A bi-annual update complementing the Commentary on the ... · A bi-annual update complementing the Commentary on the Criminal Procedure Act NO 2 OF 2017 ANDREW PAIZES, Author (Editor)

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

NO 2 OF 2017

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

ContentsEditorial Note.............................................................................................................................................. 3

(A) FEATURE ARTICLES ........................................................................................................................ 4Why do we so often get common purpose wrong? ............................................................................. 4‘New facts’ for purposes of a renewed bail application: Principles, issues and procedures ............... 9

(B) LEGISLATION .................................................................................................................................... 13The Criminal Procedure Amendment Act 4 of 2017 ........................................................................... 13Judicial Matters Amendment Act 8 of 2017 ........................................................................................ 13

(C) CASE LAW .......................................................................................................................................... 14(a) Criminal Law ................................................................................................................................ 14

Unlawful possession of automatic firearms—meaning of ‘joint possession’ and whetherdoctrine of common purpose may be applicable .................................................................... 14

(b) Criminal Procedure and Evidence.............................................................................................. 15(i) Pre-sentence .......................................................................................................................... 15

Judicial review of the decision not to prosecute: Prosecutorial integrity and rationality..... 15s 40: Arrest—when is a suspicion ‘reasonable’? Detention—distinction between period

before first court appearance and period after this event .............................................. 17Arrest and the treatment of women: Need to respect women’s rights .................................. 18s 60(11B)(c): Cross-examination of a s 204-witness on the basis of his bail affidavit......... 18ss 115, 151, 203: Weight given to exculpatory parts of a s 115 statement; effect of

accused’s failure to testify ............................................................................................. 20ss 162 and 164: Admonishing a witness who does not understand the nature and import of

the oath or affirmation, and the need to determine competence ................................... 21ss 151 and 212: Circumstantial evidence, the onus of proof and expert evidence—

confusion between the scientific and judicial measures of proof.................................. 22(ii) Sentencing ............................................................................................................................. 23

Sentencing: The ‘advanced age’ of the convicted offender and life imprisonment asprescribed sentence ........................................................................................................ 23

Sentencing an offender who maintains innocence: Rehabilitation, remorse and mercy....... 25Sentencing jurisdiction and minimum sentence legislation .................................................. 26s 276B(1): Invalid non-parole periods and sentencing jurisdiction ...................................... 27

(iii) Forfeiture and Confiscation ................................................................................................ 29Forfeiture of property: s 50(1) of POCA—Act not intended to allow for intervention in a

commercial dispute ........................................................................................................ 29

Table of Cases ............................................................................................................................................. 31

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Editorial Note

One of the feature articles in this edition explores therequirement that there be ‘new facts’ before a bailapplicant is entitled to launch a renewed bail appli-cation after the first application was unsuccessful.The article considers the meaning of ‘new facts’,stresses the right of the applicant to a reasonableopportunity to present those facts, and endorses theview expressed in a recent case that a court shouldnot lightly deny an applicant for bail the opportunityto present new facts by adducing evidence. There arealso suggestions on how problems in this area maybe avoided and on how s 60(14) of the CriminalProcedure Act, which concerns access to the policedocket in bail proceedings, should be applied.

The other feature article considers some of the manypitfalls that await the unwary in the application ofthe doctrine of common purpose. One danger, inparticular, is singled out for attention: the need tokeep apart the two distinct forms of common pur-pose, one based on agreement or mandate, the otheron active association. It is argued that these twoforms apply to quite different sets of circumstances,have different conditions for their application, andmust not be invoked when those circumstances andconditions are not present. When they are applied inthe wrong context, as they were, it is submitted, inthe recent decision of the Constitutional Court in S vMakhubela & another, there is the danger thatasking the wrong questions may lead to the wrongresult.

Other issues dealt with in this edition include:• the meaning of ‘joint possession’ in relation to a

prohibited object or substance (such as a firearm)and the unsuitability of the doctrine of commonpurpose in such cases;

• the meaning of a ‘reasonable suspicion’ ins 40(1)(b) of the Criminal Procedure Act relating

to an arrest without a warrant, and the need tokeep distinct, when applying that section, theperiod before a first court appearance and theperiod after that event;

• prosecutorial independence and integrity and therationality of a decision by the prosecutingauthority not to prosecute;

• the need to respect the rights of women in theirarrest and detention;

• the weight to be given to the exculpatory aspectsof a statement made by an accused in terms ofs 115 of the Act;

• the distinction between the competence of awitness to testify and his or her ability tounderstand the nature and import of the oath;

• the importance of using the judicial, and not thescientific measure of proof in assessing theevidence of an expert witness;

• whether a s 204-witness may be cross-examined,in a trial of another person, on what the witnesssaid in a bail affidavit in circumstances where nowarning was given in terms of s 60(11B)(c) ofthe Act;

• the role of ‘advanced age’ in sentencing, inparticular in respect of a sentence of life impris-onment;

• sentencing a convicted offender who maintainsinnocence and, as a result, never expressesremorse;

• the effect of defective charges and jurisdictionalrules on an appeal court’s power to intervene onsentence;

• the validity of non-parole periods in sentencing;and

• the inappropriateness of applying the forfeitureprovisions in s 50 of POCA as an intervention ina commercial dispute.

Andrew Paizes

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(A) FEATURE ARTICLES

Why do we so often get commonpurpose wrong?It is surprising how often things go wrong when thedoctrine of common purpose is applied. It is surpris-ing because the doctrine has, as its core, a verysimple idea. That idea is that, when two or morepeople engage in a criminal enterprise together,responsibility in law for the act or series of acts thatis or are performed by one of the group (theimmediate party) may, in certain circumstances, beattributed to each of the other members (the remoteparties) of that group.

When one looks at the elements of criminal liability,then, it is an idea that finds expression within thecontext of the conduct element of the actus reus. Ittells us that the conduct of one of the parties, theimmediate party, is, for the purposes of the criminallaw, to be regarded, in addition, as the conduct ofeach of the other members of the group (the remoteparties) when the necessary requirements are met. If,then, A, B, C and D form a common purpose to killX, and if the requirements are met, the act of A in,say, stabbing X, will be treated by the criminal lawas being the act of B, the act of C and the act of D inaddition to being the act of A himself.

Before an articulation of what these conditions are, itis useful and instructive to consider briefly what thissimple idea does not entail. It says nothing, to beginwith, about causation. The requirement, in conse-quence crimes such as murder where there must be acausal link between the conduct element and theprohibited result, the death of the victim, remains inplace and is not dislodged by the operation of thefiction that treats the act of A as the act of B or anyother member of the group. It is still required in thecase of, say, B that there be a causal nexus betweenthe conduct element and the prohibited result,between conduct for which he is in law responsibleand the death of X. It is just that a fictive element hasbeen introduced which deems A’s act of stabbing Xto be B’s own act. The causal requirement, in otherwords, has not gone away. It remains, but gives theillusion of having disappeared because B may beconvicted even though there may be no causal linkbetween conduct physically carried out by him andX’s death. He cannot, however, be convicted if thereis no causal link between the attributed conduct andthat result, so it is clear that the causal requirementremains.

The illusion of the disappearing causal element hasled the courts into error in considering the constitu-

tional validity of the doctrine. In S v Thebus 2003 (6)SA 505 (CC), where the appellants attacked thedoctrine ‘principally on the ground that it does notrequire a causal connection between their actionsand the crimes of which they were convicted’, theConstitutional Court accepted (at [34]) that the‘doctrine of common purpose dispenses with thecausal requirement’, but upheld the doctrine sincethe requirement of a causal nexus was ‘not a defini-tional element of every crime’ so that, ‘under thecommon law, the mere exclusion of causation as arequirement of liability is not fatal to the criminalnorm’ (at [37]–[38]).

I do not propose to consider, in this brief article,whether the doctrine should be viewed as passingconstitutional muster. But I would point out that thereal issue, in making such a determination, iswhether and in what circumstances it is acceptable toattribute responsibility to an accused for conduct thatis not his or her own. It is not whether dispensingwith the causal nexus is justified, because thatrequirement is not dispensed with at all. It is, ineffect, re-directed as an inquiry between attributed(as opposed to physical) conduct and the prohibitedresult. The focus of the Constitutional Court wasthus, in my view, misdirected.

But causation is not the only aspect of criminalliability that the doctrine is wrongly understood toinvolve. Another is fault (or mens rea). Once theconduct of A is imputed to B, the question of coursearises as to whether B had mens rea in respect ofcausing X’s death in relation to that act. In thecontext of murder, the question is whether Bintended X to die as a result of that act. Legalintention or dolus eventualis will, of course, suffice,so that it will be enough if the prosecution couldprove that B foresaw the real possibility that X mightdie as a result of the imputed act. This requirement isnot affected by the operation of the doctrine apartfrom the fact that it pivots around a conduct elementthat is the result of a legal fiction which replacesactual conduct with imputed conduct. But the activa-tion of that fiction may create problems that mayeasily lead to error if one is not vigilant. One suchproblem may be that the remote party has conductattributed to him that he is not even aware of anddoes not, as a result, foresee. How, then, can heforesee the causing of death by that act?

Consider this example: A and B set out to rob X incircumstances where they accept that X may be shotand killed should he resist the robbery. B is heavilyarmed and it is he who effects the robbery while A

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waits out of sight in an idling car, ready to allow thepair to make a quick escape after the robbery. Xoffers fierce resistance and B considers it necessaryto shoot him before X can kill B. The gun, however,jams, whereupon B hits him very hard on the headwith the butt of the firearm. X dies as a result of thisblow. Three things are clear in respect of A’s liabilityfor the murder of X. First, the causal act of striking Xon the head with the firearm will be imputed to A, towhom it was a matter of indifference whether Bovercame X’s resistance by shooting him or strikinghim on the head. Second, this act would not ordi-narily have been foreseen by A, so that it could notbe said that he foresaw the causing of death by thevery act that caused it. This would, in the ordinarycourse, be fatal to a conviction for murder. Third,however, it is clear that A would almost certainlyhave foreseen the possibility of the blow causing X’sdeath were it not for his remoteness from the scene.This fact, together with the fact that the causal act is,as has been pointed out, imputed to A so that it isregarded in law as being his own act, makes the casefor liability unanswerable. The important lesson isthat the fictive quality of the doctrine of commonpurpose forces us to introduce a correspondingfictive inquiry to prevent us from getting thingswrong once more, one that considers what theremote party would have foreseen had he been awareof the act we are attributing to him. See, further, myarticle entitled ‘‘‘Mistake as to the causal sequence’’and ‘‘mistake as to the causal act’’: Exploring therelation between mens rea and the causal element ofthe actus reus’ (1993) 110 SALJ 493.

A further source of confusion is that common pur-pose may take one of two forms. The first deals witha ‘mandate’ or agreement, in terms of which theparties form an actual agreement—whether expressor implied—to embark on the criminal enterprise.The result is that an act performed by any one ofthem will be attributed to each of the others providedthat the act falls within the borders of the mandate oragreement. The mandate will usually arise as a resultof an express agreement but its ambit will include allacts incidental to the conduct expressly agreed uponwhich the parties must have accepted as beingimpliedly within its compass. Thus, if the agreementis to rob a heavily guarded store by using firearmsknown to each of the participants to contain liveammunition, it would ordinarily be impliedlyaccepted that the mandate includes the fatal shootingof any guard or other person who violently seeks toobstruct this purpose.

The second form of common purpose is described asarising out of ‘active association’. It applies ordi-narily within the context of mob violence, where theparties do not necessarily know each other and havenot been shown to have been operating as a result ofany prior mandate or agreement, tacit or express. Itarises, in this context, where it has been establishedthat one of them has performed an act which has ledto the prohibited result (usually the death of another)and it attributes this act to others who have, beforethe performance of that act, performed acts of theirown which establish both that they were associatingactively with the causal act and that they intended tomake common cause with the person performing thatact. The conditions that have to be proved by theprosecution when relying on this form of commonpurpose were set out in S v Mgedezi & others 1989(1) SA 687 (A) at 705–6. A person who has beencharged with murder arising out of an incident ofmob violence leading to the death of another will beliable, said Botha JA, only if these prerequisites aresatisfied:

‘In the first place, he must have been present atthe scene where the violence was being com-mitted. Secondly, he must have been aware ofthe assault on the [victims]. Thirdly, he musthave intended to make common cause withthose who were actually perpetrating theassault. Fourthly, he must have manifested hissharing of a common purpose with the perpetra-tors of the assault by himself performing someact of association with the conduct of theothers. Fifthly, he must have had the requisitemens rea; so, in respect of the killing of thedeceased, he must have intended them to bekilled, or he must have foreseen the possibilityof their being killed and performed his own actof association with recklessness as to whetheror not death was to ensue.’

The two forms of common purpose, then, operate inquite different sets of circumstances and are gov-erned by fundamentally different requirements. The‘mandate’ form is predicated upon actual agreementbetween the parties to the common purpose. Thispresupposes some communication between themwhich sets the boundaries relating to the kind of actthat is envisaged and how far the parties are preparedto go in giving effect to their agreed purpose. Oncecarried out by the immediate party, any act fallingwithin the compass of what has been expressly orimpliedly agreed upon will be attributed to each of

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the remote parties. The ‘active association’ form isfundamentally different. It is concerned with whatthe remote party actually does at the scene of thecrime in associating himself with that conduct of theimmediate party which is causally related to thedeath of the victim. He must, then, actually intend tomake common cause with the actor or actorsengaged in that conduct, and manifest his sharing ofthe common purpose by himself performing someact of association with that conduct.

Much has been said and written about this form ofcommon purpose and the requirements for itsengagement, but it is worth drawing attention to twopropositions for the purpose of this article. The firstis that the conduct of the remote party by which hemanifests his sharing of the common purpose to kill,must have been performed before the act of theimmediate party that caused death was committed(see S v Motaung 1990 (4) SA 485 (A)). This isbecause our law rightly does not recognise responsi-bility for the conduct of others on the strength of theratification of that conduct. Such responsibility canarise only in respect of conduct yet to be carried out,not conduct which has already been performed. Thesecond is that our courts have made it quite clear thatrelatively innocuous or equivocal acts on the part ofthe remote party will not be regarded as constitutingthe kind of conduct that manifests the sharing of acommon purpose with the immediate party. The ‘actof association’ would have to be ‘significant and nota limited participation removed from the actualexecution of the crime’, and there ‘must be a closeproximity in fact between the conduct considered tobe active association and the result’ (see S v Dewnath[2014] ZASCA 57 (unreported, SCA case no 269/13,17 April 2014) at [15]; S v Toya-Lee Van Wyk [2013]ZASCA 47 (unreported, SCA case no 575/11, 28March 2013); and S v Gubuza (unreported, WCCcase no A511/2013, 4 March 2014)). The warningissued by the Supreme Court of Appeal in Van Wyk(at [16]) that ‘care needs to be taken to avoid lightlyinferring an association with a group activity fromthe mere presence of the person’ was heeded by thecourt in Gubuza to the extent that the holding of ascrewdriver at the scene of the robbery by theaccused was held to be insufficient, in the circum-stances, to allow the court to infer that he hadassociated himself with the robbery committed bythree others since it was, in the circumstances,reasonably possible that he had used the screwdriverto threaten his victims for the purpose of perpetratingthe separate crime of rape, which had also takenplace at the scene.

