A bi-annual update complementing theCommentary on the Criminal Procedure Act

NO 2 OF 2014

ANDREW PAIZES, Author (Editor)STEPH VAN DER MERWE, Author

Contents

Editorial Note.............................................................................................................................................. 3

(A) FEATURE ARTICLES ........................................................................................................................ 4The trial of Oscar Pistorius—dolus eventualis once again.................................................................. 4Rhino-related crimes, sentencing and deterrence................................................................................. 7

(B) LEGISLATION .................................................................................................................................... 10

(C) CASE LAW .......................................................................................................................................... 11(a) Criminal Law.................................................................................................................................. 11

Assault with intent to cause grievous bodily harm: By administration of noxious substance ..... 11Contempt of court .......................................................................................................................... 11Fraud—misrepresentation to the world ......................................................................................... 11

(b) Criminal Procedure and Evidence.................................................................................................. 12(i) Pre-sentence.............................................................................................................................. 12

Duty of the South African Police Service to investigate crimes against humanity committedbeyond South Africa’s borders .......................................................................................... 12

Role of prosecutor: Special relationship with the court .......................................................... 14Recusal: Test to be applied in respect of prosecutor ............................................................... 14s 1(1)(b): The meaning of aggravating circumstances’ in relation to robbery or attempted

robbery............................................................................................................................... 15s 7(1)(a): Constitutionality of excluding juristic persons from the right to institute a private

prosecution......................................................................................................................... 16s 79: Constitution of the panel to assess accused’s mental condition..................................... 17s 166: The scope of the judicial officer’s duties to inform an accused of his rights to legal

representation and to cross-examination and to explain these rights properly................. 17s 166: Questioning by court; discourtesy to witnesses; treatment of child victim in rape

cases by prosecution and court.......................................................................................... 19s 168: Adjournment of court sine die ...................................................................................... 20s 170A: Intermediary---absence of a report and allegation that no factual basis laid for

intermediary to act............................................................................................................. 20s 170A: Duties of court in respect of allowing a child to testify through an intermediary .... 20s 179: Securing the attendance of witnesses: Duty of prosecution and court to assist

accused............................................................................................................................... 21s186: The avoidance of undue partiality towards the state ..................................................... 22s 201: Legal professional privilege: Extra-curial application of privilege where attorney’s

office searched; preservation order appropriate ................................................................ 22s 212: Experts and scientific evidence..................................................................................... 24s 217: Role of the prosecutor in respect of a confession likely to be inadmissible................ 24

(ii) Sentencing ................................................................................................................................ 25s 280(2): Ordering sentences to run concurrently ................................................................... 25Sentencing: The meaning of premeditated’ murder for purposes of Part 1 of Schedule 2 to

the Criminal Law Amendment Act 105 of 1997............................................................... 26(iii) Appeal and Review .................................................................................................................. 27

TABLE OF CASES .................................................................................................................................... 28

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Editorial Note

The period under review has seen judgment handeddown in one of the most closely followed murdertrials in legal history. The trial of Oscar Pistoriusdominated the consciousness of South African—andmany foreign—readers and television viewers in amanner and to a degree that is without precedent.The accused was convicted of culpable homicide, adecision that has not met with unanimous approvalamong legal commentators. The first feature articlein this edition of the Review contains a close criticalanalysis of one aspect of the judgment: the decisionby Masipa J that the state had not proved therequisite element of dolus eventualis that would havebeen necessary to sustain a conviction for murder.

The second feature article deals with rhino-relatedcrimes and the question is asked: to what extent isdeterrence—both individual and general—allowedto dictate the severity of a sentence in crimes thatprovoke strong public outrage. The article cautionsthat moderation is important, and that unscientificclaims to deterrence must be viewed with suspicion.

The cases under review raise important and interest-ing questions: the Western Cape High Court held thats 77(6)(a)(i) and (ii) of the Criminal Procedure Actwere, as they stood, unconstitutional; the SupremeCourt of Appeal considered the meaning of ‘pre-meditated murder’ for the purpose of Part 1 ofSchedule 2 to the Criminal Law Amendment Act 105of 1997; and the same court explained the duty of a

sentencing court to ensure that the cumulative effectof sentences imposed does not result in excessivepunishment. The Supreme Court of Appeal consid-ered, too, the duties of a prosecutor where he or sheadduces evidence of a confession which is likely tobe ruled inadmissible; the scope of a judicial officer’sduties to inform and explain properly to an unrepre-sented accused his rights to legal representation andto cross-examine witnesses; and the circumstances inwhich a prosecutor (as opposed to a judicial officer)should recuse himself or herself on grounds of anapprehension of bias.

The Constitutional Court considered the extent of theduty of the South African Police Service to investi-gate crimes against humanity committed beyondSouth Africa’s borders, and, in a particularly interest-ing case, the Western Cape High Court examined therole played by legal professional privilege in protect-ing privileged communications obtained when anattorney’s offices are searched under warrant.

On a personal and very sad note, Professor van derMerwe and I would like to pay tribute to the lateAneesa Latief who passed away earlier this year.Aneesa was a valuable member of the team thatproduces this Review, and her excellent typing,admirable helpfulness and generosity of spirit will begreatly missed. We are grateful for her many kind-nesses, and extend our heartfelt sympathies to herfamily and friends at Juta.

Andrew Paizes

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(A) FEATURE ARTICLES

The trial of Oscar Pistorius—doluseventualis once againFew, if any, murder trials have gripped the globalimagination with anything like the force of the trialof Oscar Pistorius, a disabled Olympic athlete withan enormous international following. The decision inS v Pistorius (unreported, GP case no CC 113/2013,11 September 2014) has, as a result, elicited a levelof interest that is without precedent in the history ofour system of criminal justice.

The facts of the case are so well known that I will bevery brief in setting them out: the accused wascharged with, inter alia, the murder of his celebritygirlfriend, whom he had shot and killed by firingfour shots, three of which struck the deceased, with afirearm through the door of the toilet into which shehad locked herself.

The accused denied that he had killed the deceasedintentionally. The ‘essence of the explanation of pleaas well as the evidence of the accused was’, said thecourt, ‘that when he armed himself with his firearmand fired through the toilet door he was acting in themistaken belief that the deceased, who was thenunknown to him in the toilet, was an intruder whoposed a threat to his life and to that of the deceased’.He ‘believed that the intruder or intruders had comein through an open bathroom window’ which wasnot protected by burglar bars, as he ‘had earlier heardthe window slide open’, and was ‘unaware that thedeceased had left the bedroom to go to the toilet’.

On a closer examination of the accused’s evidenceand the nature of the defence raised on his behalf,however, Masipa J came to the conclusion that thecourt was faced with ‘a plethora of defences’ (at p3311). These included temporary non-pathologicalcriminal incapacity and involuntary conduct. Butsince the court correctly rejected the other defences,I will restrict my discussion to the one on which thecourt’s focus fell—that of putative private defence.In short, said Masipa J, the ‘essence of the accused’sdefence [was] that he had no intention to shoot atanyone but if it was found that there was such anintention then he shot at what he . . . ‘‘perceived asan intruder coming out to attack [him]’’’.

Masipa J found that the accused was ‘not candidwith the court when he said that he had no intentionto shoot at anyone’. She found the accused to havebeen a ‘very poor’ and ‘evasive’ witness, who arguedwith the prosecutor instead of answering questionsand blamed his legal team when contradictions werepointed out to him. She found that he ‘clearly wanted

to use the firearm and the only way he could haveused it was to shoot at the perceived danger’.

The intention to shoot did not, however, said thecourt, necessarily include the intention to kill. Therewas, thus, ‘only one essential point of dispute’: didthe accused ‘have the intention to kill the deceasedwhen he pulled the trigger?’ (at p 3317).

The court turned to the facts in order to determinewhether the state had discharged the onus of provingintent to kill, whether in the form of dolus directus ordolus eventualis. Masipa J found that dolus directushad not been proved, but seemed to equate thatnotion with ‘premeditated murder’. That these twoare not the same may be shown by example: if Ashoots and kills B on the spur of the moment in aviolent rage, he has dolus directus if it was his aim orobject to kill B, even if that act was not, in anymeaningful sense, ‘premeditated’. The courtaccepted that the accused’s version was that ‘hegenuinely, though erroneously believed that his lifeand that of the deceased was in danger’ and con-cluded that there was ‘nothing in the evidence tosuggest that this belief was not honestly entertained’.

The court turned, next, to dolus eventualis. In thisregard Masipa J had this to say (at p 3327):

The question is:

(1) Did the accused subjectively foresee that itcould be the deceased behind the toiletdoor and

(2) Notwithstanding the foresight did he thenfire the shots, thereby reconciling himselfto the possibility that it could be thedeceased in the toilet.

She answered these questions by maintaining thatthe evidence did ‘not support the state’s contentionthat this could be a case of dolus eventualis’. ‘On thecontrary’, she continued, ‘the evidence show[ed] thatfrom the outset the accused believed that, at the timehe fired the shots into the toilet door, the deceasedwas in the bedroom while the intruders were in thetoilet’. She went on (at p 3328): ‘How could theaccused reasonably have foreseen that the shots hefired would kill the deceased? Clearly he did notforesee this as a possibility that he would kill theperson behind the door, let alone the deceased, as hethought she was in the bedroom at the time.’ Itfollowed, in her view, ‘that the accused’s erroneousbelief that his life was in danger exclude[d] dolus’,so that he could not be found ‘guilty of murder doluseventualis’.

4

It is respectfully submitted that the court’s reasoningwas flawed in a number of important respects.

(1) The test for dolus eventualis is not whether theaccused could reasonably have foreseen thepossibility in question, but whether he didactually foresee it. This error did not, however,signify, since the correct test was, in fact,applied.

(2) It is not necessary for the state to prove that heforesaw the death of the actual victim. AsMasipa J herself observed earlier in her judg-ment, error in persona will not avail an accused,so that if A intentionally kills B in the belief thatthe person he is killing is, in fact, C, he will stillbe liable for the murder of B. Thus, in her ownwords (at p 3325), the ‘fact that the personbehind the door turned out to be the deceasedand not an intruder, is irrelevant’, since the‘blow was meant for the person behind thetoilet door, who the accused believed was anintruder’, and the blow did, in fact, strike andkill the ‘person behind the door’. The principlethat error in persona does not negate faultapplies irrespective of whether the fault inquestion is dolus directus or dolus eventualis,and should have been invoked in the lattercontext as well.

(3) The crucial question, given the accused’sdefence of putative self-defence, is not simplywhether the accused foresaw the possibility thathis conduct might cause the death of the ‘personbehind the door’, whoever that person was, butwhether he foresaw that it might cause his orher death unlawfully. It is trite that dolus has toapply to every element of the actus reus,including the element of unlawfulness, andsince putative self-defence rests on the assertionthat the accused genuinely believed that he wasacting within the borders of lawful self-defence,it is necessary, in such cases, for the state toprove, beyond a reasonable doubt, that heintended to kill unlawfully. In the case of doluseventualis, this means that the state in this casehad to prove that the accused foresaw thepossibility that, in firing four shots through thetoilet door, the ‘person behind the door’ mightunlawfully be killed.

(4) If we accept, as the court did, that the accusedbelieved that the person in the toilet was anintruder, does this mean that we are necessarilyprecluded from finding, too, that the accuseddid foresee the possibility that, in firing the four

shots, he might unlawfully bring about thedeath of another human being? The answer, Isubmit, is no. You may, with some confidence,believe that your team will win a rugby matchand yet, at the same time, foresee the realpossibility that it may not. Believing somethingdoes not necessarily stop you from foreseeingthe opposite of what you believe. Beliefs, inother words, are seldom absolute. They areoften accompanied by doubts, big or small. Soit was clearly possible, as a matter of logic, forthe accused to believe that he was entitled, inlaw, to use the force he did because there was anintruder behind the door and yet, at the sametime, to foresee the possibility that he was not,for one or other reason, entitled to do so. Theaccused in this case knew (and, indeed, couldknow) nothing about the identity or purpose ofthe imagined intruder. He may well, as theaccused claimed to have feared, have been anarmed and dangerous person, intent on causingdeath or serious bodily harm to the occupants ofthe house. But he may, just as easily, have beensomeone who would not pose an imminentthreat to life or limb, such as an unarmedburglar, a frightened child, an armed intrudermore concerned (if confronted) with escapethan attack, or a housebreaker whose solemodus operandi was stealth rather than vio-lence.

