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S v Ntsie (CA 66/04)  ZANWHC 21 (16 September 2004)
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IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)
In the matter between:
MATSHEGANE ELSIE NTSIE 1ST APPELLANT
SHADRACK DUBE 2ND APPELLANT
GEORGE HLAPANE 3RD APPELLANT
THE STATE RESPONDENT
FOR THE APPELLANTS : MR J ROODTMAN
FOR THE RESPONDENT : ADV V D MDABULA
DATE OF HEARING : 13 AUGUST 2004
DATE OF JUDGMENT : 16 SEPTEMBER 2004
Fair trial, right to - Section 93 ter (1)(a)(b)of the Magistrates Court Act 32 of 1944 - irregularity during the course of a criminal trial amounting to an infringement of a constitutional right - effect - a constitutional irregularity committed during the course of a criminal trial does not vitiate the conviction per se - the same test to be applied as in the case of non-constitutional irregularity - where the irregularity is so fundamental as to amount to a failure of justice the conviction is to be set aside - where the irregularity is not of so fundamental a nature as to vitiate the proceedings per se - whether the conviction can stand or not depends upon whether, on the evidence untainted by the irregularity, there is proof of guilt beyond a reasonable doubt. Enquiry as to whether constitutional irregularity committed - premised on test as to whether proceedings “in accordance with justice” or whether irregularities had resulted in “failure of justice” or whether proceedings conducted according to basic motions of fairness and justice.
Held - that failure by Magistrate to invoke provisions of section 93 ter 1(a)(b) where accused is legally represented by competent counsel, and where the guilt of accused is proven beyond a reasonable doubt by evidence untainted by irregularity, held that trial not unfair - irregularity not so fundamental in nature as to justify conclusion that there has been a failure of justice.
The Appellants were convicted in the Regional Court at Itsoseng on the 3rd October 2003 on a charge of murder and were sentenced to six (6) years imprisonment. The charge related to an incident which occurred on the 3rd October 1995 at Doornlaagte Village, when the deceased Jon Dintwe was murdered.
The Appellants were indicted that they unlawfully and intentionally killed Jon Dintwe by hitting him with stones, clenched fists and booted feet, alternatively that the Appellants are guilty of contravening section 18 (2) (a) and or (2) (b) of the Riotous Assemblies Act No 17 of 1956.
The Appellants pleaded not guilty but were convicted. They now approach this court to seek an order overturning the conviction which was returned by the trial court.
The Appellant’s grounds of appeal:
The Appellants submit that the state has failed to prove its case beyond a reasonable doubt for the following reasons:
 The Learned Magistrate erred in finding that it was common cause that the deceased was assaulted on the 3rd October 1995; that he sustained multiple injuries as a result of such assault.
 The State did not discharge its onus of proving beyond a reasonable doubt that the deceased died as a direct result of injuries inflicted by the Appellants. The Appellants contend that there was an actus novus interveniens in the form of bronchial pneumonia which interrupted the causal link ensuing from the infliction of the assault on the deceased and the deceased’s death.
 The Learned Magistrate misdirected himself in finding that the Appellants assaulted the deceased in pursuance of a common purpose; that such finding was not supported by the evidence.
 The Appellants’ right to a fair trial was infringed in that, the Learned Magistrate failed to comply with the requirements of section 93 ter of the Magistrates Court Act 32 of 1944.