It is clear from this description of the two forms ofcommon purpose that it is very important for a courtapplying the doctrine to identify correctly the formthat best fits the facts. One notices, however, aworrying trend in which the courts, for some reason,choose to apply the active association requirementsto circumstances for which that form of commonpurpose was clearly not designed. The result is anattempt to force those circumstances into a resistantand ill-fitting straitjacket, and a failure to address thequestions that should have been asked had the courtinvoked the correct form of the doctrine.

This practice is of concern and there is an urgentneed for our highest courts to put matters right. It is apity, then, that this did not happen when the Consti-tutional Court had its most recent brush with com-mon purpose in S v Makhubela & another 2017 (2)SACR 665 (CC).

The deceased in that case, a warrant officer, had beenshot three times in his home by a group of men whohad planned to steal his motor vehicle. He died laterof his injuries. The applicants and their five co-accused were arrested and charged with, inter alia,murder and robbery with aggravating circumstances.They were convicted by the trial court. The full courtdismissed their appeals, and the matter found its wayto the Constitutional Court. Various extra-curialstatements by some of the accused implicating theothers were correctly held to have been wronglyreceived by the trial court, since it is now acceptedthat an admission, as well as a confession, is admis-sible only against its maker (see S v Litako & others2014 (2) SACR 431 (SCA) and S v Mhlongo; S vNkosi 2015 (2) SACR 323 (CC); see, too, Commen-tary in the notes to s 219 sv Is an admission (asopposed to a confession) by an accused admissibleagainst a co-accused?). This left, in the main, theself-incriminating statements made by each appli-cant as well as their oral testimony. From thisevidence it appeared that the two applicants had, inthe company of their co-accused, been driven to thedeceased’s home. The other members of the partywere carrying weapons, and it was clear that theywere intending to steal a vehicle. The co-accusedalighted from the vehicle they had driven to thedeceased’s home and went into his house. They latercame back running and carrying an extra firearm.Makhubela stated that he remained in the car with, itseems, Matjeke, and added that he heard shots beingfired. His co-accused ‘returned and started arguingabout why the other had shot the deceased and theresponse was that the deceased had a firearm and

Criminal Justice Review6

would have retaliated’. Further, ‘they left the scenetogether’ (at [34]). The evidence showed, in addi-tion, that the two applicants spent the afternoon priorto the shooting together, went to the same tavernwith their co-accused after travelling with them inthe same car, and drove to the scene of the crimewith them in the full knowledge that they werecarrying firearms.

There was no evidence that the applicants were atany stage coerced to travel and to remain with thegroup. Nor was there evidence that they had inquiredfrom their co-accused what their intentions werewhen they parked the vehicle at a distance from thescene of the fatal shooting, or raised questions whenthey became aware that they were carrying firearmsor when they left the vehicle with the weapons andheaded to the deceased’s house. There was noevidence that they attempted to distance themselvesfrom their co-accused or that they questioned theiractions when they returned after the gunshots werefired. They did not flee or dissociate themselves inany way from their co-accused and did not even askwhy the vehicle had to be driven at a very high speedfrom the scene or where the extra firearm had beenprocured. All this ‘suggest[ed]’, said the court, that‘they had an understanding with their co-accused toparticipate in criminal activity’ and made it ‘reason-able to infer that [they], far from being caught upunawares in illicit conduct, had an intention tocommit a crime with their co-accused’ (at [40];emphasis added).

No one would quarrel with any of these findings orpronouncements. All that was left for the court to do,one would have thought, was to inquire whether the‘suggestion’ that the applicants had an ‘understand-ing with their co-accused to participate in criminalactivity’ could be taken to the next step, in whichthese crucial questions would have to be answered inthe affirmative before dismissing their appeals: had itbeen proved, beyond a reasonable doubt, that therewas an agreement between the applicants and theirco-accused that included the theft of the deceased’svehicle by means of an act of force (for the purposeof holding them liable for robbery); and did theagreement, expressly or impliedly, include the possi-bility that it might be necessary to inflict on thedeceased a serious and potentially fatal injury (forthe purpose of holding them liable for murder)?Affirmative answers to these questions wouldundoubtedly have left intact the convictions forrobbery and murder, since it is clear that mens rea inthe form of dolus eventualis could, in that event,

easily have been established in view of the court’sfinding that the applicants must have ‘foreseen thepossibility of the criminal result [of murder] ensu-ing’ (at [44]). Although the question should, strictlyspeaking, have been whether the applicants hadforeseen the possibility that one of their co-accusedmight cause the death of the deceased as a result ofany one of the range of acts to the commission ofwhich they had expressly or impliedly agreed, it isclear that the answer would still have been ‘yes’ if itis accepted that the act that did cause death was onethat fell within the ambit of their agreement.

So, then, did the causal act (shooting the deceased)fall within the four corners of the ‘mandate’ given tothe perpetrator of that act? The court, unfortunately,did not address this crucial question at all. It failed torecognise that the case displayed none of the featurescalling for the application of the principles relatingto ‘active association’. Instead of addressing therequirements for liability under the mandate leg ofthe doctrine, the court proceeded, without evenacknowledging the existence of that form of com-mon purpose, to examine the requirements for activeassociation set out in Mgedezi. It found these to havebeen satisfied. A cursory consideration of theserequirements would, however, reveal that they couldhave no meaningful purchase in the circumstances ofthe case. To say that the applicants were ‘present atthe scene of the crime’ when they were sitting in avehicle some distance away from the house wherethe fatal shooting took place, reveals a failure toappreciate the true juristic nature and purpose of‘active association’. Whereas, in the case of a ‘man-date’, it is agreement that attracts responsibility forthe conduct of another, active association concernssituations where no agreement has been shown tohave been formed, and where the basis for theresponsibility of the remote party derives from doingcertain acts. If a mob is bent on stoning a person todeath, the people who join in the attack will notnecessarily have formed any agreement with thosealready so engaged. They must be shown to havedone something significant, while at the scene andwhile the mob was involved in throwing stones at thevictim, in order to attract responsibility for the actthat does cause death. ‘Presence at the scene’ herereally does mean that they must be at the specificplace where the attack is being carried out and whileit is being carried out. If they are not, they do nothave a proper opportunity to appreciate the nature,development and direction of what the mob is doing.A person some distance away from the mob’s actionscannot have his ‘finger on the pulse’ of the ebbs and

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flows of the mob’s conduct, and any act of his cannotordinarily, in any meaningful sense, be seen as an‘act of association’.

An agreement between X and Y to do somethingbinds one to the acts of the other in a very specificand descriptive way. Conduct, on the other hand,tends to be more equivocal and less precise thanwords, so that a strong link and a high degree ofconnection and immediacy is required to convince acourt that the remote party did enough to warrant theconclusion that he has accepted and incurred respon-sibility for the act of the immediate party.

The fallacious reasoning of the Constitutional Courtwas compounded in its application of the remainingrequirements of active association. Given that theserequirements were applied in a context for whichthey were not designed, this is not surprising. To say,as the court did (at [43]), that the ‘applicants mani-fested their sharing of a common purpose with theperpetrators . . . by performing an act of associationwith the conduct of the others in the form oftravelling with them to and away from the scene ofthe crime’ is erroneous on two counts. First, thetravelling to the scene of the crime is insufficientlyproximate in time or place to meet the objectionsmentioned above: it certainly did not afford theremote party the necessary opportunity to keep hisfinger on the pulse of what was happening once theattack began in the deceased’s home. Their conductin driving to the scene was, then, too early to be ableto constitute an ‘act of association’. The act ofdriving from the scene, on the other hand, was toolate to constitute such an act. The fatal shot hadalready been fired by then, and, as the court held inMotaung (supra), our law does not recognise com-mon purpose by ratification.

Would the same result have been reached if the courthad correctly viewed the facts through the lens of amandate or agreement? We will never know, as theright questions were not asked and the evidence forand against such an agreement was not set out in thejudgment or properly evaluated. There is certainlyenough, on the facts as they have been set out by thecourt, to suggest that an agreement was reachedbetween the applicants and their co-accused—whether expressly or by implication. This agreementwould, almost certainly, have included the intimida-tion of the deceased in order to steal his vehicle and,if necessary, the use of force. Whether that forceincluded the possible firing of shots at the deceasedwith a view to causing serious injury and, possibly,death, is less clear. A rigorous examination of all thefacts would be necessary before such a finding couldbe made. It is true that the court found, in the contextof mens rea, that dolus eventualis was presentbecause the applicants ‘must have ‘‘foreseen thepossibility of the criminal result [of murder] ensu-ing’’’, because they knew that their co-accused werecarrying firearms, ‘which they must have knownwould be used if the plan went awry’ (at [44]). If thisrealisation was shared by the applicants and theperpetrators, it may be permissible to infer, as theonly reasonable inference, that the possibility of afatal shooting was at least an implied term of theagreement between the occupants of the car.

In short, it is probable that the same result wouldhave been reached by the court even if the correcttest had been applied. But this will not always be thecase, and this fact cannot be used to justify theerroneous reasoning in S v Makhubela & another.

Andrew Paizes


‘New facts’ for purposes of a renewedbail application: Principles, issuesand proceduresIntroduction

An accused has a fundamental and constitutionallyprotected right to apply for bail. However, it is an‘abuse of . . . proceedings’ to allow an unsuccessfulbail applicant ‘to repeat the same application for bailbased on the same facts week after week’. See S vVermaas 1996 (1) SACR 528 (T) at 531e. A court mayalso not, in the absence of new facts justifying releaseon bail, set aside its own earlier refusal of bail. See S vWaldeck 2006 (2) SACR 120 (NC) at [53].

The requirement that new facts must be advanced orpresented for purposes of a renewed bail applicationis also reflected in s 65(2) of the Criminal ProcedureAct 51 of 1977. In terms of this section an appealshall not lie in respect of new facts which arose orwere discovered after the refusal of bail, unless suchnew facts were first placed before the bail magistrateconcerned and such magistrate had given a decisionagainst the bail applicant ‘on such new facts’. Theeffect of s 65(2) is that it merely precludes the rightof appeal on new facts not before the bail court. Seefurther the discussion of s 65 in Commentary, svSection 65(2) and (3).

The meaning of ‘new facts’: General principles

There is no definition of ‘new facts’ in Act 51 of1977. Case law, however, provides at least fiveguidelines or principles which are of assistance:

(a) New facts are facts that came to light afterrefusal of bail, and obviously also includecircumstances which have changed since theunsuccessful bail application was lodged. Adetention period of almost three years betweenthe first and the renewed bail applicationamounts to changed circumstances constitutinga ‘new fact’ (S v Moussa 2015 (3) NR 800 (HC)at [7]); and the passage of considerable timecoupled with the State’s failure to makeprogress with the investigation of the case, canalso qualify as a new fact (S v Hitschmann 2007(2) SACR 110 (ZH) at 113b).

(b) New facts must be ‘sufficiently different incharacter’ from the facts presented at the earlierunsuccessful bail application (S v Mohammed1999 (2) SACR 507 (C) at 512b) and ‘must notconstitute simply a reshuffling of old evidence’(S v Petersen 2008 (2) SACR 355 (C) at [57]).

(c) The alleged new fact or facts must be ‘relevantfor purposes of the new bail application’: see Sv Petersen (supra) at [57]. This means that theremust at least be some advance indication thatthe new facts, if received, would on theirown—or in conjunction with all the facts placedbefore the court in the earlier unsuccessful bailapplication—assist the court in consideringrelease on bail afresh: see S v Mohammed(supra) at 511h–512a.

(d) In determining whether facts are new or not, acourt is inevitably required to have due regardto the evidence presented or informationreceived at the earlier unsuccessful application:see S v Vermaas (supra) at 531e–g. In S vMpofana 1998 (1) SACR 40 (Tk) at 44g–45aMbenenge AJ explained that ‘whilst the newapplication is not merely an extension of theinitial one, the court which entertains the newapplication should come to a conclusion afterconsidering whether, viewed in the light of thefacts that were placed before court in the initialapplication, there are new facts warranting thegranting of the bail application’.

(e) In a situation where evidence was known andavailable to a bail applicant but not presentedby him at the time of his earlier application,such evidence cannot for purposes of a renewedbail application be relied upon as ‘new facts’:see S v Le Roux en andere 1995 (2) SACR 613(W) at 622a. In Le Roux at 622b it wasexplained that in the absence of such a rule,there could be an abuse of process (‘misbruikvan hofprosedure’) leading to unnecessary andrepeated bail applications. An accused shouldnot be permitted to seek bail on several succes-sive occasions by relying on the piecemeal(‘broksgewyse’) presentation of evidence. It hasbeen suggested that the rule is an absolute oneand should be applied regardless of the bailapplicant’s reasons for not adducing the evi-dence at the unsuccessful application: see gen-erally S v Petersen (supra) at [58]. However, itis submitted that the rule should be applied withcaution. It can hardly find application where theprobable reason for the applicant’s failure topresent the impugned evidence at the first bailapplication can be attributed to the applicant’sbona fide misinterpretation of the probativevalue of the evidence in relation to factual andlegal issues concerning bail. The right to libertypending the outcome of a trial or final appealshould not be frustrated by an inflexible rule. A

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bail court should be willing to examine andconsider the reasons why relevant and availablefacts known to the bail applicant were not reliedon in the initial application.

The right to a reasonable opportunity to presentnew facts

The recent decision in S v Nwabunwanne 2017 (2)SACR 124 (NCK) emphasises the importance of theabove-mentioned right and also confirms that a court‘should not lightly’ deny a bail applicant the oppor-tunity to present new facts by adducing evidence (at[25]). The appellant and a co-accused were incustody on charges of dealing in cocaine and meth-amphetamine. Their bail application failed. The bailmagistrate concluded that ‘neither of them was asuitable candidate for release on bail’ (at [9]). One ofthe main reasons for refusing bail was that thereappeared to be ‘a very strong case’ against theappellant and his co-accused (at [9]). In this regardthe bail magistrate had relied on the investigatingofficer’s testimony to the effect that video footageidentifying the appellant as perpetrator, was part ofthe prosecution’s case (at [21]).

Some five months after the conclusion of the initialbail application, the appellant once again approachedthe magistrate with a further bail application. Forpurposes of this second application it was allegedthat since the earlier refusal of bail, new facts hadcome to light. The bail magistrate ruled that in thissecond bail application the appellant would beallowed to present evidence only if counsel for theappellant could, by way of address and argument,first persuade the bail court that the alleged new factsdid indeed constitute ‘new facts’ (at [20]).

