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Seleka v The State (C.A. 41 OF 1986 ) [1987] BWCA 1 (16 March 1987)

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afternoon of the 9th of April appellant came to Sarah while she was in the company of Idah and said that he did not want to see Idah around "in case he does something". He said he was going to burn the house down. That night Sarah collected her children and went to sleep in a neighbouring hut. She left her property in her own hut and locked it when she left. There was, she testified, no light left in the hut and there were no embers outside the hut. At about 11 p.m. that night she heard people shouting and on going out she found her hut on fire. It burnt down completely and her property left in the hut was destroyed.
Supporting evidence was given by Idah, who confirmed Sarah's evidence that appellant had threatened to burn the hut.
A police constable, one Kwekae Mokgathi, testifi that he knew appellant and that on the night of the 9th of April 1985 he was on duty and he, together with another constable, Golekanye, went on night patrol duty together. They met appellant coming from the direction of Riverside Location where the burnt hut was located. Appellant was running. They suspected him of having committed a crime and they called him to come to them. He was asked why he was running and stated in reply that he had been chasing a young man who had stolen some money. The police allowed him to go and soon afterwards the witness saw flames coming from the same direction as that from which appellant had come. On investigation he found the hut belonging to Sarah in flames.

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The above evidence was recorded at appellant's trial. Thereafter appellant testified and denied that he h burnt the hut, alleging at the same time that the hut had been burnt by Sarah and Idah. Appellant stated that he had in his possession a letter which he claimed had been written by Sarah to Idah and he tendered the letter in evidence. The letter was handed to the magistrate who, as appears from his judgment, read the letter. Objection was taken by the prosecutor to the reception of the letter in evidence. This objection was upheld on the ground that it had not been put to Sarah during cross-examination when she gave evidence. To admit it at that stage of the trial, when Sar.ah had had no opportunity to refute its contents or its genuineness, would, according to the magistrate, have infringed the principles of natural justice. It would appear that it did not occur to the magistrate that this problem could have been overcome by recalling Sarah to the witness box.
The matter was accordingly decided without reference to the letter, the magistrate relying upon what he described as circumstantial evidence. He convicted the accused as charged and imposed the sentence referred to earlier in this judgment.
The appellant appealed to the High Court against this judgment but the appeal was dismissed. No reasons for judgment appear in the record. Thereafter appellant applied for leave to appeal to this Court and prayed for condonation for the fact that his application was out of

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time. Leave was granted for a further appeal and the condonation sought was granted. It appears from the judgment in the latter matter that the State representative conceded that the magistrate's refusal to admit in evidence the letter above referred to constituted an irregularity. The learned Judge referred to the contents of the letter and concluded that in the light of the magistrate's refusal to admit it he was able to conclude that the appeal had a reasonable prospect of success.
When' the matter came before this Court counsel for the appellant and the State agreed that the failure to admit the letter constituted an irregularity. The extent of the irregularity is demonstrated by the contents of the letter, referred to in both the magistrate's Court and in the High Court, and translated by agreement and read to this Court. So translated the letter directed to Idah reads as follows:-
"Please Idah come here today so that we can collect our belongings and take them to Dowana's place and then burn this little house so that we completely pass with Molapise (appellant). I do not want you (him) anymore. I want to move away and put up or stay at Somerset (?). If I can get him arrested and put in prison my boy friend will then have a say. We should take the money and divide it amongst ourselves. Please don't tell anybody. I will say that he once broke down the other one and it will be believable. I will report him so that he can be forced to support the writer and children. If you are asked you should say

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he/she would burn the house. I will also say the same and we should not give contradictory statements. If the police ask me who is the owner of the trunks you should say they are yours. Do not say they are mine. The other thing - when the children close the schools I will send one to take the trunks home. Those things which he has got for me because he knows them he would see them. They should be burnt. I do not want them to be discovered. But you, Idah, if you act foolishly we will die • in prison. We should try to win this fight.
S. Okeditse"
While both counsel agreed that the refusal by t magistrate to accept this letter as evidence vitiated the proceedings before the magistrate they disagreed as to the nature of the action which it would be appropriate for this Court to adopt in the light of the above circumstances. Appellant's counsel contended that the only action that should be taken by this Court is to quash the conviction an sentence. The State counsel - correctly in my opinion - d not contend that the verdict was saved by the operation of the proviso to section 321 of the Criminal Procedure and Evidence Act Cap. 08.02 but he urged upon this Court that, having set aside the conviction and sentence, it should refer the matter back to the magistrate to reopen the trial to allow the production in evidence of the letter above referred to as well as of such other evidence in regard to the matter as may be relevant.
The/..