It is trite law that in order to obtain a conviction, the state must discharge the onus of proving its case beyond a reasonable doubt. The principles governing this approach are clearly expressed by Faber AJ in the case of S v Toubie 2004, (1) SACR 530 et seq;
“ Firstly, a note on the onus of proof in criminal cases. The criminal standard is proof beyond reasonable doubt. While the phrase is well known, its true meaning is frequently misunderstood. On this score, the comments of Olivier JA in S v Phallo and Others 1999 (2) SACR 558 (SCA) at 562g-563e merit repetition. The learned Judge of Appeal, after posing the question where the line between proof beyond reasonable doubt and proof on a balance of probabilities was to be drawn, went on to say the following:
‘ In our law, the classic decision is that of Malan JA in R v Mlambo 1957 (4) SA 727 (A). The learned Judge deals, at 737F-H, with an argument (popular at the Bar then) that proof beyond reasonable doubt requires the prosecution to eliminate every hypothesis which is inconsistent with the accused’s guilt or which, as it is also expressed, is consistent with his innocence. Malan JA rejected this approach, preferring to adhere to the approach which “at one time found almost universal favour and which has served the purpose so successfully for generations” (at 738A). This approach was then formulated by the learned Judge as follows (at 738A-C);
“In my opinion, there is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused.
An accused’s claim to the benefit of a doubt when it may be said to exist must not be derived from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with, or outweighed by, the proved facts of the case.”
 The approach of our law as represented by R v Mlambo, supra, corresponds with that of the English Courts. In Miller v Minister of Pensions  2 All ER 372 (King’s Bench) it was said at 373H by Denning J:
“(T)he evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the cause of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”’
Secondly, the approach to be adopted in determining whether the onus of proof has been discharged in any particular case is frequently misconceived. The assessment of credibility, based on a piecemeal, self-contained and insular analysis of the evidence of each of the witnesses who might have testified at the trial, may tend to distort reality. What is required is an integrated approach, based on the evidence in its totality. Here again, a timely reminder is merited and I can do no better than refer to the following extract from the judgment of Nugent J (as he then was) in S v Van der Meyden 1999 (1) SACR 447 (W) at 448h-450c):
‘ In whichever form the test is expressed, it must be satisfied upon a consideration of all the evidence. A court does not look at the evidence implicating the accused in isolation in order to determine whether there is proof beyond reasonable doubt, and so too does it not look at the exculpatory evidence in isolation in order to determine whether it is reasonably possible that it might be true. In R v Hlongwane 1959 (3) SA 337 (A), after pointing out that an accused must be acquitted if an alibi might reasonably be true, Holmes AJA said the following at 340H-341B, which applies equally to any other defence which might present itself:”
Further the learned Judge stated that:
‘ The process of reasoning which is appropriate to the application of that test in any particular case will depend on the nature of the evidence which the court has before it. What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false; some of it might be found to be unreliable; but none of it may simply be ignored.’
The power of the appeal court to interfere with the findings of the trial court is strictly circumscribed. The court will rarely if ever interfere with the findings of a trial court unless there is a patent misdirection committed by such court.
See S v R Dlumayo and Another 1948 (2) SA 671 (A) at 705.
To evaluate the probity of the issues raised in the appeal, a summary of the evidence adduced before the trial court is analysed herein to determine whether;
(a) The state has discharged the onus of proving its case beyond a reasonable doubt;
(b) the state has proved beyond a reasonable doubt that the cause of the deceased’s death was due to the injuries inflicted by the appellants;
(c) that the there was no nova causa which interrupted the causal chain ensuing from the perpetration of the assault on the deceased and ending in his death;
For the State the following witnesses testified,
 Martha Dintwe
The evidence of Martha Dintwe
Martha Dintwe testified that on the 3rd October 1995, she met the three Appellants. She was on her way to her parental home. Before entering her parental premises she exchanged words with the First Appellant. Present at her parental home was her father the deceased, her mother, her brother and his wife. The Appellants followed her into her parents yard. The deceased forbade Appellants from entering his yard. Appellants disregarded the deceased and entered his premises. Appellants thereafter threw stones at the house. She, her mother, her brother and his wife ran into the house.
Initially she saw the deceased inside the house. Subsequently during the fighting she saw the deceased outside. She does not know when the deceased went outside. She saw the Second Appellant assaulting the deceased with a spade on his head and body. The deceased fell down. The Appellants were all involved in the fight against the deceased and his family.