In his address on the new facts, counsel for theappellant informed the bail magistrate that the investi-gating officer’s evidence in the first bail application‘appeared to be false and . . . had misled’ the court inthat the video footage referred to by the investigatingofficer did not link the appellant to any of the chargesagainst him. Indeed, it was submitted that the personidentified in the relevant video was not the appellant.Photographs depicting the appellant entering a salonalso did not link the appellant to any criminal activitysupporting the charges against him. Counsel for theappellant also placed on record that the facts contra-dicting the evidence of the investigating office came tothe attention of the appellant only after the unsuccess-ful bail application, that is, when the contents of thecase docket were disclosed to the appellant’s attorneyfor purposes of trial preparation. In responding to the

arguments of the appellant’s counsel, the prosecutordid not dispute counsel’s averments pertaining to thevideo footage and photographs (at [22]).

Having heard the arguments and submissions of bothparties, the bail magistrate concluded that the appel-lant ‘had not convinced her of new facts’ (at [23]).The appellant was accordingly denied the opportu-nity to adduce evidence for purposes of introducingnew facts at the second bail application. The bailmagistrate’s finding, held Erasmus AJ at [27], waswrong. The appellant should have been granted anopportunity to adduce evidence in respect of the‘alleged new facts’ (at [27]). Indeed, in her judgmentthe magistrate had not even addressed the issuespertaining to the video footage and photographs. Shemerely noted that matters concerning credibilitycould and would be tested during the course of thecriminal trial (at [23]). This approach was a misdi-rection because it ignored the true nature and essen-tial purpose of ‘new facts’ in the context of arenewed bail application. Erasmus AJ stated asfollows (at [24]–[25], emphasis added):

‘New facts can and should be put before amagistrate by adducing oral evidence or submit-ting a document stating facts which are commoncause. The purpose of adducing new facts is not toaddress problems encountered in the previousapplication, but should be facts discovered afterthe bail application. The facts relied on by theappellant in this instance were discovered afterthe initial application. . . . An accused shouldnot lightly be denied the opportunity to presentsuch facts by means of adducing evidence.’

It was also evident that the bail magistrate hadignored the potential probative value of the ‘newfacts’ which counsel for the appellant sought tointroduce. The new facts were relevant and, ifreceived, would have assisted the bail magistrate inreassessing her earlier refusal of bail—a refusalwhich was to a large extent based on the fact that theState had a strong case against the appellant. In thisregard Erasmus AJ observed as follows (at [25]):

‘The submissions by the appellant’s counsel, atleast prima facie, indicated that the evidence,presented on behalf of the respondent duringthe initial bail application, might be compro-mised and that the state’s case might not be asstrong as the magistrate assumed it to be. Therespondent did not dispute what had been con-veyed on behalf of the appellant in respect ofthe photos, the video and the audio footage.’


In setting aside the magistrate’s decision in the secondbail application, Erasmus AJ made the specific orderthat the appellant should, in the course of his furtherbail application, be afforded the opportunity to leadevidence of ‘the alleged new facts that had come tolight and/or any new facts that had subsequently cometo light’ (at [29].3). At [29].4 it was also specificallyordered that the State should—in response to anyfurther evidence led by the appellant—be given anopportunity to lead evidence. The final order was thatthe appellant had to remain in custody pending thefinalisation of his second bail application before themagistrate (at [29].5).

Avoiding problems concerning new facts: Theproper application of s 60(14) of the Act

It is evident from the discussion of S v Nwabunwanne(supra) that the bail appellant was at his initial andunsuccessful bail application at a considerable disad-vantage on account of the fact that at that stage he hadno access to the contents of the police docket, morespecifically the video footage referred to by the inves-tigating officer. The position in which the bail appellantfound himself should be understood in the context ofs 60(14) of the Act. This section provides that noaccused shall for purposes of bail proceedings haveaccess ‘to any information, record or document relatingto the offence in question, which is contained in, orforms part of, a police docket, . . . unless the prosecutorotherwise directs’. See the discussion of s 60 in Com-mentary, sv Section 60(14). In S v Nwabunwanne(supra) the appellant’s attorney was only at some stageafter the initial and unsuccessful bail application givenaccess to the contents of the police docket. This accesswas for trial purposes. Indeed, s 60(14) contains aproviso to the effect that its provisions ‘shall not beconstrued as denying an accused access to any infor-mation, record or document to which he . . . may beentitled for purposes of his . . . trial’. This proviso is inline with the decision of the Constitutional Court inShabalala & others v Attorney-General of Transvaal& another 1995 (2) SACR 761 (CC). In this case itwas held that the State’s pre-constitutional ‘blanketdocket privilege’ was inconsistent with the Constitu-tion. See in this regard the discussion of s 201 inCommentary, sv The decision of the ConstitutionalCourt in Shabalala under the main heading The‘docket privilege’ in particular and the constitutionalchallenge.

However, must it be accepted that the appellant in Sv Nwabunwanne (supra) was at his initial and unsuc-cessful bail application simply the unfortunate casu-alty of the provisions of s 60(14)? Surely not. It is

argued below that in the first bail application inNwabunwanne, the parties as well as the bail magis-trate had failed to apply s 60(14) correctly and hadoverlooked relevant case law and other principlesand statutory rules governing bail.

What happened at the first bail application in S vNwabunwanne (supra) should be considered in thelight of the decision of the Supreme Court of Appealin S v Green & another 2006 (1) SACR 603 (SCA).In Green the attorney for the bail applicants hadapplied to the bail magistrate for access to the policedocket (at [23]). The bail magistrate refused access,basing his decision on the provisions of s 60(14).Farlam JA (Heher JA and Cachalia AJA concurring)took a different view and relied on s 60(3) as aprovision which, in the circumstances of the case,had to be given preference over the provisions ofs 60(14). Section 60(3) provides that where a bailcourt ‘is of the opinion that it does not have reliableor sufficient information or evidence at its disposal orthat it lacks certain important information’ to reach adecision on bail, the bail court ‘shall order that suchinformation or evidence be placed before the court’.Having noted that a bail court is required to be more‘proactive’ than a trial court, Farlam JA concluded asfollows in Green (at [23], emphasis added):

‘On a proper consideration of the case on whichthe State relied, any reasonable court must haveconcluded that it lacked reliable and importantinformation necessary to reach a decision, not-withstanding that such information was appar-ently readily available. In such circumstancesthe court has no discretion but to invokes 60(3). In my view, the magistrate should,instead of refusing bail without more, haveordered the State to grant the defence access tothe video tapes and any statements made by thepolice fingerprint experts, linking the finger-prints of either of the appellants with the crime,with the decision on whether or not to grantbail to be made thereafter.’

It is submitted that in Nwabunwanne (supra) the bailmagistrate should, at the first bail application, haveresorted to an order as provided for in s 60(3) andmade in Green (supra). In Nwabunwanne there was aclear conflict of fact: the bail appellant deniedinvolvement in the offences charged, whereas theinvestigating officer testified that there was videofootage incriminating the appellant. The answer tothis factual dispute was important for bail purposesin that it related to the strength of the prosecution’s

11Issue 2, 2017

case, a factor the State had relied upon in opposingbail. The absence of the video footage meant that thebail magistrate lacked ‘certain important informa-tion’ as envisaged in s 60(3). The factual disputecould for bail purposes readily be resolved byproduction of the footage. The passive attitude of thebail magistrate really complicated matters in thatwhen the footage was eventually released for trialpurposes, the appellant was forced to bring a secondbail application on the basis of alleged ‘new facts’discovered after the initial and unsuccessful bailapplication—the ‘new facts’ being the fact the per-son in the relevant video footage was not theappellant and the fact that the available photographsdid not link the appellant to the offences as charged.Of course, the irony of the matter is that the relevantvideo footage existed at the time of the first bailapplication but was—in the absence of a s 60(3)-order by the bail court—inaccessible to the bailappellant on account of the provisions of s 60(14). Itis submitted that in Nwabunwanne the appellant’slegal representative at the first bail hearing should,on the basis of the decision in Green, have asked thebail magistrate to consider making a s 60(3)-order.

It can also be argued that the prosecutor whoopposed the first bail application in Nwabunwanneshould, of his own accord, have granted the appel-lant’s legal representative access to the video footagereferred to by the investigating officer. It was in thecourse of the latter’s testimony that it became clearthat the identity of the perpetrator was in dispute andthat this had a direct bearing on the bail issue,namely the strength of the State’s case. Why should as 60(3)-order be necessary if s 60(14) itself gives theprosecutor a discretion to allow a bail applicantaccess to information in the police docket? InNwabunwanne there were indeed compelling cir-cumstances calling for disclosure in order to ensure afair bail hearing. Access to the footage was crucial tothe bail appellant’s case for release on bail.

Almost two decades ago the Constitutional Court—in confirming the constitutional validity ofs 60(14)—was careful to point out that s 60(14)should not be read as if it permitted a ‘flat refusal’ bythe prosecutor to disclose any information relevant tothe charges against a bail applicant: see S v Dlamini;S v Dladla & others; S v Joubert; S v Schietekat 1999(2) SACR 51 (CC) at [84]. The prosecutor has adiscretion, but it is ‘not an unfettered discretion’: seeS v Josephs 2001 (1) SACR 659 (C) at 664c–d.Protection of the right to a fair bail hearing may also

require disclosure: see generally S v Mauk 1999 (2)SACR 479 (W) at 489c and 490b–c.

On the strength of the cases referred to in theprevious paragraph, it would appear that there wasno acceptable reason for the prosecutor’s non-disclo-sure of the video footage at the first bail hearing inNwabunwanne. It might be that the prosecutor—likethe bail appellant’s legal representative and the bailmagistrate—had simply overlooked the decision inGreen. It is also possible that the prosecutor inNwabunwanne had at the time of the investigatingofficer’s testimony not yet seen the video footage andwould therefore not have picked up the discrepancybetween the investigating officer’s testimony and thefact that the person in the relevant video footage wasnot the appellant. But if this was indeed the case, theprosecutor should at some stage prior to the comple-tion of the first bail proceedings have taken thetrouble to view the video footage concerned. If theconflict between the investigating officer’s evidenceand the video footage was detected at that stage, theprosecutor would no doubt have had to disclose thefootage. A bail applicant’s constitutional right to afair bail hearing may not be frustrated by a prosecu-tor’s suppression of evidence favouring release onbail. See Schwikkard & Van der Merwe Principles ofEvidence 4 ed (2016) 192 for a discussion ofs 60(14) and the ethical duty of the prosecutor.

Remarks in conclusion

At the beginning of this article it was pointed out thatthe presentation of ‘new facts’ is for good reason animportant requirement for purposes of a renewedbail application. The case law makes it clear that abail applicant should be given a reasonable opportu-nity to present such facts.

Attention was also drawn to the fact that a prosecutorshould, at the first bail application, disclose facts thatfavour release on bail but are not known to the bailapplicant on account of s 60(14). It is unacceptable toleave the matter to the accused on the basis that later,when he has access to the contents of the police docketfor purposes of his trial, he can bring a second bailapplication based on ‘new facts’ discovered by himafter his unsuccessful bail application. It is fundamen-tally unfair, and somewhat absurd, that facts favouringrelease on bail and known to the prosecutor at theinitial bail application must somehow be held inabeyance until such time as they become known to thebail applicant, who can present these facts as ‘newfacts’ for purposes of a renewed bail application.

Steph van der Merwe


(B) LEGISLATION

The Criminal Procedure AmendmentAct 4 of 2017The above Act came into operation on 29 June 2017.See GG 40946 of 29 June 2017.

Act 4 of 2017 makes various amendments to ss 77,78 and 79 in Chapter 13 of the Criminal ProcedureAct. This chapter is headed ‘Accused: Capacity toUnderstand Proceedings: Mental Illness and Crimi-nal Responsibility’. For a discussion of the need forand aims of the amendments to ss 77, 78 and 79, seethe previous edition of Criminal Justice Review, sv‘(B) LEGISLATION’ under the sub-heading ‘Crimi-nal Procedure Amendment Bill [B2-12017]’. Theamendments to ss 77, 78 and 79 are also noted anddiscussed by James Grant in Revision Service 59,which updates Commentary and which will be pub-lished in January 2018.

Judicial Matters Amendment Act 8 of2017The above Act came into operation on 2 August2017. See GG 41018 of 2 August 2017. This Actamended ss 18 and 184 of the Criminal ProcedureAct. It also inserted a new s 194A. For the back-ground to and the contents and impact of theseamendments and insertion, see the discussion in2016 (2) Criminal Justice Review, sv ‘(B) LEGIS-LATION’ under the sub-heading ‘Judicial MattersAmendment Bill [B14–2016]’. The amended ss 18and 184 and the inserted s 194A are also noted anddiscussed in Revision Service 59 which updatesCommentary and which will be published in January2018.

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(C) CASE LAW

(a) Criminal Law

Unlawful possession of automaticfirearms—meaning of ‘joint possession’and whether doctrine of commonpurpose may be applicableS v Ramoba 2017 (2) SACR 353 (SCA)

One of the offences of which the appellant inRamoba had been convicted by the trial court wasthe unlawful possession of automatic and semi-automatic firearms. His appeal to the High Court wasunsuccessful, and his further appeal to the SupremeCourt of Appeal against his conviction (three counts)for this offence led the court to consider the ‘posses-sion’ element of the offence and the possible engage-ment of the doctrine of common purpose in relationto that element.

Mbha JA (with whom the other judges agreed)considered that the principles of joint possession inrelation to the offence of unlawful possession offirearms in instances of robbery committed, as in thiscase, by a group of people were trite and were aptlyset out by Marais J in S v Nkosi 1998 (1) SACR 284(W) at 287b–c. Marais J, in examining the mentalaspect of possession in this context—the intention oranimus to render physical possession of the guns bysome, the possession of the group as a whole—heldthat two conditions had to be satisfied: first, thegroup must have had the intention to exercise pos-session of the guns through the actual detentor ordetentors; and, second, the actual detentor or deten-tors must have had the intention to hold the guns onbehalf of the group.

The High Court in Ramoba had relied on thedecision in S v Khambule 2001 (1) SACR 501 (SCA)where it was held (at 503e–f) that ‘[t]here was noreason why in appropriate situations and if theprinciple of common purpose was applied, the com-mon intention to possess the firearms jointly couldnot be inferred’. It was held further, on the facts ofthat case, that the only inference that could be drawnfrom the proven fact of common purpose was thatthere was joint possession of firearms used in thecommission of the robbery. Mbha JA, however,considered the proposition set out in Khambule to beincorrect. That case, he said, was correctly criticisedin S v Mbuli 2003 (1) SACR 97 (SCA) at 115a–g,where Nugent JA stated that, while he agreed that‘there is no reason in principle why a commonintention to possess firearms jointly could not beestablished by inference’, he could ‘not agree with

the further suggestion that a mere intention on thepart of the group to use the weapons for the benefitof them all [would] suffice for a conviction’ inrespect of the unlawful joint possession of firearms.‘Mere knowledge by the others that [one of theirown] was in possession of a hand grenade, and evenacquiescence by them in its use for fulfilling theircommon purpose to commit robbery’ was, saidNugent JA, ‘not sufficient to make them joint pos-sessors’ of that grenade.

