Director of Public Prosecutions, Transvaal v Viljoen

• Jurisdiction: South Africa
• Citation: 2005 (1) SACR 505 (SCA)

Director of Public Prosecutions, Transvaal v Viljoen
2005 (1) SACR 505 (SCA)

2005 (1) SACR p505

Citation	2005 (1) SACR 505 (SCA)
Case No	411/03
Court	Supreme Court of Appeal
Judge	Streicher JA, Navsa JA, Van Heerden JA, Erasmus AJA and Ponnan AJA
Heard	November 12, 2004
Judgment	December 2, 2004
Counsel	E C J Wait for the State.; G Wagenaar (attorney) for the respondent.

Flynote : Sleutelwoorde B

Evidence — Admissibility — Record of bail proceedings — Fact that record of bail proceedings forms part of record of trial doesn't mean that evidence adduced during bail proceedings must be treated as if that evidence adduced and received at trial — Statements handed up during bail application but C not admitted at trial cannot be relied upon, as these constitute hearsay evidence.

Evidence — Admissibility — Constitutional exclusion, under s 35(5) of Constitution of the Republic of South Africa Act 108 of 1996, of evidence obtained in a manner that violates any right in Bill of Rights — When admissibility of confession is challenged on D basis of alleged violation of fundamental rights and disputed by State, matter should be resolved by way of a trial-within-a-trial — Court to make factual findings only after affording parties proper opportunity to adduce evidence in respect of relevant factual issues. E

Headnote : Kopnota

During proceedings in a magistrate's court in terms of s 119 and s 121 of the Criminal Procedure Act 51 of 1977, the respondent pleaded guilty to murdering his wife. He then applied to be released on bail. The respondent subsequently, at his trial in a High Court, changed his plea to not guilty. At the trial the State requested that a trial-within-a-trial be held in order to determine whether a confession F and pointing-out, which formed part of the bail record, had been made freely and voluntarily and at the same time to determine whether the respondent acted freely and voluntarily during the s 119 plea proceedings. The Court a quo held that the fundamental rights of the respondent had been violated and that evidence of a confession and pointing-out and of the s 119 plea proceedings be excluded by virtue of the G

2005 (1) SACR p506

provisions of s 35(5) of the Constitution of the Republic of South Africa Act 108 of 1996. At the close of the A State's case and in the absence of any evidence implicating the respondent, the Court a quo acquitted him. In an appeal,

Held, that it did not follow from the fact that the record of the bail proceedings formed part of the record of the trial that evidence adduced during the bail proceedings must be treated as if that evidence had been adduced and received at the trial. Consequently B statements which were handed up during the bail application but not admitted at the trial could not be relied upon as these constituted hearsay evidence. (Paragraphs [33] and [34] at 518b - d.)

Held, further, that the Court a quo was not entitled to make factual findings without affording the parties a proper opportunity to adduce evidence in respect of the relevant factual issues. (Paragraph [34] at 518d.) C

Held, further, that the Court a quo erred in holding that when the admissibility of a confession is challenged on the basis of an alleged violation of fundamental rights disputed by the State, the matter cannot and should not be resolved by way of a trial-within-a-trial. (Paragraph [41] at 520d - e.)

Held, further that a refusal to order that a trial de novo may be instituted in the face of a confession and a plea of D guilty, the admissibility of which the State was not allowed to prove, would have been unfair to the prosecuting authority, would have been detrimental to the administration of justice and would in fact have brought the administration of justice into disrepute. (Paragraph [50] at 521h - i.)

Held, accordingly, that proceedings in respect of the same E offence in respect of which the respondent was acquitted could again be instituted either on the original charge, suitably amended where necessary or upon any other charge as if the respondent had not previously been arraigned, tried and acquitted; provided that no Judge or assessor before whom the original trial took place shall take part in such proceedings. (Paragraph [51] at 521j - 522a.) F

Annotations:

Cases cited

Reported cases

Director of Public Prosecutions, Natal v Magidela and Another 2000 (1) SACR 458 (SCA): referred to

Key v Attorney-General, Cape Provincial Division, and Another 1996 (2) SACR 113 (CC) (1996 (4) SA 187; 1996 (6) BCLR 788): dictum in para [13] applied G

S v Basson 2003 (2) SACR 373 (SCA) (2004 (1) SA 246; [2003] 3 All SA 51): referred to

S v De Vries 1989 (1) SA 228 (A): dictum at 233H - I applied.

Foreign case

H R v Wong Kam-ming [1980] AC 247 (PC) ([1979] 69 Cr App Rep 47; [1979] 1 All ER 939): considered.

Case Information

Application for leave for a question of law to be reserved arising from a trial in the Transvaal High Court (Patel J) and the consideration of the question of law. The facts appear from the reasons for judgment, which was handed down by Streicher JA, Navsa JA, Van Heerden JA, Erasmus AJA and Ponnan AJA concurring. I

E C J Wait for the State.

G Wagenaar (attorney) for the respondent.