Evidence of Emily Dintwe
Emily Dintwe testified that on the day in question she was asleep. She heard footsteps. She woke up, and peeped through the window. She saw the Second Appellant assaulting the deceased with a spade on the head. The Third Appellant assaulted the deceased with a pick handle on his body. The deceased was lying on the ground. She heard objects hitting the wall. She did not see who was throwing stones. The deceased was not sickly but was an old person.
All the Appellants testified.
The First Appellant’s Evidence
The First Appellant testified that on the 3rd October 1995 he was with the Second and Third Appellants. They were on their way to her grandmother’s home at Doornlaagte. They met Martha Dintwe. When she passed Martha Dintwe’s parental home, she saw her standing with a certain Moshoeshoe. Martha Dintwe without provocation assaulted her. Moshoeshoe also assaulted her with a cable. She and the Third Appellant fought Martha Dintwe and Moshoeshoe.
She did not see the deceased being assaulted. She denied pelting the deceased’s house with stones. No person did so. The fight occurred outside the deceased’s yard. She did not see the role played by the Second and Third Appellants during the fight. She does not know the reason why she was attacked.
Second Appellant’s evidence
The Second Appellant confirms that on the day in question he was in the company of the First and Third Appellants. He was not involved in any fight. He did not see any person fighting. He did not assault the deceased.
Evidence of the Third Appellant
The Third Appellant testified that on the 3rd October 1995 he was in the company of the First Appellant. They were on their way to the First Appellant’s parental home, when passing through the village Tholwana people came out of a yard and assaulted the First Appellant. He was also assaulted. The Second Appellant arrived, tried to intervene but was also assaulted. He did not assault the deceased with a pick handle. No one threw stones. After the fight, Appellants left together.
Expert Evidence admitted in terms of section 212 of Act 51\1977
The Medical Report Exhibit “C” indicates that the deceased was admitted to hospital on the 4th October 1995 after sustaining injuries as a result of the assault on the 3rd October 1995. The medical report further indicates that the deceased was examined by a doctor on 17th October 1995. The medical examination revealed that the condition of the deceased’s clothes was very poor and dirty. Deceased was generally in a poor state of health. He had sustained multiple lacerations on his head and limb. These lacerations were healing.
The Post Mortem report Exhibit “E” states that the deceased sustained severe external injuries. The cause of death was due to head injuries complicated by bronchial pneumonia.
Evaluation of Evidence
The thrust of Appellants attack on the evidence adduced is premised on the contention that the trial court misdirected itself in finding that the state had proved the guilt of the Appellants beyond a reasonable doubt. An evaluation of the evidence follows to determine whether the Appellants submissions have merit.
The First Appellant testified that on the day in question she was in the company of the Second and Third Appellants; that both were involved in a fight at the parental home of the first state witness Martha Dintwe.
[See Record paginated page 56, lines 9 - 10]
“We fought with them.”
See also lines 22 - 23 on the same page “then after the fight what happened? We went home.”
The Third Appellant places the Second Appellant on the scene.
See Record paginated page 69 lines 1 - 3 “Then as we were fighting like that, then Shadrack (that is the Second Appellant) arrived......... then they started assaulting him”
The Second Appellant testified in contradiction to both the First and Third Appellants that he was not present at the time when the fighting occurred. See Record paginated page 62 lines 20 - 21 “I was not present at that time of the fight.”
The Appellants’ evidence in distancing themselves from being present at the scene of the incident, and denying participating in or assaulting the deceased, does not accord with the proven facts and circumstances surrounding the incident. The proven facts are that on the day in question;
(a) There was a fight at the deceased’s premises,
(b) the Appellants on their version were at or near the deceased’s premises
(c) The Appellants, the deceased, and his family were involved in a fight,
(d) The deceased was assaulted and sustained injuries,
(e) The deceased as a result of his injuries was thereafter taken to the hospital for medical attention where he later died.