It is, of course, open to an accused in such aposition to claim that his ‘belief’ did not gobeyond imagining the first kind of intruder. But,given that he could not have had any informa-tion at all about the identity or qualities of theintruder, could a court accept that he did not atleast foresee the possibility that he or she was ofthe second kind? I submit not. Even foresight ofa slight possibility, a possibility ‘howeverremote’, has been held by the Appellate Divi-sion to suffice for dolus eventualis (see, forinstance, S v De Bruyn 1968 (4) SA 498 (A), S vShaik 1983 (4) SA 57 (A), S v Ngubane 1985(3) SA 677 (A) and S v Sethoga 1990 (1) SA270 (A)). The better view, however, isexpressed in cases that insist on foresight of areal or a reasonable possibility (see, forinstance, S v Beukes 1988 (1) SA 511 (A) at[126] and S v Van Wyk 1992 (1) SACR 147(NmS); see, too, RC Whiting (1988) SACJ 440and AP Paizes (1988) 105 SALJ 636). Even onthe stricter test, it would be difficult to imagine

5Issue 2, 2014

that he did not foresee the real possibility thatthe ‘intruder’ behind the door was not present-ing an imminent threat to life or limb, particu-larly in view of the fact that he had the only exitfrom the toilet (other than the window) coveredby the pointed firearm.

(5) It is true that Masipa J made a finding of factthat the accused ‘[c]learly . . . did not foresee. . . as a possibility that he would kill the personbehind the door, let alone the deceased’ (at p3328). It is submitted, nevertheless, that it mustbe remembered that the learned judge directedher attention almost exclusively to the questionshe had asked prior to this, the question sheclearly considered as being pivotal to her judg-ment on the issue of dolus eventualis: ‘Did theaccused subjectively foresee that it could be thedeceased behind the toilet door?’ This question,it has already been submitted, was the wrongquestion since, as Masipa J had herself earlierrecognised, error in persona cannot save anaccused in these circumstances. The broaderquestion, whether he foresaw that he might killthe ‘person behind the door’ whoever he or shemay have been, was not considered at anylength at all apart from this terse remark, sinceshe obviously considered it unnecessary toexplore that question in view of her finding thatthe accused did not foresee that he might kill hisgirlfriend who was, he believed, in the bedroomat the time.

Had the court addressed the broader question atany length, it is submitted that it would almostcertainly have come to a different answer. It isvery difficult to resist drawing an inference thatthe accused, by firing four shots with a verypowerful firearm into the small toilet which heknew to be occupied by someone, must haveforeseen, and therefore did foresee, that theoccupant might be fatally injured by one ormore of these shots.

(6) Because Masipa J held that the first part of thetest for dolus eventualis had not been satisfied,she did not go on to consider the second. If, as Ihave argued, she was wrong in respect of thefirst element, it would be necessary to considerthe second. The second part of the test, whichcontains the so-called ‘volitional’ element,requires that the accused ‘consents’ to the con-sequences foreseen as a possibility, ‘reconciles’himself to it’, or ‘takes it into the bargain’.Much has been said about this element in recent

cases such as S v Humphreys 2013 (2) SACR 1(SCA) (discussed in CJR 1 of 2013), S v Tonkin2014 (1) SACR 583 (SCA) and S v Ndlanzi2014 (2) SACR 256 (SCA) (both discussed in2014 (1) CJR). These cases have been criticisedby me (in the CJR articles cited) and others asseeking unjustifiably to add ballast to what is atautologous inquiry. My argument is, in short,that an accused who goes ahead with an act thathe foresees might bring about an unlawfulconsequence, must necessarily have taken therisk of causing that consequence into the bar-gain. He must have reconciled himself to thatrisk, or consented to it. But the Supreme Courtof Appeal has spoken and has decided other-wise. As a result, it is easy to imagine how thesecases could be used by the defence in casessuch as Pistorius. One argument might be thatthe accused in that case did not take into thebargain that his girlfriend would be killed sinceshe was, he believed, in the bedroom. Anothermight be that it was clearly not ‘immaterial’ tohim whether she was killed or not, given hisoutpouring of grief and distress once he haddiscovered what he had done. Such argumentscould not, however, succeed if the second leg ofthe test is properly articulated. The only ques-tion is whether the accused reconciled himselfto the possibility actually foreseen by him—that of unlawfully killing the person behind thedoor, not his girlfriend. And, by going aheadwith the shooting in spite of an appreciation ofthat very risk, he must, necessarily, have doneso.

(7) After finding that dolus had not been estab-lished by the state, Masipa J turned to considerwhether negligence (or culpa) had been proved.She found that it had, and convicted the accusedof culpable homicide. The first element of thetest for culpa in the circumstances of the caserequired and received from the court an affir-mative answer to this question (at p 3334):‘Would a reasonable person in the same circum-stances as the accused, have foreseen the rea-sonable possibility that, if he fired four shots atthe door of the toilet, whoever was behind thedoor might be struck by a bullet and die as aresult?’

Two things stand out about the court’sapproach. First, the court changed its focusfrom whether the death of the actual deceased(the accused’s girlfriend) was foreseen (in the

Criminal Justice Review6

inquiry into dolus eventualis) to whether thedeath of ‘whoever was behind the door’ wasreasonably foreseeable (in the culpa inquiry).Had the latter approach (which, it is submitted,is the correct one) been applied, too (with thenecessary adaption), to dolus eventualis, theresult might well have been different in respectof that inquiry.

Second, given that the accused’s defence was one ofputative self-defence, which negates fault in respectof unlawfulness, the court should have askedwhether a reasonable person in the accused’s posi-

tion would have foreseen the reasonable possibilitythat whoever was behind the door, not only might bekilled as a result of the conduct, but might be killedunlawfully. This inquiry would require a court toconsider whether a reasonable person in the positionof the accused would have foreseen that the ‘personbehind the door’ might have been someone otherthan one presenting an imminent threat to theaccused’s life. This question, too, would probablyhave received an affirmative answer. It was, how-ever, not asked.

Andrew Paizes

Rhino-related crimes, sentencing anddeterrenceThe appellant in S v Lemtongthai 2014 (1) SACR495 (GJ) and Lemthongthai v S [2014] ZASCA 131(unreported, SCA case no 849/2013, 25 September2014) was a Thai national. Should he eventuallyreturn to Thailand, he would have a strange but truestory to tell, namely that in South Africa a trial courthad sentenced him to an effective 40 years’ imprison-ment for rhino-related crimes, which was reduced toan effective 30 years’ imprisonment on appeal to theSouth Gauteng High Court and which was, in turn,on appeal to the Supreme Court of Appeal, reducedto 13 years’ imprisonment plus a further 5 years orone million rands. One can forgive an ignorant cynicif he were to suggest that the appellant’s success ingetting his sentences reduced really calls for onemore appeal, if only to see whether detention untilthe rising of the court, as provided for in s 284 of theCriminal Procedure Act, would perhaps be the finalsentence.

The regional court had convicted the appellant on 26contraventions of s 80(1)(i) of the Customs andExcise Act 91 of 1964 (illegal use of documents toexport rhino horn). He was also convicted of 26further contraventions of s 57(1) of the NationalEnvironmental Management: Biodiversity Act 10 of2004 (unlawfully trading in rhino horn). The appel-lant was not a conventional poacher. The 26 rhinos inthis case were shot legally on the basis of legalhunting permits obtained by the appellant. The rhinowere hunted as trophies. But the appellant alsomanipulated the permit system and deceived theauthorities so that the rhino horns could be exportedin contravention of existing legislation. His actions,said the High Court at [17], were akin to those of

poachers; and the ‘killing of rhinos, solely to tradetheir horns, is a serious crime’ (at [30]).

In dealing with the appellant’s effective 40 years’direct imprisonment imposed by the regional magis-trate, Tsoka J (Levenberg AJ concurring) found thatthe sentencing court had misdirected itself byexceeding certain maximum years’ imprisonmentprescribed in the relevant legislation (at [11] to [13]).It was accordingly concluded that the High Courtwas ‘at liberty to interfere with the discretion that thetrial court had in imposing the sentences’ (at [13]).

In considering sentence afresh, it was noted thatrhino-related crimes are prevalent in South Africa (at[17]) and that there is ‘a public outcry for harshersentences to be imposed by the courts on . . . personsconvicted of rhino-related crimes’ (at [18]). At [31]Tsoka J stated that whilst the object of sentencing isnot to satisfy public opinion but to serve the publicinterest, ‘public opinion and indignation’ concerningthe killing of rhinos must be taken into account inarriving at an appropriate sentence: ‘The personalinterests of the accused must not prevail above thoseof the public. The two must, as far as humanlypossible, be weighed against each other’ in determin-ing what a fit and proper sentence should be.

There can be no doubt that the High Court’s assess-ment of South African public opinion on the killingof rhino and illegal trading in rhino horn is accurate.A more difficult matter is the extent to which thispublic opinion, or even public outrage, could per-haps inadvertently or indirectly have played a rolewhen the High Court, having set aside the trialcourt’s sentence of 40 years’ imprisonment, imposedits own sentence of an effective 30 years’ imprison-ment. The High Court, it would seem, relied too

7Issue 2, 2014

heavily on deterrence to justify this sentence. At [31]Tsoka J stated (emphasis added):

In my view, deterrence cries out in this matter.The sentence to be imposed must not only act asa deterrent to the appellant, but must also serveas a deterrent to all those who intend to embarkon the illegal activity of dealing in rhino horn.Potential poachers must know that, in the eventthat they are caught, they will be prosecutedand a proper and fitting sentence would beimposed on them. Courts should not shirk theirresponsibilities in meting out the appropriatesentence in appropriate cases. They must pro-tect these ancient and magnificent animals.

It is, of course, entirely true that deterrence is one ofthe important purposes of punishment. See Ter-blanche Guide to Sentencing in South Africa 2 ed(2007) at 138. Terblanche at 156–157 also points outthat deterrence has two forms: individual (or spe-cific) deterrence and general deterrence. Spohn Howdo Judges Decide? The Search for Fairness andJustice in Punishment 2 ed (2009) at 7 explains thatthe purpose of punishment ‘is to prevent those whoare punished from committing additional crimes inthe future (specific deterrence) or to deter othersfrom committing similar crimes (general deter-rence)’. At 18 the author adds an important qualifica-tion, namely that ‘the amount of punishment shouldbe enough (and no more) to dissuade the offenderfrom reoffending and to discourage potential crimi-nals’ (emphasis added). In Lemtongthai the regionalcourt and the High Court both imposed prison termswhich exceeded what could reasonably be justifiedto meet the demands of deterrence, be it individualor general deterrence.

In imposing a sentence with the two forms ofdeterrence in mind, there is—from a penal philoso-phy point of view—a further and rather subtleconsideration which is very often simply overlookedby a sentencing court: for as long as we remainignorant of the true deterrent effect of a sentence,there is a risk that the individual can be sentenced forcrimes not yet committed by him (individual deter-rence) and for crimes other people may or may notcommit (general deterrence). Hogarth Sentencing asa Human Process (1971) explains as follows (at 4,emphasis added):

Estimating the likely impact of the sentence onthe offender, or on potential offenders, is a mostcomplex task. It is difficult to know with anydegree of certainty whether an offender beforethe court is likely to pose the risk of further

crime, and even more difficult to know whetherthat risk can be in any way altered by choosingone form of sentence over another. Still moredifficult is estimating whether the imposition ofa deterrent penalty is likely to prevent potentialoffenders from committing crime. Finally, thereis the thorny problem of deciding to what extentit is morally justified to punish individuals forcrimes they have not yet committed or for thepotential crimes of others.

It is important that an individual should not besacrificed on the altar of deterrence. See also thecases as discussed in the notes on s 276 in Commen-tary, sv Accused not to be sacrificed on the altar ofdeterrence.

There is a further problem that arises when a courtrelies on general deterrence as one of the mainconsiderations for imposing a severe sentence: it isnot the severity of the punishment that deters, but itscertainty. See Ezorsky (ed) Philosophical Perspec-tives on Punishment (1972) 293. In terms of generaldeterrence, an unjust sentence cannot hope toachieve what effective law enforcement would. Andif there is no effective law enforcement (properpolicing which results in successful prosecutions), acourt should take care not to rely on general deter-rence as justification for imposing a very severesentence on the occasional individual who does getcaught, prosecuted and convicted.

It was pointed out above that the High Court hadnoted (at [17]) that rhino-related crimes are prevalentin South Africa. Prevalence, too, calls for carefulconsideration. Sentencing courts cannot keep onimposing more and more severe sentences simplybecause the particular crime is prevalent or on theincrease. In R v Makaza 1969 (2) SA 209 (R) BeadleCJ noted at 211B: ‘If such an approach were justifiedthe theft of a cycle would by now attract somethinglike a life sentence’. As far as prevalence is con-cerned, it is also unfair to make an individual pay forthe crimes of others. In S v Qamata 1997 (1) SACR479 (E) at 482c–d Jones J pointed out that the ‘twoaccused alone should not have to pay the price of theincreased numbers of robberies on farms and small-holdings throughout South Africa’.

