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UPDATED NOTES ( not edited )

1. CONSTITUTIONALITY AND INADMISSIBILITY OF EVIDENCE Case law , its application and Practice - criminal Courts

2. ALIBI Rules of Evidence and Case study

3. CRIMINAL LAW APPROACH TO CONCEPTS + APPLICATION THEREOF

4. EVALUATION OF EVIDENCE Case Law and Approach

5. JOINT POSSESSION Practice - CRIMINAL Courts

6. APPLICATION FOR DISCHARGE

SETCTION 174 - WORDING AND APPROACH GUIDE LINES AND CASE LAW Prepared by Dr Mchunu 10 Jan 2013

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[1] SECTION 35(5) of the Constitution of South Africa provides :

“ Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise detrimental to the admin of justice . “

Discussion of “detrimental to the admin of Justice “ appears on Para 13 below . It refers to S v MTHEMBU 2008 [2] Sa 407 – Cachalia JA .

Van Heerden J A refers to “impugned evidence “ , see Para17 below

[2] S v Mark 2011 (1) 572 dealt with the ruling on the exlusion of illegally obtained evidence . The enquiry is whether :

1. the admission would render the trial unfair I t o sect 35 (5) , if yes , then the relevant evidence is excluded ;

2. whether the the admission of evidence would be detrimental to the interest of justiceA trial within a trial will be held , witnesses called to establish the facts leading to such illegality . The procedure will be for the Defence counsel to lay basis for the trial ( e g that accused was assaulted) Then the PP will call such witnesses, lead evidence , after which the defence will XXD on the allegations .E.g detainees or doctor may be called. Usually it is the Police witnesses that are involved. After that the defence will also lead evidence, then the address and finding by court . The standard of proof is on a

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balance of probabilities. These are separate proceedings- ‘ insulated’ and are apart from the main trial. They focus on the ‘ ‘violations’ and brutalities . If so found such evidence is ruled inadmissible . The test is ‘ fairness of the trial’Cf Zeffertt n Paizes 2 nd ed 560, S v Sithebe 1992 1 SA 347 A, Mlomo 1993 2 SA 123 A

S v Mkhize 1999(2) SA 632 W

[3]

McCall J in S V NAIDOO 1998(1) 479 (N) reasoned that evidence obtained as result of deliberate or conscious violation be excluded unless there were extra ordinary circumstances to accept it . S v Mkhize 1999(2) SA 632 (W) said that it was undesirable to fetter the discretion of court in terms of sect 35 (5) - refer to analysis Para 10 – 12 beelow

The test is on the violation resulting in the Inadmissibility of evidence

[4] The Onus of proof is on the state that the rights of accd were not infringedS v MGCINA 2007 (1) SA 82 T @ 95 H- I

INADMISSIBLE EVIDENCE

Scenario A

[5] The state led inadmissible evidence of N (wife of Mr N), when Accused –‘X ‘ responded to her questions that he (accused ‘X ‘) had been part of the killing and that he was with accused 1. This in essence forms part of the incriminating evidence, accused’ x’ was at the time in custody under police guard - MATLOU a Others vs THE STATE ,case 479/09 heard 31 03 2010 SCA – Para 23

Vide R V de WAAL 1958 (2) SA GW at 111A-112 F

Scenario B

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[6] The responses by accd- x clearly negate the volition to refuse to answer questions from N. Also that accused ‘ X’ was not advised of the right to remain silent, or not to make incriminating statement, and consequences thereof . So is the list as analysed hereunder

[7] Refer to -Sec (35)[1] (a); (b); (c), of the constitution – and Para 20 of Matlou judgment [supra ] in which these are discussed .

At the end of Para 20 of Matlou judgment , Bosielo JA reasoned as ff :

“ Why would police assault him if he had incriminated himself by pointing-out highly incriminating evidence. .To my mind , it makes perfect sense and accords with logic that the first appellant could only have been assaulted by the police before the pointings-out in order to coerce him to do so. Undoubtedly such evidence would have been obtained in contravention of the appellants rights ensconced in sect 35 [1] [a] [b ][c] of the

constitution ,Act 108 of 1996 which provides

“ [a] every one who is arrested for allegedly committing an offence has a right- [a] to remain silent [b] to be informed of : [i] right to remain silent and [ii] consequences of not remaining silent

[c] not to be compelled to make any confession or admission that could be used in evidence against that person “

[8] Section 35(3) (j) of the Constitution reads:

“ Every accused person has a right ….

“ not to be compelled to self incriminating evidence “

[9] Bosielo J A discussed in MATLOU judgment, the admissibility of evidence under Sect 218[2] of the CPA in contrast with Sect 35[5] above - bill of Right

[10] Section 218 [2] provides :

“ Evidence may be admitted at criminal proceedings that anything was pointed out by an accused appearing a such proceedings , or that any fact or

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thing was discovered in consequence of information given , nothwithstanding that such pointing out or information forms part of a confession or statement which by law is not admissible in evidence against such accused at such proceedings”

[11] In this case Accused x uttered these words in the presence of the police and thus inadmissible , see similar reasoning upheld in – S v January 1994 (2) SA 801. Thus answers from Accd X were improperly elicited in police presence – S v KHUMALO 1992(2) SA N p 420 – per Thirion J that such practices be curbed. Real evidence is looked at separately from the words or utterances of the accused - see the reasoning below - Cachalia JA

[12] In MATLOU VS The STATE 2010 zasca 52 31-03 2010 at Para 26 Bosielo JA quotes Cachalia JA - in S V MTHEMBU 2008 [2] SACR 407 SCA as ff :

, “ [31] In the pre-constitutional era, applying the law of evidence, as applied by the English Courts, the courts generally admitted all evidence, irrespective of how obtained, if relevant. The only qualification was that “the judge always (had) discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused.“ And where an accused was compelled to incriminate him or herself through a confession or otherwise the evidence was excluded. However, real evidence which was more readily admitted (and also because its admission was governed by statute). The reason was that such evidence usually bore the hallmark of objective reality compared with narrative testimony that depends on the say-so of a witness. Real evidence is an object which, upon proper identification, becomes, or itself, evidence (such as a knife, firearm, document or photograph – or the metal box …). Thus, where such evidence was discovered as a result of an involuntary admission by an accused it would be allowed because of the circumstantial guarantee of its reliability and relevance to guilt – the principle purpose of a criminal trial. As a rule, evidence relating to the “fruit of the poisonous tree” was not excluded. [13] I have no doubt that admitting such evidence would not only render the trial unfair but would also , as Cachalia JA quoting Lord Hoffman’s remarks I Mthembu’s case remarked at para 36 :

“… it is tantamount to involving the judicial process in “moral defilement.”” This ‘would compromise the integrity of the judicial process (and) dishonor the administration of justice. I harbor no doubt that the

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evidence should not have been admitted. See S v Potwana & others 1994 (1) SACR 159 (A) at p 164a-b; S v Tandwa & Others 2008 (1) SACR 613 (SCA) PARA [89].