It is inconceivable that the deceased was assaulted by members of his own family. The only reasonable inference on the proven facts is that the deceased was assaulted by the Appellants, and that as a result of such assault sustained grievous bodily injury.
An analysis of the evidence regarding the involvement of the First Appellant shows that she was present from the inception of the fight, until the end, when she left together with the First and Second Appellants.
The court correctly held in our view that the contradictions between the state witnesses were inconsequential and not so material as to render the states case nugatory.
The Appellants version that they did not participate in the assault of the deceased is improbable. The conspectus of the evidence shows beyond a reasonable doubt that a physical fight took place, stones were thrown, a spade and a pick handle were utilised to assault the deceased.
The court correctly rejected the versions of all the Appellants, as false beyond a reasonable doubt. We concur with the trial court’s finding that the Second and Third Appellants assaulted the deceased with a spade and a pick handle respectively, that the First Appellant was present during such assault.
The question to be addressed is whether the First Appellant was involved in, or participated in the assault of the deceased in pursuance of a common purpose. The further question is whether the Appellants had the requisite individual subjective insight essential to prove common purpose, in respect of each of themselves in relation to the assault on the deceased and his subsequent death.
The effect of common purpose on Appellants
Generally “the essence of the doctrine of common purpose, is that if two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, the conduct of each of them in execution of the purpose is imputed to the others.” See Criminal Law by C R Snyman fourth edition page 261 par 8.
In instances wherein an accused common purpose is manifested by conduct and does not arise from prior agreement, the liability of the accused continues while she has intent with another participant to commit the offence; and the accused actively associates herself with the commission of the offence. If the accused not only desists from active participation, but also abandons the intention to commit the offence, the accused is not liable.
When the Appellants committed the assault on the deceased in pursuance of a common purpose it is irrelevant whether one participant did not physically participate in the assault because, the First Appellant by being at the scene made common purpose with the conduct of the Second and Third Appellants in the assault of the deceased. The conduct of each of the Appellants is imputed to the other.
The trial court correctly found that the First Appellant participated in the assault of the deceased by applying the doctrine of common purpose. First Appellant did not prior the commencement of the execution of the assault withdraw from the common purpose.
The only inference to be drawn is that she must have been aware of the assault and must have foreseen that when the deceased was assaulted by the Second and Third Appellants with a spade and a pick handle respectively, the deceased was likely to sustain serious grievous bodily injury, that she reconciled to herself to any eventuality which might ensue including the death of the deceased.
The prerequisites for the establishment of common purposes were enunciated as follows in S v Mgedezi 1989 (1) SA 687 (A) at 750 J - 706 B by Botha JA.
“In the first place, he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of the assault on the inmates ..... Thirdly, he must have intended to make common cause with those who were actually perpetrating the assault. Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others. Fifthly, he must have had the requisites mens rea; so, in respect of the killing of the deceased, he must have intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue.” (My emphasis in italics)
In S v Lungile and Another 1999 (2) SACR 597 (SCA) at par  Olivier JA stated the following in regard to the determination as to whether the required subjective insight was present in a case of common purpose:
“In the present case, the crucial question therefore is whether the State proved a reasonable doubt that the first appellant in fact did foresee.....that the death of a person could result from the armed robbery in which he participated. In this case, as in many others, the question whether an accused in fact foresaw a particular consequence of his acts can only be answered by way of deductive reasoning. Because such reasoning can be misleading, one must be cautious. Generally speaking, the fact that the first appellant had prior to the robbery made common cause with his co-robbers to execute the crime, well-knowing that at least two of them were armed, would set in motion a logical inferential process leading up to a finding that he did in fact foresee the possibility of a killing during the robbery and that he was reckless as regards that result.”