In dealing with the appeal against the High Court’ssentence, the Supreme Court of Appeal noted at [15]that the High Court had taken the view that the casecalled out for a sentence that would act as adeterrent. Navsa ADP (Wallis and Swain JJA concur-ring) viewed the offences in a serious light and alsopointed out that ‘illegal activities such as those

Criminal Justice Review8

engaged in by the appellant are fuel to the fire of theillicit international trade in rhino horn’ (at [20]). Butat [21] it was concluded that the effective sentence of30 years’ imprisonment was ‘too severe’, induced ‘asense of shock’ and was, furthermore, ‘dispropor-tionate when compared with the minimum sentencesstatutorily prescribed for other serious offences’. In

reducing the sentence to an effective 13 years’imprisonment, with a further one million rand fine or5 years’ imprisonment, the Supreme Court of Appealensured that the sentences were in the public interestand were effective enough to protect our wildlifewithout inflating the penalty for the purpose ofdeterrence.

Steph van der Merwe

9Issue 2, 2014

(B) LEGISLATION

There was no legislation of significance in the period under review.

10

(C) CASE LAW

(a) Criminal Law

Assault with intent to cause grievousbodily harm: By administrationof noxious substanceS v Helm (unreported, WCC case no A119/2012, 17September 2014)

Can the administration of a noxious substance con-stitute the actus reus of an assault? This was consid-ered by the court in S v Helm (unreported WCC caseno A119/2012, 17 September 2014), where theaccused was charged with assault with intent tocause grievous bodily harm by administering tochildren at a crèche, run by her, certain noxioussubstances so that they would sleep during the dayand not make a noise to disturb her other activities.

The court referred to S v Marx 1962 (1) SA 848 (N),where the accused had given two children intoxicat-ing liquor to consume, and where it was held that theindirect application of force could suffice and thatthe causing of internal harm to the person of thevictim by invading the integrity of his body bymeans of a noxious substance would constitute anassault. The fact, too, that the application of harm tothe body of the victim was brought about by thevoluntary act of the victim in drinking unwittinglyfrom a glass with a noxious substance in it did notderogate from this proposition (see, too, R v Sophi1961 R & N 358 at 361).

The court in Helm referred, too, to S v A en ’n ander1993 (1) SACR 600 (A), where police officers hadcaused detainees to drink their own urine. The trialcourt had not regarded this as an assault, since theliquid did not present any adverse consequences forthe victims. The Appellate Division disagreed: themere act of forcing someone to drink something,whether toxic or not, was sufficient, in its view, torender it an assault, subject only to the de minimisprinciple.

In Helm the prosecution was unable to prove theadministration of anything more harmful than amixture of Panado, ginger and honey. This was done,apparently, with the consent of the parents in somecases, but, the court held, even if consent had beenabsent, the de minimus principle would excludecriminal liability, since Panado was known to be arelatively harmless, over-the-counter drug generallyavailable for administration to young children. Theappellant’s appeal was, accordingly, upheld.

Contempt of courtS v Motaung (unreported, FB case no 29/2014, 7August 2014)

Section 108 of the Magistrates’ Courts Act 32 of1944 makes provision for a summary procedure forcontempt of court where a person ‘wilfully insults ajudicial officer during his sitting or a clerk or amessenger or any other officer during his attendanceat such sitting, or wilfully interrupts the proceedingsof the Court or otherwise misbehaves himself in theplace where such Court is held’.

In S v Motaung (unreported FB case no 29/2014, 7August 2014), it was clear that the accused hadinterrupted the court proceedings and interfered withthe proper functioning of the court and that he haddone so wilfully. They were not isolated incidents;the accused was described as having ‘a history ofswearing and threatening both the presiding officerand the prosecutor, and on occasion spitting at thelegal aid officer’. In S v Nel 1991 (1) SA 730 (A) at749–50 the court warned that the presiding officershould first consider whether it was both necessaryand desirable for him to take action when he was ofthe opinion that someone had acted in contempt ofcourt since ‘[v]ery often conduct which strictlyspeaking constitutes contempt of court can quitefittingly merely be ignored without really impairingthe dignity or the authority of the Court or theorderly conduct of the proceedings’.

In Motaung the conduct of the accused was not suchthat the court could have ignored it further withoutimpairing the dignity or authority of the court or theorderly conduct of the proceedings. The judicialofficer had explained to him the provisions of s 108beforehand and he showed flagrant disobedience infacie curiae so that an immediate response wasnecessary to restore order and to deter him fromrepeating his misconduct.

Fraud—misrepresentation to the worldIn S v Malan 2013 (2) SACR 655 (WCC), a casediscussed in 2013 (2) CJR, it was held that fraud hadnot been committed when the appellant had failed toapply to SARS to register a close corporation for thepurpose of VAT. It was held that the state had notproved a criminal fraudulent non-disclosure since‘misrepresentation’ involved a bilateral and not aunilateral act, and, since SARS did not even knowabout the appellant’s existence, she could have madeno misrepresentation to SARS.

11

In considering whether to grant the applicant leave toappeal to the Supreme Court of Appeal, the courtacknowledged (at [24]) that there was ‘authority forthe proposition that a representation ‘‘to the world’’may constitute criminal fraud’. In S v Mdantile 2011(2) SACR 142 (FB) the accused went to a trainstation but did not purchase a train ticket. He walkedpast the ticket office and proceeded straight to theplatform security gate, which was manned by asecurity guard. At that check-point only passengerswith tickets were allowed to go through onto theplatform, but the accused gave the security guardR20 to allow him onto the platform. Then, as if hewere the holder of a valid ticket, he boarded thetrain.

It was held (at [34]) by Rampai J that ‘if the deceivercandidly intended to defraud . . . and his behaviouror actions are consistent with his pervasive design, itbecomes immaterial whether the false representationwas manifested to a specific representee by way ofan explicit or implicit distortion of the truth some-times called positive misrepresentation, or negativemisrepresentation, respectively. In giving the R20 tothe security guard and in causing the security gate tobe opened, the accused represented to the world thathe had a valid ticket, knowing, at the time, that thatrepresentation was a false representation which hemade with the intention of inducing the company orTransnet Ltd to act upon, through its employees, byconveying him to his destination at its expense, tohis detriment.’

On the strength of this authority, Schippers J (Ndita Jconcurring) came to the view that there was areasonable prospect of success on appeal.

(b) Criminal Procedure and Evidence

(i) Pre-sentence

Duty of the South African PoliceService to investigate crimes againsthumanity committed beyondSouth Africa’s bordersNational Commissioner of the South African PoliceService v Southern African Human Rights LitigationCentre & another [2014] ZACC 30 (unreported,Constitutional Court case no CCT 02/14, 30 October2014)

In the above matter the Constitutional Court statedthat consideration of the following question raises aconstitutional issue: what is the extent, if any, to

which s 205(3) of the Constitution places a duty onthe South African Police Service (SAPS) to investi-gate allegations of torture—as a crime againsthumanity—committed in Zimbabwe by Zimba-bwean officials against victims who were citizens of,or residents in, Zimbabwe at the time of the tortureas alleged? Section 205(3) of the Constitution pro-vides as follows: ‘The objects of the police serviceare to prevent, combat and investigate crime, tomaintain public order, to protect and secure theinhabitants of the Republic and their property, and touphold and enforce the law’.

Prior to this decision, the North Gauteng High Courtand the Supreme Court of Appeal had held that aninvestigation by the SAPS into the torture as alleged,was indeed required by the Constitution, certainprovisions in the South African Police Services Act68 of 1995 (SAPS Act) and the Implementation ofthe Rome Statute of the International Criminal CourtAct 27 of 2002 (ICC Act). See Southern AfricanLitigation Centre & another v National Director ofPublic Prosecutions & others 2012 (10) BCLR 1089(GNP) and National Commissioner, South AfricanPolice Service & another v Southern African HumanRights Litigation Centre & another 2014 (2) SA 42(SCA). Both these cases are summarised in thediscussion of s 110A in Commentary, sv Extra-territorial and universal jurisdiction: Some statutorydevelopments. For a detailed and useful discussionof some of the issues decided in these two cases, seeWoolaver (2014) 131 SALJ 253.

On appeal by the National Commissioner of theSAPS against the decision of the Supreme Court ofAppeal, it was argued that the SAPS was unable toinitiate an investigation because of international lawprinciples pertaining to state sovereignty. It was alsosubmitted that the presence of the alleged perpetra-tors in South Africa was necessary for the initiationof the investigation.

At [38] Majiedt AJ, writing for a unanimous Consti-tutional Court, noted that there was a legal obliga-tion, arising out of international treaty, to prosecutetorture. See the Convention against Torture andOther Cruel, Inhuman or Degrading Treatment orPunishment adopted by the General Assembly of theUnited Nations on 10 December 1984 and ratified bySouth Africa on 10 December 1998. The Preventionand Combating of Torture of Persons Act 13 of 2013,which came into operation on 29 July 2013, gaveeffect to South Africa’s obligations in terms of thisConvention. It was pointed out that torture as a crimeagainst humanity was criminalised under s 232 of

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the Constitution, Act 13 of 2013 and the ICC Act.Section 232 of the Constitution states that customaryinternational law is law in South Africa unless it isinconsistent with the Constitution or an Act ofParliament.

It was accordingly concluded that South Africa ‘isrequired, where appropriate, to exercise universaljurisdiction in relation to [torture] . . .’ (at [40]). Forpurposes of determining the ambit of universaljurisdiction, Majiedt AJ distinguished between pres-ence when being tried and absence during theinvestigation (at [47]). Presence at trial is a constitu-tional imperative, whereas the exercise of universaljurisdiction for purposes of the investigation of aninternational crime committed outside South Africanterritory may take place even if the suspect is not inSouth Africa. At [48] Majiedt AJ explained asfollows:

This approach is to be followed for severalvalid reasons. Requiring presence for an inves-tigation would render nugatory the object ofcombating crimes against humanity. If a suspectwere to enter and remain briefly in the territoryof a state party, without a certain level of priorinvestigation, it would not be practicable toinitiate charges and prosecution. An anticipa-tory investigation does not violate fair trialrights of the suspect or accused person. Adetermination of presence or anticipated pres-ence requires an investigation in the firstinstance. Ascertaining a current or anticipatedlocation of a suspect could not occur otherwise.Furthermore, any possible next step that couldarise as a result of an investigation such as aprosecution or an extradition request, requiresan assessment of information which can only beattained through an investigation. By way ofexample, it is only once a docket has beencompleted and handed to a prosecutor that therecan be an assessment as to whether or not toprosecute.

The contention by the SAPS that it could notinvestigate without a suspect’s presence was there-fore dismissed (at [49]). It was also held that SouthAfrica’s international law commitments to investi-gate crimes against humanity, like torture, had to bedischarged through South Africa’s law-enforcementagencies, as required by s 205(3) of the Constitution(at [50]). This would include prosecutorial assistanceas regulated by, for example, s 17D(3) of the

National Prosecuting Authority Act 32 of 1998 (at[57]–[60]).

Having come to the conclusion that there is ‘not justa power but also a duty’ to investigate (at [55]), thecourt noted that this universal jurisdiction to investi-gate international crimes is not absolute but subjectto two limitations.

First, the investigation is permissible only if thecountry with jurisdiction is unwilling or unable toprosecute and only if the investigation is confined tothe territory of the investigating state (at [61]). Inthis regard it was found that there was no evidencethat Zimbabwe was willing or able to pursue theinvestigation concerned (at [62]).

Second, practicability is a limitation; embarking onan investigation of crimes committed elsewheremust be reasonable having regard to all the circum-stances of the particular case (at [63]).

Applying the above limitations to the facts of thecase, Majiedt AJ concluded (at [78]):

Given the international and heinous nature ofthe crime, South Africa has a substantial con-nection to it. An investigation within the SouthAfrican territory does not offend against theprinciple of non-intervention and there is noevidence that Zimbabwe has launched anyinvestigation or has indicated that it is willing todo so, given the period of time since the allegedcommission of the crimes. Furthermore, thethreshold for the SAPS to decline to investigate,bearing in mind the particular facts and circum-stances, has not been met in this case. There is areasonable possibility that the SAPS will gatherevidence that may satisfy the elements of thecrime of torture allegedly committed in Zimba-bwe.

The decision of the National Commissioner todecline to investigate the relevant complaint wasaccordingly set aside; and an order was made that theSAPS had to investigate the complaint (at [84]).

In dealing with possible orders as to costs, the tellingobservation was made that the court’s decision has‘far-reaching consequences’ not only for the applica-tion of the ICC Act in South Africa, but also for themanner in which the SAPS, the Directorate forPriority Crime Investigation (the ‘Hawks’), the Pri-ority Crimes Litigation Unit and the National Pros-ecuting Authority will in future ‘discharge theirconstitutional, international and domestic law obli-gations’ (at [83]).