In Ramoba the investigating officer had found apistol stuck ‘and presumably hidden away’ betweenthe two front seats of a vehicle stolen by the robbersin the course of the robbery. There was no evidenceshowing who put the pistol in the vehicle and noevidence showing whether or not the appellant wasaware of its presence in that vehicle. There wereaccordingly ‘no facts from which it [could] beinferred that the appellant had the intention topossess the . . . pistol through the actual detentorthereof, who [was] in any case unknown, andwhether or not the person who put it inside the[vehicle] intended holding it on behalf of the group,including the appellant’ (at [15]). The conviction onthis particular count—one of three involving unlaw-ful possession of a firearm—could not be upheld. Inrespect of the other two counts, there was ampleevidence to establish that the firearms in questionwhich were used in the robbery were ‘clearly pos-sessed by the robbers for themselves and for eachother’ (at [19]), and the appeal against his convictionon these counts was unsuccessful.

The decisions in Mbuli and Ramoba are importantfor the light they shed on the distinct requirementsfor ‘joint possession’ and ‘common purpose’. AsNugent JA put it in Mbuli at 114–15, ‘[c]ommonpurpose and joint possession both require that theparties concerned share a common state of mind butthe nature of that state of mind will differ in eachcase’. He was entirely correct in rejecting the sug-gestion in Khambule ‘that a mere intention on thepart of the group to use the weapons for the benefitof all of them will suffice for a conviction’.

The truth is that the doctrine of common purposelends itself to use in crimes that are known in thecriminal law as ‘consequence crimes’, where acausal nexus is required between the conduct of theaccused and a specific, prohibited result. Since thedoctrine has the effect of imputing to one party (theremote party) the conduct of another (the immediateparty), the doctrine has great efficacy in helping theprosecution to prove its case when it is unable to

14

establish a causal nexus between the accused’s ownconduct and the result in question. It does not lenditself with any great efficacy to crimes known as‘circumstance crimes’, where it is the existence of acertain state of affairs involving the accused thatconstitutes the conduct element of the actus reus.Unlawful possession of a firearm is such a crime.Whereas it makes sense to think of a group ofwrongdoers agreeing to rob a bank or to kill anotherperson, it makes much less sense to imagine themagreeing to being in possession of a firearm.

Even if it did make sense to impute the conduct of‘being in possession’ to others in the group who werenot the detentors of the firearm, how could we makesense of the fact that ‘possession’, as the courts haveexplained, has the mental element involving theintention to possess? The doctrine of common pur-pose makes no provision for the attribution of statesof mind, only conduct.

There is, of course, nothing to prevent a court, inapplying the appropriate rules governing circumstan-tial evidence and inferential reasoning, from drawingvarious inferences, in a proper case, from the factthat the parties formed a common purpose, say, torob. These inferences may or may not be helpful inits determination of whether one or both of theconditions for ‘joint possession’ set out in Nkosihave been satisfied. But it is crucial to understandthat this will not necessarily be so, since the inquir-ies into ‘common purpose’ and ‘joint possession’ aredistinct and operate in different planes.

(b) Criminal Procedure and Evidence

(i) Pre-sentence

Judicial review of the decision not toprosecute: Prosecutorial integrity andrationalityZuma v Democratic Alliance & others; ActingNational Director of Public Prosecutions & anotherv Democratic Alliance & another [2017] ZASCA146 (unreported, SCA case no 771/2016, 1170/2016,13 October 2017)

The appeals in the above consolidated matter (here-after the ‘SCA case’) were dismissed by Navsa ADP,writing for a unanimous full bench. The SCA casedealt with appeals against the decision of the HighCourt in Democratic Alliance v Acting NationalDirector of Public Prosecutions & others 2016 (2)SACR 1 (GP). This case (hereafter the ‘High Court

case’) is discussed in Chapter 1 in Commentary, svReview of prosecuting authority’s decision to with-draw charges, and the validity of a mandatoryinterdict to prosecute.

In the SCA case Navsa ADP made several observa-tions regarding prosecutorial integrity and rational-ity. The present note focuses on these observations.However, it is also necessary to make very briefreference to the High Court case where prosecutorialintegrity and rationality were first addressed. In theHigh Court case the Acting National Director ofPublic Prosecutions (the ‘ANDPP’) had argued thathis decision on 6 April 2009 not to prosecute thecurrent President was rational in that non-prosecu-tion was necessary to protect the integrity of theNational Prosecuting Authority (the ‘NPA’). TheANDPP alleged that the then Head of the formerDirectorate of Special Operations (the ‘DSO’) hadabused the prosecutorial process for political reasonsby trying to manipulate the timing of the service ofthe indictment. However, the ANDPP had in a mediaaddress confirmed that the alleged misconduct of theHead of the DSO had not affected the merits of thecharges against the President. In a joint judgment theHigh Court (Ledwaba DJP and Pretorius and MothleJJ) concluded that in these circumstances ‘[t]herewas thus no rational connection between the need toprotect the integrity of the NPA and the decision todiscontinue the prosecution . . .’ (at [88]).

In the SCA case it was contended on behalf of theNPA that the High Court should have found that theoverall conduct of the Head of the DSO was suchthat it clearly evidenced ‘the manipulation of theprosecutorial process for political ends’, which hadcompelled the ANDPP ‘to discontinue the prosecu-tion’ (at [52]). The stated aim of the ANDPP indiscontinuing the prosecution ‘was to preserve theintegrity of the NPA and to promote its indepen-dence’ (at [83], emphasis added). It is submitted thatthe ANDPP’s idea that non-prosecution was neces-sary to ‘promote’ the independence of the NPA israther quaint and certainly more than whimsical. Thedecision to discontinue prosecution can as a matterof principle not be taken in order to promote pros-ecutorial independence. It can, however, be takenbecause of prosecutorial independence. Prosecuto-rial independence is a constitutional guarantee. Seethe cases referred to and discussed in Chapter 1 ofCommentary, sv Professional independence and svThe discretion to prosecute. The fact of the matter isthat reliance on prosecutorial independence andintegrity means nothing more and nothing less than aduty to prosecute where there are reasonable pros-

15Issue 2, 2017

pects of success and if there is no compelling reasonto decline to prosecute.

Was protection of the integrity of the NPA a compel-ling reason? Navsa ADP took the view that it is‘inimical to the preservation of the integrity of theNPA’ if a decision to discontinue prosecution is taken‘because of a non-discernible negative effect of thetiming of the service of an indictment on the integ-rity of the investigation of the case and on theprosecution itself’ (at [84]). Issues concerning abuseof process in relation to a specific prosecution shouldin principle be decided by a trial court and not by theprosecutorial authority by way of an ‘extra-judicialpronouncement’, as the ANDPP had done (at[94](viii)).

However, the NPA argued that where the prosecutionitself believes that there has been an abuse ofprocess, discontinuing becomes a prosecutorial deci-sion because it cannot be required of the prosecutionto prepare a case on the basis that a court should at alater stage decide whether a stay of prosecution isjustified. Navsa ADP rejected this argument (at[91]):

‘I disagree. It is incumbent on prosecutors todisclose to a court any fact which, in their view,may impact negatively on the prosecution andin favour of the accused. This is in line withconstitutional values and the provisions of theNPA Act. It is in the interest of the NPA,accused persons and the public’s confidence inthe administration of justice, that decisionsconcerning allegations of abuse of process bemade by a trial court.’

The Supreme Court of Appeal concluded, like theHigh Court, that there was no rational connection orlink between the decision to terminate the prosecu-tion and preservation of the integrity of the NPA (at[84]). Navsa ADP also found as follows (at [94](x)–(xi), emphasis added):

‘[The ANDPP’s] stated purpose of preservingthe integrity of the NPA and advancing thecause of justice, can hardly be said to have beenachieved. The opposite is true. Discontinuing aprosecution in respect of which the merits areadmittedly good and in respect of which there isheightened public interest because of thebreadth and nature of the charges and theperson at the centre of it holds the highestpublic office, can hardly redound to the NPA’scredit or advance the course of justice orpromote the integrity of the NPA. Regrettably,

the picture that emerges is one of [the ANDPPand a DNDPP] straining to find justification forthe termination of the prosecution. . . . Thus theconclusion of the court below, that the decisionto terminate the prosecution was irrational,cannot be faulted.’

Of further importance is the fact that the ANDPPhad, in the course of the process to terminate theprosecution, taken certain steps which reflectedadversely on the integrity of the NPA. This is ratherironic given the fact that the NPA had argued thatnon-prosecution was necessary to protect the integ-rity of the NPA. Consideration of the steps taken wasrelevant because a rationality review includes anassessment of the process that was followed inreaching the impugned decision.

Navsa ADP identified several processes and deci-sions which had preceded the ultimate decision todiscontinue prosecution and which contributed to thefinding that rationality was absent. Only threeexamples need be mentioned.

The first example is the ANDPP’s exclusion of theprosecution team from the process that led to thedecision not to prosecute, especially the exclusionfrom the final deliberations that took place on 1 April2009. This, said Navsa ADP at [89], ‘was in itselfirrational’. The exclusion of ‘the senior litigatorssteeped in the case’ (at [89]) also appeared ‘to havebeen deliberate’ (at [94](vii)).

The second example is the fact that in his supple-mentary affidavit the ANDPP explained that he hadbeen untruthful when he told a senior member of theprosecution team that he, and he alone, had decidedto delay the service of the indictment, whereas it wasin fact the Head of the DSO who had made thedecision (at [85] and [94](vi)). At [85] Navsa ADPobserved crisply and accurately: ‘If anything affectsthe integrity of the NPA, it is an ANDPP lying to asenior prosecutor. The admitted deception compel-lingly affects the credibility of [the ANDPP’s] moti-vation for discontinuing the prosecution.’

The third example relates to the passive and submis-sive attitude of the NPA regarding the interceptionand recordings of the telephone conversationsreferred to by the ANDPP and which were inpossession of the legal team of the President. TheNPA, said Navsa ADP at [63], ‘allowed itself to becowed into submission by the threat of the use of therecordings, the legality of the possession of which isdoubtful’. There was, it would appear, no real effortby the NPA to assert its independence and constitu-tional duty.


In dismissing the appeals with costs, Navsa ADPremarked that it was difficult to comprehend why thepresent regime at the NPA thought that the decisionto discontinue the prosecution could be defended (at[94](xiii)).

In Democratic Alliance v President of the Republicof South Africa & others 2013 (1) SA 248 (CC) at[13] the Constitutional Court said that ‘an effectivecriminal justice system . . . is vital to our democ-racy’. In this regard the NPA has a pivotal role toplay, especially when it comes to the decisionwhether to prosecute or not. In National Society forthe Prevention of Cruelty to Animals v Minister ofJustice and Constitutional Development & another2016 (1) SACR 308 (SCA) at [24] Saldulker JAstated that ‘all decisions by the prosecuting authorityto prosecute or not to prosecute must be takenimpartially without fear, favour or prejudice [and]must adhere to prosecuting policy and directives’.Indeed, prosecutorial integrity also demands that thisbe so.

s 40: Arrest—when is a suspicion‘reasonable’? Detention—distinctionbetween period before first courtappearance and period after this event

Minister of Safety and Security v Magagula [2017]ZASCA 103 (unreported, SCA case no 991/2016, 6September 2017)

In terms of s 40(1)(b) of the Criminal Procedure Act,a peace office may without warrant arrest any person‘whom he reasonably suspects of having committedan offence referred to in Schedule 1, other than theoffence of escaping from lawful custody’. One of theissues raised in Magagula was whether the arrestingofficer did in fact entertain a reasonable suspicion asrequired in this provision.

Lamont AJA (with whom Lewis, Petse and SwainJJA and Fourie AJA agreed) held that the suspicionregarding the respondent was, in the circumstancesof the case, a reasonable one. The court referred tothe meaning of ‘suspicion’ set out in Shabaan BinHussein & others v Chong Fook Kam & another[1969] 3 All ER 1627 as, in its ordinary sense, ‘astate of conjecture or surmise where proof is lacking;I suspect but I cannot prove’. Suspicion, LamontAJA added, ‘arises at or near the starting point of aninvestigation of which the obtaining of prima facieproof is the end’: Powell NO & others v Van derMerwe NO & others 2005 (5) SA 62 (SCA) at [36];Woji v Minister of Police 2015 (1) SACR 409 (SCA).

A suspicion will be reasonably held ‘if, on anobjective approach, the arresting officer has reason-able grounds for his suspicion’ (at [10]): see Duncanv Minister of Law and Order 1986 (2) SA 805 (A) at814. Once the required suspicion exists, the arrestingofficer is ‘vested with a discretion to arrest, which hemust exercise rationally’ (emphasis added; see Min-ister of Safety and Security v Sekhoto & another2011 (5) SA 367 (SCA)).

In the present case, the following factors pointed tothe conclusion that the suspicion formed by thearresting office was a reasonable one: he obtainedcogent evidence which was, on the fact of it,acceptable; this evidence was corroborated; he per-sonally obtained information from the investigatingofficer as well as from another suspect, a fellowarrestee of the respondent; the totality of the evi-dence indicated that the respondent had committedthe offence (a fatal shooting); and the suspect wasable to and did point out the person who hadcommitted the crime as being the respondent. Anargument that the suspect had given conflictingevidence to another police office was rejected asirrelevant because it was—even if one assumed thetruth of the allegation—unknown to the arrestingofficer.

The respondent argued that he had been unlawfullydetained as well as arrested. Lamont AJA rejectedthis claim as well. Once an arrest has been effected,the authority to detain that is inherent in the power toarrest, is exhausted. The authority to detain thesuspect further is then within the discretion of thecourt: Sekhoto (supra) at [42]; Minister of Safety andSecurity v Tyokwana 2015 (1) SACR 597 (SCA).The two periods of detention—one until first appear-ance in court; the other from first appearance untilultimate release—must, said Lamont AJA, be con-sidered separately. In this case the respondent’s casefor unlawful detention in respect of the first periodwas dependent upon the appellant failing to establishthat his arrest was lawful. Since the arrest waslawful, his detention for the period ending on the dayof his first appearance in court was not unlawful.

The respondent’s detention in respect of the secondperiod was dependent on the lawfulness or otherwiseof the magistrate’s orders. There was no evidencethat the magistrate had behaved in an unlawfulmanner and, in any event, the magistrate was not aservant of the appellant, so no liability could ensuein the present action. The evidence established,further, that the detention of the respondent at this

17Issue 2, 2017

stage was not at the instance of the appellant’sservant.

The appellant was accordingly held to have justifiedboth the arrest and the detention of the respondent upuntil the day of his first appearance in court.

Arrest and the treatment of women:Need to respect women’s rightsMathe v Minister of Police 2017 (2) SACR 211 (GJ)

This case was an action for damages for an unlawfularrest and detention. The defendant admitted theunlawfulness of the arrest, and the court had only todetermine the quantum of damages to be awarded tothe plaintiff.

