whole record in order to determine whether a failure of justice or an unfair trial has resulted from that irregularity. The mere inclusion in a charge sheet of references to statutory provisions that have been declared unconstitutional, whilst irregular, does not per se mean that there has been a failure of justice or an unfair trial. In the present case, the appellant did not allege that reference to the unconstitutional reverse onuses influenced the conduct of the prosecution or his own response in any way. The magistrate also had no resort to the impugned provisions in arriving at his judgment. The technical point raised by the appellant was rejected, as the appellant was deprived of a fair trial.

A further argument raised by the appellant was that the State had failed to prove its case beyond a reasonable doubt. However, the Court was not convinced in that regard. The appellant was arrested on his return from a trip to Brazil, where he had supposedly been seeking work. The Court was sceptical of the fact that he spoke none of the languages applicable to Brazil, that his flight had been subsidised by a person whose interest in assisting him remained unexplained, and that the details of the interviews for which he had gone were sketchy. Similarly unconvincing was the appellant’s explanation for the bag containing the cocaine, which he had brought into the country.

The dissenting judgment in this matter, which was handed down by Madondo J has been reported under the following citation: Mbatha v S [2013] JOL 30652B (KZP) – Ed. Criminal law – Dealing in drugs – What constitutes – Includes cultivation of drug – Statutes – Interpretation – Barras principle – Presumption that legislature is aware of the existing state of law – Words and phrases – “cultivate” – Definition of “dealing” in drugs – Drugs and Drug Trafficking Act 140 of 1992 – Includes cultivation of drug

Mini Summary:

SEE DISSENTING JUDGMENT BELOW

Mbatha v S
[2013] JOL 30652B (KZP)

Held that there was nothing in the charge sheet which indicated that the accused cultivated the dagga plant in question and that by such cultivation he dealt in dagga. Nor was the accused warned that should the evidence establish that he was guilty of cultivating the dagga plant in question, he could on that ground alone be convicted of dealing in dagga since in terms of the Act cultivation of dagga constitutes dealing in dagga. Therefore, it could not be said that the charge of dealing in dagga embodied cultivation of the dagga plant. Despite evidence that the dagga plant had been tended and from which it could reasonably be inferred that it was cultivated, it was still incumbent upon the State to prove beyond a reasonable doubt that the accused had cultivated the dagga plant.

Addressing the definition of “cultivate”, the judge noted that conviction of dealing in dagga automatically follows upon mere proof beyond a reasonable doubt of the proscribed cultivation of the drug. As cultivation of dagga per se constitutes dealing in it without proof of intention to do so, the State is required to prove neither mens rea nor negligence. The principle that a person should not be convicted unless he has some degree of mens rea is fundamental to our law. However, in the interpretive approach adopted by certain old decided cases the accused is convicted on the mere proof of the commission of the prescribed Act without reference to the culpability of the accused’s conduct. The shifting of the onus onto the accused to prove his innocence is unconstitutional. On that basis, the dissenting judge was of the view that the appeal against conviction should succeed.

The accused was charged with possession of drugs, namely Mandrax.

After conviction and sentence, the magistrate referred the case on review, with advice that the accused had been charged and convicted under the wrong section of Act 140 of 1992.

Criminal law – Drug offence – Possession of drugs – Duplication of convictions – Review

Mini Summary:

Criminal procedure – Dealing in drugs – Sentence – Review

Mini Summary:

Deeming the sentence too severe, the court replaced it with a less onerous one.

S v Dlamini
[2008] JOL 22251 (T)

Held on review that it was evident from the questioning of the accused that he was unaware that the possession of dagga was illegal in South Africa. He had therefore not admitted all the elements of the offence. The conviction and sentence were set aside, and the matter was remitted to the court a quo for further proceedings.

S v Jabulani Sithole - Sept. 2004 (SCA) – minimum sentences applied for large quantity of dagga. Court held State must prove value and can’t simply assume value but must hear evidence of realistic market related value as vary in value depending on various factors.

Convicted of dealing in cocaine, the appellant was sentenced to 12 years' imprisonment. He appealed against his conviction and sentence.

The appellant had been found in possession of cocaine, hidden in a box of biscuits. He alleged that the box did not belong to him, and that the police had falsely implicated him.

S v Hammond – 2008 JOL 21168 (SCA) – use of SAP trap. Consideration of S252A requirements. SAP making false statements relating to trap. Assessment of fairness of the trial. Admission by accused of involvement.

Tshiakale v S
[2008] JOL 21710 (E)

The appellant had been found in possession of cocaine, hidden in four jars of cream. She alleged that she had been unaware that the cocaine was hidden in the jars.

Held that the appellant's version was improbable. The trial court's finding that the appellant must have been aware of the contents of the jars was unassailable.

Keywords:

Criminal procedure – Traffic violation – Conviction and sentence – Review

The order made in respect of section 34 was set aside and the matter was remitted to the magistrate to ascertain whether or not the accused had a driving licence, to explain the provisions of section 35 (2) (if applicable) and section 35(3) to the accused, and thereafter to make such order as he considered appropriate.

S v TSHABALALA 2011 (2) SACR 505 (KZP)

Criminal procedure – Drunken driving – Sentence – Review

Mini Summary:

Criminal procedure – Drunken driving – Sentence – Review

Mini Summary:

Keywords:

Criminal law – Drunken driving – Conviction – Appeal

The only defence that remained in issue was whether the blood sample had been taken from him within two hours of him driving his vehicle, thus activating the presumption regarding the two hour rule created by section 63(3) of the National Road Traffic Act.

Held that the version of the appellant, while open to criticism in some respects, could not be said to be so improbable that it could be rejected as false beyond reasonable doubt. As a result, it should not have been rejected by the magistrate.

Mini Summary:

Based on his plea of guilty, the accused was convicted of driving a motor vehicle on a public road whilst the concentration of alcohol in his blood was not less that 0,05 grams per 100 millilitres of blood.

Keywords:

Criminal procedure – Forfeiture order – Prevention of Organised Crime Act 121 of 1998 – Applicability

NDPP v Vermaak – 2008 JOL 21197 (SCA) – deals with scope and purpose of forfeiture orders. Deals with concept of “instrumentality” in commission of the offence. Forfeiture most appropriate where crime has become a business. Not suitable sanction to forfeit motor vehicle in drunken driving cases.

S v Sithole - 2003 (1) SACR 326 (SCA) – court held addiction to alcohol no excuse in Mahlamuza and another v S
[2015] JOL 32606 (SCA)

Although their appeal against sentence was dismissed by the high court, that court granted leave to appeal to the present Court against their convictions on the second and third counts and the sentences imposed upon them on all three counts. The appellants contended that separate convictions of robbery with aggravating circumstances and of attempted murder amounted to an impermissible duplication or splitting of convictions.

Held that it has been ruled in case law that where attempted murder is committed in connection with a robbery the state is entitled, according to the circumstances, to charge the accused with robbery and with attempted murder and the court is entitled to find him guilty on the two separate offences provided that the robber used excessive violence that exceeded the limits and bounds of robbery, and it was proved beyond reasonable doubt that the accused also had the intention to kill and not merely to use force aimed at temporarily incapacitating the victim. The trial court’s finding and that of the high court to the effect that the acts of violence committed against the complainants in robbing them exceeded the limits or bounds of the robbery, was unsustained on the facts. The evidence established that the complainants sustained relatively minor injuries only. It could therefore, not be concluded that the violence committed against them endangered their lives so as to qualify as excessive force that exceeded the bounds of robbery. The totality of the evidence also did not prove beyond a reasonable doubt, that the appellants had the further intention to kill the complainants. All the acts of violence used against the complainants formed part of the robbery. Therefore, the convictions of the appellants on the two charges of attempted murder and the sentences on those counts had to be set aside.

Criminal Law – Robbery – Duplication of convictions – Tests for – Two acts with single intent – One continuous criminal act – Second conviction set aside

Mini Summary:

When imposing a sentence which is subject to automatic review, magistrates should check: (i) that it had been entered into the review register; (ii) that the full record had been properly typed, where it had been handwritten, and transcribed, where there was a mechanical recording of the proceedings; (iii) that all the evidence presented at the trial is included and, where it is not available, try and reconstruct such evidence from the handwritten notes, with the assistance of all the parties concerned; (iv) that all documents and annexures are attached to the record; (v) that no incomplete or incorrect record should be sent on review, because this will lead to delays, as has happened in the present matter. Should this happen, the magistrate would be clearly negligent in executing his/her duties and functions imposed by the law, especially s 303 of the Criminal Procedure Act 51 of 1977. Whilst the preparation of a record for a review and an appeal is primarily a function of the clerk of the court, it is ultimately the function of the magistrate to see to it that a proper record is sent to the high court. The clerk of the court should see to it that this is done timeously and within the periods prescribed by law.

[zCIz]Case Information

Indictment and charge—Duplication of convictions—Robbery—Accused charged with and convicted on three counts of robbery—Accused one of three perpetrators, one of whom was armed and threatened a group of three women—Robbers took their property and departed—Separate intent by robbers to rob each woman—No duplication of convictions. 

S v Mzileni
[2012] JOL 28971 (ECG)

Held that the high court is vested with inherent powers to correct errors in proceedings before lower courts. In the present case, it had to be determined whether it would be in the interests of justice for the trial before the second magistrate to proceed.

In criminal proceedings, a plea marks the commencement of a trial. The accused is then entitled to be acquitted or convicted on that plea. Therefore, the commencement of a second trial on the same facts as those relevant to the first proceedings could not be in the interests of justice. That was particularly the case where the prosecutor had added another (more serious) charge.

Mini Summary:

The accused was convicted of two counts of contravention of the Drugs and Drug Trafficking Act 140 of 1992. After sentencing, the magistrate formed the view that the two substances found in the accused’s possession were listed in the same Schedule to the Act, and therefore should not have founded two separate convictions. The case was sent on review.

Mini Summary:

Having pleaded guilty to a charge of robbery with aggravating circumstances, the appellant was convicted as charged.

S v Tomose
[2008] JOL 22300 (C)

Keywords:

The case was not a review covered by the provisions of section 304 of the Criminal Procedure Act 51 of 1977. This Court derived its power to intervene from section 24 of the Supreme Court Act 59 of 1959. The Court's powers also emanated from the fact that South Africa was governed by constitutional supremacy and the rule of law. It would result in grave injustice to subject the accused to two trials for the same offence. The Court hearing the second trial had no jurisdiction to entertain the matter. It would also be Constitutionally wrong to charge an accused person twice with one and the same offence. The proceedings in the second trial constituted a grave irregularity.

The second "trial" was declared a nullity and set aside. It was ordered that the earlier trial be proceeded with.

Mini Summary:

The appellant was convicted of contravening section 5(1) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 and was sentenced to three years’ imprisonment wholly suspended for a period of five years. He appealed against his conviction.

Criminal law – Robbery – Rape – Conviction – Appeal – Assessment of evidence

Mini Summary:

The complainant's testimony on the identity of the appellant as the perpetrator was adduced by leading questions to which neither the court nor the appellant's counsel raised objection. The complainant was found to have been prompted by the prosecution.

The court also took issue with the trial court's findings that the lighting in the shack was good, and that the complainant had ample opportunity to see the appellant. That was shown not to be true. The shack was actually in darkness and the complainant's opportunity to view the perpetrator at a time when she was under emotional pressure was open to doubt. While her evidence of identification might have been true and reliable, a much more careful and detailed investigation was necessary before arriving at that conclusion.

Criminal procedure – Indecent assault – Child complainant – Competence as witness – Enquiry

Mini Summary:

The appeal was upheld.

R v Riekert -1954 (4) SA 254 (SWA) – prosecutor not only represents the interests of the State but has a duty towards an accused to see that an innocent person is not convicted.

S v Van Rensburg – 1963 (2) SA 343 (N) - prosecutor has duty to bring to notice of the court information in his possession which may be favorable to an accused.

86. ENTRAPEMENT

Having been arrested during an anti-corruption operation, the appellant, a law enforcement officer employed by the traffic department, was charged with a contravention of section 1(1)(b) of the Corruption Act 94 of 1992. He was alleged to have accepted an amount of R300 as a bribe from a certain police inspector as an inducement not to issue a traffic summons to her. He was convicted as charged and sentenced to two years' imprisonment in terms of section 276(1)(i) of the Criminal Procedure Act 51 of 1977.

It was common cause that the appellant had been ensnared in a trap used to detect, investigate or uncover the commission of an offence within the ambit of section 252A(1) of the Act. The appellant’s argument was that as the complainant's conduct had gone beyond the provision of an opportunity to commit the offence of corruption, the evidence obtained by way of the entrapment should have been ruled inadmissible at the trial. it was further contended that the use of and reliance on such evidence resulted in the appellant not receiving the fair trial which was his constitutional entitlement.

Fisher & another v President of the RSA & another
[2008] JOL 21552 (C)

Keywords:

S v I Maluleke and two others - Case Number: RP 101/11, Phalaborwa Regional Court (Prosecutor J Manzini)

Whilst on patrol, game rangers found a freshly dehorned rhino carcass. They followed footprints found near the crime scene and heard shots

count 2, 8 years imprisonment on count 3 and 15 years imprisonment on count 4, with counts 2 and 4 to run concurrently.

S v ES Sigauque – Case Number: SH 45/2010, Mokopane Regional Court (Prosecutor D Lamminga)

that he matched the shoes which the accused was wearing at the time of his arrest to the tracks at the crime scene, formed the crux of

the case. Having denied that the shoe belonged to him, the accused’s’ foot was cast and the shoe sent for forensic analysis to make the

S v Els - Case Number: 1067A/2010, Musina Regional Court (Prosecutor A Weideman)

A game trader in Thabazimbi pleaded guilty to the illegal buying, possession and conveyance of 30 rhino horns (count 1), which he bought from

S v D Mathebula and two others - Case Number: 230/11, Mokopane District Court (Prosecutor E Nel)

A member of the public driving past the veld saw something that resembled a torch light. Aware of the cycad thefts in the area, he reported a

suspended for 5 years.

Compiled by Z Hassam and H van Schalkwyk

S v Bothma – 1971 (1) SA 332 (C) – office of prosecutor is an independent position and in no way subservient to the bench, The bench has no right to give any instruction to a prosecutor. Where the bench is wrong it must be resisted.

Nontela v DPP, Umtata – 2003 (2) SACR 205 (TkD) – practitioner has duty to bring to court’s attention any authority of which he is aware and is relevant to the determination of the relevant dispute whether or not such authority is in his client’s favor or not.

Molimi v S
[2008] JOL 21324 (CC)

Keywords:

The charges against the applicant arose out of an armed robbery at a store at which he was the manager. A shootout resulted in one of the group of robbers being killed, and two others surrendering. Those two implicated the applicant in the robbery in a statement made to the police.

Held, that the admissibility of the above-mentioned statement was in issue.

Where the following was stated by Munnik CJ, as he then was, at 643G – H:

“If the witness denies having made the statement, or any part thereof

bound by the witness’ denial and therefore the making of the previous

statement inconsistent with the present testimony has not been proved.

Mini Summary:

In a trial-within-a-trial, the court had to decide on the admissibility of a statement made by the second accused before a magistrate. The second accused opposed the introduction of the statement into evidence, alleging that he had not made it voluntarily.

Mini Summary:

Based on information provided by an accomplice of the accused, they were charged in connection with a hijacking of a taxi.

Keywords:

Criminal law – Bail – Refusal of – Appeal against refusal of bail – In terms of section 60(11)(a) of the Criminal Procedure Act 51 of 1977, appellant required to satisfy the court that exceptional circumstances existed which in the interests of justice permitted his release on bail – In absence of exceptional circumstances, appeal dismissed

As a result, the appeal was dismissed.

Mooi v S
[2012] JOL 29148 (SCA)

The parties were in agreement that the bail application fell under section 60(11)(a) of the Criminal Procedure Act 51 of 1977 and therefore the appellant had to adduce evidence that satisfied the Court that exceptional circumstances existed which in the interests of justice permitted his release. In terms of section 65(4) the appellant had to persuade the Court that the decision to refuse bail was wrong.

