Attorney-General, Transvaal v Kader

• Jurisdiction: South Africa
• Citation: 1991 (4) SA 727 (A)

Attorney-General, Transvaal v Kader
1991 (4) SA 727 (A)

1991 (4) SA p727

Citation	1991 (4) SA 727 (A)
Court	Appellate Division
Judge	Corbett CJ, Joubert JA, E M Grosskopf JA, Nienaber JA and Harms AJA
Heard	September 2, 1991
Judgment	September 27, 1991

Flynote : Sleutelwoorde

Criminal procedure — Evidence — Witnesses — Refusal to testify — Enquiry in terms of s 189 of Criminal Procedure Act 51 of 1977 — Whether witness has a 'just excuse' as intended in s 189 for such refusal — 'Just excuse' having wider connotation than excuses arising from rules of privilege, admissibility and compellability — For C example, where humanly intolerable for witness to testify, such would constitute just excuse — Whether humanly intolerable for respondent in instant case to have to testify a question of fact and therefore unassailable in appeal under s 311 of Act 51 of 1977. D

Headnote : Kopnota

The respondent had refused to testify as a State witness in a criminal trial in the regional court against seven accused charged, inter alia, with offences in terms of s 54(1) of the Internal Security Act 74 of 1982. The regional magistrate thereupon embarked on an enquiry in terms of s 189 of the Criminal Procedure Act 51 of 1977 during which the respondent testified that he had been in detention since June 1986 and that he had been placed in solitary confinement and interrogated during E such detention. This had caused him great stress and led to his being hospitalised in a psychiatric ward, initially for a period of two months, but he later had to be readmitted. At the time when he was called to testify, he was still under medication and was attending weekly therapy. He stated in his testimony that the chief reason why he did not want to testify was that he feared that he would not be able to withstand the stress of the court proceedings and that he would be mentally scarred for life, as well as that he feared ostracism by his F community. At the conclusion of the enquiry the regional magistrate held that the respondent had not discharged the onus of showing that he had a just excuse for his refusal to testify, and sentenced him to two years' imprisonment. A Provincial Division upheld the respondent's appeal against the magistrate's finding on the merits as well as on sentence, holding that the expression 'just excuse' in s 189 of Act 51 of 1977 was not limited to a lawful excuse arising from the rules of privilege, compellability of witnesses or admissibility of evidence, and that if it G were humanly intolerable for a person to testify, that would constitute a just excuse. The Court a quo found on the facts that if the respondent had been compelled to testify he would have suffered severe psychic pain and there would moreover have been a very substantial risk of suicide, and accordingly held that it would have been humanly intolerable for the respondent to have to testify.

H In an appeal by the Attorney-General in terms of s 311 of the Act against the Court a quo's decision, it was contended by the appellant that 'just excuse' meant 'lawful excuse'. The Court held that there were many circumstances imaginable in which a failure by a person to comply with his testimonial duties would be generally regarded as blameless, and his punishment for such failure as unjust, and that the Court a quo had been correct in its finding that 'just excuse' in s 189 was not to be confined to matters of privilege, compellability and admissibility. The Court further held that it would serve no purpose, in view of the I unpredictable diversity of human affairs, to try to define the circumstances which would amount to 'just excuse' and that a court, when asked to apply s 189, would have to decide each case on its merits, having regard to the general principles underlying the section. The Court also remarked that the meaning of s 189 did not differ depending on whether it was applied in respect of a trial or in respect of an examination in terms of s 205 of Act 51 of 1977, although the type of J excuse which would be regarded as just could conceivably

1991 (4) SA p728

A differ. In the instant case, the Court upheld the Court a quo's finding that it would amount to a 'just excuse' if a witness were to find himself in circumstances in which it would be humanly intolerable to have to testify.

The dictum at 665H-666A in S v Weinberg1966 (4) SA 660 (A) approved and applied.

It had further been contended for the appellant that the Court a quo had erred by not correctly applying the principles set out in S v Dhlumayo and Another1948 (2) SA 677 (A) in that it had not properly evaluated B the evidence in the light of the findings of the trial magistrate. The Court held that a Court of appeal which did not properly apply the guidelines set out in Dhlumayo's case would not be committing an error of law but would at most be guilty of dealing with the appeal on facts in an unsatisfactory manner, which could be corrected on appeal if a further appeal on the facts were available to the dissatisfied party. In the instant case the Court held that, as no appeal on the facts was available to the Attorney-General, he was not entitled to question the C manner in which the Court a quo had reached its decision on the facts.

The Court further held that the Court a quo, having found what the likely consequences would be if the respondent were compelled to give evidence, had had to assess how serious these consequences would be for the respondent and that this was essentially a matter of degree. Moreover, this finding was applicable only to the respondent and could D never be used as a precedent in other cases. Accordingly, the question whether it was humanly intolerable for the respondent to have to testify was a question of fact and therefore unassailable in an appeal under s 311 of Act 51 of 1977. The appeal was accordingly dismissed.