The plaintiff, along with two other women, werewaiting for transport, seated on chairs at a fillingstation at 2.00 am in the morning, when an unmarkedpolice vehicle arrived. On these scanty facts, thepolice surmised that the women were prostitutes andarrested them after a very short exchange. There wasnothing to suggest that the police had any lawfulreason for arresting them. The police clearly ‘abusedthe power entrusted to them’ (at [32]). They did noteven take the basic step of identifying themselves tothe women prior to questioning them. They simplybundled them into the vehicle and did not informthem of the offence for which they were beingarrested. The plaintiff’s constitutional rights wereexplained to her only on the following morning.

The plaintiff was put in a cell with four other people.The cell was filthy, had one non-functioning toiletand a tap with no water, had dirty blankets on thefloor, and had an unbearable smell. She was notallowed to make a telephone call.

Opperman J subjected the conduct of the police toscathing criticism. They were in breach of theirobligations set out in s 205 of the Constitution toprevent and combat crime, and subjected the womenin question to treatment that was in breach of theright to equality. Men in their situation, the judgeadded, would not have been treated in this fashion.The police, in doing the opposite of what s 205required them to do, ‘added unnecessarily to theinfinite quotient of women’s humiliation and distressin the history of our society’ (at [35]). This could notbe ‘treated lightly by a court enjoined to apply theConstitution’.

The plaintiff, said Opperman J, was ‘subjected toprejudices which [were] exclusively based on gen-der’ (at [36]). The ‘grinding down of women’s rights

erode[d] the rights of the community as a whole’. Inrespect of the youths who spoke cruelly to theplaintiff in the wake of the police actions, OppermanJ pictured them being ‘encouraged by the fact that itwas the police who instigated her fall from grace’.They should, instead, ‘be seeing our police beingconsiderate and respectful of the women in ourcommunities, in the finest traditions of all SouthAfrican cultures’. The judge referred to R & others vMinister of Police (unreported, GP case no A315/2015, 21 April 2016), where it was said that cases ofthis kind had a ‘public interest element’, since their‘impact is not limited to the individuals but extendsto the community of which they form part’.

In view of the inhumane conditions to which she wassubjected, the loss of her employment as a result ofher arrest and detention, and the stigma following it,damages in the amount of R120 000 were awarded tothe plaintiff.

s 60(11B)(c) and s 204: Cross-examination of a s 204-witness on thebasis of his bail affidavitS v Miya & others 2017 (2) SACR 461 (GJ)

Miya (supra) is a rather odd case. At the trial of fouraccused, counsel for accused 1 (hereafter ‘defencecounsel’) wanted to cross-examine a s 204-witness(hereafter ‘G’) on the basis of an affidavit made by Gin an earlier bail application in respect of anothercase (hereafter the ‘Sandton case’). In that case Gwas standing trial together with accused 2 in thepresent trial. It was common cause that at G’s earlierbail application, the bail court had not warned G, asrequired by s 60(11B)(c) of the Criminal ProcedureAct, that anything he said at the bail hearing ‘may beused against him . . . at his . . . trial and suchevidence becomes admissible in any subsequentproceedings’ (at [24]). In the absence of this warn-ing, a bail applicant’s evidence—in Miya it hap-pened to be an affidavit—would in principle beinadmissible at the bail applicant’s trial. For adetailed discussion of this matter, see the analysis ofs 60(11B)(c) in Commentary, sv Section 60(11B)(c)and the admissibility of bail evidence under the mainheading Section 60(11B)(c). See also Miya at [22]and [24]. The issue in Miya, said Msimeki J at [35],was whether G could be ‘cross-examined on thestatement that he made during the bail hearing if hewas not properly warned’.

In Miya the prosecutor objected to defence counsel’sproposed use of G’s bail affidavit in cross-examininghim. It was argued that the defence had to satisfy the


court that G’s bail affidavit was admissible in thesense that it could be used for purposes of cross-examination (at [3]). At [14] the prosecutor alsosubmitted that s 60(11B)(c) should be given a ‘wideinterpretation’: the bail affidavit would be inadmis-sible not only at G’s trial in respect of the pendingSandton case, but also in respect of ‘any subsequentproceedings’, like the situation where G subse-quently happens to be a State witness, as in thepresent matter. According to the prosecutor, the issuewas not whether G ‘is a witness or an accused, as theprotection is derived from s 60(11B)(c)’ (at [30]).Section 60(11B)(c), so the argument ran, distin-guishes between the bail applicant’s later trial and‘any subsequent proceedings’. Msimeki acceptedthis distinction (at [29], [34] and [38]). At [40] it washeld:

‘The legislature, if its intention was to restrictthe applicability or admissibility of evidence tothe trial to which the bail record relates, in myview, would not have added the words ‘‘in anysubsequent proceedings’’. [G], in my view,enjoys the protection, even though he is awitness.’

The protection referred to in the above passagepresumably relates to disclosure of incriminatinginformation or evidence obtained in breach of G’sprivilege against self-incrimination. But did he needthis protection? As a s 204-witness, G was requiredto answer ‘any question put to him, whether by theprosecution, the accused or the court, notwithstand-ing that the reply thereto may incriminate him’ withregard to offences specified by the prosecution: sees 204(1)(b). For an analysis of the details and appli-cation of s 204(1), see the discussion of s 204 inCommentary, sv Practical application of s 204(1).

Defence counsel submitted that s 60(11B)(c) was notapplicable to G in his capacity as a State witness.Section 60(11B)(c) was meant to ‘cover and protect’G in his capacity as an accused at his trial in theSandton case and in respect of which he had appliedfor bail without the required warning by the bailcourt (at [14]). Msimeki J rejected this argument onthe basis that s 60(11B)(c) ‘does not distinguish ordiscriminate between a witness and an accusedcovered by it’ (at [30]). It was also held that G was‘by reason of the protection he enjoys in the Sandtoncase . . . also equally protected in this case, eventhough he is a witness. He was not warned in the bailproceedings in the Sandton case which is still to beheard and concluded’ (at [31]).

It is respectfully submitted that the words ‘at anysubsequent proceedings’ in s 60(11B)(c) were notmeant to cover a situation where a bail applicantbecomes a s 204-witness in another case where theconstitutional fair-trial rights of other accused are atrisk. To put the matter differently: use of G’s bailaffidavit for purposes of cross-examination in Miyawas a matter that Msimeki J should have addressedin the context of the fair-trial rights of the fouraccused who were on trial. The presiding judge atG’s trial in respect of the pending Sandton casewould in turn be required to take into account G’sfair-trial right in order to decide any admissibilityissues concerning G’s bail affidavit. In S v Dlamini; Sv Dladla & others; S v Joubert; S v Schietekat 1999(2) SACR 51 (CC) Kriegler J said (at [99], emphasisadded):

‘Provided trial courts remain alert to their dutyto exclude evidence that would impair thefairness of the proceedings before them, therecan be no risk that evidence unfairly elicited atbail hearings could be used to undermineaccused persons’ rights to be tried fairly. Itfollows that there is no inevitable conflictbetween s 60(11B)(c) . . . and any provision ofthe Constitution. Subsection (11B)(c) must, ofcourse, be used subject to the accused’s right toa fair trial and the corresponding obligation onthe judicial officer presiding at the trial toexclude evidence, the admission of whichwould render the trial unfair.’

It was pointed out in Miya at [36] that counsel foraccused 2 also argued that G could be cross-exam-ined with reference to the contents of his bailaffidavit. He relied on S v Aimes & another 1998 (1)SACR 343 (C) which was decided befores 60(11B)(c) came into operation. In Aimes therewere two accused. Desai J held that admission ofaccused 1’s bail evidence—obtained in breach of hisright to silence—would violate his fair-trial right.However, it was also true that the exclusion ofaccused 1’s bail evidence would in the specificcircumstances of the case have infringed the fair-trialright of accused 2. Desai J accordingly ruled that thebail evidence of accused 1 was admissible for alimited purpose: it could be used by accused 2 forpurposes of cross-examining accused 1, providedthat counsel for accused 2 did not seek to introducethe transcript of the bail evidence as ‘being astatement of the truth of its contents to be usedagainst accused no 1’ (at 351c).

19Issue 2, 2017

In Miya Msimeki J at [36] did not follow theprinciple relied upon in Aimes: ‘The position’, saidthe judge, ‘is now settled because the section isclear.’ It is respectfully submitted that s 60(11B)(c) isnot that clear, and that a court of appeal would in allprobability, on account of fair-trial rights, not followthe decision in Miya.

ss 115, 151, 203: Weight given toexculpatory parts of a s 115 statement;effect of accused’s failure to testifyDirector of Public Prosecutions, Gauteng Division,Pretoria v Heunis 2017 (2) SACR 603 (SCA)

What weight should a court accord to the exculpa-tory aspects of a statement made by an accused interms of s 115 of the Criminal Procedure Act whichare not repeated in evidence? This question, saidBosielo JA, who delivered the judgment of the courtin Heunis, ‘has long engaged our courts andspawned many judgments’ (at [14]). The ‘correctapproach’ he considered, was adopted in R v Vala-chia & another 1945 AD 826 as follows:

‘Naturally, the fact that the statement is notmade under oath, and is not subject to cross-examination, detracts very much from theweight to be given to those portions of thestatement favourable to its author as comparedwith the weight which would be given to themif he had made them under oath, but he isentitled to have then taken into consideration, tobe accepted or rejected according to the Court’sview of their cogency.’

This ‘salutary approach’, said Bosielo JA, has beenfollowed consistently and was restated in S v Cloete1994 (1) SACR 420 (A) at 428b–c and e–g, wherethe court added that it could ‘think of no other reasonwhy a court should be entitled to have regard to theincriminating parts of such a statement while ignor-ing the exculpatory ones’. The court in Cloete wentfurther, recognising that an accused might try toabuse the procedure allowed by s 115, but warnedthat a court ‘should ensure that such an attempt doesnot succeed by refusing to attach any value tostatements which are purely self-serving, and, gener-ally, by determining what weight to accord to thestatement as a whole and to its separate parts’.

Further clarification was provided in S v December1995 (1) SACR 438 (A) at 444b–e, where the court,

after warning that exculpatory statements containedin a confession which were ‘not supported by cred-ible evidence’ could not be taken for the truth, addedthat they might nevertheless ‘serve to alert a court toa possibility of events or circumstances not other-wise revealed by the evidence’. If that possibility is areasonable one, said the court, the accused, even ifhe repudiates the statement, is ‘entitled to have hisconduct and state of mind assessed in the lightthereof’.

In Heunis the respondent had been charged withmurder but found guilty by the trial court of culpablehomicide. He did not testify, but the trial courtplaced weight on his s 115 statement, in which heclaimed that he had shot the deceased accidentallywhen they were both seated in the front of a vehicleand she had tried to convince him not to kill himself,causing the firearm to discharge when she attemptedto displace his hand from the weapon.

Bosielo JA, after considering the evidence as awhole, including the s 115 statement, was of theview that the trial court did not apply the law as setout in the above cases. The clear and unchallengedevidence of a ballistic expert was to the effect thatthe trajectory of the bullet was such that it was notpossible for the deceased to have pushed down thefirearm held by the respondent in the positiondescribed by him in his statement. In view of theactual trajectory and the respondent’s failure totestify, the only reasonable inference was that therespondent intended to shoot the deceased. Absentany explanation by the respondent, this had toamount to a direct intention to kill.

The ‘damning evidence’ called for an answer fromthe respondent. No answer was forthcoming, andalthough he was exercising his constitutional rightsunder s 35(3)(h) ‘to remain silent and not to testifyduring the proceedings’, his failure to testify had tobe ‘taken into account against him’ (at [19]) (see S vBoesak 2000 (1) SACR 633 (SCA) and see thediscussion of the cases following Boesak in Com-mentary in the notes to s 203 sv Constitutionalimplications). The result of the respondent’s failureto testify was that the State’s strong evidence became‘conclusive proof of his guilt beyond reasonabledoubt’ (at [20]). The conviction for culpable homi-cide was accordingly replaced by one for murder.


s 162 and s 164: Admonishing a witnesswho does not understand the nature andimport of the oath or affirmation, andthe need to determine competenceS v Haarhoff & another [2017] 4 All SA 446 (ECG)

It has been clearly articulated by the Supreme Courtof Appeal that, if it is found that a witness does notunderstand the nature and import of the oath, it isnecessary for the court, before it admonishes thewitness to tell the truth in terms of s 164(1), toestablish whether the witness is able to distinguishbetween truth and lies: see, for instance, S v Mat-shivha 2014 (1) SACR 29 (SCA). This makes sense,because a witness who cannot make such a distinc-tion is not a competent witness, and competence is arequirement that applies to all witnesses in all cases(see s 192 and the notes on that section in Commen-tary).

This distinction is a crucial one, but it is clear, on areading of the cases, that the courts, on occasion,either conflate the two inquiries (into competence,on the one hand, and into whether the witness cantake the oath or affirmation, on the other) or, worse,fail properly to give effect to the former whenaddressing the latter (see the discussion in Commen-tary in the notes to s 164). Sometimes, as the court inMatshivha observed, it is not clear from the ques-tions put to the witness in an inquiry by the courtwhether the purpose of the questions is to establishhis or her competence as a witness or the ability tounderstand the nature and purport of the oath. Suchimprecision and sloppiness may lead to the conclu-sion, as it did in Matshivha, that the court has notproperly complied with its duties under ss 162 and164.

The treatment of the witness by the majority of thecourt in S v Haarhoff & another [2017] 4 All SA 446(ECG) may be such an instance. The complainant inthat case, in which the appellant had been convictedof rape, was 23 years of age, but with a mental age ofjust 10 and an IQ of only 70, which ‘placed her onthe border line between mild mental retardation andborder line intellectual functioning’. A clinical psy-chologist who examined her described her as ‘havinga below-average intellectual functioning, but notmentally retarded’. The psychologist testified that inher expert opinion the complainant was able totestify in court and had ‘a basic understanding ofwhat it meant to tell the truth and what it meant totell a lie’ (at [13]). Further, in her view, she ‘had thecognitive capacity suitable to being admonished by

the Court’. She understood what it meant to havesexual intercourse and the possible consequences ofsuch intercourse, and was, in the psychologist’sview, able to express her consent or otherwise to it.The trial court admonished the complainant to tellthe truth after its own investigation and after con-cluding that she did not understand the nature andimport of the oath.

This, said the majority (Brody AJ, with Chetty Jconcurring), was sufficient to render the complain-ant’s evidence admissible, as this was, said BrodyAJ, consistent with the principle established in S vWilliams 2010 (1) SACR 493 (ECG). In Williams,however, the transcript demonstrated unequivocallythat the court a quo was satisfied that the complain-ant comprehended the difference between truth andfalsehood, and it was for this reason that its admon-ishment that she speak the truth was sufficient torender the evidence admissible. The transcript inHaarhoff, however, suggested strongly that the com-plainant had no such comprehension. The inquiryconducted by the court a quo in this case was verycursory and raised many concerns. In response to thequestion ‘Do you know what happens to someonewho does not tell the truth?’, the complainantanswered ‘No’. Further, to the question, ‘Is it good totell lies?’, she answered ‘Yes’.