The magistrate refused bail on the ground that there was evidence linking the accused to the offence and therefore that it would not be in the interests of justice to grant bail. In the present Court it was accepted that in the circumstances the determining factor whether to grant or refuse bail was the strength of the state’s case against the appellant.

1. S v NAJOE 2012 (2) SACR 395 (ECP)

The applicant was one of four accused charged with robbery with aggravating circumstances, kidnapping, unlawful possession of a firearm, unlawful possession of ammunition and two counts of murder. The applicant was being held in custody and had been for over a year. The offences in question were offences mentioned in sch 6 of the Criminal Procedure Act 51 of 1977 and the onus was on the applicant to satisfy the court that 'exceptional circumstances' existed which in the interests of justice permitted his release. The applicant did not give oral evidence but filed an affidavit in which he set out his personal circumstances and the reasons he should be released E on bail. He was 23 years old and lived with his parents. He was employed as a cashier and had one previous conviction of assault with intent to do grievous bodily harm, for which he was sentenced to 18 months' correctional supervision. The applicant contended that, because he was a person of good character who had a traceable address, held a steady job and whose family and relatives resided in Port Elizabeth, he was not likely to sabotage the administration of justice by absconding or not standing trial. He contended further that he was only implicated in the offence of robbery with aggravating circumstances and kidnapping (the latter not being a sch 6 offence). This was denied by the investigating officer. The court held that the interests of justice would best be served if those factors favourable to the applicant were weighed against those that were not. It was not the court's duty to make a provisional finding of guilt or innocence, but the strength of the evidence relating to his alleged implication in the robbery was no small matter in the consideration of the interests of justice. The court could not ignore the fact that the state had presented oral evidence through the investigating officer. In all, it was not persuaded that the applicant had discharged the onus on him to prove, on a balance of probabilities, that the interests of justice permitted his release on bail. (Paragraphs [13] and [14] at 398g–i and 399c.)

Criminal procedure – Bail – Refusal of – Appeal

Mini Summary:

91. EXPLANATION OF RIGHTS

Machongo v S
[2015] JOL 32552 (SCA)

The facts underlying the charges involved the appellant and two others robbing the owner of a vehicle in order to steal the vehicle and use it for spare parts. They overpowered the vehicle’s owner and dispossessed him of his firearm. The appellant took the firearm and a shot was fired, killing the deceased.

Held that failure to forewarn or to mention the applicability of the minimum sentence is a fatal irregularity resulting in an unfair trial in respect of sentence. The appeal court must then consider sentence afresh. In this matter, the full court applied the incorrect test in holding that a court of appeal will only interfere when the sentence imposed by the trial court is vitiated by an irregularity or misdirection or when the sentence is shockingly severe, disturbingly inappropriate and totally out of proportion to the offence committed. Considering a sentence afresh must mean, setting aside of the sentence of the trial court, inter alia, and conducting an inquiry on sentence as if it had not been considered before. In other words, the appeal court must disabuse itself of what the trial court said in respect of sentence – it must interrogate and adjudicate afresh the triad in respect of sentence. What the full court did was not considering the sentence afresh, but comparing what it had in mind with what was imposed.

Keywords:

Criminal procedure – Trial – Rights of accused – Explanation of rights – Duty of presiding officer to properly explain right to legal representation – Failure to properly explain right amounting to irregularity which tainted conviction and prejudiced accused, resulting in conviction and sentence being set aside on appeal

Turning to consider the legal effect of the irregularity, the court pointed out that failure by a presiding judicial officer to inform an unrepresented accused of his right to legal representation, if found to be an irregularity, does not per se result in an unfair trial necessitating the setting aside of the conviction on appeal. It must be shown that the irregularity tainted the conviction and that the appellant had been prejudiced thereby. The court therefore examined the further conduct of the trial to evaluate how it was conducted in the absence of legal representation for the defence. It was noted that the appellant was an unsophisticated person with no understanding of the law or the legal processes. That showed in his attempts to conduct cross-examination. A presiding officer is not merely an observer but has a duty to prevent unfair questioning of an accused. He is required to stop a prosecutor from asking unfair questions and putting incorrect statements to an accused, especially if there is no legal representative to object on behalf of an accused. The court found that in this case, proper legal representation might have made a difference in the presentation of the appellant’s defence.

On the ground that the irregularity in the conducting of the trial was fatal to the conviction, the court upheld the appeal and set aside the conviction and sentence.

As regards the delay in the matter coming before the court on appeal, it appeared that these delays were caused by (1) the failure of the appellant's advocate to inform him, immediately after sentence, of his right to apply for leave to appeal and his right to appeal; (2) the failure of the Legal Aid officer who consulted with the appellant in August 2003 to appoint an attorney to represent the appellant and order a transcript of the proceedings to enable the appellant to apply for leave to appeal; (3) the failure of the appellant to follow up his instructions to ascertain what progress his attorney was making (which was probably due to the appellant's lack of education and means); and (4) the failure of the Legal Aid officer or attorney appointed by the Legal Aid Board to expeditiously obtain the record (81 pages in extent) for the purpose of the application for leave to appeal and the appeal itself.

Held, that delays of this nature, in the prosecution of a criminal appeal when the appellant was serving a prison sentence, were not acceptable and ran contrary to the ethic which should prevail in the administration of the criminal-justice system. Where a convicted person who is serving a prison sentence wishes to appeal, every person involved in the process must ensure that he or she does, with the utmost expedition, what he or she is required to do. The judge or magistrate must hear the application for leave to appeal without delay, the registrar or clerk of the court must have the record transcribed and prepare the record of proceedings, and transmit and file all necessary documents without delay, and the attorney representing the accused must ensure that everyone involved expeditiously does what is required. And that is because the freedom of the individual is involved and must be safeguarded within the limits of the law. It is an egregious violation of individual freedom to detain a person in prison, and it is the solemn duty of every judicial officer, official involved in the administration of justice, and the legal practitioner representing the accused, to ensure that it will happen only with the full authority of the legal process. The judicial officer and every other official involved in the legal process whereby a person is deprived of his freedom are obliged to ensure that that process obtains the full stamp of approval of the law as quickly as possible, and the impression must never be created that our courts and judicial officials are indifferent to the freedom of the individual. (Paragraph [17] at 397e–h.)

Criminal procedure – Charge – Error by court – Legal representation – Court’s duties

Mini Summary:

92. EXTRADITION

Geuking v President of RSA 2003(1) SACR 404 (CC) – court dealt with principles applicable and in particular President’s consent i.t.o. S3(2) of Extradition Act 67 of 1962.

Mini Summary:

The first appellant was a Zimbabwean national and the second appellant a South African. After a robbery in Gabarone, Botswana, they were arrested at a border post, allegedly in possession of firearms and suspected stolen goods. Exhibits which were seized were handed to the Botswana authorities and charges were withdrawn in South Africa. A Botswana magistrate issued a warrant of arrest for the appellants and the South African authorities received a request for the extradition of the appellants.

Concluding that no grounds existed for interfering with the magistrate’s order, the Court dismissed the appeal.

93. EXPERT EVIDENCE

Held, further, that because robbery with aggravating circumstances, was a prevalent offence in the present society, steps had been taken to stamp it out, hence the minimum sentence legislation and the serious efforts made by the police force of this country to arrest, detain and deal with perpetrators. The effect of a lengthy period of imprisonment also had the added salutary purpose of removing such persons from society, thereby preventing them from committing further crimes. At the same time one had to have regard to the need of not becoming enraged by the activities of the offenders, instead considering the punishment to be imposed with measured control and a degree of mercy.

[zCIz]Case Information

Mini Summary:

In March 1999, a cash-in-transit vehicle was robbed in an armed robbery. A shootout erupted between the robbers and the security guards, during which one of the security guards and one of the attackers were killed. The appellant was one of five men charged with various offences arising from the incident. He was convicted in the court a quo on counts of murder, attempted murder, robbery with aggravating circumstances, unlawful possession of forearms and unlawful possession of ammunition. He was sentenced to an effective term of life imprisonment. He appealed against his convictions and sentences.

S v Jones 2004 (1) SACR 420 (CPD) – expert evidence – opinions expressed in text books are hearsay unless confirmed by expert under oath ie. “battered woman syndrome”.

S v Gouws – 1967(4) SA 527 (C) – defined expert witness and value of evidence. Expert is witness who possess knowledge in a specialized field.

Keywords:

Public international law – Extradition – Extradition treaty – Death penalty

Section 233 of our Constitution states that international law binds South Africa insofar as it is not in conflict with the Constitution. Because the death penalty is absolutely outlawed in South Africa, any limitations in international law to the right to life are immediately in conflict with our Constitution. Therefore, any international law principles that may seek to justify the imposition of the death penalty by Botswana are not binding on this court and any attempt to satisfy them would be unconstitutional. Therefore, there can be no international law obligations on South Africa to extradite anyone to their possible deaths at the hand of the executive of another state as it would be contrary to our Constitution and invalid.

96. FACTUAL FINDINGS

Convicted of murder, the appellant was sentenced to 15 years’ imprisonment. His appeal to the high court failed, but leave was granted to appeal to the present Court against conviction and sentence.

The appellant had fired a single shot at a person at a taxi rank, killing him. The question was whether the appellant was acting in self-defence, as alleged by him. Two state witnesses provided insight into the circumstances surrounding the shooting. One of them was an eye-witness to the shooting, and testified that the appellant had approached the deceased and when he was approximately three metres from him, produced a pistol from his waist, pointed it at the deceased who was then facing him, and shot him. The witness disputed the appellant’s contention that the deceased had produced a firearm which he pointed at the appellant shortly before the latter produced his and shot the deceased. He therefore disputed the appellant was acting in self-defence. The second witness did not witness the actual shooting, but testified that the appellant had followed the deceased to the back of the vehicle from which they just alighted. The witness then heard a gunshot and when he went to investigate, he saw the body of the deceased on the ground. Immediately after the shooting he saw the appellant run away from the scene whilst being chased by a crowd of people consisting mainly of other taxi drivers and owners.

97. FAILURE TO APPEAR IN COURT

S v Mkhavele
[2008] JOL 22248 (T)

Held that the magistrate had not complied with the duties required of him in enquiring into the contravention of section 72(2)(a). The court set out the relevant requirements, and held that the summary enquiry conducted by the presiding magistrate was not conducted in accordance with those principles and was not fair. The conviction and sentence were set aside.

On the main case, the court found that the conviction should be confirmed, but the sentence was excessive. A more appropriate sentence was substituted.

Mini Summary:

In May 2004, an attack on a house left four dead and one survivor sustaining 25 gunshot wounds. The survivor (“the complainant”) identified one of the assailants (“Moosa”), and he and the two appellants were subsequently convicted of four counts of murder and one of attempted murder. The first appellant was sentenced to an effective 20 years’ imprisonment, while the second appellant was effectively sentenced to life imprisonment.

Other evidence adduced by the prosecution included a neighbour’s account of what she heard on the morning in question, and a third party’s testimony that the second appellant had told him that he had committed a massacre.

In the face of all the evidence adduced by the state, the appellants and Moosa had decided not to testify in their own defence.

All the evidence set out above was considered by the court below and it was careful in its detailed evaluation. The court below was very aware that it was dealing with a number of witnesses who themselves were implicated in offences in respect of which they were required to be warned in terms of section 204 of the Criminal Procedure Act 51 of 1977. The court was conscious of the need to be cautious in evaluating the evidence of a single witness, particularly one seeking indemnity.

It was submitted on behalf of the appellants that because of the conflict in the evidence of the appellants’ respective girlfriends, both of whom were state witnesses, a successful prosecution was precluded. The submission was held to be fallacious. The second appellant’s girlfriend’s evidence was rightly rejected.

Criminal law – Rights of accused – Right to remain silent – Adverse inference – Evidence – Court’s assessment of – Approach to be adopted

Mini Summary:

Regarding the charges against the second accused, the Court found that he did not take any real or active part in the assault on the deceased. The only reasonable inference to be drawn from the evidence, was that the second accused, on the day in question, broke into the house of the deceased with the intention to steal from him.

Therefore, while the first accused was convicted as charged, the second accused was acquitted of all charges other than housebreaking with intent to rob and robbery.

The appellant was convicted of housebreaking with to steal and theft and was sentenced to five years’ imprisonment.

Hand and finger prints lifted from the scene of the crime led the police to the appellant. On appeal, the defence argued that insofar as the only evidence relied upon was the fingerprints, the state had not proved its case beyond a reasonable doubt.

Keywords:

Criminal law – Murder – Attempted murder – Conviction and sentence – Appeal

99. FAIR TRIAL

Machongo v S
[2015] JOL 32552 (SCA)

The facts underlying the charges involved the appellant and two others robbing the owner of a vehicle in order to steal the vehicle and use it for spare parts. They overpowered the vehicle’s owner and dispossessed him of his firearm. The appellant took the firearm and a shot was fired, killing the deceased.

Held that failure to forewarn or to mention the applicability of the minimum sentence is a fatal irregularity resulting in an unfair trial in respect of sentence. The appeal court must then consider sentence afresh. In this matter, the full court applied the incorrect test in holding that a court of appeal will only interfere when the sentence imposed by the trial court is vitiated by an irregularity or misdirection or when the sentence is shockingly severe, disturbingly inappropriate and totally out of proportion to the offence committed. Considering a sentence afresh must mean, setting aside of the sentence of the trial court, inter alia, and conducting an inquiry on sentence as if it had not been considered before. In other words, the appeal court must disabuse itself of what the trial court said in respect of sentence – it must interrogate and adjudicate afresh the triad in respect of sentence. What the full court did was not considering the sentence afresh, but comparing what it had in mind with what was imposed.

Keywords:

Criminal procedure – Trial – Rights of accused – Explanation of rights – Duty of presiding officer to properly explain right to legal representation – Failure to properly explain right amounting to irregularity which tainted conviction and prejudiced accused, resulting in conviction and sentence being set aside on appeal

Turning to consider the legal effect of the irregularity, the court pointed out that failure by a presiding judicial officer to inform an unrepresented accused of his right to legal representation, if found to be an irregularity, does not per se result in an unfair trial necessitating the setting aside of the conviction on appeal. It must be shown that the irregularity tainted the conviction and that the appellant had been prejudiced thereby. The court therefore examined the further conduct of the trial to evaluate how it was conducted in the absence of legal representation for the defence. It was noted that the appellant was an unsophisticated person with no understanding of the law or the legal processes. That showed in his attempts to conduct cross-examination. A presiding officer is not merely an observer but has a duty to prevent unfair questioning of an accused. He is required to stop a prosecutor from asking unfair questions and putting incorrect statements to an accused, especially if there is no legal representative to object on behalf of an accused. The court found that in this case, proper legal representation might have made a difference in the presentation of the appellant’s defence.

On the ground that the irregularity in the conducting of the trial was fatal to the conviction, the court upheld the appeal and set aside the conviction and sentence.

Mini Summary:

The accused was charged with robbery, and was subsequently convicted and sentenced after a plea of guilty was entered. The matter was sent on special review by the senior magistrate.

Criminal law – Sexual assault – Conviction – Appeal

Mini Summary:

The magistrate must be exceptionally careful when refusing to allow an accused to call a witness. In particular, when the accused is unrepresented, the magistrate, before refusing such a request, should make certain that such a witness cannot possibly give relevant evidence. If the court is not careful to observe this obligation, a miscarriage of justice may result: S v Tembani 1970 (4) SA 395) (E). Indeed, the denial of such an opportunity is in itself a gross irregularity in the proceedings: District Commandant, South African Police, and Another v Murray 1924 AD 13 at 18; S v Vezi 1963 (1) SA 9 (N) at 12.

Mthimkhulu v S
[2014] JOL 31366 (SCA)

Held that the starting point in the present enquiry had to be the provisions of section 276B of the Criminal Procedure Act 51 of 1977. The principal issue for determination was whether section 276B(2) impels a court which sentences a person to imprisonment, following a conviction for two or more offences where the sentences of imprisonment are ordered to run concurrently, to fix a non-parole period in respect of the effective period of imprisonment. The subsidiary issue was whether or not the appellant had a right to be heard before the court below invoked section 276B(2) of the Act.

