W F BEZUIDENHOUT
APPELLANT
and
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
Coram:
FARLAM, CLOETE and HEHER JJA
Heard:
8 NOVEMBER 2007
Delivered:
29 NOVEMBER 2007
Summary:
Criminal procedure – appeal – special entry – application
for – duty of judge; Criminal procedure – appeal – further evidence – application to admit – duty of
judge; Criminal procedure – trial – application for postponement after conviction to consult expert in relation to sentence
– refusal – approach of court.
Neutral citation:
This judgment may be referred to as Bezuidenhout v Director of Public Prosecutions [2007] SCA 161 (RSA).
_____________________________________________________________________
JUDGMENT
__________________________________________________________________
HEHER JA
HEHER JA:
[1]
Hoërskool Standerton held a Valentine’s Ball on the night of 18 February 2003. Within
hours vicious unprovoked assaults were carried out on two victims whose only offence was that they were poor, alone and without protection.
Sadly, the three events were not unconnected.
[2]
On 25 February a local attorney contacted Detective Inspector Nortje. He represented the parents
of several youths whose concern was to avoid prosecution. On the following day Nortje and his colleague Detective Inspector Jordaan
apprehended the appellant, a 22 year old self-employed contractor, near his home in the town.
[3]
The appellant stood trial before Smit J in the Secunda Circuit Court charged with the murder of
Joey Grey at a house in Impala Crescent and assault with intent to commit grievous bodily harm on Adriaan Oosthuizen at the Standerton
Caravan Park by hitting him with an iron bar. He pleaded not guilty but elected to reserve his defence.
[4]
The State called one eyewitness to the first-mentioned incident and the pathologist who carried
out a post-mortem examination on the body of Mr Grey on 26 February. A trial-within-a-trial was held to determine the admissibility
of a statement made by the appellant to magistrate Fischer on 27 February. After a ruling in favour of the State it was duly taken
into evidence. Inspector Nortje also gave evidence about the pointing out by the appellant of an iron pole lying in the garage at
his residence.
[5]
In respect of the lesser charge the State relied in the main on written statements made by an alleged
eyewitness and the complainant. Both statements were admitted as evidence under the provisions of s 3 of the Law of Evidence Amendment
Act 45 of 1988.
[6]
The appellant did not testify. His case was closed without the leading of evidence.
[7]
Smit J convicted the appellant on both counts as charged.
[8]
Counsel for the appellant (who was not his counsel in the appeal) asked for a postponement in order
to allow him to consult an expert witness, then unavailable, for the purpose of preparing and presenting evidence in mitigation.
The learned judge refused to postpone the case for a period which would have been sufficient for that purpose. Consequently no evidence
was presented, the appellant relying upon an address by his counsel.
[9]
Smit J decided that the murder had been committed by the appellant in the execution or furtherance
of a common purpose. It therefore fell within Part 1 of Schedule 2 to the Criminal Law Amendment Act 105 of 1977. Accordingly the
defence was required by s 51(1)(a) read with s 51(3)(a) of that Act to establish substantial and compelling circumstances which justified
a lesser sentence than life imprisonment. The learned judge found that no such circumstances had been shown to exist and imposed
the mandatory sentence. In relation to the second offence the learned judge held that imprisonment for one year was the appropriate
sentence.
[10]
The appellant applied for leave to appeal in respect of the convictions and sentences. He also applied
under s 316(3) for the making of various special entries on the ground that the proceedings had been tainted by irregularity or were
not in accordance with justice.
[11]
The appellant also gave notice of his intention to apply for leave to present the evidence of a forensic
medical consultant, Dr Leon Wagner, and a criminologist, Dr Irma Labuschagne, in terms of s 316(3) of the Act. Attached to the notice
was a supporting affidavit of the appellant to which were annexed affidavits by the proposed witnesses.
[12]
The order made by Smit J in the application was ambiguous. The appellant’s legal advisers understood
it only as a grant of certain of the special entries. I think the learned judge probably also intended to accede to the application
for leave to appeal as a whole. Be that as it may, this Court granted leave to appeal against both the conviction and sentence generally.