With regard to whether the First Appellant dissociated herself from the common purpose or whether prior to the commencement of the assault she withdrew from such common purpose the principle enunciated in the case of S v Singo 1993 (1) SACR page 232 at par E - F and par I - J, and also page 233 at par B - F; E M Grosskopf JA is instructive;
“That brings me to the question of dissociation. In considering this question one must proceed from the premise that there was in essence one fatal assault committed in concert by a number of persons and that the appellant initially was associated in a common purpose with the others. It is clear that, if the appellant had effectively dissociated himself trom the common purpose prior to the infliction of the fatal injuries on the deceased, he could not be convicted of her murder.”
‘I would venture to state that the rule this way: Where a person has merely conspired with others to commit a crime but has not commenced an overt act toward the successful completion of that crim, a withdrawal is effective upon timely and unequivocal notification to the co-conspirators of the decision to abandon the common unlawful purpose. Where, however, there has been participation in a more substantial manner something further than a communication to the co-conspirators of the of the intention to dissociate is necessary. A reasonable effort to nullify or frustrate the effect of his contribution is required.’
“It is clear that in such cases liability requires, in essence, that the accused must have the intent, in common with the other participants, to commit the substantive crime charged (in this case, murder) and that there must be an active association by him with the conduct of the others for the attainment of the common purpose.
If these two requirements are necessary for the creation of liability on the grounds of common purpose, it would seem to follow that liability would only continue while both requirements remain satisfied or, conversely, that liability would cease when either requirement is no longer satisfied. From a practical point of view, however, it is difficult to imagine situations in which a participant would be able to escape liability on the grounds that he had ceased his active association with the offence while his intent to participate remained undiminished. One must postulate an initial active association to make him a participant in the common purpose in the first place. If he then desists actively participating whilst still retaining his intent to commit the substantive offence in conjunction with the others, the result would normally be that his initial actions would constitute a sufficient active association with the attainment of the common purpose to render him liable even for conduct of the others committed after he had desisted. This would cover the case, mentioned by way of example in the judgment a quo, of a person who, tiring of the assault, lags behind or stands aside and allows others to take over. Clearly he would continue to be liable. However, where the participant not only desists from actively participating, but also abandons his intention to commit the offence, he can in principle not be liable for any acts committed by others after his change of heart. He then no longer satisfied the requirements of liability on the grounds of common purpose.”
The Medical Evidence
The Post Mortem Report
There is an onus on the state to prove its case beyond reasonable doubt. This onus further imposes on the state, the obligation to establish beyond a reasonable doubt the cause of death of the deceased, that such death is attributable to the unlawful assault inflicted on the deceased by the Appellants.
The post mortem report reflects that the deceased died as a result of head injuries complicated by bronchial pneumonia. The injuries are not categorised as the sole cause of death; bronchial pneumonia is stated as a contributory cause of the death of the deceased.
Once the question of nova causa emerges from the evidence, the onus is on the state to show that there was no interruption of the causal relationship ensuing from the infliction of the injury, up to the death of the deceased.
The state did not adduce the evidence of the doctors, who medically attended, treated, and thereafter conducted the post mortem examination on the deceased. The state by its failure to adduce such evidence did not controvert the Appellants submission that the deceased’s injuries were not a conditio sine qua non of his death.
See in this regard S v Mbambo and another 1965 (2) 845 (A) at p 855 A - C where Wessels JA stated
“Inasmuch as the accused were not proved to have been acting in concert, the question is whether the State has proved, in the case of the first accused, that the stab wound was inflicted with the intension of killing the deceased, and that that injury, either by itself or together with the head injury, caused the death of the deceased. In so far as the second accused is concerned, the question is whether the State proved that the head injury, either by itself or together with the stab wound in the lung, caused the death of the deceased. It follows that, if the position at the end of the case was that, although it was established that, medically speaking, either injury could have caused death, it was uncertain whether death ensued as a result of the combined effect of both injuries or as a result of only one or other of them (it being uncertain which injury in fact caused death), the accused were not correctly convicted of murder and culpable homicide respectively.”