See also similar reasoning in S v SHEEHAM 1991 (2) SA 860

[14] In short such evidence falls to be ruled out as inadmissible & unconstitutional in terms of sect 35[5] of the constitution

Real Evidence becomes proof after being identified in court – Paizes n Skeen ‘ S A Law of Evidence ‘ p703 . Example , knife, bullet ( tangibles ) etc

[15] Part Vl of the Civil Proceedings Evidence Act 25 0f 1965 defines “document “ to include a photograph . Real evidence is what the court itself can examine, smell , listen , taste or feel-Paizes and Skeen ‘SA Law of Ev’ P 703

[16] Bosielo JA in the MATLOU decision , dealt with the analysis and reasoning of the incriminating discussion between the wife of deceased and appellant no 1. Bosielo JA relied on the S v SAMHANDO 1943 AD 608 and S V SHEEHAMA 1991[2] SA 860 A and states at Para 23 - MATLOU vs THE STATE :

“ negates any volition which he might have had to refuse to answer .. discussion which appellant allegedly had with the deceased’s spouse during which , at the suggestion by the police , she asked him where the deceased missing head was and to which he replied that when he threw the deceased’s body in the bush , it had its head intact …. The learned judge ( trial ) erred in this respect. It is clear that the first appellant was under arrest and in the presence of more than one police at this critical stage of the investigation. It is the police that instigated or prompted the deceased’ s spouse to ask the ist appellant this question which elicited such an incriminating response . The possibility that the first appellant was

under the undue influence of the police at the time cannot be excluded. To my mind, this “ - Vide R v de Waal 1958[2] supra Page 111 A -112 F

[17] Van Heerden JA dealt with such impugned evidence , applicability of sect 35 [1] and [5] and their impact on the admissibility , in S v JANUARY ; PROKUREUR–GENERAL , NATAL V KHUMALO 1994[2] SACR 801[18] The onus of proof remains entirely on the state to prove its case beyond reasonable doubt. If any doubt exists or that of the accused version is improbable (if he testifies) than he must be acquitted. Also where both the

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state and defence version are on par or are of equal force the accd must be acquitted. Cf S vs Shusha 2011 case 609/2011 dated 29/09/2011:SCA

[ Avoid long quotes in ur Judgment - summarise reasoning ,cultivate use of simple words,avoid repetition ]

Develop own narrative style in factual analysis - story telling . Indicate to the reader what your about to do.

[ May be this is a seperate topic ]

A L I B I [ Research only ] [1] The defence version of an alibi has been dealt with in S v HLONGWANE 1959 (3) SA 337 SCA as a starting practical point

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[2] Holmes JA in Hlongwane judgment makes a prelude analysis and test in regard to the Alibi , its sufficiency and how it should be approached by trial court - p 337 Para E (also P 340 H) :

“ In Applying the test to an Alibi , namely that there is no Onus on the accused to establish it and if it might reasonably be true , he (accd) must be acquitted , the alibi does not have to be considered in isolation. The correct approach is to consider the alibi in the light of the totality of evidence...”

[3] The Hlongwane judgment re stated the judgment of Greenberg JA in S v Biya 1952(4) ,that the test is not to consider an Alibi in isolation but in the light of all the evidence . The Alibi will then be weighed against the evidence presented, evaluate cogency, including the court’s impressions of the witnesses –Hlongwane case supra, P341 - A .

[4] In evaluating the ALIBI, Homles JA (Hlongwane case supra )at page 339 C-D ,where the accused denied complicicity :

“ At the conclusion of the whole case the issues were :

(a) Whether the alibi might reasonably be true(b) Whether denial of complicity might reasonably be true

(c) An affirmative answer to either (a) or (b) would mean that the Crown has failed to prove beyond reasonable doubt that the accd was one of the robbers “ The phrase “might reasonably be true “ is clear that refers to both denial of complicity and alibi .

[5] The word “Might” the past tense of “may”, is defined In ‘ Concise Oxford Dictionary’ 9thEd , as “ expressing possibility ( it may be true )”

The word “ possible” is defined (Oxford p 1067) as “ capable of existing or happening ; or likely to happen “

[6] The alibi version need not be factually true , albeit possible , i.e likely to happen .[ cf Phipson , Zeffert n Paizes , etc on detailed discussion ]

An alibi and its merits are further discussed in S v MHLONGO 1991[2] SA 207 AD , S v Felix 1980(4) A550 @ 604

[7] In Biya’s case 1952[4] below, Greenberg JA stated @ p 521

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“ ….if on all the evidence, there is a reasonable possibility that this ‘alibi evidence’ is true, it means that there is the same possibility that the accused has not committed the crime “ I.e contrasting evaluation of evidence

In MALEFO and O 1998(1) SA 128 OFS 157J – 158 A-D the following is kept in mind: 1 – 5 below

[8] Hlongwane 1959 (3)SA 337 A Judgment discusses the details & requirements for approach to an ALIBI

That there is no ONUS on the accused to prove the alibi – Mhlongo 1991(2) 207 (A) at 210D

Biya 1952(4)SA 514(AD) at 521D

1. If the accused version is POSSIBLY probable the accd must be acquitted . To convict accused, the accused version/alibi must be false beyond doubt . There must be a clearly subjected scrutiny of judicial assessment and evaluation –S v Shusha ,Case 609/2010 SCA handed down -29 Sept 2011 p 29

2. Each alibi is weighed against the totality of evidence [43] In S v COMBRINK 2012 [1] SCA 93 Para [15] Shongwe JA stated p 98 Para 15 :

“ It is trite that the the State must prove its case B R doubt and that no Onus rests on an accused person to prove his Innocence. The std of proof on the state and the approach of a trier of fact to the explanation proffered by an accused person has been discussed in various decisions of this court and of the high court ( see R Difford 1937 AD 370 @ 373) S v Van Der Meyden 1999(1) SA 447 (W) at 448 F. It suffices for present purposes to state that it is well settled that the evidence must be looked at holistically “

[9] In Sv Mkhize 1999(2) 79 SA [W], Willis J stated the ff on the evaluation of evidence :

“ the proper approach in an evaluation as to whether the a version could reasonably possibly be true is to have the totality of the evidence mentioned in S v Hlongwane . “ Willis J (then) confirms the dicta of J Nugent (now JA ) in S v Meyden 1999(2) SA 79 (w). see – S V R 1977(1) W p 9 ; S v MKHIZE 1999(2) SA W @ A- Willis J

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3. Witness must not only be honest but must also be credible. Mlati 1984(4) SA 629 (A) AT 6394

4. State bears onus of proof beyond reasonable doubt. Accused guilt must be established beyond reasonable doubt. If not ,he/she cannot be convicted cf: Magmoed vs Jansen 1993(1) A at P780 – c.

