JUDGMENTS OF INTEREST IN THE AUGUST EDITIONS OF THE SACR SOUTH AFRICAN CRIMINAL LAW REPORTS
Promise you'll play fair?
It is not the prosecution's duty to assure an accused that his trial will be fair. The right to a fair trial goes as far as the accused being tried fairly in fact. While not all of the prosecution's material is relevant to the defence of an accused, in NDPP v King 2010 (2) SACR 146 (SCA) the accused demanded access to the entire docket against him to satisfy himself that the prosecution would play fair.
Justice is blind, not unkind
When asked why some of the answers given by the accused were totally irrelevant, an expert testified that the accused had either misunderstood the questions, or was just guessing. In S v Mbezi 2010 (2) SACR 169 (WCC), the proceedings in the court a quo were set aside because the accused had not enjoyed a fair trial. It was discovered that the hearing-impaired accused could either not hear or understand the questions put to him. An expert testified that the accused would not be able to relate to what was said in court.
Guilt by association
In S v Msomi 2010 (2) SACR 173 (KZP), the accused was convicted of rape and sentenced to 12 years after he was found to have participated in the rape. He contended that his liability as an accomplice had not been proved, but the court thought otherwise. Evidence revealed that the accused was aware of the perpetrator's intentions, and that by twice dragging the victim to the perpetrator's taxi, he had facilitated, furthered and encouraged the rape.
TABLE OF CASES
- Albutt v Centre for the Study of Violence and Reconciliation, and Others 2010 (2) SACR 101 (CC)
- Bonugli and Another v Deputy National Director of Public Prosecutions and Others 2010 (2) SACR 134 (T)
- National Director of Public Prosecutions v King 2010 (2) SACR 146 (SCA)
- S v Mbezi 2010 (2) SACR 169 (WCC)
- S v Msomi 2010 (2) SACR 173 (KZP)
- S v Olivier 2010 (2) SACR 178 (SCA)
- S v PN 2010 (2) SACR 187 (ECG)
- S v De Koker 2010 (2) SACR 196 (WCC)
FLYNOTES
ALBUTT v CENTRE FOR THE STUDY OF VIOLENCE AND RECONCILIATION, AND OTHERS (CC)
NGCOBO CJ, MOSENEKE DCJ, CAMERON J, FRONEMAN J, KHAMPEPE J, MOGOENG J, NKABINDE J, SKWEYIYA J and VAN DER WESTHUIZEN J
2009 NOVEMBER 10; 2010 FEBRUARY 23
Sentence – Presidential pardon – President's power in terms of s 84(2)(j) of Constitution to pardon offenders – Special dispensation for politically motivated crimes where offenders did not participate in Truth and Reconciliation Commission – Exclusion of victims from pardon process irrational – Exclusion not rationally related to objectives of nation-building and national reconciliation – Victims to be heard before President granting pardon under special dispensation.
BONUGLI AND ANOTHER v DEPUTY NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS (TPD)
DU PLESSIS J
2007 JUNE 19; 2008 FEBRUARY 1
Prosecuting authority – National Director of Public Prosecutions – Appointment of advocates in private practice to conduct prosecution – National Prosecuting Authority Act 32 of 1998, s 38(3) – Prosecutors thereby required, and by s 179(4) and s 35(3) of Constitution, to conduct prosecution without fear, favour or prejudice – Prosecutor so acting integral part of fair trial – Accused who is prosecuted by prosecutor not free from outside influences does not receive fair trial – State appointing two advocates in private practice to prosecute applicants on charge of fraud – Advocates retained by complainant to advise whether fraud committed – Prosecution, and advocates' fees, funded by complainant – Reasonable perception that advocates might not always act without fear, favour or prejudice not excluded – Appointment of advocates as prosecutors in conflict with s 35(3) of Constitution and therefore unlawful – Appointment set aside.
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v KING (SCA)
HARMS DP, NUGENT JA, MLAMBO JA, MALAN JA and MAJIEDT AJA
2010 FEBRUARY 15; MARCH 8
Appeal – In what cases – Before finalisation of trial – Against order of High Court granting accused right to full description of contents of docket and reasons for denial of access thereto – Issue being whether 'order' was in substance, and not in form, of final effect – 'Order' appearing to be interlocutory and, therefore, not of final effect – However, on closer examination order final in substance: criminal trial could not begin without compliance therewith – Court issuing order bound thereby – Accordingly, matter appealable.
Fundamental rights – Right of access to information – Police docket – Applicant for access to information having to base case on Promotion of Access to Information Act 2 of 2000 – Respondent not complying with formalities – Section 7 providing that Act not applying to records requested for purpose of criminal or civil proceedings if access to record provided for 'in any other law' – 'Other law' including rules relating to discovery – Once court proceedings commencing, rules of discovery taking over.