In regard to the second accused it was held (at 857E) that: “Even if it were to be assumed in this case that the head injury would inevitably have resulted in death ..., the medical evidence does not exclude the reasonable possibility that the serious injury to the lung operated independently and as a nova causa with decisive and fatal effect before the head injury could result in the extinction of life.”
See also S v Daniels en andere 1983 (3) 275;
R v Du Plessis 1960 (2) SA 642 T.
The reasonable possibility that bronchial pneumonia constituted a nova causa interrupting the causal relationship ensuing from the infliction of the assault on the deceased and his death cannot be excluded.
In the premises we find that the evidence tendered by the state is insufficient and cannot not sustain a conviction on the charge of murder; but that the evidence proves the charge of attempted murder, which is a competent verdict in terms of section 256 read with section 258 of Act 51\1977.
Failure by the Magistrate to appoint Assessors in terms of section 93 ter of the Magistrates Court Act No 32 of 1944
Section 93 ter
The Appellants contend that the failure by the Learned Magistrate to invoke section 93 ter of Act 32\1944 resulted in an irregularity. This procedural irregularity it is submitted, impinged on the Appellants’ constitutional right to a fair trial.
The Appellants further contend that the procedural irregularity is of so fundamental a nature that the proceedings were therefore not in accordance with justice, and that this justifies that the conviction be set aside.
The Appellants contend further that the provisions of section 93 ter are peremptory. The failure by the Learned Magistrate to invoke section 93 ter resulted in the court being not properly constituted, that this resulted in a failure of justice.
Section 93 ter of the Act 32 of 1944 provides as follows:
“Magistrate may be assisted by assessors
The judicial officer presiding at any trial may, if he deems it expedient for the administration of justice-
(a) before any evidence has been led; or
(b) in considering a community-based punishment in respect of any person who has been convicted of any offence,
summon to his assistance any one or two persons who, in his opinion, may be of assistance at the trial of the case or in the determination of a proper sentence, as the case may be may be, to sit with him as assessor or assessors: Provided that if an accused is standing trial in the court of a regional division on a charge of murder, whether together with other charges or accused or not, the judicial officer shall at that trial be assisted by two assessors unless such an accused requests that the trial be proceeded with without assessors. Whereupon the judicial officer may in his discretion summon one or two assessors to assist him.”
Section 93 ter (2) (a) reads as follows:
“In considering whether summoning assessors under subsection (1) would be expedient for the administration of justice, the judicial officer shall take into account-
(i) the cultural and social environment from which the accused originates ;
(ii) the educational background of the accused;
(iii) the nature and the seriousness of the offence of which the accused stands accused or has been convicted;
(iv) the extent or probable extent of the punishment to which the accused will be exposed upon conviction, or is exposed, as the case may be;
(v) any other matter or circumstances which he may deem to be indicative of the desirability of summoning an assessor or assessors,
and he may question the accused in relation to the matters referred to in this paragraph.”
In considering whether the Appellants right to a fair trial has been violated, it is apposite to consider the approach adopted by our courts with regard to the effect of a constitutional and non-constitutional errors or irregularities, committed during the course of a trial.
Section 25 (3) of the South African Constitution Act No 108\1996 entitles every accused person to a fair trial.
“ In the present constitutional era, it is one of the functions of the Court of Appeal hearing criminal appeal to enquire into the fairness of a trial and to ensure that the accused’s right to a fair trial is fulfilled particularly where and irregularity appears ex facie the record of the proceedings”
See S v Chabedi 2004 (1) SA p 477 par F - G.