[10] The state must lead evidence to link the accused with the crime. The evidence must be sufficient and credible. These aspects are fully discussed in Mthethwa decision cited hereunder that the evidence can either be a direct narration or be circumstantial . In the latter case the court will draw an inference discussed in BLOM’s and MAGMOED cases supra - S vs Mthethwa 1972 (3)SA 766 A @768 ; Jochem 1991(1) 208A at 212 A -assessment of whether Prima facie case is made out in the evidence. Refer to discussion by Zeffert n Paizes ‘ South African Law of Evidence ‘

[11] Cf : S V MLAMBO 1957 (4) sa 727 @[737E], S v Blom 1939 AD 188 @ 202, 203 - on the requirements for inferential reasoning - as mentioned here under.

[12] In Blom’s case the State relied on the sole evidence of finger print found at the scene of crime . There was no other evidence except circumstantial , that linked the accused to the crime . The court had to resort to the inferential reasoning and evidence of the accused’s finger prints uplifted from the scene of crime .

The court said that the inference may be drawn from the facts of the case and must :

a. be consistant with such fact i.e

consistant with such conclusion [Mlambo Case 1957 [4] 737 E Malan JA above

b. be the only reasonable inference and exlude other inferences

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[13] The trial court will have carefully evaluated the evidence and analysed its findings – S v Leve 2011(1) 87 (E.C) i.e. an objective evaluation based on the facts. In S v MGEDEZI 1989(1) 687 SCA, @ p 703 B-F Botha JA analysed

(a) the totality of evidence on evaluation and proper assessment (b) handling of defence explanation and attachment of weight

[14] In S v PHALLO 1999 (2) SA 558 at 563 Olivier J A (373 H):

“ the evidence must reach the same degree of cogency as is required in a criminal case before the accd person is found guilty “ (beyond R D )

[15 ] Chief Justice Fagan in S v MOKOENA 1956(3) SA 81 AD @p86 D-F deals with cogency , weight , quality and Corroboration . He finds it permissible as ff - p 85 F-G : [ also Para 78 infra ]

“ if there are two or more witnesses to the same fact , their version can be checked against each other to see if they have given honest and accurate evidence “

[16] Wills on ‘ Circumstantial evidence “ 7th ed pp 31` ,32 . The Judgment of S v SINGH 1975(1) SA 227 deals with the approach to evaluation of versions that are mutually irreconciliable/ contradictory , handling of probabilities and improbabilities of the versions . Zeffert and Paizes “ South African Law of Evidence “ p 99 deal with the process of inferential reasoning followed in S v REDDY 1996 (2)SA 1 SCA - Zulman JA . Rf S v SNYMAN 1968(2) SA 582 A D . CF S v Ntsele 1998 (2) SA 178 SCA Eksteen JA

[17] Factual analysis and penultimate findings will be based on facts. Inferences may be drawn from such factual proof. Word “facts” refers to what is provable by direct evidence & will include conclusions reached by inference from what is provable , & will include ‘Legal Inferences ‘ and those of ‘ fact ‘ : MORRISON V COMMISSIONER INLAND REVENUE 1950(2) SA 449 A at p 455 ( per Schreiner J A). Magmoed V Janse v Rensburg 1993(1) SA 777 A D @ p 811 E- F

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S v Hlongwane 1959 (3) 337 SCA decision has been followed in later judgments

S v Mhlongo 1991 (2) 207 SCA @210 – D also dealt with an alibi

[18] According to S v MAJIAME 1999(1) SA 204 (0) there is the ‘onus of proof’ and’ onus of rebuttal’ . This suggest 2 forms of ONUS as ff :

The onus of proof is always on the State, and the ‘ Onus of rebuttal’ by the accd. Our law is very clear that the accd is not bound to adduce evidence in order to properly place the matter in dispute ,he owes no legal duty to prove his innocence, his account of denial suffices. The accd in general , is innocent until proven guilty – cf Sv Combrink 2012 [1] SCA above

[ Evidential ‘burden’ as opposed to the ‘ Onus ‘ – in a civil sense , has been dealt with in Judgments of HELDERBERG LABORATORIES CC A O v SOLA TECHNOLOGIES (PTY ) LTD 2008 (2) SA 627 (C) ; KALIL V DECOTEC(PTY ) LTD A O 1988(1) SA 943 (A) @ 980 –E , that all it means is “ satisfy the court…” In a criminal trial this avenue is unnecessary as the standards in a civil and criminal sense are different in approach and proof . ]

[19] the accused claim of benefit of a doubt as ff :

“ An accused benefit of a doubt when it may be said to exist , must not be derived from speculation but must rest a reasonable and solid foundation from positive evidence or gathered from reasonable inferences , which are not in conflict with or outweighed by the proved facts of the case “

[20] Zulman JA in S v V 2000(1) SA 453 @ 455 B , stated :

“ there is no obligation upon an accused person , where the state bears Onus , ‘ to convince the court ‘. If his version is reasonably possibly true , he is entitled to his acquittal even though his explanation is improbable “

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[ avoid long quotes - sketch and summarise the reasoning ]

CRIMINAL LAW APPROACH AND CONCEPTS

[1] I deal in seriatem with:

(i) Principles of criminal law –‘ Participation’ as per a b c d below

(ii) Apply the rules of evidence coupled with value analysis

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(iii) Consider conclusions and trial court’s reasoning on the issues.

[2] The crimes referred to were caused at the homestead of the deceased. Each accused must be linked to have participated in the crime. Participation can take various forms: either

(a) As a perpetrator

(b) socius criminis or

(c) accomplice or

(d) accessory after the fact

[3] Participation will either be active or passive. It could also be ‘ Active association’ - CF Sv Motaung 1990 (4) SA 485 A @ H- I

[4] An accomplice -“mededader” assists the perpetrator to commit crime further i.e. to complete the act. the accomplice may also ‘associate ’ h/herself with the act of the P P

[5]For both the accessory and accomplice, there must be the main player i.e. perpetrator

[6] A Perpetrator cannot be the one at the same person as accomplice - S v Gani 1957 (2 ) SA AD 212 –Schreiner JA

A Perpetrator must be distinct from the ‘accomplice’ or “accessory”

Refer to Snyman “Criminal law” 4 ed Chapter V11 page 253; Jonathan Burchell: Principles of Criminal Law 3 rd ED Chapter 41 page 572 on further

S v Khoza 1982 (3) 1018 @1031 C – E

[7] The judgment of Corbett J.A (later C J ) deals with the distinction above as follows:

Perpetrator and accomplices

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1.1 ‘Perpetrator ‘– a person committing a crime in person or through another1.2 ‘ Co-perpetrator’ mededader(in Afrikaans) i.e. one who assists the perpetrator

in the commission of the crime, - p 1031, paragraph D – E.