13Issue 2, 2014

Role of prosecutor: Specialrelationship with the courtThe role of the prosecutor was examined criticallyby the Supreme Court of Appeal in S v Mulula[2014] ZASCA 103 (unreported, SCA case no 074/2014, 29 August 2014). The prosecutor in that casehad failed to request a blood test that would haveshown conclusively that the appellant in a rape hadnot had a disease that was transmitted to the childvictim by the actual rapist in the course of the sexualencounter that constituted the rape. The courtinsisted that the prosecutor’s role was ‘different fromthat of counsel or an attorney representing a client’.It added (at [12]) that prosecutors stood ‘in a specialrelationship’ to the court’, since their ‘primary duty[was] not to procure a conviction at all costs, but toassist the court in ascertaining the truth’.

It fell to the court to criticise another practice—thatof drawing an inference against the accused for notbeing able to explain, when asked by the prosecu-tion, why the complainant should falsely haveblamed him. Such a practice was, said the court (at[5]), wrong since it ‘wrongly supposes an obligationon the part of the accused persons to explain themotives of false accusations by their accusers’. An‘adverse credibility finding against an accused per-son based solely on a failure to offer an acceptablemotive for false incrimination, [could], therefore, notbe sustained’: see, too, S v Lotter 2008 (2) SACR595 (C) at [38] and S v BM 2014 (2) SACR 23(SCA).

Recusal: Test to be applied in respectof prosecutorPorritt & another v National Director of PublicProsecutions & others [2014] ZASCA 168 (unre-ported, SCA case no 978/2013, 21 October 2014)

The test to be applied where the recusal of apresiding judicial officer (judge or magistrate) issought on grounds of an apprehension of bias, wasformulated as follows by the Constitutional Court inPresident of the Republic of South Africa & others vSouth African Rugby Football Union & others 1999(4) SA 147 (CC) at [48]: ‘The question is whether areasonable, objective and informed person would onthe correct facts reasonably apprehend that the judgehas not or will not bring an impartial mind to bear onthe adjudication of the case, that is a mind open topersuasion by the evidence and the submissions ofcounsel.’ In Porritt (supra) the court a quo hadapplied the above test (‘the SARFU test’) for the

removal of two prosecutors. This, held the SupremeCourt of Appeal, was an error (at [21]).

Tshiqi JA, writing for a unanimous full bench, notedthat in our adversarial system the role of the prosecu-tor makes it inevitable that he or she would beperceived as biased (at [13]). Referring to cases suchas S v Du Toit en andere 2004 (1) SACR 47 (T) and Sv Van der Westhuizen 2011 (2) SACR 26 (SCA), itwas noted that prosecutors are required to present thecase for the state firmly, but fairly and dispassion-ately. However, the fact that prosecutorial functionsare carried out ‘vigorously and zealously’, that aprosecutor is ‘partisan’ and might hold a very strongview that an accused is guilty, cannot providegrounds for recusal (at [13]). It follows that theSARFU test is quite inappropriate. The roles ofpresiding judicial officer and prosecutor cannot beequated (at [11]).

However, recusal of a prosecutor on grounds of biasor apprehension of bias arises where the bias of theprosecutor affects the accused’s right to a fair trial.At [17] Tshiqi JA referred to Smyth v Ushewokunze1998 (3) SA 1125 (ZS) where removal of theprosecutor was necessary because the accused’s fairtrial right was placed in jeopardy by the vindictivemanner of the prosecutor and his dishonesty indeliberately misleading the court.

In Porritt there were two prosecutors, C and F. At nostage was it alleged that they had conducted them-selves in a manner not becoming a prosecutor. Theallegation of an apprehension of bias was based onsubtle and rather remote grounds. C was a seniorcounsel in private practice at the Pretoria bar,appointed as prosecutor in terms of s 138(1) of theNational Prosecuting Authority Act 32 of 1998. Theallegations of bias against him were based largely onthe fact that the South African Receiver of Revenue(SARS) had proposed his appointment and paid hisfees; and he had previously represented SARS ininvestigations conducted and litigation contemplatedor instituted against the appellants. In respect of theother prosecutor, F, the objection was based mainlyon his prior involvement in the drafting of anaffidavit in the process of the liquidation of one ofthe companies in which the first appellant had aninterest; and he had, furthermore, supported theSARS proposal regarding the appointment of C asprosecutor. It was uncontroverted that F had at alltimes performed his normal duties as a prosecutorand senior official employed by the National Pros-ecuting Authority (NPA). Despite this, it was arguedthat an official in the employ of the NPA should not

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be allocated a matter in which he had previouslybeen involved (at [20]).

Responding to the above arguments and facts, TshiqiJA said that in the South African criminal justicesystem there are ‘sufficient structural guarantees . . .to ensure that an accused’s right to a fair trial isprotected, irrespective of whether the prosecutorconcerned is an employee of the NPA or an outsidecounsel funded by SARS, or any other entity’ (at[19]). The mere fact that C and F each played, tosome extent, a dual role (as initial investigator andlater prosecutor) could not give rise to unfairness. At[18] Tshiqi JA quoted, with clear approval, thefollowing statement in Director of Public Prosecu-tions, Western Cape v Killian 2008 (1) SACR 247(SCA) at [28]: ‘Unfairness does not flow axiomati-cally from a prosecutor’s having a dual role’. TheHigh Court’s order for the removal of C and F wasset aside.

It should be noted that further support for theapproach adopted in Porritt can be found in S vTshotshoza & others 2010 (2) SACR 274 (GNP).Both Porritt and Tshotshoza should, in turn, bedistinguished from Bonugli & another v DeputyNational Director of Public Prosecutions & others2010 (2) SACR 134 (T). For a discussion of andcomparison between Tshotshoza and Bonugli, seeChapter 1 in Commentary, sv Professional indepen-dence and the fair trial risk where there is privatefunding of prosecutions.

s 1(1)(b): The meaning of ‘aggravatingcircumstances’ in relation to robbery orattempted robberyS v Hlongwane 2014 (2) SACR 397 (GP) and S vMdaka 2014 (2) SACR 393 (KZP)

Section 1(1)(b) of the Criminal Procedure Act pro-vides that in this Act, unless the context otherwiseindicates, ‘aggravating circumstances’ in relation torobbery or attempted robbery, means:

(i) the wielding of a fire-arm or any other danger-ous weapon;

(ii) the infliction of grievous bodily harm; or

(iii) a threat to inflict grievous bodily harm,

by the offender or an accomplice on the occa-sion when the offence is committed, whetherbefore or during or after the commission of theoffence;

In S v Hlongwane 2014 (2) SACR 397 (GP) at [18]Spilg J pointed out that each of the three situations

identified in s 1(b)(i)–(iii) ‘does not require thepresence of the other to amount to aggravatingcircumstances’ and ‘each . . . cannot be understoodto impose an internal limitation on the other’.

In terms of s 1(b) at least one of the situationsidentified or described in paragraphs (i), (ii) or (iii)must be present ‘on the occasion when the offence iscommitted, whether before, during or after the com-mission of the offence’. The exact role of eachrobber (perpetrator, co-perpetrator or accomplice)need not be determined before he can be held guiltyof robbery or attempted robbery with aggravatingcircumstances. See S v Mofokeng 2014 (1) SACR229 (GNP) as well as Minister of Justice andConstitutional Development & another v Masingili& another 2014 (1) SACR 437 (CC).

In terms of s 1(b)(i) the wielding of a firearm orother dangerous weapon will constitute aggravatingcircumstances. In S v Hlongwane (supra) Spilg Jconcluded as follows (at [32]):

In short ‘‘wielding’’ a dangerous weapon willper se constitute aggravating circumstanceswhereas other forms of holding, carrying orpossessing the weapon will not amount toaggravating circumstances unless, havingregard to the circumstances, they constitute athreat to inflict grievous bodily harm for thepurposes of sub-paragraph (iii).

It follows that for purposes of paragraph (i) merepossession of a weapon would be insufficient,whereas the ‘wielding’ of even an unloaded firearmwould constitute aggravating circumstances. See S vMbele 1963 (1) SA 257 (N).

A toy ‘firearm’ is not included in paragraph (i),because an objective approach is required. See S vAnthony 2002 (2) SACR 453 (C) at 454j–455b and456c–d. However, in these circumstances, paragraph(iii) (the ‘threat’ requirement) would be satisfied ifthe victim concerned subjectively experienced theconduct of the robber as a threat to inflict bodilyharm. ‘[A] subjective element’, said Steyn J in S vMdaka 2014 (2) SACR 393 (KZP) at [5], ‘is intro-duced by considering what . . . [the] . . . complainantbelieved’. Where a robber acted as if he was drawinga firearm, paragraph (iii) would be satisfied. SeeMdaka at [6]. Use of a large stone would meet therequirement of paragraph (i). It is a dangerousweapon. See Mdaka (supra) at [4].

In terms of paragraph (iii) a ‘threat to inflict grievousbodily harm’ would suffice. Such a threat could beuttered expressly or through conduct. See S v Loate

15Issue 2, 2014

& others 1962 (1) SA 312 (A) at 320C–F. In S vHlongwane (supra) at [33] Spilg J said:

Accordingly, holding a high calibre assault riflesuch as an AK47 with its muzzle facing theground, whether by one person or every mem-ber of a gang during the course of a robbery atsay a fast-food outlet, may not amount to‘wielding’ in the default type situation contem-plated by sub-paragraph (i) but it fits comfort-ably within the definition of a threat to inflictgrievous bodily harm under sub-paragraph (iii).

s 7(1)(a): Constitutionality of excludingjuristic persons from the right toinstitute a private prosecutionNational Society for the Prevention of Cruelty toAnimals v Minister of Justice and ConstitutionalDevelopment & another (unreported, GNP case no29677/2013, 8 October 2014)

In this case the applicant (NSPCA) sought an orderdeclaring s 7(1)(a) of the Criminal Procedure Actunconstitutional insofar as it does not permit juristicpersons also to institute private prosecutions. Interms of s 7(1)(a) only private persons (naturalpersons) are allowed to institute a private prosecu-tion—and then only in limited circumstances andafter having obtained a certificate nolle prosequi. Seethe discussion of s 7 in Commentary, sv General. Onthe history, purpose and nature of a private prosecu-tion, see also the notes in Chapter 1 of Commentary,sv Public and private prosecutions.

The NSPCA, as a statutory body created by s 2 of theSocieties for the Prevention of Cruelty to AnimalsAct 169 of 1993, serves to prevent ill-treatment ofanimals and may defend or institute legal proceed-ings connected with its functions. But given thelimits of s 7(1)(a), it cannot institute a privateprosecution. The constitutional challenge to s 7(1)(a)was premised on the absence of any real rationalbasis why juristic persons, unlike individuals, aredenied the right to a private prosecution and, there-fore, do not enjoy the equal protection and benefit ofthe law as provided for in s 9(1) of the Constitution(at [4] and [9]). Furthermore, in terms of s 8(4) of theConstitution, a juristic person ‘is entitled to therights in the Bill of Rights to the extent required bythe nature of the rights and the nature of that juristicperson’ (at [8]).

In dealing with the constitutional challenge, Fourie Jnoted that s 179(1) of the Constitution provides for asingle National Prosecuting Authority structured in

terms of an Act of Parliament (which, of course, isthe National Prosecuting Authority Act 32 of 1998);and in terms of s 179(2) the prosecuting authorityhas the power to institute criminal proceedings onbehalf of the state and to carry out any necessaryfunctions incidental thereto (at [12]). All this,observed Fourie J at [13], ‘indicates that the generalpoint of departure in terms of our Constitution is thatall prosecutions are to be public prosecutions in thename and on behalf of the State’ (at [13]. Fourie Jidentified two exceptions in this regard: first, thecase of a private person referred to in s 7 and,second, where the law expressly confers a right ofprivate prosecution upon a particular body or personas referred to in s 8 (at [14]).

As far as s 7 was concerned, it was pointed out thatallowing all persons to institute private prosecutionswould be contrary to the constitutional imperative ofa single National Prosecuting Authority (at [27]) and‘would effectively create an alternative prosecutingsystem’ (at [25]).

At [26] it was noted that the right to institute aprivate prosecution is determined by a limitationclause distinguishing not only between juristic andnatural persons, but also between natural persons.This limitation, held Fourie J at [28], was a constitu-tionally permissible limitation:

The differentiation as well as the discriminationis not unfair, but is designed to serve a legiti-mate governmental purpose. It also appears thatthere is a rational relationship between thispurpose and the differentiation. The legitimategovernmental purpose is to allow a privateprosecution only where private or personalinterests are at stake, but to prevent othernatural persons, as well as juristic persons, nothaving such interests, from doing so. This iswhy section 7(1) specifically refers to ‘‘someinjury . . . individually suffered’’ in conse-quence of the commission of an offence. This isa purposeful and rational limitation to serve thegeneral policy of the Legislature and the consti-tutional imperative as far as public prosecutionsare concerned. In short, the requirement of‘‘some injury . . . individually suffered’’ cannotsensibly be applied to a juristic person as thatrequirement relates to human existence, some-thing which a juristic person does not possess.It should therefore follow that a differentiationand discrimination premised on this require-ment cannot be said to be unfair. I therefore

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conclude that the differentiation is not unconsti-tutional.