These concerns prompted Mjali J, who gave aseparate, dissenting judgment, to conclude that therehad not been proper compliance with s 164(1).Before admonishing the complainant to tell the truth,said Mjali J, the court had a duty to determinewhether the witness was competent, a duty thatcould not be ‘abdicated’ but had to be carried out bythe court itself. The purpose of the inquiry prior toadmonishing the witness was not only to determineif the witness could understand the abstract conceptsof truth and falsehood, or could give a coherent andaccurate account of the events in question, but alsoto determine if he or she could distinguish betweentruth and falsity. This entailed a recognition of ‘thedanger and wickedness of lying’ (see Henderson v S[1997] 1 All SA 594 (C)). The crux of the inquiryunder s 164(1) was ‘to determine whether the wit-ness [understood] her obligation to testify truthfully’(at [144]). In this case, said Mjali J, she ‘clearlydemonstrated the lack of such obligation and appre-ciation of the dangers of lying as she [did] not knowwhat happens when one tells lies and [thought] it . . .good to do so’.

Since it is a ‘precondition for admonishing a child totell the truth that the child can comprehend what it

21Issue 2, 2017

means to tell the truth’, and since the ‘evidence of achild who does not understand what it means to tellthe truth is not reliable’ (see DPP, Transvaal vMinister of Justice and Constitutional Development& others 2009 (2) SACR 130 (CC) at [166]), itwould, said Mjali J, undermine the accused’s right toa fair trial if the evidence were to be admitted. In thejudge’s view, then, no reliance should have beenplaced on the evidence of the complainant in thiscase. It is difficult to disagree. Although the report ofthe expert clinical psychologist pointed in the otherdirection, and although the appellants in Haarhoffdid not, in the appeal, attack any deficiencies arisingout of the court a quo’s investigation and the failureto take the oath, it is difficult to see how admonishingthe witness to tell the truth in the wake of what canonly be considered an unfortunate series of questionsand answers could be regarded as proper practice.

A far more rigorous investigation was called for, andmuch more would have been required before thenegative impression created by the answers set outabove could have been dispelled. It would certainlybe more conducive to good practice if the courtswere to realise that the inquiry into competence isnotionally different from that concerning the takingof the oath. It is logically anterior to the latter and, ifit yields an answer that the witness is not competent,renders the latter inquiry superfluous. In the absenceof a far more searching and sensitively handledinquiry, it is difficult to see how the complainant inHaarhoff could have been regarded as a competentwitness.

ss 151 and 212: Circumstantial evidence,the onus of proof and expert evidence—confusion between the scientific andjudicial measures of proofS v Maqubela 2017 (2) SACR 690 (SCA)

There is a simple and obvious reason that theconviction of the appellant in Maqubela for murder-ing her husband could not be sustained: the experttestimony made it quite clear that it was reasonablypossible that the deceased had died as a result ofnatural causes and had not been murdered at all. Thefact that the Supreme Court of Appeal took greatpains to explore such vexed areas of the law as thedistinction between applying, in the case of expertwitnesses, a scientific measure of proof (which isinappropriate in the context of judicial fact-finding)and a legal or judicial measure (which is not), as wellas the rules of inferential reasoning set out in R vBlom 1939 AD 188 at 202–3 (and subjected to

searching scrutiny and criticism in CJR 2017 (1)), istherefore a little baffling.

The trial court, said Swain JA (who delivered thecourt’s judgment), ‘carried out a painstaking anddetailed examination of the conflicting expert evi-dence of Dr Mfolozi, a specialist pathologist calledby the State, and Professor Saayman, a specialistpathologist called by the appellant, as to the cause ofdeath of the deceased’. Dr Mfolozi conceded that, ashe had not examined all of the deceased’s heart, hecould not state with certainty that natural causescould be excluded and, further, that ‘it was possiblethat he may have missed this condition’ (at [14]).Professor Saayman, on the other hand, was of theview that an inference of ‘death by natural causes orother undetected unnatural causes’ and an inferenceof suffocation were ‘equally possible’.

This prompted the trial court to conclude that Profes-sor Saayman ‘did not state definitively what mighthave been an operative natural cause’ and that‘ultimately then, the cause of death cannot be deter-mined by the medical evidence alone’, as it was, ‘inthe final analysis, . . . inconclusive’.

These remarks prompted Swain JA to conclude thatthe trial court had ‘unfortunately failed to appreciatethe distinction’ between the scientific standard ofproof, which is the ‘ascertainment of scientific cer-tainty’ and the judicial standard, which is ‘theassessment of probability’ (at [5]) (see, in thisregard, the discussion in Commentary in the notes ons 212 sv Expert evidence and the decisions inMichael & another v Linksfield Park Clinic (Pty) Ltd& another 2001 (3) SA 1188 (SCA) at [40], Dingleyv The Chief Constable, Strathclyde Police 200 SC(HL) 77 at 89D–E and Oppelt v Department ofHealth, Western Cape 2016 (1) SA 325 (CC) at [38]and [41]). This is no doubt true. Had the trial courtapplied the judicial measure, said Swain JA (at [8]),which concerns ‘what the probable cause of deathwas’, then this assertion would follow: ‘ProfessorSaayman was of the view that natural causes as thecause of death was the more probable inference to bedrawn because ‘‘there was a substantially greaterlikelihood’’ that the pathology in the deceased’s heart‘‘could have caused his death’’ and that ‘‘the prob-abilities are that his heart killed him’’’ (at [8]). The‘inadvertent application of the scientific measure ofproof to the medical evidence, which produced aninconclusive answer to the cause of death, had theserious consequence that the trial court failed torecognise that the opinion of Professor Saayman thatthe deceased probably died of natural causes, was


the correct finding, when the judicial measure ofproof was applied to the medical evidence’ (at [13]).

The ‘absence of proof of a probable or certain causeof death’was, said Swain JA (at [16]), regarded as anessential element in its finding of guilt ‘based solelyupon the conduct of the appellant ‘‘showing con-sciousness of guilt’’’. ‘If the trial court had appliedthe appropriate judicial measure of proof to theevidence of Professor Saayman, it would have con-cluded that the deceased probably died of naturalcauses’ (at [16]; emphasis added). It should, then,have concluded that ‘proof of natural causes as aprobable cause of death, precluded a finding ofmurder’ (emphasis added again).

It is respectfully submitted that the approach of theSupreme Court of Appeal is unnecessarily compli-cated. The question was not whether death by naturalcauses was probable but, merely, whether it wasreasonably possible. If it was, a fatal blow wouldhave been landed to the State’s attempt to provemurder—by the appellant or anyone else, for thatmatter. The failure of the expert led by the State toexclude this reasonable possibility and the seeminglyclear creation of reasonable doubt by the expert ledby the defence should have sufficed. The SupremeCourt of Appeal’s insistence on the judicial ratherthan the scientific measure when assessing experttestimony cannot be faulted. And its deployment ofthe rules of logic set out in Blom square with theconventional treatment of circumstantial evidence.However, neither of these tools, it is submitted, wasneeded.

(ii) Sentencing

Sentencing: The ‘advanced age’ of theconvicted offender and life imprisonmentas prescribed sentenceS v JA 2017 (2) SACR 143 (NCK)

It is trite law that the tender age or youth of theconvicted offender is in principle a mitigating factor.He is almost invariably on account of his level ofimmaturity in terms of experience and judgment,less blameworthy than the adult offender. See, gener-ally, the discussion under s 277 in Commentary, svJuvenile offenders. However, where an adultoffender has reached an advanced age, age may onceagain surface as a possible mitigating factor—albeitfor different reasons. See S v Barendse 2010 (2)SACR 616 (ECG) at 619c–d. According to Ter-blanche A Guide to Sentencing in South Africa 3 ed

(2016) at 222–3, ‘advanced age’ in this contextgenerally means 60 years and older. This broadobservation appears to be in line with our case law.Carnelley and Hoctor 2008 Obiter 268 at 270 havepointed out that reported judgments in South Africa‘seem to regard a person as elderly from about 58,although that would depend on the offender beforethe court, especially since old age is often accompa-nied by another mitigating factor, namely illness orill health’. Indeed, ‘advanced age’ is a wide concept.For purposes of sentencing, it must necessarily beinterpreted with reference to the personal circum-stances of each convicted offender. In S v Chabalala2014 (1) SACR 458 (GP) at [9] it was said that theaccused, a 65-year-old pensioner, was ‘in the twi-light of his life’. See further the discussion innumbered paragraph 12 under s 277 in Commentary,sv Imposing imprisonment in the absence of mini-mum sentence legislation—general principles.

In the recently reported case S v JA 2017 (2) SACR143 (NCK), a full bench had the opportunity to dealwith the argument that the sentencing court should,as a mitigating factor and for purposes of minimumsentence legislation, have taken into account that theaccused was a relatively old offender. The appellantin this matter had been convicted of raping his12-year-old daughter on at least three occasions overa period of some thirty months. He was ‘approxi-mately’ 56 years old at the time of the offences but59 when sentencing procedures commenced (at [5]).At [41] this age was described as ‘relativelyadvanced’. The sentencing court concluded thatthere were no substantial and compelling circum-stances justifying a lesser sentence than a sentence oflife imprisonment as provided for in the CriminalLaw Amendment Act 105 of 1997. Due to anincomplete and inaccurate charge sheet, the sentenc-ing court had sentenced the appellant to life impris-onment for having raped a 12-year-old girl and notfor having raped her more than once (at [2] and[18]–[20]).

In S v JA (supra) there were two main grounds ofappeal. The first one was that the sentence of lifeimprisonment was ‘disproportionate’ to the appel-lant’s personal circumstances and the crimes com-mitted by him (at [17.6]). Olivier J (Kgomo JP andErasmus AJ concurring) identified good reasons forrejecting this ground. At [25] it was said:

‘[T]he appellant, as the biological father of thecomplainant and the adult person in whosehouse she had grown up, had abused his posi-tion of trust and had in fact used it to manipu-

23Issue 2, 2017

late the complainant to subject herself, withouthaving to apply any violence. The threat to killthe complainant’s mother should also not belost sight of.’

Olivier J also referred to two Supreme Court ofAppeal cases where life imprisonment for incestuousrape of daughters by fathers was confirmed onappeal (at [42]). These two cases are S v PB 2013 (2)SACR 533 (SCA) and S v MDT 2014 (2) SACR 630(SCA). According to Olivier J there was ‘sufficientsimilarity for the purpose of comparison’ betweenthese two cases and the facts in JA, to conclude thatthe sentence was not disproportionate ‘to what theappellant had done or to his personal circumstances’(at [42]). Indeed, Olivier J was satisfied that the factsin JA were, on the whole, more serious than the factsin PB and MDT (at [45]).

The second main ground of appeal—which wasreally closely linked to the first main ground—wasthat the appellant’s ‘advanced age . . . at the time ofsentencing had militated against a sentence of lifeimprisonment . . .’ (at [17.6], emphasis added). Insupport of this ground of appeal, counsel for theappellant referred to s 73 of the Correctional Ser-vices Act 111 of 1998 (at [30]). This section isheaded ‘Length and form of sentences’. It limits andregulates, amongst other matters, the possible place-ment on day parole or parole of a person who ‘hasbeen sentenced to . . . life incarceration’. Counsel forthe appellant submitted that, having regard to theprovisions of s 73 of Act 111 of 1998 and the lifesentence imposed by the sentencing court, ‘theappellant would become eligible for parole nosooner than the age of 74’ (see s 73(6)(b)(vi)) and‘possibly only when reaching the age of 84’ (sees 73(6)(b)(iv)). The full bench in JA was in effectbeing asked to determine whether the fact that theappellant might spend the rest of his life in prison onaccount of the sentence of life imprisonmentimposed on him at his advanced age, could be amitigating factor constituting or contributing to,substantial and compelling circumstances justifyinga lesser sentence as permitted in terms of Act 105 of1997.

In addressing the above issue, Olivier J distinguishedbetween the role and functions of a sentencing courtand the role and functions of parole boards andofficials in the Department of Correctional Services.On the different roles of the judiciary and theexecutive in this context and the need to affirm andmaintain the broad but important doctrine of separa-tion of powers in the sentencing process, see also the

discussion of s 276B in Commentary, sv The judi-ciary and the executive where reference is made to Sv Jimmale & another 2016 (2) SACR 691 (CC) andSupreme Court of Appeal cases such as S v Botha2006 (2) SACR 110 (SCA), S v Mhlakaza & others1997 (1) SACR 515 (SCA), S v Motloung 2016 (2)SACR 243 (SCA) and S v Matlala 2003 (1) SACR80 (SCA). See also the discussion of S v Ntozini &another 2017 (2) SACR 448 (ECG) elsewhere in thisedition of Criminal Justice Review.

In S v JA at [36] Olivier J confirmed that a sentenc-ing court must see a sentence of life imprisonment‘as exactly that—imprisonment for the rest of thenatural life of the offender’. After all, this was theintention of the legislature when life imprisonmentwas prescribed for purposes of certain crimes andcategories of crimes. And the question whether anoffender sentenced to life imprisonment wouldindeed spend the rest of his natural life behind bars,concerns the executive and not the judiciary. Theexecutive has the statutory power and discretion torelease the sentenced offender on parole. Parole isthe ‘domain of the executive’ (JA at [37]), whereasthe sentencing court is required to determine themaximum period a convicted person may be kept inprison (JA at [38]). See also Motloung (supra) at[18].

At [39] in JA Olivier J made the pertinent observa-tion that ‘[i]t is not for the sentencing court to try towork out how old an offender could be when (if atall) the executive decides to release him . . . onparole’. At [37] reference was also made to whatHowie JA said in Matlala (supra) at [7], namely thata sentencing court must impose the sentence that ‘itintends should be served and it imposes that on anassessment of all the relevant facts before it’.

In JA it was clear, at the time when sentence had tobe considered, that the appellant’s ‘relatively oldage’ was not accompanied by ill health or physicalinfirmities or impairment of mental capacity. Fur-thermore, he had committed the rapes over a periodof time during which he had sufficient opportunity toreconsider his actions and ‘come to his senses’ (at[45]). At some stage he had even falsely promisedhis partner, the mother of the victim, that he wouldnot rape their daughter again (at [45]). The appellanthad also acted in a ‘calculated’ manner in that he hadcreated opportunities to be alone with his daughterso that he could rape her (at [46]). Given thesecircumstances as well as the prevalence of the rapeof young girls (at [47]–[49]), the advanced age of theappellant was not and could not be a factor that


precluded the imposition of the sentence of lifeimprisonment as prescribed. At [41] Olivier J con-cluded that the ‘relatively advanced age’ of theappellant was ‘not . . . a mitigating factor in thecontext of a prescribed sentence of life imprisonmentand in considering whether there [were] substantialand compelling circumstances justifying a lessersentence’.

Sentencing an offender who maintainsinnocence: Rehabilitation, remorse andmercyThe present note provides a survey of several recentcases which dealt very briefly with the possible andpermissible views a sentencing court may or shouldtake in determining an appropriate sentence inrespect of a convicted offender who has pleaded notguilty, has shown no remorse and persists in main-taining his innocence. On the meaning of ‘remorse’and issues concerning remorse in the sentencingprocess, see the case law referred to in the discussionof s 274 in Commentary, sv Mitigating factors: Theplea of guilty and remorse and sv The plea of notguilty and remorse: Acceptance of responsibilityversus absence of insight.