[8] The above instance is where a crime is committed by one person - in Afrikaans called “Dader”

[9] Others assisting him at the crime are called ‘Co-perpetrators’ – mededaders - refer to page 1031 para D – E above

[10]Corbett J (page 1031 para F] describes “Accomplices” and “Accessories” in Afrikaans jointly referred to as “mededaderskap .

[11] ‘An accessory after the crime’ will come in after the completion of the crime as stated in Williams case below that each category must fit the definition of ‘crime ‘ - as a basis of liability.

[12] In S v Williams 1980 (1) page 60 S C A at 63

Jorbert JA described criminal liability of an accomplice in contradistinction to that of a perpetrator or co-perpetrator whose act must fit the definition of crime ie as a perpetrator or accomplice or accessory - Cf : S v Motaung 1990 (4) SA 485 @ B- G per Hoexter J A

[66] However these concepts do not assist much, albeit relevant or important for academic pursuits by scholars - pontification of the law .

[13 In the instant case , Who is the “perpetrator?”, and Who is the “ accomplice”? This , in short , appears to be an open academic question referred to below .

[14] In S v SHILAKWE 2012 (1) SA 17 SCA Ponnan J A In dealing with mute questions has this to say :

“ Considering that issue [ the admissibility of the statement ] In these circumstances would have caused the court to have involved itself in what might safely have been described as an abstract, academic, or hypothetical question “ [ JJA Shongwe et Brand concurring )

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[15] Judge Heifer, sitting with Judge President James in S v Khumalo 1977 (3) SA 701(N) @702 E describes a Socius Criminus:

“it is a settled principle of the common law that socius criminis is – anyone who aids, abets, counsels or assists another in the commission of any offence, may be charged and convicted as principle offender”

[16] An accomplice – mededader thus , in the context of assisting the perpetrator to commit crime further i.e. to complete the act

[17] Botha JA, in S v MGEDEZI 1989 (1) SA 687 @ 688D-E on imputing the act of another , stated thus :

“Inherent in the concept of imputing to an accused the act of another , on the basis common purpose is the indispensable notion of an acting in concert . from the point of view of the accused the common purpose must be one that he shares consciously with the other person . A common purpose which is merely coincidentally and independently the same in the case of the perpetrator of the deed and the accused is not sufficient to render the latter liable for the act of the former “Scenario 1[18] In this case , where do we place accsd A B C D . How do we fit each accd and how ? , do they really fit the outlook of the facts .This will be seen on the detailed analysis and evaluation of evidence.

[ state your reasoning and refer to relevant case Law , Para]

EVALUATION OF EVIDENCE - [ Research only ] [ THE POWER OF SIFTING PROCESS ][1] Evaluation is always central to the determination n analysis of conclusions reached in each case

[ The so called ‘ Odessy of a trial in the trial court ‘ ]

S v Hadebe a others 1997(2) P641 @ 645 E – JA Marais stated :

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[2] “ In short, in the absence of demonstrable and material misdirection by the trial court, its findings of facts are presumed to be correct and will only be disregarded in the recorded evidence that shows them to be clearly wrong … “

“ The evidence given in the Court below was fairly and accurately summarised In the judgment.

Attention was given to the detailed criticisms of the evidence of the witnesses who testified for the State. They were evaluated in the context of the entire body of evidence before the Court and appropriate weight assigned to them in the light of all the evidence and the inherent probabilities and improbabilities of the case. Where caution was needed it was exercised and the Court not infrequently preferred to place no reliance upon evidence for the State which might possibly not be accurate “

That being the case, credibility findings and findings of fact of the trial Court cannot be disturbed unless the recorded evidence shows them to be clearly wrong. This approach was restated in Moshephi and others v R (1980-1984) LAC 57 AT 59 F-H seems appropriate in the particular circumstances of the matter :”

[3] ”The question for determination is whether, in the light of the all evidence adduced at the trial, the guilt of the accused was established beyond reasonable doubt. The breaking down of a body of evidence into its component parts is obviously a useful aid to a proper understanding and evaluation of it. But, in doing so, one must guard against a tendency to focus too intently upon the separate and individual parts of what is, after all, a mosaic of proof. Doubts about one aspect of the evidence led in a trial may arise when that aspect is viewed in isolation. Those doubts may be set at rest when it is evaluated again together with all the other available evidence. That is not to say that a broad and indulgent approach is appropriate when evaluating evidence. Far from it. There is no substitute for a detailed and critical, examination of each and every component in a body of evidence. “

[4] Shongwe JA refers to the aforegoing remarks in S v COMBRINK 2012(1) SA 93 Para 19 as ff:

“The trial court made certain credibility findings . This court is not at liberty to interfere with such findings ( R v Dhlumayo 1948[2] SA 677 @705; President of R S A a o v S A Rugby Union a others 2000[1] 1 CC 1999[10] BCLR 1059.] In this case we do not have a single reason to do so ..”

[5] in S v Petro Louise 1978 (1) SA 217 Botha JA made it clear (at 218 B-C) that:

“ The expression “only reasonable inference” has been used in this judgment in the context of well-known rules relating to inferences in criminal cases, as enunciated in Blom’s case supra. See S v Reddy 1996 (2) SA 1 A

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{6] In S v KEYSER Case 634/ 2011 d d May 25 2012 –JA Heher , dealt with the evaluation and rejection of the innocent possession of 27 Kg drugs from Brazil to S A . The Accd stated that he believed the parcel to be clothing of his relative. Heher JA at para 24 analysed & weighed the probabilities of the accd version (then Appellant ) , and rejected the accd explanation

{7 ] In S v Reddy supra, accd were in possession of drugs picked up cargo

Consignment at the bay. Police had set up a cyrene device to alert police upon opening the cargo containers with drugs in them. Accd opened up the cargo and the sound device alerted police. Accd were found opening these yet denied knowledge and presence of drugs found. The court found that accd had associated themselves with these cargo items , it was unnatural that some one unrelated would do as accd did . The inference was justified that they possessed the drugs.

