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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

PARTIES:

THE STATE

and

JAMES BOOYSEN

• Case Number: 20070461

• High Court: EASTERN CAPE DIVISION

HEARD:

DATE DELIVERED: 24/10/07

JUDGE(S): PLASKET J

LEGAL REPRESENTATIVES -

Appearances

• for the State/Applicant(s)/Appellant(s):

• for the accused/respondent(s):

Instructing attorneys:

• Applicant(s)/Appellant(s):

• Respondent(s):

CASE INFORMATION -

• Nature of proceedings : Review

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

REVIEW CASE NO: 20070461

DATE DELIVERED:24/10/07

In the matter between:

THE STATE

and

JAMES BOOYSEN

REVIEW JUDGMENT

PLASKET J

[1] This is an automatic review of the accused’s convictions of indecent assault, assault with intent to do grievous bodily harm and malicious injury to property, and of his sentences totalling four years imprisonment.

[2] I am indebted to Mr Marias SC and Mr Bezuidenhout of the office of the Director of Public Prosecutions for the thorough opinion prepared by them at the request of Jones J. I record that they went further than merely furnishing the opinion on the basis of the record. As a result of a ‘feeling of disquiet’ from a reading of the record, they obtained the case docket which disclosed the irregularities that are the basis of the setting aside of the accused’s convictions.

[3] The accused was unrepresented at his trial. It is not clear whether he availed himself of the opportunity to inspect the docket. If he did, he did not use the information in it to defend himself. He also chose not to testify.

[4] There are significant, material discrepancies between the evidence of the complainant and her husband, on the one hand, and the contents of the statements they made to the police, on the other. In addition, the docket contained a statement made by Ms Elsie Anderson, a friend of the complainant, an eyewitness who was not called by the State, which paints a very different picture of what happened to the picture painted by the evidence led by the State.

[5] The prosecutor never disclosed to the court these discrepancies between the evidence of the complainant and her husband and their statements. He had an ethical duty to do so, a duty that was heightened by the fact that the accused was unrepresented. In S v Xaba 1983 (3) SA 717 (A), 728H-729A, Botha JA held that where a State witness ‘gives evidence from which a serious discrepancy emerges between that evidence and a prior statement made by the witness to the police, the prosecutor has no choice: he is obliged to disclose that fact and, apart from special circumstances which are not relevant here, to make the statement available to the defence for the purposes of cross-examination of the witness’ and that this duty of disclosure is ‘one of the rules or principles of procedure which must be adhered to in a criminal trial in order to ensure that the accused has a fair trial and that justice is done’. Botha JA stated, at 730B that where, as in this case, the accused is unrepresented, ‘the prosecutor must forthwith disclose the discrepancy to the court’.

[6] I agree with the view expressed by Mr Bezuidenhout that if these discrepancies had been disclosed, the magistrate ‘may have made different credibility findings, or may have urged the accused to testify’. I agree too with his conclusion that even if the ‘outcome of the matter can only be speculated upon’ it is certainly so that the failure to disclose the contents of the statements was an irregularity ‘which prejudiced the accused in his defence and rendered the trial unfair’.

[7] As a result, the accused’s convictions and the sentences imposed on him are hereby set aside.

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C. PLASKET

JUDGE OF THE HIGH COURT

I agree:

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J. D. PICKERING

JUDGE OF THE HIGH COURT

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