Case Information

Appeal from a decision in the Transvaal Provincial Division (Esselen J E and Le Roux AJ). The facts appear from the judgment of E M Grosskopf JA.

J P Pretorius for the appellant (the Attorney-General, Transvaal) referred to the following authorities: As to the provisions of the predecessor of s 189, viz s 212(1) of Act 56 of 1955, see S v Heyman and Another1966 (4) SA 598 (A) at 601B; S v Leepile en Andere (unreported, F WLD, delivered on 17 October 1985) [*] ; S v Ngwenya en Andere (unreported, WLD, delivered on 27 August 1986). As to the wording of the predecessor of s 212(1) of Act 56 of 1955, viz s 248 of Act 31 of 1917, see S v Wessels1966 (3) SA 737 (C) at 738E. As to the well-established principle in our law regarding compellability of witnesses with relevant information, see Van Leeuwen Romeins-Hollandse Recht 5.20.21; Voet G 22.5.14 and 2.4.25; Merula Manier van Procederen 4.65.4.1. As regards the historical development of the duty to testify, see Wigmore on Evidence 3rd ed para 2190-2 at 55-64; S v Wessels (supra at 738G-739E). As to the meaning of 'just excuse' in s 189 of Act 51 of 1977, see S v Weinberg1966 (4) SA 660 (A) at 665H-666A; S v Maduna and H Others1978 (2) SA 777 (D) at 778A-H; S v Lovell1972 (3) SA 760 (A) at 763A-B; S v Naudé1977 (1) SA 46 (T) at 50A; S v Leepile and Others (supra); S v Ngwenya en Andere (supra); R v Parker 1965 (4) SA 47 (SRA) at 50H. As to the determination of whether it would be humanly intolerable for a witness to testify, see Wigmore (op cit at 66); Schermbrucker v Klindt NO1965 (4) SA 606 (A) at 615; S v Leepile and I Others (supra); S v Ngwenya en Andere (supra); S v Heyman and Another1966 (4) SA 598 (A) at 610D; S v Maduna (supra at 782G-783G). As to when an excuse qualifies as a just excuse, see S v Pogrund1961 (3) SA 868 (T); Matisonn v Additional Magistrate, Cape Town1980 (2) SA 619 (C); S v Govender1967 (2) SA 121 (N);

1991 (4) SA p729

A S v Weinberg (supra), S v Maduna (supra); S v Molobi1976 (2) SA 301 (W); S v Carneson1962 (3) SA 437 (T); S v Waite1978 (3) SA 896 (O); S v Bosman1978 (3) SA 903 (O); Natal Law Society v N1985 (4) SA 115 (N); Haysom v Additional Magistrate, Cape Town, and Another; S v Haysom1979 (3) SA 155 (C) at 161B-162B; Smit v Van Niekerk NO en 'n Ander1976 (4) SA 293 (A) B ; S v Woods1978 (1) SA 713 (A); R v Parker1966 (2) SA 56 (RA) at 59F and R v Parker 1965 (4) SA 47 (SRA) at 50H. As to the paramount importance of the duty to testify, see S v Leepile (supra); S v Jolobe and Others (unreported, AD, delivered 29 March 1984, case No 75/83); S v Moloto and Others (unreported, TPD, delivered 24 March 1988, case No A1987/87); R v Parker (supra) in which was referred to the case C of McGuiness v Attorney-General (Vict)63 CLR 73 at 86. As to the meaning of 'just excuse' in s 189 of Act 51 of 1977, see the Haysom case supra; Claasen Dictionary of Legal Words and Phrases vol 2 (1975) at 30; S v Heyman (supra); S v Parker1966 (2) SA 56 (RA); S v Leepile and Others (supra); Hiemstra Suid-Afrikaanse Strafproses 4th ed at 411, Du Toit et al Commentary on the Criminal Procedure Act at 23-16; J C D Ferreira Strafprosesreg in die Laer Howe 2nd ed at 497; Hoffmann and Zeffertt The South African Law of Evidence 4th ed at 370. As to the Court a quo failing to distinguish between a trial and an enquiry in terms of s 205 of Act 51 of 1977, see R v Parker (supra); S v Lovell1972 (3) SA 760 (A); Haysom v Additional Magistrate, Cape Town, and Another (supra at 161D). As to the Appellate Division not being bound by E the factual findings of the Court a quo as a result of the latter misdirecting itself in law as well as not taking into consideration certain probabilities, see R v Dhlumayo and Another1948 (2) SA 677 (A) at 706; Wakefield & Son (Pty) Ltd v Anderson1965 (4) SA 453 (N) at 455B.

J J Gauntlett SC (with him D O Delahunt) for the respondent referred F to the following authorities: As to the...