Regarding the obligations of the court of appeal hearing a criminal appeal the court is of the view that implications of such duty are crisply defined by Kentridge AJ in S v Zuma  ZACC 1; 1995 (4) BCLR 401, 1995 (1) SACR 568 (CC) (1995) (2) SA 642; 1995 (4) BCLR 401 in para  who held that the implications of such a duty embrace the following:
‘ The right to a fair trial conferred by that provision than the list of specific rights set out in paras (a) and (j) of the sub-section. It embraces a concept of substantive fairness which is not to be equated with what might have passed muster in our criminal courts before the Constitution came into force. In S v Rudman and Another; S v Mthwana 1992 (1) SA 343 (A), the Appellate Division while not decrying the importance of fairness in criminal proceedings, held that the function of a court of criminal appeal in South Africa was to enquire:
“whether there has been an irregularity or illegality, that is a departure from the formalities, rules and principles of procedure according to which our law requires a criminal trial to be initiated or conducted”.
A Court of Appeal, it was said (at 377),
“does not enquire whether the trial was fair in accordance with ‘notions of basic fairness’, or with the ‘ideas underlying the concept of justice’ which are the basis of all civilised systems or criminal administration”.
That was an authoritative statement of the law before 27 April 1994. Since that date s 25(3) has required criminal trials to be conducted in accordance with just those ‘notions of basic fairness and justice”. It shows now for all courts hearing criminal trials or criminal appeals to give content to those notions.’
“ It is not every constitutional irregularity committed by the trial court that justifies the court setting aside the conviction and sentence on appeal. Whether or not there has been a fair trial must ultimately be answered having regard to the particular circumstances of each case. See Tshabalala and Others v Attorney General of Transvaal and Another  ZACC 12; 1996 (1) SA 725 (CC) at page 743 paragraphs 35 and 36: where Mahomed CJ as he then was stated that;
“Section 25(3) must, of course, not be read in isolation but together with s 23 and in the broad context of a legal culture of accountability and transparency manifested both by the preamble to
the Constitution and the detailed provisions of chap 3.
 The basic test in the present matter must be whether the right to a fair trial in terms of s 25 (3) includes the right to have access to a police docket or the relevant part thereof. This is not a question which can be answered in the abstract. It is essentially a question to be answered having regard to the particular circumstances of each case.”
It is trite law that a procedural irregularity committed during a trial does not per se constitute sufficient justification to set aside a conviction on appeal. Before an appeal court can set aside the verdict of a trial court when such an irregularity has been committed; the court has to consider and examine the nature, extent, and effect of the irregularity on the verdict of the court pertaining to such conviction.
The approach that has been adobted in determining the effect of a procedural irregularity is similar to the test utilised regarding an irregularity committed in terms of the common law. The court in adopting this approach is guided by the following principles enunciated in S v Moodie 1961 (4) SA 752 (A) where the learned judge expressed himself as follows:
“ the enquiry as to whether proceedings are ‘not in accordance with justice’ must be along the same lines as the enquiry as to whether there has been a ‘failure of justice’ (cf Counsel’s argument in Mcgina at 720h-721f).
In S v Moodie 1961 (4) SA 752 (A) the Court, was concerned with the proviso to s 369(1)(a) of Act 56 of 1955 which stipulated that a conviction or sentence ought not to be set aside as a result of an irregularity unless a ‘failure of justice’ resulted from it. At 758 F - G Holmes JA said the following:
“(1) The general rule in regard to procedural irregularities is that the Court will be satisfied that there has in fact been a failure of justice if it cannot hold that a reasonable trial court would inevitably have convicted if there had been no irregularity.
(2) In an exceptional case, where the irregularity consists of such a gross departure from established rules of procedure that the accused has not been properly tried, this is per se a failure of justice, and it is unnecessary to apply the test of enquiring whether a reasonable trial court would inevitably have convicted if there has been no irregularity.
(3) Whether a case falls within (1) or (2) depends upon the nature and degree of the irregularity.’”
It is patent that a procedural irregularity commonly referred to as a non-constitutional error may impinge on, and imperil a person’s constitutional right to a fair trial.
In considering whether or not a person’s constitutional right to a fair trial has been infringed considerations of public policy and interest should be taken into account.