In conclusion, Fourie J observed that it was perhapsappropriate to point out that if the s 8 right of apublic body to institute a private prosecution couldby legislation be conferred upon the NSPCA, thispublic body would be able more effectively toperform its functions.

s 79: Constitution of the panel to assessaccused’s mental conditionS v Pedro [2014] 4 All SA 114 (WCC)

One of the purposes of s 79 of the Criminal Proce-dure Act is to regulate the constitution of the paneltasked with inquiring into and reporting on themental condition of the accused for purposes of s 77(triability) and s 78 (criminal capacity). In practice ithas generally been accepted that in the circum-stances as provided for in s 79(1)(b)(ii), the courtwas required to appoint a private psychiatrist onlyupon application of the prosecutor in accordancewith directives issued under s 79(13) by the NationalDirector of Public Prosecutions (NDPP). In fact, therelevant directives as referred to in s 79(1)(b)(ii) andissued under s 79(13) are also based on the premisethat appointing a court-appointed psychiatrist not inthe full-time service of the state (referred to as the‘third psychiatrist’ in the directives) was only pos-sible upon application by the prosecutor. Paragraph 2of the directives issued by the NDPP provides, forexample, that prosecutors ‘may only apply for theappointment of a third psychiatrist in accordancewith s 79(1)(b)(ii), in terms of a written authority ordirective from the relevant [Director of Public Pros-ecutions]’.

The approach as set out above was reversed byRogers J (Binns-Ward J concurring) in S v Pedro(supra). At [45] it was pointed out that the NDPP had‘quite obviously’ framed the directives in the beliefthat s 79 had the effect ‘that there would only be twopsychiatrists unless the prosecutor applied for athird’. But according to the court s 79(1)(b)(ii) is the‘dominant section’, and s 79(13) is ‘ancillary’ (at[59]). According to Rogers J, s 79(1)(b)(ii) should beinterpreted to mean that ‘three psychiatrists, includ-ing a private psychiatrist, must be appointed whenthe case falls within s 79(1)(b) unless the court, uponapplication by the prosecutor, directs that a privatepsychiatrist need not be appointed’ (at [68] and[116(v)]); and s 79(1)(b)(ii) cannot be interpretedwith reference to the directives issued by theNDPP—in much the same way as a statute cannot be

interpreted with reference to regulations promul-gated thereunder (at [67]).

The net result was stated as follows by Rogers J (at[116(vii)]:

Pending the revision of the directives alreadyissued by the NDPP pursuant to s 79(13), thedirectives currently in existence should be con-strued as determining the circumstances inwhich there should be a private psychiatrist andthus as defining by necessary implication thereverse cases and circumstances in which theprosecutor should apply to the court to dispensewith the appointment of a private psychiatrist. Itis, however, desirable, to avoid confusion, thatthe directives issued by the NDPP be revised toconform with the declared meaning ofs 79(1)(b)(ii) as soon as may be expedient.

s 166: The scope of the judicial officer’sduties to inform an accused of his rightsto legal representation and tocross-examination and to explain theserights properlyThese issues divided the court in the decision of theSupreme Court of Appeal in S v Ramaite [2014]ZASCA 144 (unreported, SCA case no 958/13, 26September 2014). The appeal in that case was basedon three alleged irregularities in the conduct of thetrial. It was argued that the regional court magistratehad failed:

(1) to apprise the appellant of his right to legalrepresentation before the commencement of thetrial;

(2) properly to explain his right to cross-examina-tion; and

(3) to assist the appellant when it became clear thathe did not know how to cross-examine thewitnesses.

In respect of the right to legal representation, itappeared that, when the right was first explained tohim, the appellant had said that he did want legalrepresentation. When the trial commenced, however,he seemed to have changed his mind. There was noindication, however, as to why or when he hadchanged his mind or waived his right to representa-tion. The trial magistrate did not conduct any inquiryto determine the circumstances leading to the waiverof rights and he ‘neither informed the appellant whatthe consequences of proceeding with the trial with-out the assistance of a legal representative were, nor

17Issue 2, 2014

encouraged him to obtain the services of a legalrepresentative before he was made to plead to thecharge’ (at [7]). He was told, after he had pleaded,that since it was a case of rape, that the matter wouldbe transferred to the high court and he could face asentence of life imprisonment, the prescribed mini-mum sentence.

Schoeman AJA (with whom Cachalia JA agreed)gave the majority judgment. She considered that thewarning of a possible sentence of life imprisonmentwas done ‘as a matter of fact, . . . not with a view toencourage him to obtain legal representation owingto the seriousness of the charge’, but solely tocomply with the specific duty to inform an unrepre-sented accused that he faced a minimum sentence.She insisted that the explanation of the right to legalassistance, now entrenched in s 35(3)(f) and (g) ofthe Constitution, had, in order to be effective, to bedone prior to the commencement of the trial, whichmeant ‘prior to an accused pleading to the charges’(at [10]).

For a waiver of the right to be established, it had tobe shown, said Schoeman AJA, ‘that the appellanthad waived his right in the full knowledge of what hewas doing’ (at [12]). She relied, for this proposition,on S v Gasa & others 1998 (1) SACR 446 (D) at448B–C (which, she conceded, dealt with an extra-curial pointing out, but which was relevant, too, inthe present context) and S v Manuel 2001 (4) SA1351 (W) at 1355–6. In this case no reliance couldbe placed on the mere say-so of the prosecutor, andthere was nothing on the record or in an affidavitmade by the trial magistrate to reflect that he had fullknowledge of the right and wished to waive it.

There was, thus, no waiver. The magistrate hadfailed in his duty, had not encouraged the appellantto make use of legal representation, and had, themajority decided, committed a material irregularity.This did not, per se, however, render the trial unfair.To do so, it had to be shown, further, that theirregularity had tainted the conviction and that theappellant had been prejudiced by it. It was thusnecessary, said Schoeman AJA, to evaluate how thetrial was conducted in the absence of legal represen-tation for the defence.

This exercise brought into play the second and thirdobjections. The majority found, in this regard, thatalthough the magistrate had explained to the appel-lant the purpose and function of cross-examination,it soon became clear, when he sought to exercise theright, that ‘he did not have the slightest idea how tocross-examine or the import of putting his version to

the complainant’ (at [19]). He initially said he had noquestions to ask; then he asked one disjointedquestion and indicated he had no others; and finallyasked a few desultory questions after the magistratehad ineffectively intervened on his behalf.

In spite of the obvious incompetence of the appel-lant, who was an unsophisticated person, the pros-ecutor, in cross-examining the appellant, centred onthe reasons why he did not dispute the complainant’sevidence on key issues and was even allowed tocross-examine him on evidence he was erroneouslyclaimed to have given. The majority considered thatit was ‘unfair to allow cross-examination of anundefended, unsophisticated accused on his failureto cross-examine and that should not have been heldagainst him’ (at [24]). A judicial officer was notmerely an observer, but had a duty to prevent unfairquestioning of an accused. The magistrate shouldhave stopped the prosecutor from asking unfairquestions and from putting incorrect statements tothe appellant.

There were, too, in the majority’s view, other incon-gruities where proper legal representation wouldhave made a difference to the appellant in thepresentation of his defence. Apart from far moresearching cross-examination of the complainant onthe alleged rape itself, there was, too, the medicalreport on the complainant’s condition which had,with the consent of the appellant, been read into therecord without the doctor testifying. Schoeman AJA,relying on S v Daniëls en ’n ander 1983 (3) SA 275(A), considered that the magistrate had not exercisedthe extra caution insisted on in that case when anaccused offers to admit a fact that is unlikely to bewithin his own knowledge.

All these factors led the majority to conclude that thetrial was unfair. Willis JA, however, disagreed. Hecould not agree that the magistrate should haveinquired why the appellant had elected not to havelegal representation, nor that he should have encour-aged him to do so. The decision in Manuel hedistinguished on the grounds of its specific potentialfor substantial injustice, and he did not regard themagistrate as failing in his duty by ‘merely’ inform-ing the appellant of the minimum sentence he facedsince that, as he understood the position to be, was‘precisely what the magistrate [was] meant to do’ (at[48]).

There was, moreover, in his view, nothing to indicatethat the consequences to the appellant would havebeen any different had he proceeded with legalassistance. His poor cross-examination of the com-

Criminal Justice Review18

plainant was not surprising, but it was not the fault ofthe administration of justice that it was a ‘poorimitation of that of a brilliant lawyer’. Even if he hadhad the benefit of legal representation, ‘his version,being a denial, could not have been materiallydifferent’ (at [57]) and the complainant’s version,although terse, was ‘unequivocal’ on the fact ofpenetration. She had testified that he had ‘insertedhis penis into [her] vagina’, and there was, saidWillis JA, ‘not much else one can say about therudimentary mechanics of the consummate sexualact between a male and a female’ (at [52]).

The fact remained that he did have his rightsexplained to him and was warned that he faced lifeimprisonment if convicted, albeit short of the stan-dard one would prefer in respect of the first, andimperfectly in respect of the second. Both, saidWillis JA, ‘could have been given more frequentlyand more forcefully’, but it had to be rememberedthat lawyers could not concoct a version and couldonly present a client’s case in the best possible way.There was, too, the fact that there was a highawareness of the seriousness of rape in South Africa.That he might have been advised of his rights betterand more forcefully, and might have been warnedearlier and more compellingly that he faced the riskof life imprisonment was, Willis JA concluded, ‘ofno real importance in this particular case’, (at [61]):in his view, ‘even if [he] had enjoyed the services ofone of the finest advocates in the world, he wouldhave been convicted’ (at [67]).

There was, in his view, no unfair trial.

s 166: Questioning by court; discourtesyto witnesses; treatment of child victim inrape cases by prosecution and courtIn S v Mthethwa (unreported, GP case no A17/2013,11 July 2014) Makgoka J was strongly critical of theway the child victim in a rape case had been treatedboth in and out of court. Extra-curially, it was clearthat the child was in need of care after the rape, butneither the police nor the prosecutor nor the judicialofficer at trial had taken any steps in this regard.Inquiries should have been conducted immediatelyafter the rape had been reported. The ConstitutionalCourt in S v M (Centre for Child Law as AmicusCuriae) 2007 (2) SACR 539 (CC) had explicitlyinsisted that ‘foundational to the enjoyment of theright to childhood is the promotion of the right as faras possible to live in a secure and nurturing environ-ment free from violence, fear, want and avoidabletrauma’ (at [24]).

In court, the magistrate did not fare any better. Whenthe child hesitated in answering questions, he hadbarked at her: ‘Talk! Do not die, please talk!’ It wasclear, said Makgoka J (at [29]), that the magistrate‘lacked the necessary sensitivity and empathy for thechild complainant’. He ‘also demonstrated completelack of appreciation for the constitutional dictate ofs 28(2), which decrees the paramountcy of the chil-dren’s interests under all circumstances’. He was‘brash, abrasive and over-bearing towards the child’,told her that the court would ‘punish’ her, andintimidated her to the extent that it may havecontributed to the incoherence and inconsistency ofher evidence. It was imperative for judicial officers,said the court (at [30]), to ‘exhibit the necessarypatience, empathy and sensitivity when dealing withvictims of alleged sexual violations’. This, the mag-istrate had conspicuously lacked.

The magistrate had also passed sarcastic commentsabout defence counsel’s conduct and the long-winded testimony of a defence witness (‘Here, weare going to talk until tomorrow’). He also spoke to awitness ‘off the record’ in his own language whichthe accused’s legal representative did not under-stand. All this earned the ire of the High Court.Makgoka J, after describing the lower courts as the‘coalface of the judiciary’, had this to say at [35]:

For the majority of the citizens of our land, theirfirst experience of the judicial system is in thosecourts. It is absolutely vital therefore that thosewho are charged with the responsibility topreside in those courts should show the neces-sary respect to those who appear before them,either as witnesses or legal representatives.There is no room for impatience, abrasivenessor sarcasm, such as represented by the presidingofficer in this case. Such conduct does notredound to the dignity and decorum of thecourt. It distracts from the diligence and cour-age with which the lower courts have, in themain, discharged their responsibilities, despitetheir tremendous workload, often coupled withless than ideal working conditions.

He stressed, further, that it was undesirable that ajudicial officer should say anything concerning thecase to a witness ‘off the record’ whatever that mightmean. Everything mentioned in court concerning thecase should be on record for all concerned tounderstand and follow. If anything was said in thelanguage not understood by all concerned, it shouldbe translated for the benefit of those who did notunderstand that language.