The special entries
[13]
At the commencement of the appeal before us counsel abandoned reliance on the special entries per se. He informed us that they could as well be argued as part of his attack on the merits of the convictions. That was a proper approach:
[14]
Unfortunately, the procedures adopted by the trial judge to the application for the making of the special
entries fell materially short of what law and established practice demanded of him. It is desirable that reference be made to his
handling of the application so that other trial judges may be placed on their guard in relation to what is a relatively rare occurrence.
[15]
The special entry procedure is designed to cater for irregularities which affect the fairness of a criminal
trial. The formal requirements are set out in s 317 of the Criminal Procedure Act. An entry must be made unless the court to whom
application is made is of the opinion that the application is not made bona fide or that it is frivolous or absurd or that the granting of the application would be an abuse of the
process of the court (s 317(1)). In the present case, Smit J, faced with ten applications for special entries said simply, ‘Ek is nie van voorneme om al die
aspekte te oorweeg nie. Ek meen daar is vier aspekte wat oorweging verdien.’ The result was that six of the entries sought
did not receive the specific consideration which the learned judge was bound to give to them and he did not purport to refuse those applications on any of the grounds recognised by the statute.
[16]
The great majority of grounds depended upon irregularities not arising ex facie the record (eg alleged shortcomings in the conduct of the appellant’s legal representatives). Many were dependent on the say-so
of the appellant. These were irregularities which fell outside the cognizance of the trial judge. In such an event he was required
to have the irregularity formulated and established by evidence: that may be done on affidavit in appropriate cases. It is also the duty of the trial court to determine whether or not a complaint of irregularity is well-founded. Where, as here, it is impossible to make such a determination on affidavit, the taking of evidence can hardly be avoided. But Smit
J did not hear evidence and indeed did not make a finding as to the substance of the complaints at all. (While it may ordinarily
be advisable to remit the case to the trial judge to make factual findings in certain cases, that may not be feasible in this instance as the learned judge has retired from active service.) Nor did the learned judge settle the terms of those special entries which he did grant, as he was obliged to do by s 317(4). If
he had done so, he would probably have appreciated that none of individual reasons that he had, briefly, enunciated for granting
each of the four successful applications fell within the scope of any of the special entries outlined
in the application.
[17]
Finally, in this regard, s 320 of the Act provides:
‘The judge or judges, as the case may be, of any court before whom a person is convicted shall, in the case of an appeal under section
316 or 316B or of an application for a special entry under section 317 or the reservation of a question of law under section 319
or an application to the court of appeal for leave to appeal or for a special entry under this Act, furnish to the registrar a report
giving his, her or their opinion upon the case or upon any point arising in the case, and such report, which shall form part of the
record, shall without delay be forwarded by the registrar to the registrar of the court
of appeal.’
The learned judge did not submit any report to the registrar and, accordingly, this court
was deprived of the benefit of his opinions both as to the entries granted and ‘refused’.
[18]
In the present instance the appellant asked for special leave to appeal not only against the (supposed)
refusal of his application in respect of convictions and sentence but also against certain of the unsuccessful applications for special
entries. Leave to appeal was not granted in relation to any of those entries.
[19]
Having regard to the attitude of counsel to the successful entries to which I have earlier referred,
further reference thereto is unnecessary.
The application to hear further evidence
[20]
The appellant applied to Smit J after conviction and sentence to hear the evidence of two further witnesses,
Drs Wagner and Labuschagne. The first deposed to an affidavit which cast doubt upon the validity of certain findings and evidence
of Dr Batev, the pathologist. The second provided a lengthy report, confirmed on oath, addressed to the appropriate sentencing of
the appellant.