[8] In S v Mokoena 1956 (3) SA 81 AD @ 86D-F

CJ Fagan dealt with the approach to evaluation cogency and weight of evaluation as follows :

“if there is one or more witness to the same fact, their version can be checked against each other to see if they have given honest and accurate evidence” Par 48 above

[9] S v DLADLA 1974 (2) SA SA 689 @ 691 deals with honesty n attachment of weight to witnesses – ‘ witnesses are not counted but weighed ‘

[10] In s V COMBRINK 2012[1] SA 93 @ Para 16 Shongwe deals with the evaluation of honesty and realiabiity of a witness :

      “ In my view , not only was Masilela an honest witness , his evidence is also reliable n sufficient to sustain a conviction . this I say having considered all the evidence and the necessary caution required when dealing with the evidence of single witness (see R V Mokoena 1932 OPD 79,80 , S v Webber 1971 [3] SA 754 AD , Sv Sauls 981[3] SA 172 @ 180 E-G)

Para 4 above already refers to this aspect - credibility assessment

Refer to Wills on “Circumstantial Evidence” 7th edition – page 319 3.1

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[11] Above all, common sense should be allowed to prevail and not be narrowly displaced by slavish adherence to legal jargons – S v DLAMINI Case 361 /11 SCA dated 27 03 2012 p24 Para 55 line 9-10 ; Sauls case above

[12] In Caswell’ s case below ,the requirements are Viz :

i. the inference sought to be drawn must be based on objective facts before court - Bloms case

ii. Such conclusions drawn be reasonable and

iii. that such inference (s ) be consistant with the facts of the caseiii. must exclude other inferences- CASWELL V S POWELL DUFFEYN 1939(2) ad 722

[13] the trial court “ will firstly consider and weigh the evidence ,considering its merits and demerits and weigh its cogency and trustworthiness, only then be satisfied that the

truth has been told.” S v Sauls 1981(3) 180 AD

( further )

“despite the fact that there are short comings or detects or contradictions in the testimony, he (the judge) is satisfied that the truth has been told”-P 181 – F

CF: Wigmore “Evidence” Vol iii paragraph 2034 at 262.

[14] Refer to S v COMBRINK 2012(1) SA 93 SCA @ 99-D on evaluation n conclusion on dolus Eventualis as a consequential finding

[15] Hoffman and Paizes South African Law of Evidence p 99 – on Inferential reasoning . S V DUBE 2010 (1) SA 65 KZNP 65 @14,15 [per swain J ], restates BLOMS Case above. The inference also requires the subjective foresight of the accused as stated by Holmes JA S v SIGWAHLA 1967 [4] SA 566@ 570-E

“ Subjective foresight , like any other factual issue , may be proved by inference. To constitute proof beyond reasonable doubt the inference must be the only one which can reasonably be drawn . It cannot be so drawn if there is a reasonable possibility that subjectively the accused did not foresee, even if he ought to reasonably to have done so, and even if he probably did do so . “

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[16] The formulation of Holmes JA was later confirmed in the full bench KZNP , S v DUBE 2010 [1] above , at Para 6 - Swain J . The judgment further warns of bearing in mind the distinction “ ought to have foreseen “ , ‘” must have

foreseen “ and hence to “ by necessary inference in fact did foresee “ as stated by Olivier JA in S v LUNGILE a other 1999 [2] SACR 597 SCA @ 602 Para 16 . In other words the inference must show dolus in one of its forms and not otherwise. Olivier JA further analysed

the basis for the subjective state of mind of accused in the commission of the crime .

[17] In S V MOKGIBA 1999(1) SA 534 (0) at P .. Par it was said :

“in assessing circumstantial evidence , possibilities arising from such evidence, should not be elevated to factual conclusions w/out proper basis or considerations of the contrary possibilities . If so , that would be irregular to follow such route “

In other words circumstantial evidence is distinguishable from direct evidence, the latter which requires less probative force of evaluation than the evidence of ‘ circumstantial nature’ where justified conclusions are made from the given set of evidence. This is effect of the Mokgiba judgment.

Cf S v TEXEIRRA 1980( 3)SA 755 AD that the judgment must be justified by adequate evaluation of evidence

[18 In MATLOU VS THE STATE Case 479/2010 ZASCA [31-3-2010] 52 @ Para 19 Bosielo JA stated (on the inference and its consistency with facts)

“I am prepared to accept that the appellants were in possession of the deceased’s stolen property soon after his death, might justify the inference that the appellants were involved on the deceased death. I must confess that such an inference appears to be both reasonable and compelling. However it it can hardly be said to be the only reasonable inference consistent with the proven facts . What compounds the problem is that there is no evidence as to when and how the deceased was killed. Its is noteworthy that notwithstanding the respondent’s allegations that the deceased was shot , the post mortem report does not support such a finding . It follows , in my view , that such an inference cannot be drawn , as it would be in conflict with the salutary

principle enunciated in R V BLOM 1939 AD 188”

[19] Phallo judgement 1999 (2) SA 558 @ 563 and Mlambo 1957 (4) the death of the deceaseds resulted from unnatural causes. In the case of Mlambo, it was caused by serious assault imputed as the act of the acc – Mlambo. In the case

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of Phallo death was a result of acute anoxia. Both cases relied on circumstantial evidence and medical evidence relating the 2 deaths. In the main could be drawn on intention to murder – p 732 H:

“na my mening is moord met die oog op diefstal dan ook nie die enigtste

Redelike afleiding uit die bewese fiete nie” { not the only reasonable inference to be drawn}

It was insufficient to draw a positive conclusion – according the tests (bloms case) That is it could not be inferred from the evidence

[20] The trial court (per Waddington J) is reffered to in the Appeal judgment of Oliver JA 564 Para – [ Phallo case ]

”..It is my view that the cumulative effect of all the reliable and cogent evidence taken in to account by the trial court was to demonstrate as the only reasonable conclusion the guilt of the appellant.. “

[21] In the Phallo case scientific soil examination had been conducted and found on the deceased body – para 18. The red soil found in the combi m/v usedby the acccd (police) when conveying the victim (while alive) during investigation and assault by police. The deceased wore a clean white shirt while In detention and before assault by police.

[22] The police had proffered a different explanation of the existence of red soil on the clothing worn by deceased, that the red soil was picked up by deceased during conveyance to the mortuary. The trial court reasoned that the conclusion of the red soil link:

Excluded other inferences That each and every fact proved was consistent with the inference(s) sought to be drawn That deceased did not die at the same scene shown by accd but at the spot stated by state evidence Cogency of the state evidence and improbability of the accd version considered and rejected as false

beyond reasonable doubt – No doubt in drawing such a conclusion – Para 19

[23 In other words the Blom’s judgment is that the conclusions must not only be based on the facts but also be consistent with such factual content, as laying a mighty foundation . Bosielo J A expresses this very well in Matlou’s judgment above that :

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1. the inference was reasonable as accused were in possession of deceased’s stolen property

2. But there was no evidence of “how the deceased was killed “3. More factual basis was required for such positive conclusion

Scenario 1

[24] Evidence of T about Accd [ in the present matter] , does not have proper basis for its reliability - hence it is just narrative in form and takes the direction of conspiracy to murder [ facts] . Was it indeed conspired ?

What is Conspiracy and its requirements ?