19Issue 2, 2014

s 168: Adjournment of court sine die

S v Cotenberg (unreported, WCC case no A404/2004, 30 May 2014)

Section 168 provides that a court, before whichcriminal proceedings are pending, ‘may from time totime during such proceedings, if the court deems itnecessary or expedient, adjourn the proceedings toany date on the terms which to the court may seemproper and which are not inconsistent with anyprovision of [the] Act’. The question before the courtin S v Cotenberg (unreported, WCC case no A404/2004, 30 May 2014) was whether it was everappropriate to postpone an appeal sine die. The fullbench decided that to do so where the circumstancesdid not justify such a step may, in certain cases, leadto a failure in the administration of justice and mayinfringe an appellant’s right to a speedy trial (at[15]).

A criminal appeal, which is an extension of the trial,could not, said the court, be dealt with differentlyunless the circumstances of a particular case calledfor a different approach. To postpone an appeal sinedie might lead to inordinate delays, as had happenedin this case, where the appeal court had postponedthe matter sine die pending a correctional supervi-sion report on the circumstances of the appellant.After a lengthy delay, allegedly due to changes in theDepartment of Correctional Services, a report wasfinally made available. But the matter was notre-enrolled because of an ‘administrative oversight’in the office of the Director of Public Prosecutions.In the interim the one permanent judge of the appealcourt retired, and the other member of that court, anacting judge, never returned to act.

For these reasons the Judge President constituted afull bench to ‘deal with the unusual circumstances ofthe case, and, if appropriate, to dispose of the matter’(at [5]). The court found that there [was] authority tothe effect that a criminal appeal could be postponedsine die (see S v Mazongolo 2013 (1) SACR 564(WCC) and Brossy v Brossy [2012] ZASCA 151(unreported, SCA case no 602/2011, 28 September2012). It concluded, however, that although therewas no prohibition against postponing a criminalappeal sine die, the process had to be ‘properlymanaged and monitored to ensure that the matter[was] not lost in the system’. Further, ‘[e]ven where,as in this case, it was not clear when a particular stepwhich necessitated the postponement would betaken, it would be proper to postpone the matter to aspecific date so as to enable the court to have judicial

oversight on progress made, or the lack thereof, andto take appropriate steps where there is any unduedelay’.

s 170A: Intermediary—absence of areport and allegation that no factualbasis laid for intermediary to actS v Peyani 2014 (2) SACR 127 (GP)

Is it irregular to allow an intermediary to beappointed where he or she has not made a formalreport or where no clear factual basis has been madeout to the court for such appointment? No, said thecourt in S v Peyani 2014 (2) SACR 127 (GP). In thatcase, where the charges involved either rape, inde-cent assault or sexual assault, and the case rested onthe testimony of three children aged 10, 14 and 16years, the intermediary was a social worker,employed by the Department of Social Develop-ment, who had been employed as an intermediary fora period of three years. She had seen the childrenbefore the commencement of the proceedings andwas sworn in by the magistrate. There was noobjection by the appellant’s legal representative whoadmitted that the young witnesses would sufferundue stress without the intermediary’s assistance.

It could be inferred that she found it necessary totake part in the proceedings for the benefit of thecomplainants (the witnesses) and it would be absurdfor the court to ask whether she was desired or not. Itwould further be inferred from the children’s agesand the nature of the charges, that undue stresswould arise in the absence of the intermediary.Where a child will be exposed to undue mental stressor suffering, a court has a discretion, said Potterill J(at [2.2]), to appoint an intermediary where theaccused does not dispute this, and no prejudice wascaused to the appellant in this case by the granting ofthe application by the court a quo to allow theintermediary to assist the witnesses.

The objection by the appellant that the intermediar-ies had acted as interpreters during the trial wasdismissed on the ground that they had not been usedas interpreters, but merely as conduits who relayedthe answers to the court in the children’s ownlanguage.

s 170A: Duties of court in respect ofallowing a child to testify through anintermediaryIn Director of Public Prosecutions, North Gauteng,Pretoria v Makhubela (unreported, GP case no

Criminal Justice Review20

A91/2014, 6 August 2014) the respondent had beencharged with two counts of rape. The case had beenpostponed on several occasions and, eventually,when the prosecution was unable to proceed with thetrial, the magistrate deemed the State’s case to havebeen closed even though the prosecutor refused toclose his case. The reason for the prosecution’sinability to proceed was that the complainant, aminor, was due to testify via an intermediary interms of s 170A but, when the intermediary came tocourt, she said that her initial report in an affidavitwas now, because of the delays, over a year old. Shewished to interview the complainant and her motheragain to make an updated report.

Having deemed the State’s case to be closed, andsince the respondent had pleaded not guilty incircumstances where no evidence had been led, themagistrate found the respondent not guilty anddischarged him. In an appeal against that decision, itwas held that a court is obligated to invoke theprovisions of s 170A mero motu if it appeared thatthe child might be exposed to undue mental stress orsuffering. A court was thus required to play ‘a moreemphatic role in ascertaining that . . . a report isavailable and deal with the officials of the Depart-ment decisively, however not by way of compromis-ing the interest of justice’. And ‘compliance withs 170A should not be seen as part of the state’s casebut assistance to the court’ (at [14]).

The right of the child, said Khumalo J (RatshibvumoAJ concurring), was very important in this content,even displacing the right of the accused to see andhear witnesses as part of his right to a fair trial. Thecourt was thus under a duty to consider or hear anapplication for a child to testify through an interme-diary even though the trial may be delayed by afurther postponement.

The magistrate’s decision to refuse a further post-ponement thus ‘compromised the fair administrationof justice’ (at [15]. He should have invoked theprovisions of s 342A of the Criminal Procedure Act(which require a court to investigate any delay inproceedings which appears to the court to be unrea-sonable and which ‘could cause substantial prejudiceto the prosecution, the accused or his or her legaladviser, state or witness’). In this case the trial courthad been ‘more concerned . . . about the accused’srights that stem from s 35(3)(d) of the Constitution. . . that entitles the respondent to a speedy trial . . .without due regard to the sexual offence child victimwho was present at court and the prosecution’ (at[17]). It was relevant, too, that it was not the fault of

the prosecution that the report of the intermediarywas not ready, and that the respondent was on bail,so that a further postponement would not have beenprejudicial to him.

s 179: Securing the attendance ofwitnesses: Duty of prosecution and courtto assist accusedS v Sodede (unreported, ECG case no A4656/2013,24 July 2014)

If an unrepresented accused wishes to call a witnessin his defence and that witness is indisposed orotherwise unable to attend without some assistanceby the state or the court, can the prosecution or thejudicial officer remain supine and refuse to assist theaccused? The answer supplied in S v Sodede (unre-ported, ECG case no A4656/2013, 24 July 2014) byGoosen J (Plasket J concurring) was an emphatic no.The accused, who was unrepresented and in custody,wished to call a witness, his grandmother, who wasindisposed and unable to walk properly. He asked themagistrate if someone could bring her to court in amotor car. The magistrate said that he could not beassisted and the prosecutor did the same, eventhough both knew that the accused was in custodyand that the prospective witness was indisposed.

By adopting this attitude, said the court (at [11], thetrial court had ‘effectively precluded the accusedfrom calling a witness’, and this constituted a grossirregularity which vitiated the fairness of the trial. InS v Rudman; S v Johnson; S v Xaso; Xaso v Van WykNO & another 1989 (3) SA 368 (E) the court set outin considerable detail, said Goosen J, the rules ofjudicial practice which had evolved to ensure that anunrepresented accused was afforded a fair trial. Theeffect of these was that the ‘presiding judicial officerin the trial of an undefended accused [was] requiredto take a more active part than a judicial officer [was]permitted in the orthodox accusatorial system,thereby, in some measure, redressing the disadvan-tage the undefended accused may suffer from thelack of legal representation’ (see Rudman at 379).

Rudman was, Goosen J pointed out, decided beforethe enactment of the Constitution. It was important,then, to observe the provisions of s 35 of the Consti-tution which embodied the rights to a fair trial andcreated an overriding obligation on the courts toprotect and secure that right. This obligation required‘that an unrepresented accused person be affordedproper assistance in the conduct of his or herdefence’ and included ‘where circumstances requireit, that he or she be materially assisted to procure the

21Issue 2, 2014

attendance of a witness whom he or she wishes tocall’ (at [10]; emphasis added).

s186: The avoidance of undue partialitytowards the stateS v Helm (unreported, WCC case no A119/2012, 17September 2014)

It is crucial, when a judicial officer invokes s 186 tocall a witness to prop up the case of the State, forhim or her to avoid any perception of undue partial-ity towards the state. In S v Helm (unreported, WCCcase no A119/2012, 17 September 2014), the magis-trate had called witnesses to bolster the State’s caseafter the conclusion of argument. Counsel suggestedundue partisanship in favour of the State, but themagistrate justified her actions by maintaining that ajudicial officer is an administrator of justice, notmerely an umpire, whose task it was to see thatjustice is done in the quest for truth. She was, in herview, duty bound to call the witnesses because ofwhat she viewed as overwhelming circumstances‘damaging to the accused’.

Gamble J (with whom Smit AJ agreed) consideredthe meaning of the phrase ‘essential to the justdecision of the case’ which, in s 186, makes itmandatory for a court to call a witness when it is soessential. He cited what Heher AJA said in S vGabaatlholwe & another 2003 (1) SACR 313 (SCA)at 316. He construed that phrase to mean ‘that theCourt, upon an assessment of the evidence before it,considers that unless it hears a particular witness it isbound to conclude that justice will not be done in theend result. That does not mean that a conviction oracquittal (as the case may be) will not follow, butrather that such conviction or acquittal as will followwill have been arrived at without reliance on avail-able evidence that would probably (not possibly)affect the result and there is no explanation beforethe court which justifies the failure to call thatwitness. If the statement of the proposed witness isnot unequivocal or is non-specific in relation torelevant issues, it is difficult to justify the witness asessential rather than of potential value’ (emphasisadded).

In S v Gerbers 1997 (2) SACR 601 (SCA) at 609 e–fMarais JA warned that it remained incumbent onjudicial officers constantly to bear in mind that thebona fide efforts to do justice could be misconstruedby one or other of the parties as undue partisanship,and that the right balance had to be found betweenundue judicial passivity and undue judicial interven-tion. He observed that to recall an accused to the

witness-box for further questioning after the conclu-sion of argument was rare and ‘should not lightly beresorted to’, since to fill gaps in the state case at thatbelated stage would likely be seen as indicative ofundue partiality towards the cause of the State.

In Helm the court found (at [10] that the additionalevidence of the witnesses called in terms of s 186really took the State’s case no further. And yet themagistrate ‘sought to rely on that evidence in anobvious attempt to fill the gaps in the state’s case’,exposing her conduct ‘for what in truth it was: undueintervention prompted by undue partiality towardsthe cause of the state’. It was a perception confirmedby other actions of the magistrate: her precluding thedefence from obtaining access to the raw data toevaluate properly the scientific test results relied onby the State as well as a failure to evaluate properlythe ‘compelling testimony’ of an expert witnesscalled by the defence.

s 201: Legal professional privilege:Extra-curial application of privilegewhere attorney’s office searched;preservation order appropriateThe facts of Craig Smith and Associates v TheMinister of Home Affairs & others (unreported,WCC case no 12756/2014, 4 August 2014) arose outof the search for and seizure of documents andelectronic data from the offices of an attorney (theapplicant) by officials of the Department of HomeAffairs after it received information that the appli-cant would obtain work permits from his clients onthe basis of false and fraudulent documentationwhich he would prepare and submit to the Depart-ment. The applicant made an urgent application forthe setting aside of the two warrants, issued by themagistrate in terms of s 35(5) of the Immigration Act13 of 2002, and for the return of files and computersseized during the raid on the applicant’s offices. Itwas argued that the search and seizure, as well as thewarrants justifying the operation, were unlawfulunder the Constitution.

Davis J observed that the matter inevitably raised thequestion of the legal professional privilege and theprivileged status of some of the seized material. Hepointed out, too, that our courts have held that theprivilege is not merely an evidential rule, but afundamental right derived from the requirements ofprocedural justice: see S v Safatsa & others 1988 (1)SA 868 (A) and Euroshipping Corporation of Mon-rovia v Minister of Agricultural Economics andMarketing & others 1979 (1) SA 637 (C) (both

Criminal Justice Review22

discussed in Commentary in the notes to s 201). Inthe cases of Mahomed v National Director of PublicProsecutors & others 2006 (1) SACR 495 (W) at [7]and Thint (Pty) Ltd v National Director of PublicProsecutions & others; Zuma v National Director ofPublic Prosecutions & others 2008 (2) SACR 421(CC) (discussed at length in Commentary on s 201)there was, said Davis J, ‘emphasis placed on theimportance of this privilege in upholding the right toa fair trial, as guaranteed in terms of section 35 of theConstitution’.