[21]
Smit J made no reference whatsoever to the proposed evidence of Dr Wagner in
his judgment on the application and made no order that it should be heard or accepted. This Court did not grant special leave in that
regard. As to Dr Labuschagne, Smit J said:
‘Daarbenewens is daar dan tans ook ‘n aansoek voor my om toestemming te verleen dat die hof van appèl verdere getuienis
kan aanvaar van dr Irma Labuschagne en daardie getuienis kan oorweeg vir doeleindes van die oplegging van ‘n gepaste vonnis.
Ek meen, in terme van die bepalings van artikel 316(3), behoort ek gevolglik ook ‘n bevel te verleen dat die hof van appèl
sodanige getuienis sal aanvaar en oorweeg en dan oorweeg wat ‘n gepaste vonnis in die omstandighede is. . .
Wat die aansoek om verlof om te appelleer teen die vonnis aanbetref word die bevel
ingevolge artikel 316(3) van die Strafproseswet 51 van 1977 gemaak dat die getuienis van dr Irma Labuschagne aangehoor en oorweeg
word.’
[22]
But s 316(3) no longer relates to the admission of further evidence. Section 316 now provides:
‘(5)(a
An application for leave to appeal under subsection (1) may be accompanied by an application to adduce further
evidence (hereafter in this section referred to as an application for further evidence) relating to the prospective appeal.
(b
An application for further evidence must be supported by an affidavit stating that-
(i)
further evidence which would presumably be accepted as true, is available;
(ii)
if accepted the evidence could reasonably lead to a different verdict or sentence; and
(iii)
there is a reasonably acceptable explanation for the failure to produce the evidence before the close of the
trial.
(c
The court granting an application for further evidence must-
(i)
receive that evidence and further evidence rendered necessary thereby, including evidence in rebuttal
called by the prosecutor and evidence called by the court; and
(ii)
record its findings or views with regard to that evidence, including the cogency and the sufficiency
of the evidence, and the demeanour and credibility of any witness.
(6)
Any evidence received under subsection (5) shall for the purpose of an appeal be deemed to be evidence
taken or admitted at the trial in question.’
Clearly, what the statute contemplates is that when the trial court is satisfied that the requirements of s 316(5)(b) have been met
and has granted the application, it shall itself take the steps laid out in s 315(5)(c) in order to place the appeal court in a position
to deal adequately and fully with the additional evidence in the context of an appeal against conviction or sentence. But here too the trial court failed in its duty. There may be circumstances where, with the concurrence of an opposing party, an
affidavit may be received in satisfaction of s 316(c)(i) without the necessity for oral evidence, but this was not such a case and, in any event, the trial court was still bound to comply
with the requirements of s 316(c)(ii), which it did not do.
[23]
When apprised of the lack of a formal basis for reliance upon the proposed new
evidence of Dr Wagner, counsel made an informal application for this Court to exercise its powers under s 22(a) of the Supreme Court
Act 59 of 1959 to receive that
evidence. We would be loth to deprive an accused person of a full opportunity to present his case on appeal because the trial court
has been inattentive to its statutory duty. But acceptance of such evidence presupposes that the basic foundation, as determined
in a long line of cases, has been laid:
‘[T]heir tenor throughout has been to emphasise the Court’s reluctance to re-open a trial. They may be summarised as follows:
(a)
There should be some reasonably sufficient explanation, based on allegations which may be true,
why the evidence which it is sought to lead was not led at the trial.
(b)
There should be a prima facie likelihood of the truth of the evidence.
(c)
The evidence should be materially relevant to the outcome of the trial.’
[24]
Counsel for the appellant was driven to concede that the application, even as supported by his client’s
affidavit to the trial court, did not satisfy the first requirement. Nor could he contend that the substance of Dr Wagner’s
proposed evidence amounted to more than speculation, not based on personal examination of the body of Mr Grey, as to a cause of death
other than that confirmed in evidence by Dr Batev, viz a blow to the back of the head by a rigid object such as the iron bar recovered from the garage of the appellant. The proposed evidence
would therefore not have a material bearing on the outcome of the trial and the third requirement was for that reason also not satisfied.
We are accordingly bound to refuse the application to adduce the further evidence of Dr Wagner.