The High Court felt itself bound to fix a non-parole period in respect of the effective term of 20 years’ imprisonment imposed on the appellant, because it had ordered the sentences to run concurrently and believed that the use of the word “shall” in section 276B(2) made the fixing of a non-parole period peremptory. The question was whether the language of subsection 2, viewed in the context of section 276B, can sustain the meaning attributable to it by the court below. That entailed undertaking a proper interpretation of the section.

Keywords:

Constitutional law – Right to fair trial – Section 35 of Constitution – Fairness demands that the accused be informed right at the outset of the trial, of the charge faced – Criminal law – Sentence – Minimum sentence provisions in Criminal Law Amendment Act 105 of 1997 – Applicability – Where complainant not proved beyond reasonable doubt to have been under the age of 16 years at the time of the incident, and State did not prosecute appellant for rape of a girl under the age of 16 years in terms of section 51(1) read with Part I Schedule 2 of the minimum sentence legislation, such legislation not applicable

The right to a fair trial is entrenched in section 35 of the Constitution. At no stage prior to his conviction was it brought to the appellant’s attention that he could be sentenced by the high court or that he could be sentenced to life imprisonment. To be informed, right at the outset of the trial, of the charge faced, is one of the demands of fairness.

As a result of the failure referred to above, the appellant could only be convicted of rape (and not rape of a girl under the age of 16). In terms of section 51(2)(b) of the of the Criminal Law Amendment Act, such a conviction attracts a minimum sentence of 10 years’ imprisonment in the absence of substantial and compelling circumstances. Even if no regard was had to the minimum sentence legislation, the court was of the view that a discretionary sentence of 10 years’ imprisonment would be appropriate in the circumstances. That led to the reduction of sentence on appeal.

The accused was charged with assault with intent to do grievous bodily harm and murder. The trial proceeded in the regional court and the accused was convicted as charged. Subsequent to the conviction and prior to sentencing, the presiding magistrate passed away and another magistrate was designated to proceed with the trial to its conclusion. That magistrate found from a perusal of the record, that an irregularity had occurred in the proceedings.

Held that section 93ter(1) of the Magistrate’s Court Act 32 of 1944 required the magistrate to summons the assistance of two assessors as the accused was charged with murder. That provision is subject to the right to the right of the accused to expressly elect to proceed without the assessors. The peremptory requirement was not followed b the magistrate in this case.

Mini Summary:

The appellant was convicted of housebreaking with intent to assault and assault with intent to do grievous bodily harm, and was sentenced to three years’ imprisonment, one year of which was conditionally suspended.

S v Tsukulu & others
[2010] JOL 26357 (KZP)

Keywords:

Held on review that the proceedings were not in accordance with justice, and neither the conviction nor sentence could stand.

In the face of the demand by the accused that he see the exhibits of the plants, it was a misdirection on the part of the trial court to rule that the plants should not be produced in court simply because they had been replanted. A second misdirection, related to the inadequate proof of the offence. The court highlighted the breaks in the evidence adduced regarding whether the plants found were properly identified and if so, whether they were adequately proved to be specially protected.

Public international law – Extradition – Extradition treaty – Death penalty

Mini Summary:

Mosesi v S
[2009] JOL 23068 (W)

Keywords:

Held that every accused has a constitutional right to a fair trial. The trial court may intervene at any time to elucidate a point, but should not take over the examination or put leading questions to support the state case before the parties have finished their examination of the witness.

The magistrate in this case had interrupted the prosecution in the presence of a key witness, and had engaged with a discussion, before the prosecution was done with its case, on whether the key elements of the offence were proved. His conduct alerted the parties and in particular the state as to what the deficiency in their case at that point in time was. This constituted a gross irregularity in the proceedings. A court's enquiry or examination should be aimed at elucidating any points that may be obscure after examination of the parties. In order to give the accused a fair trial a judicial officer must not only be impartial, but be seen to be impartial.

Mini Summary:

The appellants were convicted of attempted robbery, murder and attempted murder, and were each sentenced to an effective 24 years' imprisonment. They appealed against their convictions and sentence.

S v Goeieman
[2008] JOL 21997 (NC)

Keywords:

The effect of the irregularities was that the trial was rendered unfair. The conviction and sentence were accordingly set aside.

Broome v DPP, Cape Town and others – 2007 JOL 21012 (C) – deals with refusal of court to grant a stay of prosecution due to unreasonably long delay in pre-conviction stage. Question to be answered is whether accused suffered irreparable trial prejudice due to delay.

The appellant was convicted of the crime of robbery with aggravating circumstances, and was sentenced to serve a term of 15 years' imprisonment.

Acting on a tip-off pursuant to an armed robbery at a private residence, the police found the appellant and three others at the appellant's house, in the possession of the items stolen during the robbery.

Keywords:

Criminal law – Assault with intent to do grievous bodily harm – Conviction and sentence– Review

Setting aside the conviction and sentence, the court ruled that the accused was convicted of common assault and sentenced to pay a fine of R3 000 or in default of payment to undergo six months' imprisonment.

Stuurman v S
[2008] JOL 21937 (E)

Held that an appeal court's power to interfere with the sentence imposed by a trial court is limited.

Having regard to the circumstances of the present case, the court was of the opinion that the magistrate should have given greater weight to the petty nature of the assault. That, together with the appellant's age and his clean record, should have induced her to consider a non-custodial sentence. The court suggested that correctional supervision might be appropriate in this matter.

Criminal procedure – Sentencing – Imposition of fine – Ability to pay – Review

Mini Summary:

S v Hlulela 2003(1) SACR 642 (TPD) – fine must be realistic so that there is reasonable chance accused can pay it.

102. FINGER PRINT/ PALM PRINT/ FOOT PRINTS

In March 1999, a cash-in-transit vehicle was robbed in an armed robbery. A shootout erupted between the robbers and the security guards, during which one of the security guards and one of the attackers were killed. The appellant was one of five men charged with various offences arising from the incident. He was convicted in the court a quo on counts of murder, attempted murder, robbery with aggravating circumstances, unlawful possession of forearms and unlawful possession of ammunition. He was sentenced to an effective term of life imprisonment. He appealed against his convictions and sentences.

The single question for decision was whether or not the court a quo was correct in finding that the appellant was one of the attackers on the day of the armed robbery. The appellant raised an alibi as a defence. That defence was rejected largely on the basis of evidence that fingerprints belonging to the appellant were found on the getaway vehicles.

Keywords:

Criminal law – Sentence – Appeal – Severity of sentence – Evidence – Fingerprint evidence – Probative value

In not explaining the presence of his finger-print in the property broken into, the appellant ran the risk of the only evidence before the Court being his finger-print linking him to the crime. Any suggestion that there must be another explanation must be based on acceptable evidence. In the absence of such evidence, the suggestion would be mere speculation. The Court found that the only evidence before it place the appellant at the scene of the crime. The appeal against conviction was thus dismissed.

Setting out the established principles applicable to the imposition of sentence, the Court found the sentence of five years’ imprisonment to be too harsh. The sentence was set aside and a sentence of five years’ imprisonment was imposed in its stead.

Criminal law – Pointing of firearm – Appeal against sentence – Custodial sentence found to be disproportionate to the facts and circumstances relating to the offence in this case – Court replacing sentence with serious non-custodial sentence

Mini Summary:

The appellant’s personal circumstances were strongly mitigating. The trial court appeared to proceed from the premise that a custodial sentence was the only suitable sentence. He gave no consideration whatsoever to alternative non-custodial sentencing options. It could not be seen what useful purpose a short term of imprisonment would serve in this case. The Court held that it would only cause the appellant grave jeopardy in his work and family situation. Imprisonment should generally be imposed in instances where there is a need to remove the offender from society. A custodial sentence was held to be grossly disproportionate to the facts and circumstances relating to the offence. But a severe non-custodial sentence was considered necessary to convey clearly the message that conduct such as that of the appellant, particularly from a member of the armed forces, will not be tolerated. A sentence of six months’ imprisonment, wholly suspended on appropriate conditions, would meet the well-established sentencing objectives.

Thembalethu v S
[2008] JOL 21512 (SCA)

Held, that the appellant's argument was that there was no offence for possession of a semi-automatic firearm and that the minimum sentence provisions were not applicable. He argued further that the regional court was wrong to have sentenced him to 15 years' imprisonment instead of no more than 3 years' imprisonment as provided for in the now repealed Arms & Ammunition Act 75 of 1969.

The court held that that in providing for increased penal jurisdiction for the possession of a semi-automatic firearm the Legislature had not created a new offence, but merely enhanced the penal jurisdiction of the court in respect of an existing offence. Offences relating to the possession of a semi-automatic or automatic firearm were offences in respect of which the court acquired an enhanced penal jurisdiction.

Mini Summary:

The appellants were convicted of conspiracy to commit robbery in contravention of section 18 (2) (a) of the Riotous Assemblies Act 17 of 1956, murder, unlawful possession of a firearm and unlawful possession of ammunition. The counts were all taken as one for the purposes of sentence. The first and third appellants were sentenced to 20 years' imprisonment each, and the second appellant was sentenced to 15 years' imprisonment.

Guleni v S
[2008] JOL 22908 (E)

Keywords:

The court also deemed the sentence on the second and third counts to be too severe. A reduced sentence was substituted for that imposed by the trial court.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

THE STATE Respondent

Neutral citation: Xabendlini v State (608/10) [2011] ZASCA 86

Summary: Arms and Ammunition – Pointing a firearm in

contravention of s 39(1)(i) of the Arms and Ammunition

Kwanda v S
[2011] JOL 27171 (SCA)

Keywords:

The evidence showed that members of the South African Police Service had received information about a planned robbery at the bank. Before the robbery could be carried out, the appellant and his co-accused were arrested. Immediately prior to his arrest, the appellant had been the driver of a vehicle and was accompanied by two passengers. One of those passengers was in possession of the firearm which was the subject matter of this appeal. It was common cause that the appellant at no stage had physical possession of the firearm and its ammunition, and there was some dispute as to whether the appellant was aware of the firearm in his passenger’s possession.

Held that the only question on appeal was whether the state had established that the appellant possessed the firearm jointly with the passenger who was found in possession thereof. In that regard the state had to prove that the appellant had the necessary mental intention (animus) to possess the firearm. The court held that the fact that the appellant conspired with his co-accused to commit robbery, and even assuming that he was aware that some of his co-accused possessed firearms for the purpose of committing the robbery, did not lead to the inference that he possessed such firearms jointly with his co-accused. Such an inference is only justified where the state has established facts from which it can properly be inferred that the group had the intention (animus) to exercise possession of the guns through the actual detentor and, the actual detentors had the intention to hold the guns on behalf of the group.

Held, further, that the documents in which the police had recorded the details of the firearm found in the possession of the appellant had not been produced in evidence, and no explanation for their absence had been given: in the absence of a suitable explanation these documents should have been produced in order for the defence to cross-examine, to test the veracity and accuracy of the information allegedly recorded therein, more especially as there were differences between the evidence by two policemen of what was recorded in those documents.

Held, further, as to whether the firearm was a Norinco or a Lorinco semi-automatic, that the State was bound by the charge, and any variance between what was alleged and what was proven could result in the setting aside of the conviction. The critical test was one of prejudice.

Semble: It will be desirable, especially where the State seeks a conviction on a charge of possession of a particular type or genus of firearm as a 'stand-alone' count (ie not with other more serious counts such as murder, rape or robbery where such a firearm is used as an instrument of such offence), to set out in the charge-sheet itself such alternative and competent verdicts which it might seek.

Appeal upheld and conviction set aside.

The appellant pleaded guilty to unlawful possession of a firearm in contravention of section 3 of the Firearms Control Act 60 of 2000. He was convicted and sentenced to 15 years’ imprisonment. He appealed against his sentence.

As the firearm in question was a semi-automatic pistol, a minimum sentence of 15 years’ imprisonment, prescribed by section 51(2) of the Criminal Law Amendment Act 105 of 1997, read with Part II of Schedule 2, applied.

S v Ntantiso
[2012] JOL 28856 (ECG)

Keywords:

105. FIRST REPORT

S v Angelo Hammond Sept 2004 (SCA) – court dealt in detail with situations where evidence of a first report may be used in sexual misconduct cases.

Mini Summary:

The applicant's motor vehicle was seized by members of the South African Police service in a road block. The applicant sought the setting aside of the seizure of his motor vehicle and the certificate purporting to authorise it issued in terms of section 13(8) of the Police Act 68 of 1995. He also sought a restraining order interdicting the respondents from further unlawfully seizing the motor vehicle from the possession of the applicant as well as a mandamus that they should release the vehicle to the applicant.

NDPP v Vermaak – 2008 JOL 21197 (SCA) – deals with scope and purpose of forfeiture orders. Deals with concept of “instrumentality” in commission of the offence. Forfeiture most appropriate where crime has become a business. Not suitable sanction to forfeit motor vehicle in drunken driving cases.

107. FORSEEABILITY

A robbery perpetrated on a municipality resulted in a person being fatally shot. The appellant was charged with murder and robbery with aggravating circumstances. The state alleged that he had acted in concert with certain others and in furtherance of the execution of a common purpose to commit the crimes. as there was no direct evidence of such participation by the appellant, the respondent urged the court to consider the circumstantial evidence tendered and to infer therefrom that there was such participation.

Held that one of the allegations the state must prove as a basis for criminal liability is that the accused participated in the criminal activity giving rise to that criminal liability. The crucial requirement for the finding that an accused person acted with a common purpose with one or more other offenders is that he must have intended to commit such a crime.

Mini Summary:

The accused was driving a lorry on a main road at night. The lorry carried several passengers. The accused was stopped at a police roadblock; he was told by the police to go to the nearest police station because the vehicle was not properly lit. He instead drove off, resulting in the police giving chase and erecting another roadblock to stop him. He did not stop there either. The police opened fire, killing one of the passengers. The accused was charged with and convicted of culpable homicide. It was alleged that by failing to obey the order to stop, he acted negligently and that this negligence caused the death of one of his passengers.

Criminal law – Fraud – Consists in unlawfully making, with intent to defraud, a misrepresentation which causes actual prejudice or which is potentially prejudicial to another – Question of whether non-disclosure is criminally fraudulent is linked to the presence or absence of the necessary intention to defraud –Criminal law – Sentence – Appeal – A suspended sentence is generally used as a weapon of deterrence against the reasonable possibility that a convicted person may again fall into the same error (or at least one substantially similar) – When the sentence requires that the accused serve a lengthy period of direct imprisonment, that sentence is in itself, a deterrent, and an additional period of suspension serves no purpose

Mini Summary:

If the conviction on the charge of fraud was sustained, the issues were whether the trial court misdirected itself in the manner in which it evaluated the interests of society in relation to the crime; whether the trial court erred in imposing a heavier sentence on the first appellant by reason of certain convictions for VAT fraud and insider trading committed during his tenure as managing director of LeisureNet; and whether the sentences were disturbingly inappropriate, justifying interference on appeal.

Held that fraud consists in unlawfully making, with intent to defraud, a misrepresentation which causes actual prejudice or which is potentially prejudicial to another. The question of whether non-disclosure is criminally fraudulent is linked to the presence or absence of the necessary intention to defraud. Referring to case law, the court set out the requisites for criminal or fraudulent non-disclosure. Those include a duty to disclose the particular fact; a wilful breach of this duty under such circumstances as to equate the non-disclosure with a representation of the non-existence of that fact; an intention to defraud which involves knowledge of the particular fact, awareness and appreciation of the existence of the duty to disclose, and deliberate refraining from disclosure in order to deceive and induce the representee to act to its prejudice or potential prejudice; and actual or potential prejudice of the representee.

The court also found no valid basis for the distinction in sentences between the first and second appelants.

The misdirection in relation to the suspension of part of the sentences left the present court free to impose sentences which fit the case. Setting aside the sentences imposed by the lower court, the court imposed a sentence of seven years’ imprisonment on each of the appellants.