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The Court drew the attention of counsel to
the terms of section 13(4) of the Court of Appeal Act Cap.
04:01 which provides that
"Where the Court of Appeal, in a criminal appeal, is of the opinion that the proceedings in the trial court were a nullity through want of jurisdiction or for any other cause it may order a retrial by a court of competent jurisdiction."
Both counsel were asked to consider whether or not this section
was applicable to the circumstances of the present case.
Both expressed the view that the failure by the magistrate to
permit the production of the letter in question in evidence
did not constitute the proceedings a "nullity" within the
meaning of that word in section 13(4).
There is nothing in the context in which that
word is used in this section to indicate what meaning the
legislature intended to ascribe to the word. A perusal of
a number of the South African cases in regard to the effect
on the proceedings of the occurrence of irregularities
during the trial has not proved helpful as to what sort of
irregularity can be said to result in the trial being
treated as a nullity. The terminology used by the South
African courts to describe a procedural irregularity varies
according to the nature of the irregularity. An irregularity
is sometimes described as a fatal irregularity, i.e. an
irregularity, the effect of which cannot be circumvented by
a reliance upon a saving proviso such as that contained in
section 321 of the Criminal Procedure and Evidence Act referred
to/. .

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to above. An irregularity has also been described as one which amounts per se to a failure of justice or to a substantial miscarriage of justice, or a gross departure from established rules that govern the conduct of a trial.
In all such cases the court has acted by quashing the conviction and no action was taken to refer the matter back for re-trial either before the same or another magistrat Thus in the case of R^ v. Nea Hellas (Pty.) Ltd., 1935 T.P.D. 262, the court decided that the failure to afford an accused an opportunity of leading rebutting evidence was an irregularity that must have as its consequence the quashing of the conviction. No order referring the matter back to a lower court was made.
It is clearly not possible to lay down general guidelines as to the type of irregularities which, if they occurred during a trial, would constitute the trial a "nullity". If the reference in section 13(4) of the Court of Appeal Act to lack of jurisdiction as a ground for treating the trial as a nullity is taken as a guide to the legislature's intention then it would seem that the irregularity complained of would have to be of a substantial nature and one pervading the trial as a whole before it could be regarded as having rendered the trial a nullity. Such a result might well, for instance, be brought about by a refusal by the presiding officer to recuse himself when good grounds existed for him to do so; or where an interpreter whose services were rendered throughout the trial had not been sworn in, or that the magistrate who presided had at

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an earlier stage in the case acted as the prosecutor.
However, in the view I take of the matter it is not necessary to pursue the question of the meaning of the word "nullity" since even if the circumstances present in this case could be said to have rendered the proceedings in the trial court a nullity, the choice still remains with this Court to decide whether to content itself with an order quashing the conviction or, in addition, to order a retrial. The circumstances of this case are not such as to persuade me to follow the unusual course of ordering a retrial.
The appellant, after appearing at his trial, approached the High Court on appeal against his conviction and when the appeal was disallowed he appeared again seeking leave to appeal to this Court, on which latter occasion he was represented by Mr. Morotsi. Having been granted such leave he appeared in this Court, again being represented by Mr. Morotsi. In all, therefore, he has already appeared in a court on four occasions in connection with this matter. It would constitute an unfair burden on the appellant if he were required to appear for a fifth time with the possibility of further appearances not being excluded.
The fact that no fault on the part of the prosecution contributed to this result is not a relevant factor to be had regard to in the exercise of this Court's discretion.
The Court's order is accordingly as follows:-
The I..

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The appeal is allowed and the proceedings in the trial court are set aside and appellant is discharged.