The appeal against the convictions
[25]
The substance of the case against the appellant on count 1 was
i)
the direct evidence of an eyewitness which implicated him;
ii)
the medical evidence;
iii)
the content of a statement made by him before magistrate Fischer on the morning of 27 February 2003;
iv)
the handing over of an iron bar by the appellant to the police;
That was by any standard a formidable combination and, in addition, he failed to give evidence.
[26]
Counsel for the appellant relied on four basic submissions in attacking the judgment on the merits of
the conviction. First, he contended that, ex facie the record, his client’s counsel at the trial had committed a violation of his instructions by making formal and informal admissions
in contradiction of the appellant’s stated refusal to do so. Second, he submitted that certain admissions were made in conflict
with clear indications that the appellant possessed no knowledge of the matters admitted. Third, he criticised the eyewitness, Mr
Johannes Maqo, as unreliable in the substance of his testimony. Finally, counsel attempted to persuade us that the trial court erred
in admitting in evidence the statement to the magistrate.
[27]
The first submission is without merit. The appellant pleaded not guilty to the charges. His counsel informed
the court that his client chose to furnish no explanation of his plea at that stage and to answer no questions. He added, ‘Daar
sal egter in die loop van die verhoor erkennings gemaak word wat die verrigtinge aansienlik sal verkort’. Smit J then asked
the appellant if he had heard his advocate and whether he was satisfied with what he had said. The appellant replied affirmatively
to both questions. State counsel then took over. He began by saying:
‘U edele, my geleerde vriend het verwys na sekere erkennings. Ek het voor die agbare hof ’n bundel geplaas wat dan ook sekere
erkennings bevat. Dit is dan die formele erkennings. . . deur die beskuldigde in terme van artikel 220 van Wet 51 van 1977.’
He proceeded to read out the admissions as follows:
‘1.
Dat die oorledene gemeld in die akte van beskuldiging te wete Joey Philippus Cyril Grey op
19/2/2003 gesterf het as gevolg van beserings opgedoen op 19/2/2003 te Standerton in die distrik van Standerton.
2.
Dat die liggaam van die oorledene nie verdere beserings opgedoen het nie sedert die beserings
in paragraaf 1 vermeld opgedoen is, totdat die lykskouing op die oorledene uitgevoer was op 26/2/2003.
3.
Dat Dr Nikola Batev die lykskouing op die liggaam van die oorledene uitgevoer het op 26/2/2003
en sy bevindings op die vorm GW 7/15 genotuleer het welke feite en bevindings korrek en volledig is, en dat die oorsaak van dood
korrek aangeteken is synde “Head injury” (Hoofbesering).
Die lykskouingsverslag word by ooreenkoms ingehandig synde bewysstuk B.’
[28]
The document containing the admissions was Exhibit A. It was headed in capitals ‘Erkennings in
terme van artikel 220 van Wet 51 van 1977’. It had been signed by the appellant and his advocate. Smit J asked defence counsel
whether he was satisfied with the admissions as minuted to which he replied, ‘Inderdaad so’. Smit J did not ask the appellant
the same questions but s 220 (as opposed to s 115) did not require him to do so.The appellant did not then or thereafter before sentence
put in issue the correctness of his counsel’s conduct or his own comprehension of what had transpired. His counsel’s
submission to us that there was an inherent contradiction between the appellant’s refusal to explain his plea or answer questions
and the making of the formal admissions immediately thereafter is unsustainable. The two steps were entirely unconnected. The formal
admissions had obviously been prepared in advance and approved by the appellant. The prosecutor could have introduced them at any
time during the trial. He chose to do so after the plea procedures for which s 115 of the Criminal Procedure Act 51 of 1977 (‘the
Act’) makes provision had been concluded.