The Immigration Act, in s 33(11), contained a provi-sion similar to that in s 29(11) of the CriminalProcedure Act (see Commentary on s 29), which, itwas held in Thint, requires that an item in respect ofwhich privilege is claimed be taken to the office ofthe Registrar of the High Court before a court candecide if it is privileged or not. The purpose of thissection (s 29(11)), said the court in Thint, was toprovide the state with a mechanism, where privilegeis claimed during a search, to have that claimspeedily determined by a court without the staterunning the risk of attaching documents subse-quently declared to be privileged.

In the Craig Smith case, said Davis J, the warrantshad failed to protect the privilege. The issuingmagistrate had not deposed to an affidavit ‘explain-ing why . . . there was no consideration given to theconsequences of a search that was to take place at anattorney’s office and why there was no recourse tothe clear implications of s 33(11) of the [Immigra-tion] Act when it was common cause that the searchwould take place at an attorney’s office and it wasobvious that there were dangers of breach of legalprivilege’. Any conduct of the attorney could not betantamount to a waiver of the privilege because theright was that of the client and not the attorney. Itwas, said Davis J, ‘manifestly clear that legal privi-lege was compromised as a result of the search’. Forthis and other reasons, the raid on the attorney’soffice was in violation of his constitutional rights andwas thus unlawful and invalid.

What, then, to do with the seized files and comput-ers? The court considered that it could not condonethe improper conduct of the investigators and that ithad to set an example for adherence to constitutionalvalues. The constitution created an ‘ethos ofaccountability’, and the rule of law and the principleof legality dictated that executive action could not bearbitrary. The applicant’s rights to privacy and dig-nity had been breached. So, too, had the legalprofessional privilege. Davis J felt compelled, how-

ever, to balance the ‘crime control’ and ‘due process’elements of criminal procedure as set out by HerbertPacker in 1964 (113) University of Pennsylvania LR1. The former emphasises the greater protectionwhich society requires from criminals and mandatesswifter and greater punishment to promote thegreater good of society; the latter demands that eachaccused receives the best opportunity to prove hisinnocence and calls for greater accountability of thepolice and the entire criminal justice system toachieve due process and to preserve the basic rightsof the accused even if this outcome might jeopardisethe ultimate objectives of crime control. The seriousallegations made against the applicant could not beignored in striking an appropriate balance betweenthese two elements, especially in ‘a country wherethe scourge of crime threatens the very fabric of ourConstitutional ambitions’.

That balance could be achieved, said Davis J, bygranting a preservation order of the kind describedby the Constitutional Court in Thint. Such an order‘would require the state to hand over to the Registrarof the High Court all the items seized and require theRegistrar to make and retain copies of all such items,to return the originals to the applicant and to keep thecopies accessible, safe and intact under seal until thestate permitted their return, the conclusion of crimi-nal proceedings against the applicants as envisaged,or the date the state decided not to investigate suchproceedings’. It was only in the exceptional circum-stances set out by Langa CJ in Thint (and discussedin Commentary supra) that such an order should notbe granted. It was argued that the conduct of theinvestigators was so egregious a violation of theapplicant’s rights that the Craig Smith case was suchan instance, but Davis J was unable to agree. Heconceded that proportionality was a difficult exercisefor courts but endorsed a ‘balancing formula’ articu-lated by Aharon Barak in Proportionality: Constitu-tional Rights and their Limitation at 543 which‘compares the marginal social importance of thebenefit gained by the limiting law and the marginalsocial importance preventing the harm to the Consti-tutional right’.

The result was a lengthy and detailed preservationorder designed to ensure that all files and electronicdata seized be returned to the applicant after beingcopied and sent for preservation to the Registrar ofthe High Court. Material for which privilege wasclaimed was, however, exempted from this order,and an order was issued that, if the claim of privilege

23Issue 2, 2014

were challenged, the matter be set down on theurgent roll for resolution by the court.

s 212: Experts and scientific evidence

In S v Helm (unreported, WCC case no A119/2012,17 September 2014) the expert scientific evidence ofwitnesses called by both the state and the court itself(under s 186) did ‘not measure up to the requisitestandard which our courts have, over the decades,demanded’ (at [103]). In S v Mthimkulu 1975 (4) SA759 (A) Corbett JA, referring to the views ofWigmore, held that, in order to justify testimonybased on scientific instruments or processes, profes-sional testimony was required ‘as to the trustworthi-ness of the process, or to the instrument, and inaddition, to the correctness of the particular instru-ment’ (at [104] in Helm).

Judicial notice could be taken of some processes,such as a scale for weighing, a tape for distance or awatch for timing, and no hard and fast rule could belaid down, since much depended on the facts of aparticular case. Important factors might be the natureof the process and instrument in question, the extentto which the evidence was challenged, the nature ofthe inquiry and the facta probanda of the case.

In S v Strydom 1978 (4) SA 748 (E) at 751–3 thecourt refused to take judicial notice of the accuracyof a gas chromatograph to measure blood alcohollimits (see Commentary on s 212(4) and see, too, S vVan der Sandt 1997 (2) SACR 116 (W) discussedthere). It insisted on expert technical evidence by aperson able to describe the process in the machineand to vouch for its accuracy, or able to test themachine against another, unrelated method of analy-sis which, if not already the subject of judicialnotice, would not require proof of accuracy.

In Helm the machine in question was a ‘gas chro-matographic mass spectrometry’ testing machine,which separated compounds into gases and charac-terised them to identify the chemical composition ofthose compounds. The necessary evidence was notadduced; the information was not made available toa defence expert who expressly called into questionthe accuracy of the machine used; and there wereserious anomalies in the laboratory results presented.The scientific evidence was, concluded the court,‘flawed’, and there were ‘serious doubts about theaccuracy of the testing equipment, the competenceof the laboratory staff, and the reliability of theanalysis of the samples’ tested.

s 217: Role of the prosecutor in respectof a confession likely to be inadmissibleThe prosecutor was severely criticised for a breachof his duty to the court in S v Maliga [2014] ZASCA161 (unreported, SCA case no 543/13, 1 October2014). The appellant in that case had, said the court,been lured into testifying after he was wronglyrefused a discharge following the reception intoevidence of a plainly inadmissible confession.

Pillay JA stressed that the court had a duty to raisethe question mero motu even in the absence of anapplication for a discharge. It was a duty that was notdependent on whether or not the accused was legallyrepresented (see R v Hepworth 1928 AD 265 at 277).Section 35 (3) of the Constitution, said Pillay JA at[19], ‘compels presiding officers and indeed allofficers of the court to play a role during the courseof the trial in order to achieve a fair and justoutcome’. He agreed with what was said in Hep-worth (at 277) that ‘a criminal trial is not a gamewhere one side is entitled to claim the benefit of anyomission or mistake made by the other side, and ajudge’s position in a criminal trial is not merely thatof an umpire to see that the rules of the game areobserved’. A judge’s role is to see that justice isdone. But if the trial judge had made a mistake infailing to rule the accused’s statements inadmissible,there were ‘others who could and should have‘‘reminded’’ him of the dangers involved in admit-ting certain evidence’. That, said Pillay JA, was‘what was expected of both the prosecutor and thedefence representative’.

The court found it ‘perplexing’ that the appellant’srepresentative did not object to the evidence, butfound, ‘even more important [was] the role of theprosecutor’. This role was described (at [20]) asfollows:

A prosecutor stands in a special position inrelation to the court. The paramount duty of aprosecutor is not to procure a conviction but toassist the court in ascertaining the truth (S v Jija1991 (2) SA 52 (E) at 67J–68A). Implicit hereinis the prosecutor’s role in assisting a court toascertain the truth and dispense with justice.This, not surprisingly, gels with the stringentethical rules by which all legal representativeshave to conduct themselves in their professionallives.

In this case the prosecutor was ‘duty bound to alertthe presiding officer of the possible dangers whichwere lurking in admitting the warning statement’ (at

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[21]). Since he was the only person likely to haveknown what evidence he was about to place beforethe court, he ought at least to have sought a ruling onits admissibility or have requested a trial within atrial to determine admissibility, although it was‘difficult to understand how anyone could mistakewhat is clearly a confession for a warning state-ment’.

The court concluded that the prosecutor had failed inhis duty. But for the inadmissible statements therewould have been no case for the appellant to answer.‘Faced with this evidence, the appellant was clearlylured into testifying and consequently he did notreceive a fair trial as enshrined by s 35 of theConstitution’.

(ii) Sentencing

s 280(2): Ordering sentences to runconcurrentlyS v Nemutandani [2014] ZASCA 128 (unreported,SCA case no 944/13, 22 September 2014) and S vNthabalala [2014] ZASCA 28 (unreported, SCAcase no 829/13, 28 March 2014)

These two Supreme Court of Appeal decisions onceagain emphasise the duty of a sentencing court toensure that the cumulative effect of sentencesimposed does not result in excessive punishment.See the notes on s 280 in Commentary, sv Cumula-tive sentences.

In Nemutandani (supra) the trial court had sentencedthe appellant—who was 21 years old at the time—to20 years’ imprisonment for murder and 18 years forrobbery with aggravating circumstances. No orderwas made that these two sentences were to runconcurrently. This meant that the effective sentencewas 38 years’ imprisonment.

On appeal it was submitted that the trial court hadcommitted a misdirection in not ordering the twosentences to run concurrently (at [2]). Indeed, MbhaJA (Brand JA and Mathopo AJA concurring) readilyconcluded that by not ordering the sentences to runconcurrently, the trial court had committed an irregu-larity (at [11]). The appeal succeeded to the extentthat the sentences were ordered to run concurrently,resulting in an effective 20 years’ imprisonment (at[12]). Mbha JA advanced at least six reasons insupport of this conclusion:

First, the effective sentence of 38 years’ imprison-ment imposed on a 21-year-old was ‘unduly harsh’(at [7]). Second, a sentencing court should not

impose sentences of imprisonment which are open tothe interpretation that they have been imposed ‘forpublic consumption’ (at [8]). Third, referring to S vSenatsi & another 2006 (2) SACR 291 (SCA) at [6],it was noted that one way of accommodating mercyin the sentencing process is to order that sentences beserved concurrently (at [10]). Fourth, the trial courtomitted to furnish reasons for the decision not toorder the sentences to run concurrently (at [11]).Fifth, the trial court did not even consider thecumulative effect of the sentences (at [11]). Sixth,referring to S v Mokela 2012 (1) SACR 431 (SCA),Mbha JA also stated as follows (at [9]):

[T]he murder committed by the appellant wasinextricably linked to the robbery of thedeceased during which the deceased’s canvasshoes were removed and taken. It is trite lawthat an order for sentences to run concurrentlyis always called for where the evidence showsthat the relevant offences are inextricably linkedin terms of locality, time, protagonists and,importantly, the fact that they were committedwith one common intent.

It is in the context of the sixth reason above thatreference to Nthabalala (supra) must also be made.Nthabalala emanated, like Nemutandani (supra),from the Limpopo High Court and, like Nemutan-dani, involved an appeal on sentence. It required theSupreme Court of Appeal to consider once again theappropriateness of two sentences imposed in a situa-tion where two serious offences were committed inthe course of one incident. In Nthabalala the trialcourt had sentenced the appellant to 16 years forculpable homicide and 45 years for rape. Thedeceased was killed whilst trying to resist: ‘Toovercome her resistance the appellant throttled . . .[her] . . . so that he could engage in sexual inter-course with her in circumstances where it was quiteclear to him that she was not consenting’ (at [8]).

Legodi AJA (Ponnan and Petse JJA concurring) wassatisfied that the trial court had in several respectsmisdirected itself in the exercise of its sentencingdiscretion, most notably by overemphasising irrel-evant previous convictions for theft and by speculat-ing, despite the culpable homicide finding, that theappellant might have killed the deceased to preventher from reporting him. After having given carefulconsideration to rape as a repulsive crime violatingthe personhood and dignity of the victim, LegodiAJA noted that society, apart from expecting seriousoffences to be punished, also expects mitigating

25Issue 2, 2014

circumstances to be afforded consideration in thedetermination of sentence (at [8]–[9]).

The appellant was sentenced to 10 years’ imprison-ment for the culpable homicide and 20 years for therape. But Legodi AJA, after having noted at [11] that‘the offences were part of the same transaction’,ordered that five of the ten years’ imprisonmentimposed on the appellant in respect of culpablehomicide had to run concurrently with the 20 yearsimposed for the rape charge. This meant an effectivesentence of 25 years’ imprisonment.

