Comment: A tale of two cases

• Jurisdiction: South Africa
• Citation: (1999) 12 SACJ 204
• Author: JH Hugo
• Date: 24 May 2019
• Published date: 24 May 2019
• Pages: 204-213

COMMENTS • AANTEKENINGE

A tale of two cases*

JH HUGO

Judge of the High Court of South Africa,

Natal Provincial Division

It is the best of times; it is the worst of times (with apologies to Charles

Dickens). Politically South Africa has never had it so good—on the criminal

front, it has never been worse.

Democracy is there for all to see, a Bill of Rights is firmly in place and other

democratic or quasi-democratic institutions are flourishing.

The crime rate is at an all time high, so we are told. Criminals are evading

capture, when they are captured they escape trial by escaping physically

from their place of detention or by getting bail and failing to respect its terms.

When eventually brought to trial there are further facts and procedures

which militate against a fair conviction and frequently allow guilty persons to

go free. It is these facts and procedures that I wish to discuss here.

Two cases heard in KwaZulu-Natal have highlighted some of these

problems in particular.

Mr B murdered a farmer in the Ixopo district. I can state this as a fact

because, in open court and under oath he told me so. Yet he is a free man

without a blot on his official character. I know this because perforce I had to

acquit him.

The only evidence against him was a confession to a magistrate and the

pointing out by him of the murder scene to a policeman. During the trial

within a trial to determine the admissibility of the confession and pointing

out, Mr B, under oath, stated that he had murdered the farmer and that what

he had told the magistrate and the police was essentially the truth. He

maintained that he had been forced to make the confession. In the event

he succeeded in showing that there was a reasonable doubt as to the

admissibility of the confession. The confession and pointing out were

therefore held to be inadmissible and Mr B was acquitted.

* I wish to record my thanks to Professor II Staniland of the School of Law, University of Natal

(Durban) for his input — none of what is wrong herein is due to him.

204

(1999) 12 SACJ 204

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