[29]
The submission that the appellant’s absence of personal knowledge precluded the making of the formal
admissions (and by inference must have been at odds with counsel’s instructions) is also devoid of merit. One of the advantages
of being placed in possession of a summary of substantial facts and copies of exhibits and witness statements in advance of the trial, is that an accused person is enabled to assess the merits of the case which the state proposes to prove against him and to decide
which averments he does and does not wish to place in dispute. Despite lack of personal knowledge on his part, if the proposed medical
evidence reveals a gunshot wound to the heart as the cause of death, the accused may reasonably conclude that the evidence is uncontestable.
The considered admissions made in this case were likewise not at variance with an absence of personal knowledge of the matters admitted.
That applies also to the possibility (according to counsel) that between the time of the assault on the deceased (of which the appellant
did possess personal knowledge) and the next morning when he was found dead in his room, some unknown third party may have entered
the room and inflicted on him the injuries which the doctor found on the body
and of which he died.
[30]
A further admission made by counsel at the trial was also criticised on appeal as being at variance with
appellant’s evidence in the trial within the trial and, therefore, by inference, in conflict with his instructions. After the
court had ruled on the admissibility of the statement, counsel for the state told the court that the defence admitted in terms of
s 220 of the Act that the contents of the statement made before the magistrate could be taken into evidence. This was obviously done
to avoid the recall of the magistrate to whom defence counsel considered he could not usefully address further questions. That is
a sensible, time-saving expedient which is commonly resorted to when an accused does not place in issue the correctness of the magistrate’s
recording of his statement. The appellant did not do so in this instance. Although he had testified that the police had told him
about their knowledge of the incident in order to persuade him to speak (in itself not an improper mode of interrogation), it was
not his case that he had been instructed to repeat any part of what he was told to the magistrate or that he did so. Nor was it put
to the magistrate during cross-examination in the trial-within-a-trial that he had deviated from the actual words uttered to him
by the appellant in any way at all. In these circumstances the submission of counsel on appeal bore no relation to reality and one
deplores that it was made at all.
[31]
Turning to the direct evidence, counsel submitted that the eyewitness had been unreliable in the substance
of his testimony. The submission calls for consideration of his account of the events. Mr Maqo awoke at about 3am to the sound of
kicking on a door. The area outside was lit by the lights from the store across the road. From the window he could see seven white
males armed with what appeared to be ‘kieries’. They entered the deceased’s room and dragged him outside. They
surrounded him and beat him all over his body. Six of the persons were boys, one man was older with long hair. (Later he said there
were two who could be described as ‘older’.) He was the appellant, a person the witness had seen before. When the attackers
became aware that they were being observed they ran off and climbed into a white ‘bakkie’, four on the rear and three
in front. The appellant took the passenger’s seat in front. One of the seven then returned to the deceased and called the others
but they did not respond. He looked at the deceased, turned away laughing, and returned to the vehicle which then drove off. The
witness and a friend attempted to help the deceased but when they touched him he complained of pain. Full of blood he crawled on
his stomach into his room where they left him and tried without success to find his girlfriend. In the morning the deceased was dead.
[32]
In cross-examination the witness was not materially shaken. The following version was put to him by counsel:
‘Die beskuldigde het ‘n meisietjie gaan aflaai in Kosmospark en hulle het van sy huis af vertrek ongeveer 12-uur middernag. Die
rede was dat die meisie se ma het gesê dat hy 12-uur kan ry dan moet hy haar by die huis besorg. Nadat die meisie afgelaai
is het hy weer huis toe gery vanuit Kosmospark op die pad wat Leandra/Standerton toe beweeg. Net voordat hy by Giants winkel aangekom
het het persone wat agter op die bakkie was hard bo-op die bakkie se bak geklap. Hy het tot stilstand gekom. Die persone wat agter
op die bakkie was het afgespring en die persoon wat voor in die bakkie saam met hom gery het, het uitgespring. Hy het na ‘n
murasie gehardloop wat basies aan die oorkant van Giants was en dit blyk te wees die murasie soos voorkom in foto’s 1 en 2
van die fotobundel. Beskuldigde het hierop sy bakkie uit die pad, van die pad afgetrek en basies tot stilstand gekom voor hierdie
geel item wat op foto’s 1 en 2 sigbaar is voor die murasie. Hy het sy ligte afgesit en sy voertuig gesluit. Hy het by ‘n
deur ingegaan in die murasie wat volgens foto’s 1 en 2 blyk te wees op die regterkant van die murasie.