The appellants operated a business largely involving fitting windscreens on motor vehicles. Most of their business came from an insurance company, which instructed them to fit new windscreens of a particular quality, on insured vehicles. However, the appellants committed fraud by fitting windscreens of inferior quality but claiming for the more expensive product. They were charged and pleaded guilty to 91 counts of fraud. Upon being convicted, they were sentenced to five years' imprisonment on each count. A compensation order was also issued.

Appealing against the sentence, the appellants contended that the sentence was startlingly inappropriate, particularly given the compensation order to which insufficient regard was had by the trial court.

Criminal law – Fraud – Requirements – Elements of offence – Prejudice

Mini Summary:

Saayman v S
[2008] JOL 22778 (E)

Keywords:

Held that the sentence had to be considered against the backdrop of section 10 of the Constitution which guarantees the right to human dignity. The conduct required of the appellant by the condition attached to the suspension of her sentence violated that right insofar as it amounted to degrading punishment.

The court acknowledged the role restorative justice may play, but explained the limits thereto.

Nonkonyana v S
[2008] JOL 21287 (E)

Keywords:

Setting aside the sentences, the court imposed less severe terms of imprisonment.

Feyen v S
[2008] JOL 21560 (C)

Held that the issue for determination before the court a quo was whether or not the interests of justice permitted the appellant's release on bail.

The appellant bore the onus of establishing, on a balance of probabilities, that the interests of justice permitted his release on bail.

An order made by a district court in terms of section 114 or 116 of Act 51 of

1977 referring a case to the Regional Court is procedural in nature and the

CPA), is whether an order made by a district court magistrate in terms of section 114

or 116, as the case may be, of the CPA referring a case for sentence by a regional

the district of Verulam on two counts; in that, firstly, he unlawfully tampered with a

motor vehicle without the consent of its owner in contravention of section 66(1) read

contents of which were confirmed by the accused, was handed up by the defence

attorney in terms of section 112(2) of the CPA, amplifying the accused’s guilty pleas.

17

years’ imprisonment, conditionally released on 23 September 2008 under parole

regional court.

[4] When the matter came before the regional court for sentence, as envisaged by

acting regional magistrate submitted the matter to this court with the request that the

order made by the magistrate’s court be set aside and that the matter be remitted to

jurisdiction of the magistrate’s court is a fine not exceeding “the amount determined

from time to time by the Minister by notice in the Gazette” or to imprisonment not

sentencing himself.

[6] It is apparent that the acting regional magistrate assumed that the magistrate’s

“114 (1) If a magistrate’s court, after conviction following on a plea of guilty but

before sentence, is of the opinion –

(c) …

the court shall stop the proceedings and commit the accused for sentence by a

that court and the plea of guilty and any admission by the accused shall stand

18

(a) …

(b) that the previous convictions of the accused are such that the offence in respect

regional court having jurisdiction.”

Since the accused was convicted on his guilty plea, it followed that section 114, and

jurisdiction in the matter has been fully and finally exercised and, therefore, its

authority over the subject matter has ceased. However, as it was noted by the court

unless the decision disposed of a part of the relief claimed.

[9] In Van Streepen the court also explained that the main reason that the concept of

evidence and it may in the end not have a decisive effect upon the outcome of the

case.’

only to give a direction into the future conduct of the case, namely, to refer the

matter to the regional court for the accused to be sentenced by that court. This

[11] It seems to me, therefore, that the district magistrate’s decision or referral under

section 114 or 116 of the CPA is merely a ruling of a procedural nature seeking to

functus officio in the matter.

[12] It ought to be borne in mind that no amount of previous convictions is, in respect

maximum penalties prescribed by the relevant statutes under which the accused

was charged and convicted.

that the accused is currently convicted of. Whether or not the previous conviction of

theft is ‘relevant and important’ in relation to the accused’s present convictions is

magistrates shall in the future not need to refer matters such as this one to the high

court, as it happened here. In the event of the magistrate who convicted the accused

2. It is declared that the provisions of section 114 of the Criminal Procedure Act

51 of 1977are not applicable in this case.

accused being unavailable, the matter shall be dealt with by any other

magistrate of the same court, in terms of section 275.

Makumbane and others v S
[2014] JOL 32313 (SCA)

Keywords:

Held that the testimony of the complainant sufficiently established that the applicants had participated in a collective assault on the two young men, which left the one dead and the other with extensive bruises and lacerations. On that evidence the convictions for murder and assault with intent to commit grievous bodily harm were proper. Similarly, the convictions of the second and third applicants on the kidnapping count could not be challenged. Faced with that, the applicants sought to introduce fresh evidence at the appeal and also asked the court to make a special entry arising from the manner in which the advocate who represented them throughout the trial conducted their defence. Section 317(2) of the Criminal Procedure Act 51 of 1977 provides that an application for a special entry shall be made to the judge who presided at the trial, subject to that judge’s availability. Therefore, only the trial court can make a special entry. The application for a special entry was accordingly dismissed in the course of the hearing.

The application to lead further evidence on appeal was also dismissed. The purpose of the application was nothing more than to enable the applicants to reopen the case in order to give evidence that they had elected not to give at the trial. The record showed that they made a conscious decision when legally represented not to give evidence. An application on appeal to lead evidence that was available and that they had elected not to give at the trial was plainly impermissible.

112. GUILTY PLEAS

S v Van Wyk
[2014] JOL 31649 (FB)

Held on review that the sentence was a text book example of how a sentence should not read. Under section 112(1)(a) the accused is convicted on the plea of guilty alone. There is no questioning by the presiding officer. The review court pointed out that section 112(1)(a) is not intended for lazy or incompetent presiding officers who do not want to, or are unable to, question the accused under section 112(1)(b) to determine whether the accused admits all the elements of the offence. Presiding officers should use section 112(1)(a) only where the offence is of a minor nature. The charge in this case was not one which should have been dealt with under section 112(1)(a). The accused should have been questioned under section 112(1)(b).

Regarding the sentence, the Court explained that only a fine of up to R5 000 can be imposed under section 112(1)(a), to which alternative imprisonment can be added. A sentence of imprisonment, even if suspended, without the option of a fine, is not competent under section 112(1)(a). Conditions of suspension must be clear.

Held, however, that on the evidence, the charge had not been proven and the conviction had to be set aside. (Paragraph [46] at 471b.) J

S v Barnard
[2011] JOL 27812 (ECP)

As he had pleaded guilty, the magistrate questioned him in terms of section 112(1)(b) of the Criminal Procedure Act 51 of 1977.

Held on automatic review that although the accused’s answers to the questioning showed a lack of mens rea, the magistrate continued to question him in an attempt to convince him that his denial of mens rea was incorrect. Some of the question went against the purpose of section 112(1)(b) in that they amounted to interrogation.

CLOETE JA, PONNAN JA and LEACH JA

2011 AUGUST 26; SEPTEMBER 26

The grounds of appeal were that — (a) the sentence was disproportionate to the offence in the context and relevant circumstances; (b) the fine exceeded the court's jurisdiction; (c) the use of a newspaper article to reflect the convictions of the community was not competent ; (d) the plea and the facts upon which it rested were not based on racial insult — the behaviour to which was pleaded guilty impugned the dignity of the complainants as human beings; and (e) a sentence of suspended imprisonment was not appropriate and, in particular, linking the condition of suspension thereof to s 21 of Act 4 of 2000 was not appropriate or permissible.

Held, that, where an accused person pleaded guilty and handed in a written statement in terms of s 112(2) of the Criminal Procedure Act 51 of 1977, detailing the facts on which his plea was premised, and the prosecution accepted the plea, the plea so explained and accepted constituted the essential factual matrix on the strength of which sentence should be considered and imposed. Such an essential factual matrix could not be extended or varied in a manner that adversely impacted on the measure of punishment as regards the offender. The facts, as pleaded and accepted, supported the contention that the urination, ingestion and vomiting were all simulated. Simulated offensive conduct towards the complainants was, without their consent, made to look real. In that secret depiction lay the iniuria — indeed the video was not evidence of the iniuria, it was iniuria. It has to be accepted that the two groups were performing, in other words, play-acting. To the extent that the court a quo found otherwise, it materially erred.

Appeal from sentences imposed in a magistrates' court. The facts appear from the reasons for judgment.

Pretorius v DPP A O 2011 (1) SACR 54 (KZP)

Criminal procedure – Plea of guilty – Questioning – Review

Mini Summary:

Keywords:

Criminal procedure – Plea of guilty – Questioning – Court's duty

Setting aside the conviction and sentence, the court remitted the case for hearing de novo before another magistrate.

S v Maharaj
[2009] JOL 22956 (E)

The case was sent on review after the magistrate realised that the accused had not admitted that a blood sample was taken from him within two (2) hours of the driving of the vehicle.

Held on review that the statement was tendered by the accused with the assistance of his legal representative who was aware of the provisions of section 65(3) of the National Road Traffic Act 93 of 1996, namely that the blood had to be taken within two hours of the driving of the vehicle.

Mini Summary:

The accused pleaded guilty in the magistrates court to a charge of contravening section 125(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], that is, being found in possession of goods in circumstances giving rise to a reasonable suspicion that they were stolen and being unable at any time to give a satisfactory account of his possession. The magistrate found him guilty on his plea. The facts in the outline of the state case did not contain any explanation of how accused acquired the goods and the questions posed by the magistrate did not elicit any explanation from the accused as to how he came to possess the goods or even what explanation he gave to the police.

Mini Summary:

Magistrates owe enormous duties toward unrepresented accused persons. The magistrate is the primary bulwark defending the ignorant or impoverished against the potential injustices wrought through an excess of zeal; pressure of work; administrative inefficiency or plain ineptitude in the investigation and prosecution of offences.

Sibiya v S
[2012] JOL 29102 (GSJ)

Keywords:

Held that as there was no evidence, nor could it be inferred from the evidence, that the television set had been stolen, the appellant was wrongly convicted. However, the evidence did establish beyond reasonable doubt, an offence under section 36 of the General Law Amendment Act 62 of 1955, which in terms of section 264 of the Criminal Procedure Act, is a competent verdict on a charge of theft. The conviction of theft was substituted with a conviction of contravention of section 36 of the Act 62 of 1955.

Regarding sentence, the court held that in terms of section 286 of the Criminal Procedure Act, the court may declare certain persons as habitual criminals “if it (the court) is satisfied that the said person habitually commits offences and that the community should be protected against him”. In the consideration of a sentence in terms of section 286, the Court is required to thoroughly investigate all the relevant circumstances. Of particular relevance are factors such as the frequency of the accused’s previous convictions and the presence of a warning against an indeterminate sentence, at a previous imposition of sentence. No previous warning had been given in this case, with the result that the sentence imposed was inappropriate. Setting aside the sentence, the Court sentenced the appellant to eight years’ imprisonment, and issued a warning that he might be declared a habitual criminal in terms of section 286 of the Criminal Procedure Act 51 of 1977, should he again be convicted of any offence.

The appellant was convicted of theft, and due to his long list of previous convictions sentencing was referred to the regional court in terms of section 116 of the Criminal Procedure Act 51 of 1977. He was declared an habitual criminal in terms of section 286(1), which in effect means a term of imprisonment of not less than 7 years and not more than 15 years.

The present appeal was against sentence.

Criminal Procedure – Imprisonment – Habitual criminal – Maximum term – Additional sentences – Interpretation of statutory provisions – Application dismissedCorrectional Services Act 111 of 1998 – Correctional Services Act 111 of 1998, sections 39 and 73 – Correctional Services Act 111 of 1998, sections 39(2) and 73(6) – Correctional Services Act 111 of 1998, sections 39(2)(a) and 73(6)(c)

Mini Summary:

S v Saeed and another
[2012] JOL 29299 (FB)

Keywords:

In the present case, the Court had to determine whether the interests of justice demanded that the hearsay evidence in this case be excluded or included. The first step was to consider the nature of the proceedings and the onus of proof. Nest, the nature of the evidence had to be considered. The Court was of the prima facie view that the nature of the hearsay evidence did not justify that it be excluded on the grounds that it constituted inadmissible evidence. Having taken account of the nature of the evidence, the Court was of the view that the interests of justice favoured the inclusion of the hearsay evidence under attack.

The third consideration was the purpose for which the evidence was tendered. The purpose for which the hearsay evidence was tendered was certainly to prove important aspects in the chain of evidence, namely the identities of the perpetrators and their deadly association with the victims. The finding was essential in order to establish each charge of murder.

S v Jones - 2004 (1) SACR 420 (CPD) – expert evidence – opinions expressed in text books are hearsay unless confirmed by expert under oath ie. “battered woman syndrome”

115. HOSTILE WITNESSES

Court—Judicial officer—Presiding officer required to set out evidence and analyse evidence in judgment.

Evidence—Witnesses—Hostile witness—Declaration as hostile witness—Prosecutor not complying with requirements of s 190(2) of Criminal Procedure Act 51 of 1977—Declaration as hostile witness irregular.

Criminal law – Housebreaking – Theft – Conviction and sentence – Appeal – Evidence – Inferences

Mini Summary:

Frans v S
[2010] JOL 26340 (ECG)

Keywords:

The present appeal was against conviction and sentence.

Held that the trial court’s substitution of the charge with a more serious one without seeking the views of the appellant’s representative was an irregularity. The conviction on the more serious charge was set aside and the conviction was replaced with one of common assault. The court went on to confirm the correctness of such conviction, based on the evidence against the appellant.

Mini Summary:

Convicted of housebreaking with the intent to commit an offence and trespassing, the accused was sentenced to 3 years' imprisonment wholly suspended for 5 years on condition that the accused was not convicted, during the period of suspension, of housebreaking with intent to commit an offence.

Klaas v S
[2010] JOL 26381 (ECG)

Keywords:

The sentence imposed appeared to be intended as a deterrent, but was too severe. The court replaced the sentence with one of six years’ imprisonment.

117. IDENTIFICATION EVIDENCE

Mini Summary:

The appellant noted the present appeal against his convictions on charges of rape and robbery.

The court also took issue with the trial court's findings that the lighting in the shack was good, and that the complainant had ample opportunity to see the appellant. That was shown not to be true. The shack was actually in darkness and the complainant's opportunity to view the perpetrator at a time when she was under emotional pressure was open to doubt. While her evidence of identification might have been true and reliable, a much more careful and detailed investigation was necessary before arriving at that conclusion.

The misdirections of the trial court meant that the present court was free to reconsider the strength of the case against the appellant. It was pointed out that the appellant's version was not shown to have been not reasonably possibly true. In the circumstances, the states' case had to fail unless the evidence of the complainant was of itself so clear and unanswerable as to justify the conclusion that the appellant's version was, although without apparent flaw on the face of it, nevertheless false beyond a reasonable doubt.

Mini Summary:

The appellant had been convicted of various offences including robbery and rape.

It was clear from the record that the trial judge was strongly influenced by the complainant's demeanour. He found her to be honest and confident in her identification of the accused. However, the present court found that much of the complainant's evidence in relation to opportunity for identification on the night in question was adduced by leading questions to which neither the court nor the appellant's counsel raised objection. Although the complainant's identification of the appellant might have been reliable, a more thorough investigation was necessary by the trial court before a conclusion could be arrived at. Instead, there was no corroboration for the complainant's identification of the appellant and no means of reliably testing her account of such opportunity as she may have been afforded before and during the abduction and assault.

The trial judge made much of the alleged defects in the evidence of the appellant as reasons for disbelieving him. The appeal court found that that was an over-robust conclusion given that the appellant's evidence was not challenged.

Mini Summary:

The appellant was convicted of one count of robbery with aggravating circumstances and one of count of murder. He was sentenced to 12 years’ imprisonment on the first count and 20 years’ imprisonment on the second count – the 2 to run concurrently. The Court further directed that the non-parole period in respect of the imprisonment should be 15 years.

Kholosa & another v S
[2012] JOL 29149 (ECG)

Keywords:

Held that in any criminal trial, the onus of establishing the guilt of the accused, beyond a reasonable doubt, rests on the state.

The evidence of the deceased’s boyfriend and another friend, who were asleep in the same room as her when the intruders broke in, was that the deceased had shone a light at the intruders and her boyfriend recognised the appellant, who was known to him. The deceased’s boyfriend and the other person in the room later identified the appellants in an identification parade.