In addition to the authorities cited in the judgment of the Court, the legal representatives of the parties referred to the following: J

2005 (1) SACR p507

De Wet v Greeff NO en 'n Ander 1991 (2) SACR 17 (T) A

Director of Public Prosecutions v Paz 2000 (1) SACR 467 (W)

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (2) SA 621 (CC) (1996 (4) BCLR 441)

Hlantlalala v Dyantyi NO 1999 (2) SACR 541 (SCA) ([1999] 4 All SA 472) B

Klein v Attorney-General, Witwatersrand Local Division 1995 (2) SACR 210 (W) (1995 (3) SA 848)

Leopeng and Others v Meyer NO and Another 1993 (1) SACR 292 (T)

Magmoed v Janse van Rensburg en 'n Ander 1993 (1) SACR 67 (A)

Mgcina v Regional Magistrate, Lenasia 1997 (2) SACR 711 (W)

R v Hepworth 1928 AD 265 C

R v Kuzwayo 1949 (3) SA 761 (A)

R v Tshabala 1921 AD 13

Rammoko v Director of Public Prosecutions 2003 (1) SACR 200 (SCA)

S v Agnew and Another 1996 (2) SACR 535 (C)

S v Basson 2004 (1) SACR 285 (CC) (2005 (1) SA 171; 2004 (6) BCLR 620) D

S v Chauke 1998 (1) SACR 354 (V)

S v Colt and Others 1992 (2) SACR 120 (E)

S v Desai 1997 (1) SACR 38 (W)

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) (1999 (4) SA 623; 1999 (7) BCLR 771) E

S v Dodo 2001 (1) SACR 594 (CC) (2001 (3) SA 382; 2001 (5) BCLR 423)

S v Dzukuda; S v Tshilo 2000 (2) SACR 443 (CC) (2000 (4) SA 1078; 2000 (11) BCLR 1252)

S v Felthun 1999 (1) SACR 481 (SCA) F

S v Gasa 1998 (1) SACR 446 (D)

S v Gumede 1998 (5) BCLR 530 (D)

S v Kester 1996 (1) SACR 461 (B)

S v Khan 1997 (2) SACR 611 (SCA)

S v Khoza en Andere 1991 (1) SA 793 (A)

S v Lwane 1966 (2) SA 433 (A) G

S v Mabaso and Others 1990 (3) SA 185 (A)

S v Mafuya and Others (1) 1992 (2) SACR 370 (W)

S v Makhatini 1995 (2) BCLR 266 (D)

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222)

S v Manale 2000 (2) SACR 666 (NC) H

S v Marx 1996 (2) SACR 140 (W)

S v Maseko 1996 (2) SACR 91 (W)

S v Mathebula 1997 (1) SACR 10 (W) (1997 (1) BCLR 123)

S v Mbambo 1999 (2) SACR 421 (W)

S v McKenna 1998 (1) SACR 106 (C)

S v Melani 1996 (1) SACR 335 (E) (1996 (2) BCLR 174) I

S v Mfeni 1998 (9) BCLR 1157 (N)

S v Mkwanazi 1966 (1) SA 736 (A)

S v Mnguni 2002 (1) SACR 294 (T)

S v Motlautsi 1996 (2) BCLR 220 (C)

S v Motsumi 1990 (2) SACR 207 (O) J

2005 (1) SACR p508

S v Mpetha and Others (2) 1983 (1) SA 576 (C) A

S v Ncobo 1998 (10) BCLR 1248 (N)

S v Ndhlovu and Others 2001 (1) SACR 85 (W)

S v Nkondo 2000 (1) SACR 358 (W)

S v Nkosi 1984 (3) SA 345 (A)

S v Nkwenja en 'n Ander 1985 (2) SA 560 B (A)

S v Nombevu [1996] 4 All SA 621 (E)

S v Nomzaza 1996 (2) SACR 14 (A)

S v Nqoko 1990 (2) SACR 257 (N)

S v Ntuli 1996 (1) SACR 94 (CC) (1996 (1) SA 1207; 1996 (1) BCLR 141)

S v Ntzweli 2001 (2) SACR 361 (C) C

S v Radebe; S v Mbonani 1988 (1) SA 191 (T)

S v Rudman; S v Johnson; S v Xhaso; Xhaso v Van Wyk 1989 (3) SA 368 (E)

S v Rudman; S v Mthwana 1992 (1) SA 343 (A)

S v Sampson and Another 1989 (3) SA 239 (A) D

S v Sebejan and Another 1997 (1) SACR 626 (W)

S v Shaba 1998 (1) SACR 16 (T) (1998 (2) BCLR 220)

S v Shikongo and Others 2000 (1) SACR 190 (NmS)

S v Shikunga 2000 (1) SA 616 (NmS) (1997 (9) BCLR 1321)

S v Shongwe en Andere 1998 (2) SACR 321 (T)

S v Smile 1998 (1) SACR 688 (SCA) E

S v Soci 1998 (2) SACR 275 (E) (1998 (3) BCLR 376)

S v Steyn 1981 (3) SA 1050 (C)

S v Tshabalala 1999 (1) SACR 412 (C) ([1999] 1 All SA 677)

S v Tshidiso 2002 (1) SACR 207 (W)

S v Van den Berg 1996 (1) SACR 19 (Nm) (1995 (4) BCLR 479) F

S v Van der Merwe 1998 (1) SACR 194 (O)

S v Venter case No 59/95 March 1996 (A)

S v Vilakazi 1996 (1) SACR 425 (T)

S v Viljoen 2002 (2) SACR 550 (SCA)

S v Visser 2001 (1) SACR 401 (C)

S v Zulu 1990 (1) SA 655 (T) G

S v Zuma and Others 1995 (1) SACR 568 (CC)

S v Zwayi 1997 (2) SACR 772 (Ck) (1998 (2) BCLR 242)

Van der Berg Bail - A Practitioner's Guide 2nd ed

Zeffertt The South African Law of Evidence 2003 H

De Waal The Bill of Rights Handbook 4th ed

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Cur adv vult.

Postea (December 2). I

Judgment

Streicher JA:

[1] The respondent was charged with the murder of his wife. When he appeared in the magistrate's court and during proceedings in terms of s 119 and s 121 of the Criminal Procedure Act 51 of 1977 ('the Act' and J

2005 (1) SACR p509

Streicher JA

'the s 119 plea proceedings') he pleaded guilty. Questioned in terms of s 121(1), he explained that the murder was A premeditated and how it was executed. However, at his trial in the Transvaal Provincial Division (the...