Scenario 2

[25] The evidence of Bha , about accd 0 ‘s possession of f/a , finds the link and sufficient corroboration by police evidence [ refer to A witness ]

[26] Conspiracy is not sufficiently proved by EVIDENCE in this case . However the causation element and concomitant factors leading to the 2 deaths are clear in the case before us. As stated in Para 3.4 above, the two were killed by gun shots as supported by medical report. The inference is inescapable that the 2 guns recovered in accd 1 2 were used to commit murder .

[27] QUESTIONS TO BE ANSWERED IN THIS CASE

Scenario 3

1 . Did all these accused kill the couple at XXXXXX

2. If only 2 fire arms were used, how can 4 persons kill with 2 f /arms

3. Did accused 3 hire others i.e accsed 1 2 &4 to kill the couple

4. Accused 3 if, he believed, was bewitched ‘ Thakathwa ‘ by couple

how does one assess that , hence accd 3 girl friend said so

( as a motive to kill )

but this is denied by accused 3

5 Did the Prosec succeed to prove these (or any of ) counts

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[ Be clear in your ANALYSIS with SOUND REASONING Refer to Case Law without long Qoutes : See Para 16 above] Facts , once summarized , are not repeated but only referred to. However this will depend on your style of presentation

JOINT POSSESSION ( Approach in adjudication )

[1] It is trite law that the property need not be taken In the presence of the victim - Ex parte Minister van Justisie; in re S v Seekoel 1984 (4) SA 690 (A) that what must be established is whether there was causal link between the violence and the taking, the distance between the place where the violence and the taking took place. Thi will be of relevance to determine if this formed part of a single continuous transaction , as stated in S v Dhlamini 1975 (2) SA 524 ( N )

[2] Such possession must be voluntary. The person must excercise direct control, have custody of the items and have knowledge of such possession. In S v Dlepu 1979 (3) SA 109 (T) the Court held that the accused can be convicted for possession of one firearm if the State is able to prove that all the accused,

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not only knew of but also had direct control over the firearm in question. Refer to S v Makhunga 1977(2) SA AD - similar reasoning

[3] In S v KHAMBULE 2001`(1) SACR 501 SCA - per Olivier JA it was stated the element of Possession of f/a could be inferred from circumstatnces of common purpose that accused knew that the firearms were to be used to carry the robbery or they foresaw the possibility thereof and that accd associated themselves with with that . The Judge stated :

“ the common intention to possess the fire arms jointly could be inferred” . “ The inference of an

intention to jointly control and possess the fire arms and ammunition was unavoidable” - Makhunga judgment

[4] The reasoning was that a few would carry the fire arms on behalf of the group - hence joint possession

[5] Joint possession can be inferred from the conduct of the accused as was held in Mtshemla 1994 (1) SACR (A). In this case Acc1 & 2 were separately found in possession of 2 norinco fire arms at different times after the incident . Can therefore one say that all the accd before Court were joint in possession of the firearms.

[6] In S v Nkosi 1998 (1) SACR 284 (W) the learned Judge stated as follows:-

“The issue arise in deciding whether the group possessed the guns must be decided with reference to the answer to the question whether the state has established facts from which it can be properly be inferred by a court that:

(a)the group had the intention to excersise possession of guns through the actual detentor, and;

(b)the actual detentor had the intention to hold guns on behalf of the group.”

[7] It is only being if both requirements are fulfilled that there can be joint possession involving a group as a whole or common purpose between the members of the group to possess all guns. S v Mbuli 2003 (1) SACR 97 (SCA) S C A held that the conviction for possession of a prohibited object must be based on joint possession rather than common purpose. It confirmed the principles in Nkosi’s case.

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In the instant case the Ruling of this court is bases on joint possession than common purpose.

SCENARIO 1

[8] in the case before us accd 1 and 2 are at least linked to the recovery from them , of the fire arms , purported to have used in the killing. However there appears to be less link to accd 3 and 4 to the crime , lest there is evidence forthcoming from the state .

[9] The Question is : [at the close of state case ]

Is there evidence to link each accd . If so , what is that evidence ?

Is there sufficient evidence to link accused no 00. If so What is it

[ Be to the point in rulings or when making conclusions ; see Para 2 3 above ] . These are findings [ at the end ] in the light of the evidende ]

APPLICATION FOR DISCHARGE : SECTION 174

Section 174 of CPA Prepared by DR mCHUNU 11 Jan 2013

These notes highlight the legal practice and guide Pres/ Officers on what to look for and consider in Sect 174 Application . The aim is to have quality evaluation of 174 judgment with insight on analysis

Introduction

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[1] The application of section 174 is aimed at empowering the presiding officer to discharge the accused where there is no evidence to convict

[2] It reads :

“Accused may be Discharged at the CLOSE of Case for Prosecution”

if, at the close for the prosecution of any trial, the Court of the opinion that there is no evidence that the accused committed the offence referred to the charge, or any offence of which he may be convicted on the charge, it may return a verdict of not guilty”

ORIGIN

[3] Zefertt and Paizes outline the historical basis of the practice to acquit the accused where there is no evidence to base the conviction on , as analysed infra . The discharge is at the close of the Prosecution case i.e before the defence case

Duty to discharge

[4] The court has a duty to acquit the accused upon insufficient evidence

It can also be done on application by the defence. The P/O has discretion.

Basis

[5]The basis will be lack of evidence by the prosecution to prove the elements of the offence , or could be lack of evidence to link the accd with the crime

Evidence

[6] The word “No evidence” means lack of evidence or insufficiency thereof. In other words the short comings in the state case are sufficient grounds for the discharge once the prosecution closes its case.

S v Mpetha 1983 (4) JA 262

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[7] The words ‘no Evidence’ in the section have been interpreted to mean no evidence upon which a reasonable person acting carefully may convict (R.v Shein 1925 AD 6, R v Herholdt and others(3) 1956 (2) SA 722 (W).[8] Evidence refers to credible & reliable Evidence

[9] Where the only evidentiary material on record, at the end of the state case is an informal admission made by the accused whilst pleading not guilty it does not amount to evidence and the court should, MERO MOTU, discharge the accused. S v Mashele 1990(1) SACR 678 (T)

[10] At the end Common sense applies in the exercise of ‘discretion’

Cf : S v MOKOFANE 1998 [1] SA 607 [T] Mynhart J [Para 39 below]

[11] NOTES ON du TOIT’S COMMENTARY: SECTION 174“ The decision to refuse a discharge is a matter solely within the discretion of the presiding officer and may not be questioned on appeal (R v Lathula and others 1919 AD 362. The section gives the court discretion in deciding whether to discharge an accused at the conclusion of the state case. This discretion must be exercised judicially and it is wrong to prescribe to a court how and when it should be exercised in favour of an accused ”; S v Manekwane 1996 (2) SACR 262 ; S vs Agliotti GSJ case 154/2009

[12] Where, however, more than one accused are charged with the same offence, the court may refuse to discharge one of them if it is in the interests of justice to do so (Agliotti at GSJ case SS 154/2009 25 11 2019 [257]). S v SOCI 1998(2) SA 27 S (E)S v Mark 2001(1) SA 572 C: Davis J ( then) .