Held, that evidence of identification must always be evaluated with caution. However, awareness of the need for caution was not in itself sufficient - the treatment of the evidence must demonstrate that caution had been applied. Such a demonstration was missing in the judgment of the court a quo. For one thing, notwithstanding the fact that both appellants were known to all three identification witnesses, only one of them had identified the second appellant; for another, the record showed that the reliability of observation of each witness had not been properly tested. In the result, the reasons given by the court a quo for accepting the identification evidence were unsatisfactory, and the court was thus at large to come to its own conclusion on the matter.

Held, further, that the court a quo had been alive to the issue of bad blood between the two families, and no fault could be found with the manner in which it had been dealt with. The judgment had also taken into account the fact that the crime had been committed in broad daylight, that the witnesses had been close by, and that the single witness who had identified the second appellant had had a clear view of the assailants. However, insufficient attention had been given to the length of time during which the witnesses had been able to observe the appellants. Nevertheless, regarding the first appellant, three witnesses had testified that he was well known to them, and this testimony was unchallenged. This, together with the fact that the witnesses corroborated each other, was sufficient to remove all danger that the first appellant had been wrongly identified.

Appeal against conviction. The facts appear from the judgment of Msimang JP, in which Jappie J and Swain J concurred.

Mgengo v S
[2011] JOL 27809 (ECG)

The trial court had taken cognisance of the fact that the complainant was a child and a single witness, but found her to be an honest and reliable witness. By contrast, the appellant was found to be an unsatisfactory witness who was evasive and unconvincing.

Held that the complainant’s identification of the appellant as her rapist was corroborated by her pointing out of his house as being the house in which she was raped. Although the Court expressed concern about the police’s handling of the issue of identification, it was satisfied that the complainant’s identification of the appellant did not stand alone. There was sufficient supporting evidence to back up her testimony.

Mini Summary:

The appellant was convicted of robbery with aggravating circumstances read with the provisions of the Criminal Law Amendment Act 105 of 1997; attempted murder also read with the same provisions; and sexual assault.

Keywords:

Criminal law – Murder – Conviction – Appeal

Phumlani v S
[2014] JOL 31310 (ECG)

Keywords:

The manner in which the identification parade was conducted was challenged and it was alleged to have prejudiced the appellant due to non-compliance with the Rules of Practice recognised in section 37 of the Criminal Procedure Act 51 of 1977 (“the Act”). The evidence of the video footage was also challenged as being unreliable.

Held that the state did not present any reliable evidence with which to prove its case. With the appellant's alibi also not having been proven false by the court a quo, the conviction could not be upheld. The conviction and sentence were thus set aside.

The appellant and an accomplice had entered an office in which other members of staff witnessed them demand money and then shoot two people, one in the stomach and the other in the back as he was fleeing. In his trial before a regional magistrate the appellant denied that he was present at the scene of the crime, but admitted that he had been in the area at the date and time of the offence. He raised one alibi in defence. In convicting the appellant the magistrate had relied on his admission and the corroborating evidence of the witnesses and the suspected accomplice.

In this appeal against conviction and sentence, the issue was primarily whether the identification parade, which had not been conducted in accordance with acceptable standards in terms of section 37(1) of the Criminal Procedure Act 51 of 1977, was so inadequate that the accused had been prejudiced by its defects, more especially the defect that he had not been afforded legal representation at the parade.

S v Mhlakaza – 1996(2) SACR 187 (C) – disputes about admissibility of ID parade to be adjudicated by means of a trial-within-a-trial. Onus on state!

119. ILLEGAL IMMIGRANTS

The applicants sought a declaratory order that the respondents’ practices regarding detention of the 19 applicants and other detainees, were unconstitutional and in contravention of the Immigration Act 13 of 2002. They also sought a systemic order requiring the first to fourth respondents to provide regular reports to the first applicant about the number and status of detainees at a certain repatriation centre (Lindela) and to permit the first applicant regular access to Lindela.

Held that although the issue of the release of the detainees was moot, the Court found that the consideration of the issue of unlawful detention of the individual applicants presented a live issue worthy of consideration. The interests of justice dictated that the lawfulness or otherwise of the individual applicants had to be considered.

Immigration – Illegal immigrant – Detention – Lawfulness

Mini Summary:

However, the court went on to find that the application was meritless and launched recklessly in as much as it relied on false premises for the relief sought. A punitive order resulted.

120. INDECENT ASSAULT

In February 2005 the appellant, a male, was convicted of 10 counts of contravening section 14(1)(b) of the Sexual Offences Act 23 of 1957 related to his activities with a boy under the age of 19 but above the age of 12 at the time when the activities were carried out. He was sentenced to an effective 11 years' imprisonment. The magistrate had adopted a prima facie view at an early stage that the complainant had been a willing participant in all the various sexual interludes between him and the appellant. The prosecutor had assented to this and the appellant was convicted in terms of the section, which does not require an absence of consent, as in the case of the common-law definition of rape.

When the appellant appealed to the High Court the judge had found that the magistrate had been justified in thinking that the complainant had been a willing participant. Therefore the matter of willing participation had not been fully investigated and there was no basis for the High Court to find that the magistrate had been wrong. The High Court had dismissed the appeal against conviction but had upheld the appeal against sentence, which was reduced to 7 years' effective imprisonment.

Keywords:

Criminal procedure – Indecent assault – Child complainant – Competence as witness – Enquiry

The trial court's conviction of the appellant based on the complainant's evidence without conducting the enquiry referred to above or making a finding regarding the child's competency was an irregularity.

The appeal was upheld.

The appellant, who was drunk and 20 years old at the time of the offence, had indecently assaulted the complainant by penetrating her anally. For the purpose of sentence, the magistrate treated the offence as rape and sentenced the appellant to 12 years' imprisonment. The appeal was against sentence on the grounds that the magistrate had misdirected himself in treating the offence as rape whilst the appellant's conduct did not fall within the old definition of rape. Further, even if the offence merited a sentence equivalent to that for rape proper, the statutory minimum for a first offender who is convicted of rape is 10 years: the circumstances did not justify a sentence in excess of the prescribed minimum.

Held that even if the offence could be construed as rape for the purpose of sentence, the magistrate had over-emphasised the seriousness of the crime and the interests of the community at the expense of the appellant's personal circumstances and the particular context in which the offence was committed. Both the appellant and the complainant had been heavily under the influence of liquor, and there was no evidence that the complainant was left with permanent physical or mental injuries. While the offence was serious, the circumstances militated against a finding that it warranted a sentence in excess of the statutory minimum. The sentence was set aside and reduced to ten years.

Mini Summary:

The appellants were convicted of housebreaking with intent to steal and theft, and were each sentenced to eight years’ imprisonment. The present appeal was against conviction and sentence. The grounds of appeal were that there was no direct evidence linking the two appellants to the commission of the offence, and that the mere fact that the appellants were arrested shortly after the incident of housebreaking and theft, in possession of R23 650 and R25 750 in cash respectively resulted in the trial court drawing an erroneous inference that they were guilty.

Mlimo v S
[2008] JOL 21505 (SCA)

Keywords:

The appeal was dismissed.

122. INQUESTS

Held, as regards the applicant's second contention, that s 3(4) of the Act did not require notice to be given to any person for an application granting permission to exhume a body. In the context of a criminal investigation or a criminal trial, an ex parte application was appropriate. The exhumation of the deceased was regulated by statute and it was clear from the magistrate's reasons that he had considered and applied the relevant statute. Evidence on oath had been placed before him, including that of the investigating C officer and a forensic pathologist, and he had evaluated this evidence. From his reasons it was clear that he had brought a judicial discretion to bear on the relevant request to exhume the body of the deceased, and in those circumstances the act of considering and granting the permission was a judicial act which was not subject to the provisions of the Promotion of Administrative Justice Act. In these circumstances the application had to be dismissed. (Paragraphs [35] at 491h – 492a and [36] at 492b.)

[zCIz]Case Information

The application is dismissed and applicant is ordered to pay the second respondent's costs.

123. INTERMEDIARIES

S v Siyotola – 2003(1) SACR 154 (E) – interpreter not sworn in as interpreter. Not per se irregular that can be said was failure of justice. Must have been prejudice.

125. INTENTION

The appellant was charged and convicted of theft of stock and sentenced to three years' imprisonment of which one year was conditionally suspended.

Counsel for the appellant argued that mens rea was absent, while the state argued that the appellant was aware that he was committing the crime of theft.

2011 JUNE 8

Murder—Mensrea—Intention to kill—Doluseventualis—What constitutes—Accused, as driver of motor vehicle, executing dangerous manoeuvre, fully aware and reckless of danger it posed to those in vicinity in general and in particular to those killed when vehicle struck them—Accused can in legal sense be said to have ‘consented’ or ‘reconciled himself’ to or ‘taken into the bargain’ fact that persons in vicinity might be struck by vehicle and killed—State of mind of accused in such circumstances amounting to doluseventualis—Accused guilty of murder of those struck and killed by vehicle.

Criminal procedure – Interlocutory application – Appeal

Mini Summary:

127. INTIMIDATION

S v Mramba
[2008] JOL 21713 (E)

On review, the court replaced the conviction and sentence with more appropriate ones, and in the present ruling, set out its reasons therefor.

Held that the magistrate failed to explain to the accused the reverse onus that rested upon him in terms of section 1(2) of the Intimidation Act. The section provides that "in any prosecution for an offence under subsection (1), the onus of proving the existence of a lawful reason as contemplated in that subsection shall be upon the accused, unless a statement clearly indicating the existence of such a lawful reason has been made by or on behalf of the accused before the close of the case for the prosecution". The conviction could therefore, not stand.

The court held that, even if it were accepted that all the evidence was properly before the court, it did not prove beyond a reasonable doubt that the appellant was guilty, and he should have been acquitted. (Paragraph [13] at 395g–396a.)

As regards the delay in the matter coming before the court on appeal, it appeared that these delays were caused by (1) the failure of the appellant's advocate to inform him, immediately after sentence, of his right to apply for leave to appeal and his right to appeal; (2) the failure of the Legal Aid officer who consulted with the appellant in August 2003 to appoint an attorney to represent the appellant and order a transcript of the proceedings to enable the appellant to apply for leave to appeal; (3) the failure of the appellant to follow up his instructions to ascertain what progress his attorney was making (which was probably due to the appellant's lack of education and means); and (4) the failure of the Legal Aid officer or attorney appointed by the Legal Aid Board to expeditiously obtain the record (81 pages in extent) for the purpose of the application for leave to appeal and the appeal itself.

Keywords:

Criminal law – Drug trafficking – Conveying of cocaine into country – Appeal against conviction and sentence dismissed – Criminal procedure – Inclusion in charge sheet of statutory provisions which contained unconstitutional presumptions – Whether trial rendered unfair as a result – A criminal conviction can only be set aside on the ground of irregularity after consideration of the whole record in order to determine whether a failure of justice or an unfair trial has resulted from that irregularity – Mere inclusion in charge sheet of references to statutory provisions that have been declared unconstitutional, whilst irregular, does not per se mean that there has been a failure of justice or an unfair trial

A further argument raised by the appellant was that the State had failed to prove its case beyond a reasonable doubt. However, the Court was not convinced in that regard. The appellant was arrested on his return from a trip to Brazil, where he had supposedly been seeking work. The Court was sceptical of the fact that he spoke none of the languages applicable to Brazil, that his flight had been subsidised by a person whose interest in assisting him remained unexplained, and that the details of the interviews for which he had gone were sketchy. Similarly unconvincing was the appellant’s explanation for the bag containing the cocaine, which he had brought into the country.

While it was uncontested that the appellant had brought the drugs into South Africa, whether he had knowingly done so had to be established, in this case through a process of inferential reasoning. Examining the various aspects of the appellant’s evidence, the Court concluded that his bona fides was undermined by the inherent improbabilities attached thereto. It was held that the gross weight of improbability was sufficient to leave no reasonable doubt that the appellant was a willing and informed participant in the scheme for importing the drugs into South Africa. The appeal against conviction was therefore dismissed.

Mini Summary:

In the trial court, the first respondent sued the applicant for damages arising out of her alleged wrongful and unlawful detention, malicious prosecution and assault by members of the South African Police Service. The trial was presided over by the second respondent who upheld all three of the first respondent’s claims. In the present application, the applicant sought the review and setting aside of the second respondent’s judgment on the basis that the second respondent should have recused himself because of his intimate relationship with the first respondent’s attorney.

Finding that a reasonable person in the position of applicant would not apprehend in the circumstances that the second respondent could not bring an impartial mind to bear on his adjudication of the case because of his previous intimate relationship with the first respondent’s attorney, the Court dismissed the application.

S v Khumalo
[2012] JOL 29355 (GSJ)

Held that the present Court had to decide whether the right to cross examination is so fundamental that a failure to complete cross examination of a witness leads to a failure of justice entitling the conviction to be quashed, the matter is reviewable having regard to the fact that the accused enjoyed legal representation. The question was whether the failure to complete the cross examination of the state witness fell into the category of matters which result in a pointless exercise of going through the motion of imposing sentence only for the conviction to be set aside later. In other words, the question was whether the irregularity which occurred was of so gross a nature as to vitiate the proceedings before the magistrate. The Court found that the irregularity (failure to finalise the cross-examination of the witness) was of such a nature that the accused’s right to a fair trial had been infringed. The infringement of a right which is guaranteed in the Constitution leads to the proceedings being tainted by an irregularity and it falls to be set aside.

Pretorius v DPP A O 2011 (1) SACR 54 (KZP)

Criminal procedure – Trial proceedings – Irregularity – Special review

Mini Summary:

Criminal procedure – Housebreaking with intent to steal – Theft – Sentence – Amendment to sentence – Appeal

Mini Summary:

The amendment in this case had the effect of imposing additional terms to the sentence. The sentence was not shown to be wrong, and the time for amendment in terms of section 298, had passed.

The amendment was set aside. The court deemed the rest of the sentence to be too severe. It therefore replaced it with one of four years’ imprisonment.

The appellant was convicted of housebreaking with intent to assault and assault with intent to do grievous bodily harm, and was sentenced to three years’ imprisonment, one year of which was conditionally suspended.

The charge sheet reflected the charges as housebreaking with intent to assault and assault. After the appellant pleaded not guilty, the court enquired from the prosecutor whether the charge was housebreaking with intent to assault and assault with intent to do grievous bodily harm, which the prosecutor confirmed.

Keywords:

Criminal procedure – Protected plants – Unlawful possession – Conviction and sentence– Review

In the face of the demand by the accused that he see the exhibits of the plants, it was a misdirection on the part of the trial court to rule that the plants should not be produced in court simply because they had been replanted. A second misdirection, related to the inadequate proof of the offence. The court highlighted the breaks in the evidence adduced regarding whether the plants found were properly identified and if so, whether they were adequately proved to be specially protected.

The third misdirection by the magistrate pertaining to accused number one relates to the refusal by the magistrate to allow him to lead evidence in his defence. The court showed annoyance with the first accused’s refrain that he had evidence to lead but could only do so once the exhibits were brought to court. In adopting the stance it did, the trial court denied the accused the right enshrined in the Constitution. Section 25(d) of the Constitution provides that every accused person has a right to a fair trial, which shall include the right to adduce and challenge evidence.

Mini Summary:

Having pleaded guilty to a charge of theft, the accused was convicted and sentenced to a fine of R1 600, or in default of payment to undergo eight months’ imprisonment, wholly suspended for three years on condition that the accused was not convicted of theft, attempted theft, possession of stolen property or receiving stolen property committed during the period of suspension. He was also ordered to compensate the complainant her money.

Keywords:

Criminal law – Robbery – Rape – Conviction – Appeal – Assessment of evidence

Held that while the trial court purported to endorse the correct legal approach to assessing evidence in such cases, it in fact, was guilty of misdirection in its assessment.

The complainant's testimony on the identity of the appellant as the perpetrator was adduced by leading questions to which neither the court nor the appellant's counsel raised objection. The complainant was found to have been prompted by the prosecution.