In S v Ngcukana (unreported, WCC case no A443/15, 18 August 2017) at [97] Rogers J pointed out thatin several Supreme Court of Appeal cases theoffender’s prospects of rehabilitation were taken intoaccount despite the offender’s persistence in hisinnocence prior to and after conviction. At [97]Rogers J also said that ‘it would not be in keepingwith our constitutional order to hold that the prospectof rehabilitation must be ignored just because theaccused, as is his right, maintains his innocence’. InS v Bezuidenhout (unreported, NCK case noCA&R76/2016, 2 December 2016) at [22] Olivier Jalso noted that an accused has a constitutional rightto put the prosecution to proof of its case and that itis accordingly a misdirection if a sentencing courtwere to view a plea of not guilty and ‘persistence in. . . innocence’ as aggravating circumstances.

What does happen though, is that the convictedoffender who has denied guilt and not taken the courtinto his confidence ‘is at a disadvantage in advancingthe prospect of rehabilitation as a mitigating factor’(per Rogers J in Ngcukana (supra) at [97]). The otherdifficulty is that it becomes impossible for theconvicted offender to rely upon remorse as a mitigat-

ing factor. The matter was put into proper perspec-tive by Steyn J in S v S (unreported, KZD case noAR233/05, 22 March 2017) at [16]:

‘Whether an accused professes remorse is notthe test. The penitence must be sincere and anoffender should take the court into his confi-dence. As can be seen from the accused’s ownevidence and the experts, he considers himselfnot guilty. Whilst it is acknowledged that he asof right may challenge any conviction, it cannotbe found, given the circumstances and facts ofthis case, that the accused is remorseful.’

Referring to S v Hewitt 2017 (1) SACR 309 (SCA),Steyn J also pointed out in S v S (supra) at [14] thatwhilst it is indeed correct that the absence of remorseis not an aggravating factor, it is also true that‘remorse cannot be taken into account as a mitigat-ing factor if it is not genuine and not displayed in theconduct of the accused’. The absence of remorse canalso make it very difficult for a sentencing court toassess the convicted offender’s prospects of rehabili-tation. See the observations and findings by PetseADJP in S v Dyantyi 2011 (1) SACR 540 (ECG) at[26] as read with the remarks by Rogers J inNgcukana (supra) at [97] that absence of remorsedoes not necessarily preclude a court from consider-ing prospects of rehabilitation.

In S v Smith 2017 (1) SACR 520 (WCC) Rogers Jhad another opportunity to deal with an aspect ofremorse. In this case the trial magistrate had takenthe view that remorse was the ‘flipside of the coin ofmercy’ and that, in the absence of remorse, she couldnot really consider the element of mercy in thesentence she imposed. ‘Here the magistrate’, saidRogers J at [107], ‘fell into error. Mercy is not areward for remorse’. Referring to cases such as S vRabie 1975 (4) SA 855 (A), S v Zinn 1969 (2) SA537 (A) and S v Roux 1975 (3) SA 190 (A), Rogers Jexplained at [107] that mercy (‘or compassion orplain humanity’) is a balanced and humane way ofthinking which ‘infuses the assessment’ of the triadin Zinn, and ‘is not an independent fourth element.’

Smith (supra) can hardly be reconciled with S vNdubane (unreported, GP case no A238/2016, 8February 2017) at [35] where Madima AJ stated that‘for mercy to be shown on the appellant, he neededto show remorse’. It is respectfully submitted thatthe principle stated in Smith (supra) should befollowed in preference to that in Ndubane.

25Issue 2, 2017

Sentencing jurisdiction and minimumsentence legislationS v Ndlovu 2017 (2) SACR 305 (CC)

The applicant in Ndlovu (supra) had appeared in theregional court on a charge of rape as read with theprovisions of s 51(2) of the Criminal Law Amend-ment Act 105 of 1997. At the commencement of thetrial and after the prosecutor had put the charge tothe applicant, the regional court magistrate explainedto the applicant that if he were convicted as charged,he would—in terms of s 51(2) of Act 105 of 1997and in the absence of substantial and compellingcircumstances—receive a minimum sentence of 15years’ imprisonment if he were a first offender (at[6]). In Ndlovu it was pointed out in a footnote that atthat time, upon conviction of an offence identified ins 51(2), the minimum sentence for a first offenderwas 10 years and not 15 (see fn 3 at [6]). However,the ultimate decision of the Constitutional Court inNdlovu did not turn on the correctness or otherwiseof the magistrate’s statement immediately after thecharge was put.

In Ndlovu the regional court convicted the applicant‘as charged’, that is, of rape as read with s 51(2) ofAct 105 of 1997 (at [43]–[45] and [48]). KhampepeJ, writing for a unanimous Constitutional Court,stated that this finding on the merits was ‘unambigu-ous’ (at [44]). But ‘in a perplexing turn of events’ onthe same day as the conviction, the regional courtproceeded to sentence the applicant to life imprison-ment in terms of s 51(1) despite his having beencharged with and convicted of rape as read withs 51(2) and identified in Part III of Schedule 2 to Act105 of 1997 (at [7] and [44]). However, the regionalcourt took the view that the rape involved theinfliction of serious bodily harm and therefore fellwithin the ambit of s 51(1) which compelled thecourt to impose life imprisonment in the absence ofsubstantial and compelling circumstances (at [8]).See ss 51(1) and 51(3) of Act 105 of 1997 as readwith Part I of Schedule 2 to the same Act.

The applicant’s appeal to the High Court failed onthe basis that the initial and repeated reference to thewrong section in Act 105 of 1997 had not causedprejudice to the applicant. The High Court was alsoconvinced that on account of the violent and seriousnature of the rape, the regional court had not erred inimposing life imprisonment (Ndlovu at [11]–[12]).The Supreme Court of Appeal confirmed the findingsand conclusions of the High Court: the incorrectreference in the charge sheet had not infringed theconstitutional fair-trial right of the applicant and the

latter would not have conducted his case differently(at [14]–[15]). The Supreme Court of Appeal alsoconcluded that there were no substantial and compel-ling circumstances justifying a departure from theprescribed minimum sentence (Ndlovu at [16]).

However, neither the Supreme Court of Appeal northe High Court had considered the matter from theperspective of sentencing jurisdiction. The issuesbefore the Constitutional Court were formulated asfollows by Khampepe J (at [2], emphasis added):

‘The central question is whether [the appli-cant’s] right to a fair trial was infringed when,after he had been charged with rape read withone minimum-sentencing provision, he wassentenced pursuant to a different, harsher, mini-mum-sentencing provision. This matter alsoraises the threshold question whether theregional court had the requisite jurisdiction tosentence him to life imprisonment in the circum-stances.’

The ‘threshold’ issue had to be addressed first: if theregional court had lacked jurisdiction to impose lifeimprisonment on the applicant as provided for ins 51(1) as read with Part I of Schedule 2, that wouldbe the end of the matter and the sentence had to beset aside. The need to address fair-trial issues con-cerning sentencing, would then not arise (at [24]).

As a point of departure, Khampepe J stated that it is‘trite that magistrates’ courts are creatures of statuteand have no jurisdiction beyond that granted by theMagistrates’ Courts Act and any other . . . statutes’(at [41]; see also the discussion of S v Ntozini &another 2017 (2) SACR 448 (ECG) elsewhere in thisedition of Criminal Justice Review). In Ndlovu theregional court’s sentencing jurisdiction in terms ofs 51(2) of Act 51 of 1997 was limited to a maximumof 15 years. See fn 28 at [41] in Ndlovu. But theregional court, said Khampepe J, had imposed ‘lifeimprisonment under s 51(1), which it would havehad the power to do only if the application of thesection were triggered’ (at [41], emphasis in theoriginal).

On the facts there was nothing that had put, or couldhave put, s 51(1) into operation. The State arguedthat in terms of s 88 of the Criminal Procedure Actthe defect in the charge had been cured automaticallyby the evidence of the victim’s injuries. This argu-ment was rejected because the charge ‘was completeand not defective’ (at [45]). Khampepe J also pointedout that the regional court magistrate could andshould have taken steps to ensure that the applicant


was prosecuted or convicted in terms of the correctprovision of Act 105 of 1997 (at [56], emphasis inthe original):

‘Courts are expressly empowered in terms ofs 86 of the Criminal Procedure Act to order thata charge be amended. Upon realising that thecharge did not accurately reflect the evidenceled, it was open to the court at any time beforejudgment to invite the state to apply to amendthe charge and to invite [the applicant] to makesubmissions on whether any prejudice would beoccasioned by the amendment. This the magis-trate failed to do. It was only after conviction, atsentencing, that she sought to invoke the correctprovision. This failure is directly implicated inthe finding made in this judgment.’

Khampepe J also pointed out that the prosecutor’sfailure to draft an accurate charge was unacceptable.The injuries sustained by the rape victim wereproperly recorded in the J88 form which was avail-able to the prosecution when it decided to prosecute.A proper charge of rape read with the provisions ofs 51(1) should have been preferred; and the prosecu-tor’s ‘remissness . . . should have been corrected bythe court’ (at [58]).

The conclusion of the Constitutional Court was thatthe sentence of life imprisonment imposed by theregional court was beyond the latter’s sentencingjurisdiction. The life imprisonment had to be setaside (at [48]); and it was also found ‘unnecessary toconsider the fair-trial question’ (at [47]).

The Constitutional Court decided that it was not inthe interests of justice to return the matter to the trialmagistrate for purposes of considering and determin-ing a new sentence. The length of time that hadpassed since the applicant’s trial, ‘eroded’ the ben-efits of having the trial court imposing the newsentence (at [49]). Finality was necessary.

The Constitutional Court, in considering the newsentence, took the following main factors intoaccount: first, the new sentence had to be imposedwithin the limitations of the regional court’s jurisdic-tion in terms of s 51(1) of Act 105 of 1997 (at [49]);second, the maximum sentence that could have beenimposed by the regional court was 15 years’ impris-onment; third, the applicant was a first offender andtherefore the minimum applicable sentence was 10years; fourth, the circumstances of the rape were‘especially heinous’ and the applicant had ‘viciouslyand mercilessly assaulted and raped’ the victim, whohad to spend five days in hospital (at [50]); fifth, the

seriousness of the offence was such that the mini-mum sentence of 10 years’ imprisonment would be‘grossly inadequate’ (at [51]).

A new sentence of 15 years’ imprisonment wasimposed by the Constitutional Court, the maximumpermissible number of years that it could imposehaving regard to s 51(2) and the regional court’ssentencing jurisdiction (at [52] and [59]). In thisrespect it should be noted that s 51(2) contains aproviso to the effect that any term of imprisonmentthat a regional court may impose in terms of thissubsection, ‘shall not exceed the minimum term ofimprisonment that it must impose in terms of thissubsection by more than five years’.

One gets the impression that the rapist in Ndlovu hadprobably deserved life imprisonment. But the fact ofthe matter is that the problem concerning sentencingjurisdiction was insurmountable; and the final out-come was a disappointing but inevitable one. As aparting shot Khampepe J said: ‘The failings of theprosecutor are directly to blame for the outcome ofthis matter’ (at [58]).

s 276B(1): Invalid non-parole periodsand sentencing jurisdictionS v Ntozini & another 2017 (2) SACR 448 (ECG)

The two accused in the above special review hadpleaded guilty in the magistrate’s court. They wereconvicted in terms of their pleas. Accused 1 wassentenced to three years’ imprisonment. As part ofthis sentence, the sentencing court also ordered thathe should serve his sentence at Cradock prison, thathe be assessed there ‘and be enrolled for the coursesoffered by the said institution—eg, woodwork/plumbing etc for the duration of his sentence’ (at[3]). In the course of her judgment on sentencing themagistrate had also explained to accused 1 that interms of her order, he would for the duration of hissentence have to attend the courses and would not beconsidered for parole without having acquired ‘theskills’ that she had in mind (at [17]). Accused 2received a sentence of two years’ imprisonment.Here, too, an order similar to the one in respect ofaccused 1 was made, except for the fact that inrespect of accused 2 the requirement was that heshould enrol in ‘skills/trade courses . . . for theduration of his sentence’.

The above sentences made no reference to s 276B(1)of the Criminal Procedure Act and did not use theterm ‘non-parole period’. However, Beard AJ (Rob-erson J concurring) was satisfied that the magistrate

27Issue 2, 2017

had ‘effectively imposed a non-parole period’ inrespect of each accused. The review court thereforehad to determine whether the sentences were compe-tent in terms of the provisions of s 276B(1) and,furthermore, whether there was compliance withcertain procedural rules established in the case lawrelating to the interpretation and application of thissection. See in this regard the discussion of s 276B inCommentary, sv Procedural matters and the require-ment that the court should give reasons. In thatdiscussion reference is made to cases like S vJimmale & another 2016 (2) SACR 691 (CC); S vStrydom [2014] ZASCA 29 (unreported, SCA caseno 20215/2014, 23 March 2015); S v Mhlongo 2016(2) SACR 611 (SCA); S v Stander 2012 (1) SACR537 (SCA); S v Pauls 2011 (2) SACR 417 (ECG)and S v Madolwana (unreported, ECG case noCA&R 436/12, 19 June 2013).

Section 276B(1) provides that where imprisonmentfor two years or longer is imposed, the sentencingcourt ‘may as part of the sentence, fix a periodduring which the [sentenced offender] shall not beplaced on parole’ (s 276B(1)(a)). This period isknown as the ‘non-parole period’ and ‘may notexceed two thirds of the term of imprisonmentimposed or 25 years, whichever is the shorter’ (s276B(1)(b)).

In S v Ntozini & another (supra) at [12] Beard AJpointed out that prior to the enactment of s 276B,courts—which derive their sentencing jurisdictionfrom statute—had no statutory power to determinenon-parole periods. The taking of decisions concern-ing release on parole was—in accordance with theseparation of powers doctrine—viewed as an execu-tive function within the ‘exclusive jurisdiction of theDepartment of Correctional Services’. It is againstthis background that s 276B has to be interpreted andapplied. The practical effect of a sentencing court’slimited power to determine and order a non-paroleperiod as provided for in s 276B—and thus enter adomain traditionally reserved for the executive—was explained as follows in Ntozini at [13]:

‘When making an order in terms of s 276B(1),the sentencing court, in effect, makes a ‘‘presentdetermination’’ that the convicted person willnot merit being released on parole in the future,notwithstanding that the decision as to thesuitability of a prisoner to be released on paroleinvolves a consideration of facts relevant to hisconduct after the imposition of sentence. It isthus a ‘‘predictive judgment’’ as to the likelybehaviour of the convicted person in the future,

reached on the basis of the facts available to thesentencing court at the time of sentence.’