Kan ek u net vra is daar ‘n deur op die regterkant van daardie foto’s 1 en 2? --- Ja, daar is ‘n deur.
Goed. Hy sê toe hy binne-in die vertrek inkom het hy gemerk dat die persone wat saam met hom in die voertuig was en op die voertuig
was is betrokke by ‘n aanranding op ‘n persoon. Een van hierdie persone het ‘n pyp gehad soos wat blyk uit foto
16 in die fotobundel. Kan ek u net daarso onderbreek. Sal u sê dat daardie pyp wat u daarso sien sal dit inpas met u beskrywing
van ‘n kierie?
--- Hulle het kieries gehad.
Nee goed, ek hoor wat u sê hulle het kieries gehad. Sal daardie een van die kieries kon wees waarvan u gepraat het?--- Almal het geslaan.
Nee meneer, daardie foto, daardie pyp op foto 16 lyk hy soos die kieries wat hulle gehad het? -- Ja, dit lyk soos ‘n kierie want dié wat kieries gehad het was besig om te slaan.
Op die stadium wat hy ingekom het het hierdie persoon opgespring, hy was op die grond gewees en na die beskuldigde aangehardloop gekom.
Beskuldigde het die persoon wat na hom toe aangehardloop gekom het plat geslaan. Het u so ‘n voorval gesien?
--- Dit is nie so nie. Hulle het hom uit die vertrek uitgehaal, hulle het die deur geskop en hulle het hom gesleep.
Goed. Net hierna het daar ‘n persoon met die naam van Gustav Lindeque wat in
die beskuldigde se geselskap was wat in sy voertuig of op sy voertuig teenwoordig was gesê: “Go, go, go” waarna
die groep na buite gehardloop het en in en op die bakkie geklim het. Kan ek u net onderbreek hierso. Is dit so dat die bakkie geparkeer
was net voor hierdie oranje ding soos dit sigbaar is op foto’s 1 en 2? --- Ja, dit was daar geparkeer.
So nou was die voertuig nie meer geparkeer 70 na 100 meter weg?--- Dit beteken toe ek so gesê het dit was op die stadium toe die voertuig weggery het.
Hierna het dieselfde Gustav weer om die murasie inbeweeg, ‘n kort rukkie daar gebly, teruggekeer, op die bakkie geklim en het
hulle weggery na sy huis. Het u gesien toe die bakkie vanaf, daar waar hy geparkeer was soos aangedui op foto’s 1 en 2 wegbeweeg
het?--- Ja, dit het weggetrek en dit het in die pad wat na Pretoria toe inlei af beweeg ondertoe.
My instruksies is dat die beskuldigde nie die oorledene wou gedood het nie. My instruksies
is voorts dat die beskuldigde nie voorsien het dat die oorledene gedood kon word uit dit wat plaasgevind het nie. My instruksies
is ook dat die beskuldigde inderdaad nie weet of die oorledene beswyk het as gevolg van dit wat plaasgevind het daar op daardie stadium.
Wil u of kan u daarop reageer? --- Nee, daar was niks waarop ek kan antwoord nie. Die waarheid het ek reeds vertel.’
[33]
It will be observed that the witness was thereby corroborated in identifying the appellant as an active
participant in the assault at the scene although the nature of such participation was in dispute. What is also important in the version
put to Maqo is that the appellant agreed that one person was in possession of a weapon resembling the iron pipe recovered from his possession.
[34]
The evidence relating to the finding of the iron pipe emanated from Nortje. Together with Detective Inspector
Van Zyl of the Criminal Records Bureau he searched the appellant’s vehicle without success for possible evidence. (This took
place after the appellant made his statement to the magistrate.) The record of his evidence continues:
‘
.RTF of original document