It should be pointed out that Nthabalala is not inconflict with Nemutandani (supra), where the rob-bery sentence as a whole was ordered to run concur-rently with the murder sentence. The ultimate testremains the appropriateness of the sentence(s); andcircumstances such as ‘an inextricable link betweenthe offences’, ‘the same transaction’ or ‘overallcriminal conduct’ is an aid, and at times a forcefulguideline, to determine the appropriate sentence. Onthe one hand, where the effective term of imprison-ment is so excessive as to be inappropriate, the courtis required to take into account that there was ‘asingle transaction’ calling for concurrence of sen-tences—as was the case in Nemutandani (supra). Onthe other hand, where a court finds that non-concur-rence of the sentences would result in too long aperiod of imprisonment whilst complete concurrencewould, in turn, yield an inappropriately short period,the court can order only a portion of a sentence torun concurrently. It is submitted that this is theposition in which the Supreme Court of Appealfound itself in Nthabalala; and finding the via mediaof imposing an effective 25 years’ imprisonment,was an eminently sensible solution. To put the matterdifferently: the effective sentence of 25 years is notexcessive, even though there was an inextricable linkbetween the rape and the culpable homicide and,furthermore, no complete concurrence of the twosentences. The abominable conduct of the appellantin Nthabalala called for 25 years in prison.

Sentencing: The meaning of‘premeditated’ murder for purposesof Part 1 of Schedule 2 to theCriminal Law Amendment Act 105 of1997S v Kekana [2014] ZASCA 158 (unreported, SCAcase no 629/13, 1 October 2014)

In Kekana (supra) it was argued that the trial judgeand a full bench of the South Gauteng High Court

had incorrectly convicted the appellant of ‘premedi-tated’ murder of his wife. In the absence of substan-tial and compelling circumstances, this convictionresulted in a sentence of imprisonment for life asprovided for in s 51(1) read with Part 1 of Schedule2 of the Criminal Law Amendment Act 105 of 1997.

It was submitted on behalf of the appellant thatpremeditation was absent because he had acted ‘onthe spur of the moment and was incandescent withrage when he killed the deceased by setting fire tothe house’ (at [10]).

Mathopo AJA (Lewis JA and Gorven AJA concur-ring) rejected this submission, given the uncontro-verted facts (or ‘factual matrix’) contained in thes 112(2) statement that the appellant had submitted,and the prosecution had accepted, at the trial: afteran initial argument with his wife, the appellant leftthe house briefly; upon his return, he found that shehad packed his clothes; after a further argument, hedecided to kill her; he then went outside to fetchpetrol bought earlier by him for an innocent purpose;he poured the petrol on the bed of the deceased, set italight and locked her in the room; he also pouredpetrol in the passage, kitchen and dining room. Inassessing these facts, Mathopo AJA observed (at[14]): ‘The locking of the door and further pouringof petrol show that he was carefully implementing aplan to prevent her escape and to ensure that she diedin the blaze. To my mind this is proof of premedita-tion on his part . . . [T]he appellant was correctlyconvicted of premeditated murder.’

During the course of the judgment, reference wasmade to S v Raath 2009 (2) SACR 46 (C) whereBozalek J, writing for a full bench, interpreted thewords ‘planned or premeditated’ as used in Part 1 ofSchedule 2 of Act 105 of 1997. Having noted thatthere is no statutory definition of the concept ‘pre-meditation’ and that the dictionary meaning mustprevail, Bozalek J took the view that only anexamination of all the circumstances pertaining to aspecific murder, including the accused’s state ofmind, can determine the presence of premeditation.At [16] he said:

In such an evaluation the period of timebetween the accused forming the intent tocommit the murder and carrying out this inten-tion is obviously of cardinal importance but,equally, does not at some arbitrary point, pro-vide a ready-made answer to the question ofwhether the murder was ‘‘planned or premedi-tated’’.

In Raath (supra) no premeditation was found. Even

Criminal Justice Review26

though there was ample evidence of the accused’sviolent behaviour towards his wife in the monthspreceding the night he shot her, there was nothing tosuggest a prior intention or plan to kill her. Premedi-tation was absent because the accused’s anger, trig-gered by the absence of his wife, turned into rageand, after having forced his son to open the safe, hetook a firearm, crossed the road and shot his wife asshe emerged from the neighbours’ house (at [17]).Bozalek J accepted that all this happened in no morethan a matter of minutes and, even though theaccused had conceived the idea to kill his wife andhad armed himself for this purpose, ‘the deadly, butspur-of-the-moment act or acts of . . . [the accused]. . . in an emotional rage’ did not constitute ‘aplanned or premeditated murder’ (at [18]).

In S v Mgibelo 2013 (2) SACR 559 (GSJ) there wasno doubt that premeditation was present. Theaccused’s contention that she had committed a‘crime of passion’ was rejected. She had actually,over a period of sixteen hours, planned to set fire tothe shack where the deceased (her former lover) andhis new girlfriend were sleeping. Mgibelo—notreferred to in Kekana and decided only afterRaath—is really of no help except to illustrate whata clear-cut case of premeditation is. Raath andKekana illustrate the difficulties that can arise whenthe decision to murder and the steps taken to executethe decision are only separated by minutes.

In Kekana Mathopo AJA was less accommodatingthan Bozalek J in Raath. After having accepted thatit was only ‘a matter of a few minutes, at the least’between the appellant’s decision to kill his wife andthe locking up of his wife in the bedroom where hehad set the petrol-doused bed alight (at [12]),Mathopo AJA went on to say: ‘Time is not the onlyconsideration because even a few minutes are

enough to carry out a premeditated action’ (at [13]).One must agree that time alone cannot be decisive.But it is also clear that Kekana is very much aborderline case that can easily be misunderstood orinterpreted to give an over-broad meaning to ‘pre-meditated’ for purposes of Act 105 of 1997. Thisconcept appears in a penal provision; and it oughtnot to be interpreted too liberally. The absence orpresence of premeditation should not be assessed bylooking only at the steps taken by an accused after hehad taken the decision to kill. A more acceptableapproach, it is submitted, would be to ask whetherthe decision to murder and the steps taken to committhis murder, were in terms of time, place andcircumstance so closely connected that the stepstaken—far from indicating prior or advance plan-ning—were merely the immediate result of, and partand parcel of, the earlier decision to murder. Thistype of test, it is submitted, would give true expres-sion to the general principle of penal policy thatcrimes which result from rash or impulsive decisionsare less reprehensible (and deserve lesser sentences)than those which are planned in terms of means,opportunity and final execution.

Let there be no mistake: the murder in Kekana was amost condemnable deed, involving, as it did, domes-tic violence of an extremely repulsive kind andcommitted with a callousness that is shocking in theextreme. But it is doubtful whether there was, forpurposes of Act 105 of 1997, a premeditated murder.

For further cases on premeditated murder, see thenotes on s 277 in Commentary, sv Murder: Absenceof premeditation.

(iii) Appeal and ReviewThere were no cases of significance in the periodunder review.

27Issue 2, 2014

Table of Cases

Bonugli & another v Deputy National Director of Public Prosecutions & others 2010 (2) SACR134 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Brossy v Brossy [2012] ZASCA 151 (unreported, SCA case no 602/2011, 28 September 2012) . . . . . 20Craig Smith and Associates v The Minister of Home Affairs & others (unreported, WCC case no

12756/2014, 4 August 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22Director of Public Prosecutions, North Gauteng, Pretoria v Makhubela (unreported, GP case no

A91/2014, 6 August 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21Director of Public Prosecutions, Western Cape v Killian 2008 (1) SACR 247 (SCA) . . . . . . . . . . . . . . 15Euroshipping Corporation of Monrovia v Minister of Agricultural Economics and Marketing & others

1979 (1) SA 637 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23Lemthongthai v S [2014] ZASCA 131 (unreported, SCA case no 849/2013, 25 September 2014) . . . . 7Mahomed v National Director of Public Prosecutors & others 2006 (1) SACR 495 (W) . . . . . . . . . . . 23Minister of Justice and Constitutional Development & another v Masingili & another 2014 (1) SACR

437 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15National Commissioner of the South African Police Service v Southern African Human Rights

Litigation Centre & another [2014] ZACC 30 (unreported, Constitutional Court case no CCT 02/14,30 October 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

National Commissioner, South African Police Service & another v Southern African Human RightsLitigation Centre & another 2014 (2) SA 42 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

National Society for the Prevention of Cruelty to Animals v Minister of Justice and ConstitutionalDevelopment & another (unreported, GNP case no 29677/2013, 8 October 2014) . . . . . . . . . . . . . . 16

Porritt & another v National Director of Public Prosecutions & others [2014] ZASCA 168 (unreported,SCA case no 978/2013, 21 October 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

President of the Republic of South Africa & others v South African Rugby Football Union & others1999 (4) SA 147 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

R v Hepworth 1928 AD 265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24R v Makaza 1969 (2) SA 209 (R) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8R v Sophi 1961 R & N 358 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11S v A en ’n ander 1993 (1) SACR 600 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11S v Anthony 2002 (2) SACR 453 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15S v Beukes 1988 (1) SA 511 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5S v BM 2014 (2) SACR 23 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14S v Cotenberg (unreported, WCC case no A404/2004, 30 May 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . 20S v Daniëls en ’n ander 1983 (3) SA 275 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18S v De Bruyn 1968 (4) SA 498 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5S v Du Toit en andere 2004 (1) SACR 47 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14S v Gabaatlholwe & another 2003 (1) SACR 313 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22S v Gasa & others 1998 (1) SACR 446 (D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18S v Gerbers 1997 (2) SACR 601 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22S v Helm (unreported, WCC case no A119/2012, 17 September 2014) . . . . . . . . . . . . . . . . . . . . . . 11, 22, 24S v Hlongwane 2014 (2) SACR 397 (GP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16S v Humphreys 2013 (2) SACR 1 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6S v Jija 1991 (2) SA 52 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24S v Kekana [2014] ZASCA 158 (unreported, SCA case no 629/13, 1 October 2014) . . . . . . . . . . . . . . 26S v Lemtongthai 2014 (1) SACR 495 (GJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7S v Loate & others 1962 (1) SA 312 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16S v Lotter 2008 (2) SACR 595 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC) . . . . . . . . . . . . . . . . . . . . . 19S v Malan 2013 (2) SACR 655 (WCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11S v Maliga [2014] ZASCA 161 (unreported, SCA case no 543/13, 1 October 2014) . . . . . . . . . . . . . . . 24S v Manuel 2001 (4) SA 1351 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18S v Marx 1962 (1) SA 848 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

28

S v Mazongolo 2013 (1) SACR 564 (WCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20S v Mbele 1963 (1) SA 257 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15S v Mdaka 2014 (2) SACR 393 (KZP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15S v Mdantile 2011 (2) SACR 142 (FB) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12S v Mgibelo 2013 (2) SACR 559 (GSJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27S v Mofokeng 2014 (1) SACR 229 (GNP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15S v Mokela 2012 (1) SACR 431 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25S v Motaung (unreported, FB case no 29/2014, 7 August 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11S v Mthethwa (unreported, GP case no A17/2013, 11 July 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19S v Mthimkulu 1975 (4) SA 759 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24S v Mulula [2014] ZASCA 103 (unreported, SCA case no 074/2014, 29 August 2014) . . . . . . . . . . . . 14S v Ndlanzi 2014 (2) SACR 256 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6S v Nel 1991 (1) SA 730 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11S v Nemutandani [2014] ZASCA 128 (unreported, SCA case no 944/13, 22 September 2014) . . . . . . . 25S v Ngubane 1985 (3) SA 677 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5S v Nthabalala [2014] ZASCA 28 (unreported, SCA case no 829/13, 28 March 2014) . . . . . . . . . . . . . 25S v Pedro [2014] 4 All SA 114 (WCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17S v Peyani 2014 (2) SACR 127 (GP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20S v Pistorius (unreported, GP case no CC 113/2013, 11 September 2014) . . . . . . . . . . . . . . . . . . . . . . . 4S v Qamata 1997 (1) SACR 479 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8S v Raath 2009 (2) SACR 46 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26S v Ramaite [2014] ZASCA 144 (unreported, SCA case no 958/13, 26 September 2014) . . . . . . . . . . . 17S v Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk NO & another 1989 (3) SA 368 (E) . . . . . . . . . 21S v Safatsa & others 1988 (1) SA 868 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23S v Senatsi & another 2006 (2) SACR 291 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25S v Sethoga 1990 (1) SA 270 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5S v Shaik 1983 (4) SA 57 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5S v Sodede (unreported, ECG case no A4656/2013, 24 July 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21S v Strydom 1978 (4) SA 748 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24S v Tonkin 2014 (1) SACR 583 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6S v Tshotshoza & others 2010 (2) SACR 274 (GNP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15S v Van der Sandt 1997 (2) SACR 116 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24S v Van der Westhuizen 2011 (2) SACR 26 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14S v Van Wyk 1992 (1) SACR 147 (NmS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Smyth v Ushewokunze 1998 (3) SA 1125 (ZS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Southern African Litigation Centre & another v National Director of Public Prosecutions & others 2012

(10) BCLR 1089 (GNP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Thint (Pty) Ltd v National Director of Public Prosecutions & others; Zuma v National Director of

Public Prosecutions & others 2008 (2) SACR 421 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

29Issue 2, 2014