The above passage is an accurate summary of whatwas said in cases like Stander (supra), Strydom(supra) and Madolwana (supra) at [7]. In fact, inStander (supra) at [13] it was specifically pointed outthat the Correctional Services Act 111 of 1998contains provisions regulating a sentenced offender’sparole and that the Department of CorrectionalServices ‘and not a sentencing court, is far bettersuited to make decisions about the release of aprisoner on parole and . . . it remains desirable torespect the principle of separation of powers in thisregard’. In Stander at [16] Snyders JA also noted thats 276B ‘is an unusual provision and its enactmentdoes not put the court in any better position to makedecisions about parole than it was prior to itsenactment’. See also the remarks made by theConstitutional Court in Jimmale (supra) at [13].

To return to Ntozini: Beard AJ confirmed the needfor a proper factual basis before a court can order anon-parole period. And a proper ‘judicial consider-ation’ of the facts can only be undertaken once bothparties have had an opportunity to address the courton this matter (at [16]): see also Jimmale (supra) at[13]. In Ntozini the magistrate gave no indication tothe prosecution and the convicted offenders that shewas considering a non-parole order; and they were atno stage invited to make submissions on the issue (at[18]). This was a serious misdirection and alsoinfringed ‘the . . . right to a fair trial as enshrined inthe Constitution’ (at [16]). Indeed, in terms of theConstitutional Court’s decision in Jimmale, a sen-tencing court ‘should invite and hear oral argument’on the issue (at [20]) and, where necessary, receivefurther evidence (at [13]).

The magistrate’s misdirection in Ntozini was suffi-cient ground for the court of review to delete thenon-parole periods stipulated by the magistrate.However, Beard AJ proceeded to point out that themagistrate’s non-parole periods also exceeded themaximum non-parole period permitted bys 276B(1)(b), namely two thirds of the term ofimprisonment. See also the discussion of s 276B inCommentary, sv Section 276B(1)(b): Limitation onthe length of the non-parole period. On this basistoo, the non-parole periods had to be set aside (at[19]).

However, mere deletion of the non-parole periodsstipulated in the magistrate’s sentences was not theend of the matter because the balance of the magis-trate’s orders, which formed part of the sentence, fell


outside the sentencing jurisdiction of the magistrate.At [21] Beard AJ remarked and found as follows:

‘There is no provision in the [Criminal Proce-dure Act] or other legislation that permits adistrict magistrates’ court to direct where theaccused person will serve out his sentence. Noris there any statutory provision permitting sucha court to order that an accused person beenrolled in skills-transfer courses whilst servingthe term of his imprisonment. These functionsfall exclusively within the purview of theexecutive. In exceeding her jurisdiction bymaking these orders the magistrate has fallenfoul of the separation-of-powers doctrine.’

But Beard AJ had a further and final problem withthe prison sentences imposed by the magistrate: thesentences—even when trimmed of the non-paroleperiods and the orders pertaining to the specificprisons and courses—were ‘shockingly’ severe andrequired review court interference (at [24]–[25]).The two accused were first offenders. They were‘relatively young’ and had admitted guilt: the21-year-old accused 1 had pleaded guilty to house-breaking with intent to steal and theft, and the19-year-old accused 2 had pleaded guilty to receiv-ing stolen property (at [26]). Both accused leftschool upon completing grade 8 and were not infull-time employment when the crimes were com-mitted. At [29] Beard AJ concluded that the magis-trate erred in assuming that the two accused wouldcommit further crimes simply because they wereunemployed and unskilled. ‘A sentencing court’, itwas said at [29], ‘simply cannot impose a sentenceof direct imprisonment as a means of ensuring thataccused persons acquire skills through the rehabilita-tion programmes run by the Department of Correc-tional Services’.

The sentences and orders in respect of both accusedwere set aside and replaced with the following: oneyear’s imprisonment with seven months suspendedin respect of accused 1, and eight months’ imprison-ment with four months suspended in respect ofaccused 2.

(iii) Forfeiture and Confiscation

Forfeiture of property: s 50(1) ofPOCA—Act not intended to allow forintervention in a commercial disputeNational Director of Public Prosecutions v KalmarIndustries SA (Pty) Ltd 2017 (2) SACR 593 (SCA)

The issue in this case was whether a lifting platformand certain tools, equipment and other items couldbe made the subject of a preservation order unders 38 of POCA and a forfeiture order under s 48 readwith s 50 of that Act. The court a quo found that theycould not, holding that the NDPP had not met thejurisdictional requirements for either order.

Section 38(2) of POCA enjoins a court to make apreservation order if there are reasonable grounds tobelieve that the property concerned is an ‘instrumen-tality of an offence’ referred to in Schedule 1 or the‘proceeds of unlawful activities’. Section 48(1) readwith s 50(1) provides for a forfeiture order to bemade if the court finds, on a balance of probabilities,that the property is an instrumentality of an offencereferred to in Schedule 1 or is the proceeds ofunlawful activities.

The question to be asked, said Schippers AJA (whodelivered the judgment of the court), was why theNDPP applied for such orders under POCA to begranted in the first place. All the documents beforethe NDPP pointed to a commercial dispute betweentwo contracting parties, and not to the commission ofa crime. One party claimed ownership of the plat-form and equipment as well as payment for workdone in terms of a contract. The other party claimedthat the first party did not comply with the agree-ment. A contention that the second party had unlaw-fully appropriated the property was unsustainable onthe evidence.

The court a quo had proceeded on the assumptionthat the property had been stolen, but made it clearthat theft was in dispute and had not been proved.Having regard to the commercial nature of thedispute, said Schippers AJA (at [17]), it could hardlyhave been contemplated that theft could be proved.The NDPP must have known, too, that there weremany genuine disputes of fact which could neverhave been resolved on the papers in motion proceed-ings involving the two parties.

More fundamentally, said Schippers AJA (at [19]),the commercial dispute between the two parties ‘wasfar removed from the objectives of POCA’ whichwas enacted, inter alia, to combat organised crime,money laundering and criminal gang activities, aswell as to prohibit certain acts relating to racketeer-ing activities. The dispute in question had nothing todo with the purposes of POCA forfeiture orders,which included ‘removing incentives for crime;deterring persons from using or allowing their prop-erty to be used in crime; eliminating or incapacitat-ing the means by which crime may be committed;

29Issue 2, 2017

and advancing the ends of justice by depriving thoseinvolved in crime of the property concerned’ (seeNDPP v RO Cook Properties (Pty) Ltd; NDPP v 37Gillespie Street Durban (Pty) Ltd & another; NDPPv Seevnarayan 2004 (2) SACR 208 (SCA) at para18, discussed in Commentary in the notes to s 20 svSeizure and forfeitures under the Prevention ofOrganised Crime Act 121 of 1998).

On this basis alone, said Schippers AJA, the appealfell to be dismissed: after three years, the NDPP hadstill not decided to institute criminal proceedingsarising out of the theft complaint, and there wasnothing to show that the platform and equipmentwere either instrumentalities of crime or the pro-ceeds of unlawful activities. In determining whetherproperty was an ‘instrumentality of an offence’, thefocus was on the role played by the property in thecommission of the crime, and not on the wrongdoer.A ‘functional relation’ had to be established betweenthe property and the crime, in that it had to ‘play apart, in a reasonably direct sense, in those acts whichconstitute the actual commission of the crime inquestion’ (see Cook Properties) supra at para 32).The very word ‘instrumentality’ itself suggested thatthe property had to be ‘instrumental in and notmerely incidental to the commission of the offence’.

‘Instrumentalities’, said the court, are treated as aform of ‘guilty property’: it is the property itself thatis proceeded against, ‘as if it were living and notinanimate’. Examples from the case law included: ahouseboat with particular attractions to lure minorsinto falling prey to sexual offences; a ski-boat anddiving equipment used to harvest perlemoen unlaw-fully; a house specially adapted and equipped tomanufacture or conduct a trade in drugs; and a houseused to sell liquor unlawfully (see the cases listed in[24] of the judgment). In this case the platform andequipment were not instrumentalities of the crime oftheft, but were the very things alleged to have beenstolen.

Neither were these items the ‘proceeds of unlawfulactivities’ as understood by POCA: apart from thefact that no criminal conduct at all had been estab-lished on a balance of probabilities, the platform andequipment could in no way be seen as property or anadvantage or benefit ‘derived, received or retained asa result of crime’ (at [31]).

The application for a forfeiture order was thuswithout merit.


Table of Cases

Democratic Alliance v Acting National Director of Public Prosecutions & others 2016 (2) SACR 1 (GP) 15Democratic Alliance v President of the Republic of South Africa & others 2013 (1) SA 248 (CC) . . . . 17Dingley v The Chief Constable, Strathclyde Police 200 SC (HL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22Director of Public Prosecutions, Gauteng Division, Pretoria v Heunis 2017 (2) SACR 603 (SCA) . . . . 20DPP, Transvaal v Minister of Justice and Constitutional Development & others 2009 (2) SACR 130

(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22Duncan v Minister of Law and Order 1986 (2) SA 805 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Henderson v S [1997] 1 All SA 594 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21Mathe v Minister of Police 2017 (2) SACR 211 (GJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Michael & another v Linksfield Park Clinic (Pty) Ltd & another 2001 (3) SA 1188 (SCA) . . . . . . . . . 22Minister of Safety and Security v Magagula [2017] ZASCA 103 (unreported, SCA case no 991/2016, 6

September 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Minister of Safety and Security v Sekhoto & another 2011 (5) SA 367 (SCA) . . . . . . . . . . . . . . . . . . . . 17Minister of Safety and Security v Tyokwana 2015 (1) SACR 597 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . 17National Director of Public Prosecutions v Kalmar Industries SA (Pty) Ltd 2017 (2) SACR 593 (SCA) 29National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional

Development & another 2016 (1) SACR 308 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17NDPP v RO Cook Properties (Pty) Ltd; NDPP v 37 Gillespie Street Durban (Pty) Ltd & another; NDPP

v Seevnarayan 2004 (2) SACR 208 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30Oppelt v Department of Health, Western Cape 2016 (1) SA 325 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . 22Powell NO & others v Van der Merwe NO & others 2005 (5) SA 62 (SCA) . . . . . . . . . . . . . . . . . . . . . 17R & others v Minister of Police (unreported, GP case no A315/2015, 21 April 2016) . . . . . . . . . . . . . . 18R v Blom 1939 AD 188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22R v Valachia & another 1945 AD 826 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20S v Aimes & another 1998 (1) SACR 343 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19S v Barendse 2010 (2) SACR 616 (ECG) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23S v Bezuidenhout (unreported, NCK case no CA&R76/2016, 2 December 2016) . . . . . . . . . . . . . . . . . 25S v Boesak 2000 (1) SACR 633 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20S v Botha 2006 (2) SACR 110 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24S v Chabalala 2014 (1) SACR 458 (GP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23S v Cloete 1994 (1) SACR 420 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20S v December 1995 (1) SACR 438 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20S v Dewnath [2014] ZASCA 57 (unreported, SCA case no 269/13, 17 April 2014) . . . . . . . . . . . . . . . 6S v Dlamini; S v Dladla & others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) . . . . . . . . . . . 12, 19S v Dyantyi 2011 (1) SACR 540 (ECG) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25S v Green & another 2006 (1) SACR 603 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11S v Gubuza (unreported, WCC case no A511/2013, 4 March 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6S v Haarhoff & another [2017] 4 All SA 446 (ECG) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21S v Hewitt 2017 (1) SACR 309 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25S v Hitschmann 2007 (2) SACR 110 (ZH) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9S v JA 2017 (2) SACR 143 (NCK) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23S v Jimmale & another 2016 (2) SACR 691 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 28S v Josephs 2001 (1) SACR 659 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12S v Khambule 2001 (1) SACR 501 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14S v Le Roux en andere 1995 (2) SACR 613 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9S v Litako & others 2014 (2) SACR 431 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6S v Madolwana (unreported, ECG case no CA&R 436/12, 19 June 2013) . . . . . . . . . . . . . . . . . . . . . . . 28S v Makhubela & another 2017 (2) SACR 665 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6S v Maqubela 2017 (2) SACR 690 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22S v Matlala 2003 (1) SACR 80 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24S v Matshivha 2014 (1) SACR 29 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21S v Mauk 1999 (2) SACR 479 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

31

S v Mbuli 2003 (1) SACR 97 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14S v MDT 2014 (2) SACR 630 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24S v Mgedezi & others 1989 (1) SA 687 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5S v Mhlakaza & others 1997 (1) SACR 515 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24S v Mhlongo 2016 (2) SACR 611 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28S v Mhlongo; S v Nkosi 2015 (2) SACR 323 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6S v Miya & others 2017 (2) SACR 461 (GJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18S v Mohammed 1999 (2) SACR 507 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9S v Motaung 1990 (4) SA 485 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6S v Motloung 2016 (2) SACR 243 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24S v Moussa 2015 (3) NR 800 (HC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9S v Mpofana 1998 (1) SACR 40 (Tk) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9S v Ndlovu 2017 (2) SACR 305 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26S v Ndubane (unreported, GP case no A238/2016, 8 February 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25S v Ngcukana (unreported, WCC case no A443/15, 18 August 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25S v Nkosi 1998 (1) SACR 284 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14S v Ntozini & another 2017 (2) SACR 448 (ECG) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 26, 27, 28S v Nwabunwanne 2017 (2) SACR 124 (NCK) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10S v Pauls 2011 (2) SACR 417 (ECG) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28S v PB 2013 (2) SACR 533 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24S v Petersen 2008 (2) SACR 355 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9S v Rabie 1975 (4) SA 855 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25S v Ramoba 2017 (2) SACR 353 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14S v Roux 1975 (3) SA 190 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25S v S (unreported, KZD case no AR233/05, 22 March 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25S v Smith 2017 (1) SACR 520 (WCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25S v Stander 2012 (1) SACR 537 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28S v Strydom [2014] ZASCA 29 (unreported, SCA case no 20215/2014, 23 March 2015) . . . . . . . . . . . 28S v Thebus 2003 (6) SA 505 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4S v Toya-Lee Van Wyk [2013] ZASCA 47 (unreported, SCA case no 575/11, 28 March 2013) . . . . . . . 6S v Vermaas 1996 (1) SACR 528 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9S v Waldeck 2006 (2) SACR 120 (NC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9S v Williams 2010 (1) SACR 493 (ECG) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21S v Zinn 1969 (2) SA 537 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25Shabaan Bin Hussein & others v Chong Fook Kam & another [1969] 3 All ER 1627 . . . . . . . . . . . . . . 17Shabalala & others v Attorney-General of Transvaal & another 1995 (2) SACR 761 (CC) . . . . . . . . . . 11Woji v Minister of Police 2015 (1) SACR 409 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Zuma v Democratic Alliance & others; Acting National Director of Public Prosecutions & another v

Democratic Alliance & another [2017] ZASCA 146 (unreported, SCA case no 771/2016, 1170/2016,13 October 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15


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A bi-annual update complementing the Commentary on the ... · A bi-annual update complementing the Commentary on the Criminal Procedure Act NO 2 OF 2017 ANDREW PAIZES, Author (Editor)