Keywords:

Criminal procedure – Attempted extortion – Conviction – Appeal – Trial proceedings – Irregularity – Bias of magistrate

The magistrate in this case had interrupted the prosecution in the presence of a key witness, and had engaged with a discussion, before the prosecution was done with its case, on whether the key elements of the offence were proved. His conduct alerted the parties and in particular the state as to what the deficiency in their case at that point in time was. This constituted a gross irregularity in the proceedings. A court's enquiry or examination should be aimed at elucidating any points that may be obscure after examination of the parties. In order to give the accused a fair trial a judicial officer must not only be impartial, but be seen to be impartial.

The court concluded that the accused did not enjoy a fair trial. The conviction and sentence were thus set aside.

The accused was convicted of assault with intent to do grievous bodily harm and was sentenced to pay a fine of R3 000 or in default of payment to undergo two years' imprisonment. He was further declared unfit to possess a firearm in terms of section 103(1) of Act 60 of 2000.

The acting senior magistrate submitted the case on special review on the grounds that the verdict of the magistrate was incompetent in that the essential elements of the crime of assault with intent to do grievous bodily harm were not included in the offence of contravention of a protection order which the accused had been charged with; and that the alternative of two years' imprisonment was disproportionate to the amount of the fine imposed.

Criminal law – Murder – Conviction and sentence – Appeal

Mini Summary:

Mbanjwa v S
[2009] JOL 22960 (E)

Keywords:

Held that section 186 of the Criminal Procedure Act provides that a court may at any stage of criminal proceedings subpoena any person as a witness if the evidence of such witness appears to the court essential to the just decision of the case. The term "essential to the just decision of the case" means that the court, upon an assessment of the evidence before it, must consider that unless it hears the evidence of a particular witness it is bound to conclude that justice will not be done in the end result. A court of appeal will interfere with the exercise of the discretion on very limited grounds. The present court was not satisfied that the evidence could be described as essential to the just decision of the case.

The appeal against conviction therefore failed.

Mini Summary:

The appellants were convicted of attempted robbery, murder and attempted murder, and were each sentenced to an effective 24 years' imprisonment. They appealed against their convictions and sentence.

S v Mdali
[2008] JOL 22390 (C)

Keywords:

The magistrate also erred when she ruled that a person who was present during court proceedings cannot be called as a witness. The magistrate confused the principles governing the admissibility of evidence with the probative value of such evidence, if found to be admissible. This error, amounts to a serious irregularity that vitiated the proceedings.

The court found that the accused’s constitutional right to a fair trial, and in particular his right to adduce and challenge evidence, was grossly violated. The conviction and sentence were thus set aside.

The appellant was convicted of the indecent assault of a 4-year-old boy. He was sentenced to 3 years’ correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act 51 of 1977.

He appealed against his conviction.

Keywords:

Criminal procedure – Competence of legal representative – Robbery with aggravating circumstances – Alibi defence – Not led in chief – Not put to prosecution witnesses – Gross irregularity – Irregular conduct of presiding officer – Convictions set aside

Keywords:

Criminal procedure – Indecent assault – Child complainant – Competence as witness – Enquiry

The trial court's conviction of the appellant based on the complainant's evidence without conducting the enquiry referred to above or making a finding regarding the child's competency was an irregularity.

The appeal was upheld.

Mini Summary:

The accused was convicted of theft of a credit card, pursuant to her plea of guilty. A second charge, viz that of fraud, was withdrawn.

S v Siyotola – 2003(1) SACR 154 (E) – interpreter not sworn in as interpreter. Not per se irregular that can be said was failure of justice. Must have been prejudice.

S v Mashaba – 2004(1) SACR 214 (TPD) – duty rests on presiding officer to keep record of proceedings and must be clear from record that rights of accused were explained.

Convicted of assault with intent to do grievous bodily harm and arson, the appellant received a wholly suspended sentence on each count.

Held on review that the magistrate's questioning of the accused took up 13½ pages of the record, and the tone of the questioning was inappropriate. The court found that the manner in which the magistrate questioned the accused precluded her from objectively adjudicating the issues before her. It was concluded that the accused did not have a fair trial and the convictions and sentences were set aside.

The DPP Western Cape v Paul Killian – Case no. 690/06 (SCA) – a criminal trial is not unfair, fundamentally or at all, simply because the prosecutor also interrogated the accused at an earlier statutory inquiry at which the right to silence and the right against self-incrimination was denied.

Gobe v S
[2008] JOL 21272 (E)

In this appeal against conviction and sentence, the issue was primarily whether the identification parade, which had not been conducted in accordance with acceptable standards in terms of section 37(1) of the Criminal Procedure Act 51 of 1977, was so inadequate that the accused had been prejudiced by its defects, more especially the defect that he had not been afforded legal representation at the parade.

Held that the record showed that the accused had been informed of his right to legal representation at the parade and he had elected not to have a lawyer present. In addition he and his accomplice had not raised any concerns and had cooperated with the police. The magistrate had not erred in his finding that the appellant had not been prejudiced by the procedural imperfections. Even if the evidence of the parade should have been excluded, the conviction was still fully supported by other evidence. The appeal was dismissed.

The accused was one of two persons charged with raping a 16-year-old girl. When the case came before the present court for sentencing, the court questioned whether the proceedings in the trial court had been in accordance with justice.

Held, that the trial of the accused was riddled with irregularities. The court highlighted the problems, which included the trial court's conduct of the proceedings, the handling of the evidence, and sufficiency of the evidence before the court.

Mini Summary:

The appellant was convicted of the crime of robbery with aggravating circumstances, and was sentenced to serve a term of 15 years' imprisonment.

Keywords:

Court – magistrate – duties – unrepresented accused – magistrate's responsibilities towardsCriminal procedure – plea – guilty – questioning of accused by magistrate – need to phrase questions carefully to ensure accused understands what he is pleading guilty to – disclosure of facts by prosecutor – need for court to ensure that prosecution discloses sufficient facts – use of State's outline of facts – need to ensure that accused has actually agreed with such outline

Magistrates and prosecutors should desist from the practice, which appears to be common, of simply using the state's outline of its case when the accused tenders a guilty plea. The state outline is not based on facts which the accused has given prior agreement to. The use of the state outline exposes the accused to the danger of being convicted on facts that he has not been given an opportunity to carefully reflect on and has the real potential of the accused being severely prejudiced, in the sense that he may be convicted on the basis of facts which he may not agree with but which facts aggravate the offence and lead to a more severe punishment than warranted. The correct procedure should be that if, in a contested trial, the accused pleads guilty to the charge, the magistrate should take a short recess to allow the prosecutor to interview the accused and draw up a statement of agreed facts based on the information gathered.

129. JOINDER OF ACCUSED

The accuseds were charged with the main counts of money laundering, racketeering, theft and fraud. The applicant, being the second accused, sought leave to appeal against a judgment of this Court, dismissing an application for a ruling that a misjoinder existed in that it was irregular and impermissible to join him with the first accused in an indictment which included counts with which he had not been charged.

Held that the decision that no misjoinder existed had a final effect on the applicant. It was definitive of his rights. The result was that the State's case against both accused would then proceed on all the counts set out in the indictment including those that the applicant objected to. The result was that although it was an interlocutory matter, it was of final effect, and was appealable.

Criminal law – Trial court’s duties – Inadequacy of judgment – Onus of proof

Mini Summary:

The appeal was upheld and the convictions and sentence set aside.

S v Vika 2010 (2) SACR 444 (E)

the seriousness of the offences..”

Mphalele v First National Bank of SA Ltd 1999 (2) SA 667 (CC) the

democratic state, and the Judiciary is bound by it. The rule of law

undoubtedly requires Judges not to act arbitrarily and to be

it is. It is a discipline which curbs arbitrary judicial decisions. Then,

too, it is essential for the appeal process, enabling the losing party to

well be, too, that where a decision is subject to appeal it would be a

violation of the constitutional right of access to courts if reasons for

thirty two pages, the magistrate’s judgment is regrettably rather terse.

11

issue which fell for decision related to identification. Identity was not

the real issue given the admitted common cause fact that the

and evaluate the evidence and make credibility findings.”

131. JUDGMENT INCOMPLETE

Mini Summary:

Despite having pleaded not guilty, the appellant was charged with murder, unlawful possession of a 7.65mm semi-automatic pistol, and unlawful possession of two rounds of 7.65 calibre ammunition. The three charges being taken as one for purposes of sentence, he was sentenced to 15 years’ imprisonment. The present appeal was directed at both conviction and sentence.

133. JURISDICTION

S v Meje & another
[2011] JOL 27754 (SCA)

The present appeal by the state was noted terms of section 311 of the Criminal Procedure Act 51 of 1977. The sole issue raised in the appeal was whether the trial court had jurisdiction to try the respondents.

Held that the issue of jurisdiction arose as a result of the restructuring of the regional court in the province of Gauteng after the date of the commission of the offences of which the respondents had been convicted, but before the date on which they first appeared in the trial court. At the time of the commission of the offences in 1998 and 1999, the Southern Transvaal Regional Division had territorial jurisdiction in respect of offences committed in Kagiso (in the magisterial district of Krugersdorp). Later, however, with effect from 1 April 2004, the regional divisions of the Southern Transvaal and the Northern Transvaal were amalgamated into one regional division called the Regional Division of Gauteng with seats at 23 places including Pretoria.

S v Nkomo – 2008 JOL 21135 (ZS) – deals with territorial jurisdiction where offence committed in one country and accused flees and is arrested in another. Need some element of crime or harmful effect thereof to have occurred in the country trying the matter. Discusses in detail the elements of murder.

134. JUVENILE OFFENDERS

The appellant was convicted in a regional court of rape and was sentenced by the high court to life imprisonment in 2002. He was granted leave to appeal in 2010 and, after hearing argument at the hearing of the appeal in November 2012, the court upheld the appeal and ordered the immediate release of the appellant. It appeared that the appellant was approximately 16 years old at the time of the offence and 18 years old when he eventually stood trial after having been in custody for two years. His correct age was never properly ascertained by the police or prosecution. By the time the trial commenced he had been arrested, interrogated, detained for almost two years, and been forced to make admissions or a confession, all without the assistance of a legal representative or the advice of his parents or guardian. It appeared furthermore that the regional magistrate did not inform the appellant of his right to legal representation; he did not properly explain to the appellant how to cross-examine, and when the appellant showed, through his questions, that he did not understand how to cross-examine, he did not assist the appellant to put questions; he allowed the prosecutor to ask obviously leading questions on the material issues and to lead inadmissible evidence; and he did not properly explain to the appellant his rights in respect of the medico legal report and he clearly did not read it, or, if he did, he did not understand its import. Eventually, when he gave judgment he did not properly consider all the evidence. With regard to the complainant, he did not remind himself about the dangers inherent in dealing with a child's evidence and there is no suggestion that he carefully considered her evidence to determine whether it could be found to be reliable. He dealt with the defence evidence in two or three lines, and what he said did not properly reflect the substance of what the witnesses said, and he did not consider their evidence in the light of the medico legal report which obviously indicated that they were telling the truth. The conduct of the trial showed that a lack of legal representation prejudiced the appellant.

The court held that, even if it were accepted that all the evidence was properly before the court, it did not prove beyond a reasonable doubt that the appellant was guilty, and he should have been acquitted. (Paragraph [13] at 395g–396a.)

Harmans v S
[2011] JOL 27806 (ECG)

Keywords:

Held that although not arguing that the trial court was guilty of any misdirection in sentencing the appellant, the latter argued that the sentences were shockingly inappropriate considering the appellant’s youthfulness.

The Court took cognisance of the trial court’s reasons for sentencing the appellant as it had. It agreed that in the circumstances of this case, the sentence was not disproportionate to the crime.

Mini Summary:

The accused, a juvenile, appeared before a regional magistrate where he was charged with robbery with aggravating circumstances. He pleaded guilty, and his legal representative handed into court a written plea explanation in accordance with the provisions of section 112 of the Criminal Procedure Act 51 of 1977.

S v Phulwane – 2003(1) SACR 631 (TPD) – dealt with factors court to be considered when sentencing minors.

S v Z and four other cases – 1999(1) SACR 427 (ECPD) – gave an extensive exposition of principles governing, and options available in sentencing juvenile offenders. Court considered as juveniles, all persons under age of 21, not just 18. Is inappropriate to impose imprisonment, including suspended imprisonment on juvenile unless a pre-sentence (probation officers) report has been obtained.

Mini Summary:

The appellant noted the present appeal against his convictions on charges of rape and robbery.

The court also took issue with the trial court's findings that the lighting in the shack was good, and that the complainant had ample opportunity to see the appellant. That was shown not to be true. The shack was actually in darkness and the complainant's opportunity to view the perpetrator at a time when she was under emotional pressure was open to doubt. While her evidence of identification might have been true and reliable, a much more careful and detailed investigation was necessary before arriving at that conclusion.

The misdirections of the trial court meant that the present court was free to reconsider the strength of the case against the appellant. It was pointed out that the appellant's version was not shown to have been not reasonably possibly true. In the circumstances, the states' case had to fail unless the evidence of the complainant was of itself so clear and unanswerable as to justify the conclusion that the appellant's version was, although without apparent flaw on the face of it, nevertheless false beyond a reasonable doubt.

Criminal procedure – Appeal – Leave to appeal – Where a person obtains leave to appeal against the refusal in a High Court, of a petition seeking leave to appeal against a conviction or sentence in the regional court, the issue before the court is whether leave to appeal should have been granted by the High Court and not the merits of the appeal – Test is whether there is a reasonable prospect of success on appeal

Mini Summary:

Regarding sentence, the Court took into account the personal circumstances of the appellant as well as the aggravating factors relevant to the case. Having regard to the nature and circumstances of the offence, the personal circumstances of the appellant as well as the interests of the community, the Court was not persuaded that another court might find that the sentence of 15 years’ imprisonment was unduly excessive or shockingly inappropriate.

The appeal was dismissed.

In terms of established case law the appellant has an automatic right of appeal to D the Supreme Court of Appeal against the refusal of an application for condonation by a High Court, sitting as a court of appeal, relating to the appeal before it. However, the time has come for the Supreme Court of Appeal to exercise its inherent jurisdiction and to lay down that leave to appeal should first be sought from the High Court against such refusal. In doing so the SCA will be regulating — in terms of s 20(1) and s 21(1) of the Supreme Court Act 59 of 1959 read with s 35(3)(o) and s 173 of the Constitution, 1996 — the procedure to be followed for appeals to be heard by it. The High Court, constituted as a court of appeal, provides its reasons for its refusal to grant condonation, and when faced with an application for leave to appeal against such refusal, will deal with it on its merits. If that is refused, an accused person will have further recourse to the SCA by way of petition.

[zCIz]Case Information

Minister of Safety & Security & others v Mohamed & another
[2011] JOL 27875 (SCA)

Keywords:

Despite the Magistrate having stated on oath that he granted the warrant in terms of the provisions of sections 20 and 21(1) after having had regard to an affidavit placed before him, deposed to by the second appellant, the court of first instance ruled that the Magistrate had “based his belief on a document which he mistakenly believed to be an affidavit”, that it was not proper for him to have granted the warrant and that he acted contrary to the provisions of the enabling statute. The negative implications for the Magistrate’s professional conduct led to his joining the other appellants in seeking leave to appeal to the court a quo. Leave to appeal was granted, in respect of the issue of whether the Magistrate’s decision to issue the warrant was based on an affidavit or a mere document.

The full court was divided as to the merits of the appeal. The majority was of the opinion that the warrant was overbroad in its terms, and that the Magistrate had not exercised his mind in granting the warrant. The present appeal was against that decision.

The starting point in a consideration of the validity of the warrant was to establish whether the warrant complied with sections 20 and 21 of the Act. The information placed before the Magistrate by the second appellant, that motivated the granting of the warrant, pointed to evidence of the respondents being involved in terrorist activity. The objective standard of proof set in the Act, together with the judicial oversight, were important requirements that were duly satisfied. Having regard to the facts, the majority in the court a quo was wrong in their conclusion that the warrant was overly broad and that the Magistrate did not apply his mind.

The appeal was upheld with costs.