[13] Where an application for a discharge at the end of a state case is refused there are no grounds for review where there is no proof for irregularity in the conduct of the trial; Ebrahim v Minister of Justice 2000 (2) SACR 173 (W).

[14] Where there are multiple charges the court may discharge the accused on one or more of the charges if there is no relevant count upon which the court could convicts; S v Manekwane 1996 (2) SACR 264 (O) – See Commentory Du toits

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]15] In S v Mpetha and others 1983 (4) SA 262 (C) at 265D-G. In Mpetha Williamson J held

“ that credibility would play only a very limited role and the evidence ignored only if it was of such poor quality that no reasonable person could possibly accept it . “

[16] He refers to the portions of witness’s material evidence that are poor and states at 365 F- G :

“ before credibility can play a role at all it is a very high degree of untrustworthiness that has to be shown .It must not be overlooked that the tries of facts are entitled “ while rejecting 1 portion of the testimony of a witness , to accept another portion “

[17] However later decisions by SCA are clear that credibility now plays a role. In S v MASONDO : IN RE S V MTHEMBU a o 2011 (2) SACR 286 (GSJ ) in which the defence argued that state witnesses failed to link the accused with possession of f/ a , that it was a n injustice to let him stand trial and that credibility of the state witnesses was to be considered in sect 174 discharge.

[18] The SC A held : MASONDO JUDGMENT - above as ff :

“ the section placed a competency , not an obligation , on the court to discharge an accused. The court was called upon to act judicially , with sound judgment and in the interest of justice. Not too much stress or previous cases per se - the facts and circumstances of each case dictated what route to follow . There was no need to lay down a rigid or fixed rules in advance for an infinite variety of factual situations which may or may not arise. I t was thus unwise to attempt to banish issues of credibility in the assessment of issues during 174 proceedings , or confine the judicial discretion to “ MUSTS or MUST NOTS “ ( avail p 6 IMANSHTI )

(see S v Agliotti supra GSJ SS – 154/2009 25.11.2010 at [261]).

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[19] It is submitted that the view to discharge is preferable to that expressed in Dladla as it would prevent hopeless cases from continuing with the attended expense, anxiety and frustration to an accused.”

[20] In short sect 174 affirms the right to a fair trial referred to.

[20] Judge Potgieter in S v BOUWER 1964 (3 )SA 800 at 802 H confirms the discretion to discharge where the witnesses’s credibility is poor :“ by wyse van hoogste uitsondering mag geloofwaardigheid ter sprake kom, slegs in n geval waar die geloofwaardheid van a getuie so aanvegbaar is dat dit feitlik daarop neerkom dat dit geen getuinis is nie .In hierdie verband verwys ek no die saak van S v NORTJE 1961(2) PH H166 (0)

[21] Williamson J in Mpetha decision (above ) stated at P 265 d-E :

“ In my view the cases of Nortje ,Bouwer and Naidoo correctly hold that credibility is a factor that can be considered at this stage “ Se Para 16

[22] In LUBAXA 2001(2) SA 703 SCA J A Nugent (then ) concluded that the the discretion to discharge be applied in accordance with section 35 (3) of the Constitution which provides a fundamental right to a fair trial also that the refusal is now subject to review ie it is now Appealable . Its now an irregularity if the refusal is ordered where there is no case to answer.. The proceedings may even be set aside I t.o Sect 35 (3) above .

[23] The Shupings Case 1983 (2) SA 119 (B) [Hiemstra J] is overruled by Lubaxa decision . The Shupings test offends against the rule of ‘Fairness ‘ - post 1994 legal position .

[24]Where the uncontradicted evidence for the state is circumstantial and more than one reason inference may be drawn a discharge should be refused (S v Cooper and others 1976 (2) SA 875 (T) at 890; Ostilly and others 1977 (2) SA 104 (D) at 107; seeArticle : Skeen 1985 SALG 286); Gertsch 1993 SACJ 272; Jordaan 1995 THRHR 106.

[25] In S v Manone 2001 (I) SALR 426 (T & D); the accused was charged with murder and the state case was solely circumstantial. In cross-examination the accused alleged that he acted in self-defence. The court refused a discharge on the grounds that “in the circumstances therefore, the accused having admitted and it being common cause that he killed the deceased there is an evidential burden on the

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accused to place evidence before the court showing the circumstances of private defence-thus an application under s 174 cannot be allowed” (at 4271).

[26] S v MONDLANE 187 [4] SA 70(T) reasoned that the court may take into acc the implication of the applicant in the confession made by co accd

[27] In deciding on an application for a discharge the court may NOT take into account informal admission made by the accused while pleading not guilty- S MASHELE 1990(1) SA 678 (T) . It does not amount to evidence- Cf S v Mjoli 1981( ) SA (N) Didcot J ( then)

[28] THE Canadian case of DUBOIS VR 1985 DLR ( 4 TH ) 503 , Lamer J on the majority judgment , reasoned that the accd is presumed innocent until proven guilty and that the State must have a case before the accd responds.

[28] In R v OAKES 1986 26 DLR ( 4 TH ) -200 it was stated that INNOCENCE has three components :

Accd must be proved guilty beyond reasonable doubt The State bears ONUS of proof Criminal Prosecutions be carried out in accordance w

lawful procedure

[29] S v NDLANGAMANDLA 1999(1) SA 391 (w) followed the Oakes reasoning . Canada approach is mostly followed by SA courts

See Skeen 1993 SAJHR 525 – 38 - on analysis of ‘NO Evidence ‘

WORD ‘ MAY ‘ - interpretation

[30] The word ‘may’ is crucial to the exercise of discretion – R v Mkhize 1960 (1) SA 276 N . The word ‘may’ meant ‘is empowered to’ So where there is no evidence the court is empowered to discharge - R v Machinini 1944 SA 91 at 92 WLD .[31] Ponnan JA in S v SHILAKWE 2012 (1) SA 16 SCA @ 23-B regarding the trial court’s ruling on admissibility ( accused implicating the other ) stated:

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“ Relying on the authority of S v NDLOVU 2003 (1) SACR 331 SCA , the trial judge ruled that the statement of Accd 4 which had implicated his co accused inlcuding appellant , was admissible in evidence against them a s well “ . This ruling was( Ndlovu case) given at the end of all evidence, as opposed to Sect 174 dicretion

Sect ion 1`74 Discretion is a ‘mid- way ‘ process of adjudication . Rulings on admissibility have their appropriate stages