Mahomed CJ in S v Shikunga (supra) elucidated this phenomena thus;
“There appears to be a tension between two important considerations of public interest and policy in the resolution of this problem. The first consideration is that accused persons who are manifestly and demonstrably guilty should not be allowed to escape punishment simply because some constitutional irregularity was committed in the course of the proceedings, but in circumstances which showed clearly that the conviction of the accused would inevitably have followed even if the constitutional irregularity relied upon had not been committed.. ...There is however a competing consideration of public interest involved. It is this: the public interest in the legal system is not confined to the punishment of guilty persons, it extends to the importance of insisting that the procedures adopted in securing such punishments are fair and constitutional and that the public interest is prejudiced when they are not.”
It is now settled that not every constitutional irregularity necessarily vitiates trial proceedings, for this to occur the irregularity must be materially fundamental in that when an analysis of the facts and circumstances giving rise to such a constitutional irregularity are considered and examined the conclusion must be irresistible that there has not only been a substantial injustice but that there has also been a failure of justice justifying the setting aside of the proceedings.
The further enquiry in the resolution of this legal conundrum is whether a reasonable trial court would inevitably have convicted the accused had the procedural or constitutional irregularity not occurred. The criminal appeal court in order to set aside a conviction of a trial court, has to find that the constitutional or procedural irregularity is so fundamental in nature that it can be said that there was a failure of justice, and that there was consequently no trial at all.
In S v Shikunga and Another 1997 (9) BCLR 1321 (NMS) I Mohamed CJ in expounding the approach to be adopted stated that:
“It would appear to me that the test is proposed by our common law is adequate in relation to both constitutional and non-constitutional errors. Where the irregularity is so fundamental that it can be said that in effect there was no trial at all, the conviction should be set aside. Where one is dealing with an irregularity of a less severe nature then, depending on the impact of the irregularity on the verdict, the conviction should either stand or be substituted with an acquittal on the merits.
Essentially the question that one is asking in respect of constitutional and non-constitutional irregularities is whether the verdict has been tainted by such irregularity. Where this question is answered in the negative the verdict should stand. What one is doing is attempting to balance two equally compelling claims - the claim that society has that a guilty person should be convicted, and the claim that the integrity of the judicial process should be upheld. Where the irregularity is of a fundamental nature and where the irregularity, though less fundamental, taints the conviction the latter interest prevails. Where however the irregularity is such that it is not a fundamental nature and it does not taint the verdict the former interest prevails. This does not detract from the caution which a court of appeal would ordinarily adopt in accepting the submission that a clearly established constitutional irregularity did not prejudice the accused in any was or taint the conviction which followed thereupon.”
An analysis of the evidence revealed that:
 The Appellants were represented by an experienced and competent legal representative who specialises in criminal work and appears regularly in this Court.
The court is satisfied that the Appellants defence in the trial court
was conducted in all respects in a competent and professional manner.
 The court finds that the Appellants were justly convicted on the evidence adduced at the trial court; further the evidence on which the Appellants were convicted was not tainted and did not taint the verdict of the trial court
 The court further finds that the non-constitutional procedural irregularity was not fundamental in nature, that such irregularity did not in any way taint the conviction.
 The court finds that irrespective of the non-constitutional procedural irregularity, untainted evidence adduced at the trial was of sufficient quality and cogency entitling the trial court to convict the Appellants, as the guilt of the Appellants has been proven beyond reasonable doubt.
The court in applying the above mentioned approach, finds that the conviction of the Appellants was in accordance with justice concomitantly that the trial of the Appellants was fair
The dictates of public interest enjoin that accused persons who are manifestly and demonstrably guilty should be convicted and sentenced; the dictates of public interest must therefor prevail.
In the premises the conviction in respect of murder is set aside and substituted with a conviction of attempted murder: The sentence of six years imprisonment in respect of each Appellant is confirmed.
R D MOKGOATLHENG
ACTING JUDGE OF THE HIGH COURT
B E NKABINDE
JUDGE OF THE HIGH COURT