Mini Summary:

In the course of an audit of the applicants’ tax affairs, the respondent (“the Commissioner”) indicated his requirement that the applicants provide SARS with copies of certain documentation. That included a request for a breakdown of an identified trial balance account in respect of professional fees in the books of one of the applicant companies pertaining to the 2009 year of assessment. On identifying the relevant fee notes, the applicants noted that the fees concerned had been raised in respect of legal professional services rendered by the attorneys to the first and third applicants. Privilege was claimed on the basis that the nature of the advice sought by the first and third applicants was discernible from the invoices, and the applicants refused to provide the invoice, except in redacted form.

Harms JA in S v Halgryn 2002 (2) SACR (SCA) 211 at 215 i-j, where the learned judge said:

“The Constitution has two provisions which are relevant to the  argument: the right to choose a legal representative and to be represented by that person (S 35 (3) (f), and the right to have a legal representative assigned by the State and at State expense if substantial injustice would otherwise result (S 35 (3) (g).  Although the right to choose a legal representative is a fundamental right and one to be zealously protected by the courts, it is not an absolute right and is subject to reasonable limitations”.

The appellants were convicted of attempted robbery, murder and attempted murder, and were each sentenced to an effective 24 years' imprisonment. They appealed against their convictions and sentence.

The grounds of appeal related to the excessive questioning of the appellants by the magistrate, and the failure to advise the first appellant of his right to legal representation after his representative withdrew.

S v Stevens 2003(2) SACR 95 (TPD) – candidate attorney appears without right of appearance. Proceedings irregular even if refused permission by principal to apply for certificate. Matter sent on review and set aside.

Mbhense v S
[2008] JOL 21488 (N)

Acting on a tip-off pursuant to an armed robbery at a private residence, the police found the appellant and three others at the appellant's house, in the possession of the items stolen during the robbery.

Held, that the trial of the appellant was vitiated by a number of irregularities. The charge-sheet had not warned the appellant that the State would rely on the minimum sentencing provision of the Criminal Law Amendment Act 105 of 1997. The court could also not be satisfied that the appellant had properly been apprised of the right to legal representation as the proceedings had not been properly recorded.

Criminal procedure – Traffic violation – Conviction and sentence – Review

Mini Summary:

140. MAINTENANCE

Freeth & another v Freeth
[2009] JOL 23420 (SE)

The second respondent was one of the children. When he intended enrolling for study, the first applicant and respondent were in dispute about their individual contributions towards his fees.

Held that the respondent was correct in his contention that the high court has no power to vary an order of the maintenance court. The parties were however, in dispute as to whether it was the divorce order or the maintenance court order which governed the issue. On the evidence before it, the court could not resolve that issue.

Mini Summary:

The accused was charged with contravention of a maintenance order. His plea of guilty was changed to that of not guilty. He indicated as a defence that he had been paying directly to the complainant or beneficiary and that he was made to believe that the maintenance order would be cancelled or that it would not be acted upon. The state closed its case without addressing the defence raised by the accused.

Marriage – Divorce – Maintenance – Entitlement to

Mini Summary:

S v Ngxekana
[2008] JOL 22130 (E)

Keywords:

Finding on that and other grounds that the proceedings were not in accordance with justice, the court set aside the sentence, and converted the trial into a maintenance enquiry.

141. MALICIOUS INJURY TO PROPERTY

The accused was charged with one count of assault with intent to do grievous bodily harm and another count of theft. The trial magistrate convicted the accused on the count of assault but on the count of theft convicted him not of theft but of malicious injury to property. The evidence supported the conviction of assault. The reason for the magistrate not convicting on the count of theft was that the accused did not, in fact, steal the property of the complainant but threw his merchandise, which consisted of vegetables, on to the ground where it was trampled upon by the accused and passers-by. Some of the persons who were passing by helped themselves to the merchandise on the ground.

During the course of a routine inspection, the senior magistrate came across the matter and doubted the correctness of the conviction of malicious injury to property as a competent verdict on a count of theft. The case was sent to the present court on special review, for clarity.

Mini Summary:

The accused was convicted on two counts of malicious damage to property, and sentenced to 3 years' imprisonment.

Delict – Claim for damages – Malicious prosecution – Requirements

Mini Summary:

The court found that the respondent had proved all the requirements for his claim against the second appellant. The appeal of the other appellants was upheld, and that by the second appellant dismissed.

143. MARITIME LAW

The respondent was the owner of the Sheng Mu. In July 2011, it concluded a charterparty agreement with a third party (“Phiniqia”) for the carriage of cargo from Iran to India. It pursued claims arising from the charterparty claims by way of the arrest of the Silver Star as an associated ship in relation to the Sheng Mu, in terms of section 3(6), read with section 3(7), of the Admiralty Jurisdiction Regulation Act 105 of 1983. The registered owners of the Silver Star brought an application for the release of the vessel. The dismissal of the application led to the present appeal.

The charterparty provided for the issue of two sets of bills of lading. A second set of bills could only be issued against a letter of indemnity (LOI) given to Hilane by Phiniqia. Phiniqia executed an LOI in favour of Hilane indemnifying it in respect of any liability, loss, expenses or damage of whatsoever nature that Hilane might sustain by reason of having issued two sets of bills of lading in accordance with Phiniqia's request. The LOI also provided that if the Sheng Mu or any other property belonging to Hilane should be arrested or detained, or such an arrest or detention be threatened, by reason of issuing two sets of bills of lading, Phiniqia undertook to provide immediately on demand such bail or other security as might be required to prevent such arrest or detention or to secure the release of the vessel or such other property and to indemnify Hilane in respect of any loss, damage or expenses. Once the second set of bills of lading had been issued and the LOI furnished to Hilane’s agents, Hilane asked for the cancellation and return of the first set of bills of lading as it was entitled to do. Shortly before the vessel was due to arrive at its destination, Phiniqia's agents indicated to Hilane that the original bills of lading might not be available upon arrival. The shipper (“Golden Waves”) cited on the first bill of lading then informed Hilane that it had not been paid for the coal. Hilane passed that message to Phiniqia, but Golden Waves’ claims were not resolved. Golden Waves proceeded to enforce its claim by arresting the Sheng Mu. Hilane demanded that Phiniqia fulfil its obligations under the two LOIs and reinforced the demand with an order of the High Court in England, but Phiniqia did not respond. Eventually Hilane had to procure a guarantee from its own bankers to secure the release of the Sheng Mu from arrest. It then referred a dispute to arbitration in London, contending that Phiniqia was obliged to indemnify it against the claim by Golden Waves and for the damages it said that it suffered in consequence of the arrest of the Sheng Mu. It obtained an award in its favour.

The issue of whether, on the facts, the requisite association had been established, was dealt with in a concurring judgment. It was accepted that Hilane bore the onus of demonstrating that the arrest was justified and that included proving the alleged association on a balance of probabilities. The crux of the factual dispute related to the ownership or control of the Silver Star. Despite the appellant’s denials, the evidence established that the vessel was owned by a company with the same controlling company as the ship concerned.

The appeal was dismissed.

As applicant in the court a quo, the appellant obtained an order for the arrest of the second respondent ship. The purpose of the arrest, effected in terms of section 5(3) of the Admiralty Jurisdiction Act 105 of 1983 was to obtain security to meet the applicant's claim against the respective respondents in pending arbitration proceedings which were to take place in London.

After providing security, the first respondent approached the court for a reduction in the amount of security it had put up. It also sought counter-security from the applicant. The reduction was refused, but the application for counter-security succeeded. The present appeal was noted against the latter order.

Record

Trial — Record — Content of — Semble: Record must not be so truncated that it omits procedural steps followed — Impossible for Court on review to determine whether proceedings in accordance with justice — Although magistrates not required to transcribe proceedings in full, record of trial should at least reflect whether unrepresented accused's rights have been explained and understands position. S v Wellington1991 (1) SACR 144 (Nm)

Trial — Record — Correction of — Application for the correction of a record in terms of Rule 66(6) of the Magistrates' Courts Rules must be heard in open court. De Wet v Greeff NO en 'n Ander1991 (2) SACR 17 (T)

Trial — Record — Duty of presiding officer to keep record of proceedings — Duty of magistrate to ensure that clearly audible record of proceedings made — Such necessary to enable transcriber to prepare clear and understandable transcription of proceedings — Unnecesary delays avoided if magistrate were to peruse record and effect necessary improvements before record submitted for review. S v Mashaba2004 (1) SACR 214 (T)

Trial — Record — Explanation of accused's rights — What precisely is stated by judicial officer to accused with regard to right to legal representation and what precisely accused replied thereto when making election, all constitute 'record of proceedings' as provided for in s 76(3)(a), (b) and (c) of Criminal Procedure Act 51 of 1977 — Perusal of record must reveal precisely what was conveyed to unrepresented accused regarding right to consult with legal practitioner of choice, right to be provided with legal practitioner at State expense and right to dispense with legal practitioner and reaction thereto must appear ex facie record of proceedings — Record of explanation of accused's rights shouldn't be merely in form of cryptic notes, but should rather appear verbatim — Accused's reason for election made must also be recorded. S v Sibiya2004 (2) SACR 82 (W)

Trial — Record — Judgment — Judge failing to provide full reasons for judgment — Losing party wishing to appeal — Judge's failure after 15 months to decide whether or not he believed that another court might reach different conclusion regrettable — Statement of reasons giving assurance to parties that court having given due consideration to matter — Ensuring public confidence in administration of justice — While giving only brief reasons sometimes unavoidable, this practice to be utilised sparingly. National Director of Public Prosecutions v Naidoo and Others2011 (1) SACR 336 (SCA)

Trial — Record — Judgment — Reasons for — Not only salutary practice, but obligatory, for judicial officers to provide reasons to substantiate their conclusions — Court of appeal having interest in knowing why judicial officer making given order — In interests of open and proper administration of justice, and important for maintenance of public confidence, that courts state publicly reasons for their decisions. S v Maake2011 (1) SACR 263 (SCA)

Trial — Record — Language of — If parity of 11 official languages in court proceeding adhered to, it could result in considerable strain in resources and impact negatively on quality of service delivery and efficiency in administration of justice — Section 35(3)(k) of Constitution of the Republic of South Africa Act 108 of 1996 not conferring on accused person right to have trial conducted in language of choice but merely confers right to be tried in language that she or he understands, or, if that not practical, to have proceedings interpreted into such language — This falling short of addressing parity of use of languages in court proceedings — Solution to problems could be introduction of one language of record in court proceedings, possibly English. S v Damoyi2004 (1) SACR 121 (C)

Trial — Record — Record incomplete or lost — Effect of — Record of proceedings in regional court before sentencing by High Court in terms of Criminal Law Amendment Act 105 of 1997 defective — Court unable to say whether proceedings in accordance with justice or not and setting aside proceedings — Court noting that there had been no acquittal on merits — Court remitting case to regional court to be heard de novo before another magistrate. S v Appel2004 (2) SACR 360 (E)

Trial — Record — Record incomplete — Sentencing — Magistrate's reasons for sentence not appearing from record — In answer to notice of appeal magistrate requesting that 'ex tempore judgment' be regarded as reasons for purpose of appeal — Regardless of desire to add nothing further, magistrate could have been requested to furnish his reasons for sentence — Proper protection of appellant's constitutional right to appeal and community's interests that offenders be properly punished requiring of judicial officer that thorough attention be paid to formulation and furnishing of reasons for sentence — Without it sound criminal justice hampered. S v Calitz en 'n Ander2003 (1) SACR 116 (SCA)

Trial — Record — Record lost and allegedly not possible to reconstruct — Matter part-heard — Magistrate and interpreter no recollection of accused's answers and despite telephonic contact with prosecutor, his input into reconstruction of record not received — Held that Court not to set aside conviction and sentence in such cases unless satisfied that not possible to reconstruct same — In casu that stage not yet reached as no evidence that prosecutor unable to assist and assistance of other persons in court, such as accused's guardians, could be elicited — Matter accordingly referred back to clerk of the court with instruction the best secondary evidence of contents of lost record be obtained and reconstructed record be placed before the magistrate for finalisation. S v Ntantiso and Others1997 (2) SACR 302 (E)

Trial — Record — Record lost totally or material portion thereof lost — Impossible to reconstruct record — In appeal or on review conviction and sentence to be set aside — Not permissible to refer matter back to trial court for trial de novo. S v Fredericks1992 (1) SACR 561 (C)

Trial — Record — Record sent on review containing number of omissions precluding proper consideration of matter — Magistrate's notes stolen but court considering other avenues of reconstructing record — Clerk of the court accordingly ordered to obtain assistance of State witnesses, accused, magistrate, prosecutor, interpreter, stenographer and others to make good the omissions and then to submit affidavit to the Registrar setting out efforts made by him to reconstruct same. S v Gumbi1997 (1) SACR 273 (W)

145. MENTAL CAPACITY OF ACCUSED

Trial—Mental state of accused—Order in terms of s 47 of the Mental Health Care Act 17 of 2002 that accused, who was not capable of acting in accordance with his appreciation of the wrongfulness of his conduct, be held in a psychiatric hospital—Order can only be made after evidence has been placed before court linking accused with offence with which he was charged—Criminal Procedure Act 51 of 1977, s 77(6)(a)(i).

146. MINIMUM SENTENCES

Based on his plea of guilty, the appellant was convicted of the rape of a three-year old child. Sentenced to life imprisonment, he appealed against his sentence. The grounds of appeal related to averment that the that the trial court had erred in not finding that there were substantial and compelling circumstances present in the mitigating factors which would warrant a departure from the prescribed minimum sentence as provided in section 51(1) of the Criminal Law Amendment Act 105 of 1997 – and that the trial court had erred in not finding that a sentence of life imprisonment would, in the circumstances of the case, be disproportionate.

Following the appellant’s conviction a victim impact assessment was conducted and a report was compiled by a clinical psychologist.

Keywords:

Criminal law – Rape of minor – Sentence – Whether imposition of prescribed minimum sentence of life imprisonment was appropriate – A minimum sentence prescribed by law which, in the circumstances of a particular case, would be unjustly disproportionate to the offence, the offender and the interests of society, would justify the imposition of a lesser sentence than the one prescribed by law

. S v Mabaso 2014 (1) SACR 299 (KZP)

A life sentence was set aside on appeal because at his trial the accused was not informed of the possibility of a life sentence being imposed. The accused must be informed of fact that the provisions of the Amendment Act are to be applied and the consequences thereof. It could not be assumed that, because an accused was legally represented, the provisions of the Act had been pertinently brought to his attention

Kwanape v S
[2013] JOL 30935 (SCA)

Keywords:

Held that there were numerous delays in this case, which led to the determination of this appeal taking longer than would have been the case had the matter been dealt with expeditiously. In terms of section 35(3)(o) of the Constitution, the appellant has a right to a fair trial which includes the right of appeal to a higher court. Consequently the delays experienced in this case undermined or compromised those rights.

On the merits, the crucial issue was the factual enquiry of whether the High Court should have found that substantial and compelling circumstances existed, justifying a departure from the mandatory minimum sentence of life imprisonment.

Keywords:

Criminal law – Rape – Appeal against conviction and sentence – Whether, on a charge of rape, a sentencing court is precluded from imposing a life sentence – or from referring the matter to a higher court for consideration of that sentence – solely on the basis that the charge sheet refers to section 51(2) instead of section 51(1) of the Criminal Law Amendment Act 105 of 1997 – Where charge sheet expressly recorded that the appellant was charged with the offence of rape, read together with the provisions of section 51(2) of the Act, appellant was always aware of charge to be met and that the State intended to rely on the minimum sentencing regime

In appealing the conviction, the appellant challenged his identification as one of the perpetrators of the rape. However, the Court found the evidence to prove that the appellant had been properly identified.

There was also no merit found in the appeal against sentence. The full court was found to have correctly considered all relevant factors in deciding on the issue of sentence.

Mini Summary:

Charged with murder, rape and robbery, the appellant pleaded not guilty to murder, guilty to rape and guilty to theft. He was convicted based on his plea, and was sentenced to life imprisonment on the murder count, 20 years’ imprisonment on the rape count and 6 months’ imprisonment on the theft count. The present appeal was against conviction and sentence.