[32] The discharge presupposes absence of ‘prima facie case’. The accused has a right to remain silent and not testify because there is no case to answer. Cf R v OAKES and NDLANGAMANDLA , above [33]The test for the application is whether there is a prima facie case. One will apply it to the given facts and visa versa . An objective test or view applies – hence reasonable man

[34] In S V Legote a o 2001(2) SA 179 SCA , it was stated that the court has a duty to discharge the unrepresented accd where there is no prima facie case . The same applies where the accd is legally represented in court

[35] The court should discharge the accd Mero Motu where ther is no case to answer - S v NZIMANDE 1993[2] SA 218 (N) and cases in duToit’s Commentry

S v Mthethwa 1972 (3) SA 768 AT 769 D – F , Evidence refers to ‘credible ‘ evidence –[sect 208 CPA] also see Hoffman “Evidence” 3RD edition P 429

[36]The trial court is bound by record of evidence before it - Rules of court

[37] It could be that the accd is not linked to the crime or the element of the offence is missing for which he is not to blame and cannot bolster the state case - hence he is innocent throughout the state case

[38] JA Smalberger in S v Francis 1991 (1) JA 198 (A) at P 203 II – I

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“ It was therefore incumbent upon the trial Court to properly evaluate the evidence of D in the lights of its deficiencies, and the criticisms voiced against it, in order to determine whether it measured up to the standard required for its acceptability. If it did not measure up to such standard, it would not avail the State in the discharge of the onus of proof upon it ….whether his guilt has been proved beyond all reasonable doubt, this is only so where the State has prima facie discharged the onus upon it. A failure to testify will NOT remedy a deficiency in the State case. “ .It conveys an apposite view to Shupings case Par 22 Cf Sv ZWEZWE 2006(2) 599 KZNP Msimang JP at Para 39 - [39] The approach by trial court and proper adjudication of facts with INSIGHT are paramount . The correct appraisal of fact in the light of the afore going guidelines, including absence of explanation why was state evidence not led, is crucial to the quality of judicial exercise of the discretion : Agliotti case n Manekwane Judgement : Paras 12,13 above - ‘ interest of justice ‘

[40] The full bench ,S v LEVE 2011(1) SA 87 @90 F-H [E C }, per Jones J dealt with the trial court’s approach to evaluation of :

“ findings of fact and credibility may not be interfered with , unless they are vitiated by irregularity or ….. are patently wrong “

[41] Zulman J A in S v V 2000(1) SA 453 A@ 455 F said the ff on ‘demeanour ‘ of witness or ‘ unstable ‘ accused in the witness box :

“ It is of little value to judge an accused on his demeanour in the witness box and to convict on this ground “ …..

“ Such conduct is not unusual nor surprising amongst accused persons or indeed witnesses generally who may be afraid or even overwhelmed at the experience of giving evidence in a court, possibly for the first time “

Cf S v KELLY 1980 (3) SA 301 @ 308 B –G Diemont JA , that demeanour is a ‘tricky horse to ride ‘ and can at times be misleading to take it alone in the evaluation of evidence . So it may be a dangerous practice to use demeanour singularly to determine truthfulness

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or untruthfulness of a witness . There must be regard to other factors apparent in the case

[42] HATZENBERG J in S v CEDARS 2010 (1) SACR GNP 75 @ 77 In the matter of R v Harmer 1906 TS 50 at 52 , Innes CJ held : that a court in review only has to certify that the proceedings are in accordance with real and substantial justice, not necessarily in accordance with strict law, as it is possible for proceedings to be in accordance with real and substantial justice, even although a rule of criminal procedure may not have been observed. In S v Zulu 1967 (4) SA 499 (T) at 502 (D) Claassen AJP stated, with reference to the Harmer matter, that the sentence dealing with automatic review does not require the judge to certify that the proceedings are in accordance with law, but in accordance with justice. In S v Daniel Make A 592/86 Kriegler J (then) refused to set aside a sentence of a fine where the legislation did not provide for a fine . S v Sipeng and Nkung, case No A1125/889 ( GP)

[43] In 1997 Chief Justice M M Corbett in his article “ WRITING JUDGMENT” Vol 115 outlines the quality of judgment and it articulation. He refers to factors that are of importance ; see Evans case 1984 (2) as ff:

Probability or (improb) of the testimony seen against the case b/ground Inherent contradictions In the witness evidence Contradiction of evidence by other credible witnesses or indisputable

facts Contradiction of witnesses’s extra curial statement or prev conduct Attacks on character and credibility of witness.

[44] Judge Nicholas (then was], S v OOSTHUIZEN 1982(3) SA TPD 571 , analyses probative force of evidence , mistaken or honest and deliberate mistake , clarity on judgment , caution , assessment of evidence – S v R 1977(1) SA 9 @ p 12 A , D- G . These aspects are important to the proper evaluation by court in the eventual conclusion

( CUT Off long ( UNNECESSARY ) quotes convey clarity of Rulings )

[45] S v Joma 1998 (4) SA 485 (N) Nicholson J - exercise of discretion

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S v Hudson 1998 (2) 359 (W) Blieden J - approach , prima facie case

S Mokofane 1998 (1) SA 603 (T) Mynhart J - discretion and common sense

[46]Where a number of accused are charged, the state leads evidence

that incriminates on or more, the Q will be whether accused have fair trial if the application for a discharge is refused. The same view was held in Hudson case above – J Blieden

[47] S v Zwezwe 2006 (2) SA 599 (N) Msimang J : [Para 34 above ]

referred to the rule of practice [to discharge] has evolved over years

that the Court should mero motu discharge the accused where there is no case to answer – instances of unrepresented accused (S v Nzimande 1993 (2) 218 KZNP)

EXAMPLE OF ORDER

ORDER :

Applying these dicta ; the DISCHARGE of Accused 3 4 is allowed

In the absence of credible evidence linking accd

to the crime .

ACCD 1 , 2

Their discharge is accordingly REFUSED . Reasons will follow later .

-------- ======== =========

RESTRICTION OF GROUNDS : APPEAL

S v SAFATSA and others 1988(1) SA 868 (A)

The legal position is succinctly summarized in Safatsa at 877 A-D:

‘It is generally accepted that leave to appeal can validly be restricted to certain specified grounds of appeal… In practice this is frequently a

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convenient and commendable course to adopt, especially in long cases, in order to separate the wheat from the chaff. On the other hand this Court will not necessarily consider itself bound by the grounds upon which leave has been granted . If this Court is of the view that in a ground of appeal not covered by the terms of the leave granted there is sufficient merit to warrant the consideration of it, it will allow such a ground to be argued… In my view, however, it requires to be emphasized that an appellant has no right to argue matters not covered by the terms of the leaves granted. His only “right” is to ask this Court to allow him to do so.’

X X x X - 6 = O [ X times 2]

X x 2x – 1 = 0