Fundamental rights – Right to a fair trial – Right of access to information – Contents of sections B and C of police docket – Accused claiming right to full description of contents of sections B and C of docket, and reasons for State denying him access thereto – Whether right asserted was reasonably required for fair trial – No such thing as perfect justice – Discovery in criminal case always compromise – Fairness not meaning accused could unilaterally demand most favourable treatment – Also requiring fairness to public, represented by State – Fair trial right not encouraging preliminary litigation – Document possibly relevant to prosecution without being relevant to accused's guilt or defence – Most material covered by litigation privilege in criminal cases not discoverable because not germane to conduct of trial – Trite that relevant documents having to be discovered – However, present matter about accused's right to motivated index enabling him, without having established any prima facie facts, to audit sections B and C of docket – While accused need not be satisfied with say-so of prosecution, initial decision remaining that of prosecution, and if this shown to be wrong during trial, court might order further discovery.
S v MBEZI (WCC)
DLODLO J and FORTUIN AJ
2010 MARCH 26
Fundamental rights – Right to a fair trial – Right to be tried in language that accused understands, or to have proceedings interpreted – Despite use of interpreter, accused unable to hear and understand proceedings due to severe hearing loss – Accused's evidence-in-chief already complete – Accused not having had fair trial – Proceedings reviewed and set aside – Recommencement of proceedings before different magistrate in order, subject to accused's disability being accommodated.
S v MSOMI (KZP)
GORVEN J and STEYN J
2010 APRIL 6
General principles of liability – Accomplice – What constitutes – Accomplice to rape – Appellant twice apprehending complainant and bringing her to perpetrator of rape – Fully aware of perpetrator's intentions – Facilitating, furthering and encouraging rape – Associating himself with rape – Appeal against conviction of rape dismissed.
S v OLIVIER (SCA)
NUGENT JA, GRIESEL AJA and MAJIEDT AJA
2010 MARCH 10, 31
Sentence – Imposition of – Evidence on sentence – Submissions made from bar – As much information as possible regarding perpetrator, circumstances of offence, and victims, to be placed before court – Material factual averments to be proved on oath – Any ex parte averments by defence at variance with State's information to be unequivocally disputed – Practice whereby prosecutors sometimes permitting defence averments at variance with information in docket to remain unchallenged, to be deprecated.
Sentence – Imposition of – Evidence on sentence – Submissions on behalf of accused made from bar – Evident during prosecutor's address that some material factual averments advanced on appellant's behalf challenged by prosecutor – Open to appellant's counsel to reassess situation and consider adducing oral evidence – By not doing so, counsel taking calculated risk that trial court might not accept unattested disputed allegations-Under circumstances, no misdirection by trial court and no basis for finding trial unfair.
S v PN (ECG)
REVELAS J, ROBERSON J and GROGAN AJ
2010 APRIL 20, 30
Sentence – Prescribed sentences – Minimum sentences – Imposition of in terms of Criminal Law Amendment Act 105 of 1997 – 'Substantial and compelling circumstances' – Rape of 3-year-old girl – Absence of serious physical injury – Attack not premeditated – Neither of these constituting substantial and compelling circumstances – Victim mere toddler, incapable of resisting sexual assault – Appellant committing rape, despite opportunity to reflect on proposed deed and desist – Appeal against sentence of life imprisonment dismissed.
Sentence – Prescribed sentences – Minimum sentences – Imposition of in terms of Criminal Law Amendment Act 105 of 1997 – 'Substantial and compelling circumstances' – Rape of 3-year-old girl – Youthfulness of perpetrator – At 19, appellant, though youthful, no longer child – Not more than usually susceptible to negative influences – Sexually active, working for own account, living as adult – Showing no remorse – Possibility of rehabilitation very remote where perpetrator refusing to take responsibility for actions – Appeal against sentence of life imprisonment dismissed.
S v DE KOKER (CC)
YEKISO J and BREITENBACH AJ
2009 DECEMBER 4
Appeal – Against sentence – Sentence imposed after consideration of plea bargain agreement – Appeal perempted – Accused concluding plea and sentence agreement with State, confirming agreement before court, and duly convicted and sentenced in accordance with agreement – By following plea and sentence process, appellant settling lis between himself and State once and for all.
Appeal – Leave to appeal – Right to note appeal without leave when life imprisonment imposed by regional court – Section 309(1)(a)(ii) of Criminal Procedure Act 51 of 1977 – Whether such appeal perempted by plea and sentence agreement – No clearer case of peremption than where accused concluding plea and sentence agreement with State, confirming agreement before court, and being duly convicted and sentenced in accordance with agreement – By following plea and sentence process, appellant settling lis between himself and State once and for all.
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