However, it was found that the sentences imposed were not sustainable. The trial judge was guilty of a number of misdirections which were so gross that they vitiated the sentences imposed. Firstly, the trial court stated that the murder was committed under circumstances where the offence justified the sentence prescribed under Schedule 2 of Part 1 of the Criminal Law Amendment Act 105 of 1997, but the indictment never made mention of the section or the Act. Secondly, no evidence was led to bring the murder within the purview of the section. Consequently, the sentence of life imprisonment was wrongly imposed. The court set aside the sentence and replaced it with one of 15 years’ imprisonment.

The sentence of 20 years’ imprisonment on the rape count was described in the indictment as falling under section 51(1)(a) of the Criminal Law Amendment Act. That could not be correct as there is no such section. The only part of the Act that might be relevant was section 51(2)(b) which refers to Part III of the Schedule. That section prescribes a sentence of not less than 10 years for a first offender unless there are substantial and compelling circumstances to justify a lesser sentence as contemplated in section 51(3) of the Act. The disparity between 10 years and 20 years was highlighted by the court, which set the sentence aside, finding no justification for the disparity. The sentence was replaced with one of 10 years’ imprisonment.

[zCIz]Case Information

Appeal from a conviction in a regional court for rape and sentence of 15 years' imprisonment in the Free State High Court (Musi JP, Jordaan J and Murray AJ). The facts appear from the reasons for judgment.

The appellant was convicted of, inter alia, robbery with aggravating circumstances, unlawful possession of a firearm and attempted murder. He was sentenced to an effective 25 years' imprisonment. He appealed against the sentence of 15 years' imprisonment on the charge of unlawful possession of a firearm. The basis of the appeal was that the prescribed minimum sentence provisions of section 51(2)(a) read with Part II of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 were inapplicable.

Held, that the appellant's argument was that there was no offence for possession of a semi-automatic firearm and that the minimum sentence provisions were not applicable. He argued further that the regional court was wrong to have sentenced him to 15 years' imprisonment instead of no more than 3 years' imprisonment as provided for in the now repealed Arms & Ammunition Act 75 of 1969.

Constitutional law – Right to fair trial – Section 35 of Constitution – Fairness demands that the accused be informed right at the outset of the trial, of the charge faced – Criminal law – Sentence – Minimum sentence provisions in Criminal Law Amendment Act 105 of 1997 – Applicability – Where complainant not proved beyond reasonable doubt to have been under the age of 16 years at the time of the incident, and State did not prosecute appellant for rape of a girl under the age of 16 years in terms of section 51(1) read with Part I Schedule 2 of the minimum sentence legislation, such legislation not applicable

Mini Summary:

As a result of the failure referred to above, the appellant could only be convicted of rape (and not rape of a girl under the age of 16). In terms of section 51(2)(b) of the of the Criminal Law Amendment Act, such a conviction attracts a minimum sentence of 10 years’ imprisonment in the absence of substantial and compelling circumstances. Even if no regard was had to the minimum sentence legislation, the court was of the view that a discretionary sentence of 10 years’ imprisonment would be appropriate in the circumstances. That led to the reduction of sentence on appeal.

Tofie v S
[2012] JOL 29211 (WCC)

The grounds of appeal against conviction were that the magistrate erred in finding that the state had proved its case beyond a reasonable doubt and in finding the evidence of the complainant to be honest and reliable.

Held that a court will be very reluctant to upset the findings of a trial court unless the appellant satisfies the appeal court that there has been some miscarriage or violation of some principle of law and procedure. The Court was satisfied on an examination of the recorded evidence that there was no misdirection by the magistrate in her finding that the State proved its case beyond reasonable doubt, in her accepting the evidence of the complainant and in rejecting the appellant's version of events which was of poor quality. The appeal against conviction lacked merit, and the appellant was rightly convicted in the trial court.

Mini Summary:

The appellant was convicted of the rape of a six year old boy, and was sentenced to life imprisonment. He appealed against both conviction and sentence. His defence was a bare denial, with him alleging that the witnesses had been manipulated by adults who wanted him to vacate his accommodation.

Keywords:

Criminal law – Rape – Murder – Sentence – Life imprisonment – Appeal

Held that the offence committed by the appellant did attract a prescribed minimum sentence of life imprisonment. That is the sentence that should ordinarily be imposed for the offence unless there is weighty justification for imposing a lesser sentence. The prescribed sentence is not to be departed from lightly. The courts do have to assess whether the prescribed sentence is proportionate to the particular offence.

The factors of youth and prospects of rehabilitation must be taken into account when imposing sentence, but in the present case did not constitute substantial and compelling circumstances due to the aggravating factors involved.

Sentence—Prescribed sentences—Minimum sentence—Imposition of in terms of Criminal Law Amendment Act 105 of 1997—Charge-sheet—Error in—Charge-sheet incorrectly stating offence as one of contravening s 51(2) instead of s 51(1)—Accused sentenced on basis of s 51(1)—Misdirection vitiating sentence, notwithstanding that accused, who was represented, at no stage objected to irregular procedure.

Mthimkhulu v S
[2012] JOL 28717 (SCA)

Due to the numerous errors on questions of law and procedure which occurred from the inception of the case, at the hearing of the present appeal, both parties agreed that the appeal should succeed and that the order made by the court below should be set aside.

Held that the first error was the reference in the charge sheet to only one count of rape when the evidence of the complainant was that she had been raped more than once by the appellant and his two companions. The consequence of the error was that the appellant was convicted and sentenced on the basis of section 51(2)(b)(i) of the Criminal Law Amendment Act 105 of 1997 which imposes a prescribed minimum sentence of 10 years’ imprisonment. Had the appellant been charged with and convicted of raping the complainant more than once, as he should have been, the minimum sentence applicable to him would have been life imprisonment in terms of section 51(1) of the Act, read together with the provisions of Part 1 of Schedule 2. Highlighting the prejudice caused by a sloppy charge sheet, the court stated that the administration of justice is potentially prejudiced because the allegation of only a single count of rape in a charge-sheet, where the evidence supports a multiplicity of counts, means that the properly convicted accused can be sentenced only as a single count offender.

S v Senyolo 2010 (2) SACR 571 (GSJ)

The appellant was convicted in a regional court on two counts of raping a 10-year-old girl, and sentenced to life imprisonment. The incidents occurred on 10 and 25 November 2007. He was sentenced in accordance with the provisions of s 51 of the Criminal Law Amendment Act 105 of 1997, as amended by the Criminal Law (Sentencing) Amendment Act 38 of 2007, which came into operation on 31 December 2007; in terms of these amendments, the regional court was given jurisdiction to impose life sentences for certain offences, including rape where the complainant had been raped more than once by the accused. Act 38 of 2007 also introduced s 51(3)(aA) into Act 105 of 1997, which provided that four specified factors would not constitute substantial and compelling circumstances, justifying the imposition of lesser sentences that those prescribed. These were the complainant's previous sexual history; lack of physical injury to the complainant; the accused's cultural or religious beliefs about rape; and any prior relationship between the accused and the complainant. In effect, therefore, the appellant was sentenced in terms of provisions which had come into force after the commission of the offences. He appealed both conviction and sentence.

Appeal against conviction and sentence for rape. The facts appear from the judgment of Van Eeden AJ, in which Maluleke J concurred

S v Mqikela 2010 (2) SACR 589 (ECG)

• where the crime was committed by a person who had been convicted of two or more offences of rape, but had not yet been sentenced in respect of such convictions;

• where the crime was committed by a person knowing that he had Aids or was HIV-positive;

Case Information

Appeal from a sentence imposed in the Eastern Cape High Court, Grahamstown (Dambuza J). The facts appear from the judgment of Jones J.

A proper judicial consideration as to whether exceptional circumstances in a F particular case exist to warrant the ordering of a non-parole period in terms of s 276B of the Act, can only be made where both the State and the defence have made submissions on the issue. Where exceptional circumstances are found to exist in a particular case, it is the duty of the judicial officer to set them out explicitly in the judgment, or they must be apparent therefrom.

[zCIz]Case Information

Mini Summary:

The appellant was convicted of housebreaking with intent to rape and rape, and sentenced to 28 years’ imprisonment. He appealed against the sentence.

Keywords:

Criminal law – Murder – Conviction and sentence – Appeal

The court found the sentence of life imprisonment to be too severe, and replaced it with one of 22 years' imprisonment.

Mavundla v S
[2011] JOL 27972 (GNP)

Held that the appellant was clearly guilty of rape. The evidence against him was overwhelming and his defence of consent was so improbable that it could not be reasonably possibly true. The primary question on appeal was whether the evidence established that the appellant had raped the complainant more than once to bring the provisions of section 51(1) of the Act into operation. All the evidence established was a single act. The court a quo therefore wrongly applied the provisions of section 51(1) of the Act and sentenced the appellant as if he had raped the complainant twice.

Section 51(2)(b) of the Act prescribes a minimum sentence of 10 years’ imprisonment for a first offender who commits rape and the question should have been whether there were substantial and compelling circumstances which would justify the imposition of a sentence of less than 10 years’ imprisonment or whether there were aggravating circumstances which required that a sentence heavier than the minimum prescribed sentence be imposed.

Mini Summary:

Convicted of robbery with aggravating circumstances, the appellant was sentenced to 15 years' imprisonment. He appealed against both the conviction and sentence.

S v Mugeri - 2004 (1) SACR 370 (TPD) – regional court must refer to High Court for sentence if Part 1 of Schedule 2.(no authority in these cases to enquire into substantial and compelling circumstances.)

S v Jabulani Sithole - Sept. 2004 (SCA) – minimum sentences applied for large quantity of dagga. Court held State must prove value and can’t simply assume value but must hear evidence of realistic market related value as vary in value depending on various factors

Mbhense v S
[2008] JOL 21488 (N)

Keywords:

Held, that the trial of the appellant was vitiated by a number of irregularities. The charge-sheet had not warned the appellant that the State would rely on the minimum sentencing provision of the Criminal Law Amendment Act 105 of 1997. The court could also not be satisfied that the appellant had properly been apprised of the right to legal representation as the proceedings had not been properly recorded.

The appeal was allowed and the conviction and sentence set aside.

Having pleaded guilty to a charge of robbery with aggravating circumstances, the appellant was convicted as charged.

Held that the record showed that the appellant had been convicted twice on the same set of facts. The present court held that the magistrate had become functus officio after the first conviction, and that conviction was therefore confirmed.

Keywords:

Criminal procedure – Misjoinder – Dismissal of point – Appeal

The appeal was dismissed.

S v Boekhoud & others
[2008] JOL 21740 (W)

Held that the decision that no misjoinder existed had a final effect on the applicant. It was definitive of his rights. The result was that the State's case against both accused would then proceed on all the counts set out in the indictment including those that the applicant objected to. The result was that although it was an interlocutory matter, it was of final effect, and was appealable.

It was found to be in the interests of justice to grant leave to appeal.

Keywords:

Criminal law – Murder – Sentence – Life imprisonment – Appeal

In the present case, the appellant had been practising to become a traditional healer, and as part of his final initiation, he had to obtain the genital organ of a close female relative. To that end, he had lured his younger sister to his home, where he hit her over the head with an axe, stabbed her in the chest, and waited for her to die. He then cut off her genital organ with an axe. The court acknowledged that in South Africa, cultural practices pertaining to a belief in witchcraft and muti killings prevail. However, it referred to evidence that the use of human body parts as an ingredient for traditional medicine is practised only by a minority of traditional healers, who are condemned by the majority. The appellant’s religious beliefs and convictions could not supersede the deceased’s right to life. Although everyone has a right to practice their belief, as soon as that belief leads to an action which falls within the bounds of illegality, then in terms of section 31(2) of the Bill of Rights it can no longer be condoned or protected.

The Court found no grounds upon which to interfere with the sentence, and dismissed the appeal.

In May 2004, an attack on a house left four dead and one survivor sustaining 25 gunshot wounds. The survivor (“the complainant”) identified one of the assailants (“Moosa”), and he and the two appellants were subsequently convicted of four counts of murder and one of attempted murder. The first appellant was sentenced to an effective 20 years’ imprisonment, while the second appellant was effectively sentenced to life imprisonment.

Both appellants appealed against their convictions on the basis of the insufficiency of the evidence against them, and the first appellant also appealed against his sentence.

In the face of all the evidence adduced by the state, the appellants and Moosa had decided not to testify in their own defence.

Held that in order to determine the correctness of the convictions and the sentence imposed, it was necessary to have regard to the material parts of the evidence adduced by the state and to the factors associated with sentencing.

It was submitted on behalf of the appellants that because of the conflict in the evidence of the appellants’ respective girlfriends, both of whom were state witnesses, a successful prosecution was precluded. The submission was held to be fallacious. The second appellant’s girlfriend’s evidence was rightly rejected.

The present court agreed with the trial court that the state had produced weighty evidence against the appellants, which called for an answer. The appellants had been in the company of Moosa, against whom the evidence was damning. On the evidence before the court, the inference was irresistible, in the absence of an explanation from them, that they were with him at all relevant times. The evidence against the appellants established their association with Mr Moosa in the perpetration of the murders. It undoubtedly called for an answer, which was not forthcoming. Consequently, both appeals against convictions had to fail.

Mini Summary:

Upon being convicted of murder, the appellant was sentenced to 15 years' imprisonment.

Criminal law – Murder – Conviction and sentence – Appeal

Mini Summary:

The next question was whether the appellant was guilty of culpable homicide or murder with the direct form of intent or dolus eventualis. The court was satisfied that the appellant subjectively foresaw the possibility of his conduct causing the death of the deceased and was plainly reckless as to such result ensuing. He was accordingly guilty of murder with dolus eventualis as the form of intent.

On the appeal against sentence, the court highlighted the aggravating circumstances, such as the sustained and vicious attack of the appellant against the defenceless deceased. It was of the view that the sentence imposed was on the lenient side, and declined to uphold the appeal.

The respondent, a policeman, had shot and killed a third party in an altercation whilst off duty. He was charged and convicted of murder and sentenced to 14 years' imprisonment, wholly suspended on certain conditions.

The state appealed against the sentence, arguing that it was too lenient.

S v Barendse 2010 (2) SACR 616 (ECG)

Just as youthfulness is a factor to be taken into account in the imposition of sentence, so is the advanced age of the offender also such a factor, but for different reasons.

Appeal against sentence imposed by a single judge in the Eastern Cape Provincial Division (Revelas J). The facts appear from the judgment of Jansen J.

Moodley v S
[2008] JOL 22246 (T)

Held that in refusing the appellant's request for a non-custodial sentence, the magistrate over-emphasised the fact that the appellant had lied to the court about the circumstances in which his wife had been killed. The present court found that the crime was one of passion, and that the appellant ordinarily had no criminal tendencies.

The appeal was upheld, and the sentence reduced to one of 10 years' imprisonment.

S v Mzozoyana – 2008 JOL 21268 (E) – accused convicted of housebreaking and murder. Court dealt with onus of proof on State and duty to prove case beyond reasonable doubt. Court not satisfied presence of accused on scene satisfactorily established.

Dikana v S
[2008] JOL 21293 (E)

Held that the evidence satisfactorily established that the appellant had acted with intent to kill in setting alight a dwelling in which the deceased were present. The court rejected the appellant's claim that he displayed remorse.

The court a quo's finding that no substantial and compelling circumstances existed to depart from the prescribed minimum sentence could not be faulted.

Mini Summary:

The appellant was convicted of murder and attempted murder and sentenced to life imprisonment for murder and twelve years' imprisonment for attempted murder. He appealed against his convictions and sentences.

Criminal law – Murder – Alibi defence – Onus of proof

Mini Summary:

State v Mshumpa and Another
[2008] JOL 21411 (ELC)

Keywords:

The court then turned to consider the offences of which the two accused were guilty. The State argued that the killing of the unborn child amounted to murder. However, that submission was rejected by the court for reasons set out in the judgment. The accused were instead convicted of, inter alia, attempted murder of the complainant.

Mocke v S
[2008] JOL 21819 (SCA)