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 Another2000 (1) SACR 458 (SCA): referred to

Key v Attorney-General, Cape Provincial Division, and Another1996 (2) SACR 113 (CC) (1996 (4) SA 187; 1996 (6) BCLR 788): dictum in para [13] applied G

S v Basson2003 (2) SACR 373 (SCA) (2004 (1) SA 246; [2003] 3 All SA 51): referred to

S v De Vries1989 (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 Ander1991 (2) SACR 17 (T) A

Director of Public Prosecutions v Paz2000 (1) SACR 467 (W)

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others1996 (2) SA 621 (CC) (1996 (4) BCLR 441)

Hlantlalala v Dyantyi NO1999 (2) SACR 541 (SCA) ([1999] 4 All SA 472) B

Klein v Attorney-General, Witwatersrand Local Division1995 (2) SACR 210 (W) (1995 (3) SA 848)

Leopeng and Others v Meyer NO and Another1993 (1) SACR 292 (T)

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Mgcina v Regional Magistrate, Lenasia1997 (2) SACR 711 (W)

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S v Agnew and Another1996 (2) SACR 535 (C)

S v Basson2004 (1) SACR 285 (CC) (2005 (1) SA 171; 2004 (6) BCLR 620) D

S v Chauke1998 (1) SACR 354 (V)

S v Colt and Others1992 (2) SACR 120 (E)

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S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat1999 (2) SACR 51 (CC) (1999 (4) SA 623; 1999 (7) BCLR 771) E

S v Dodo2001 (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)

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S v Mabaso and Others1990 (3) SA 185 (A)

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

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S v Mbambo1999 (2) SACR 421 (W)

S v McKenna1998 (1) SACR 106 (C)

S v Melani1996 (1) SACR 335 (E) (1996 (2) BCLR 174) I

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

S v Mkwanazi1966 (1) SA 736 (A)

S v Mnguni2002 (1) SACR 294 (T)

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

S v Motsumi1990 (2) SACR 207 (O) J

2005 (1) SACR p508

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

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S v Nkosi1984 (3) SA 345 (A)

S v Nkwenja en 'n Ander1985 (2) SA 560 B (A)

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S v Nomzaza1996 (2) SACR 14 (A)

S v Nqoko1990 (2) SACR 257 (N)

S v Ntuli1996 (1) SACR 94 (CC) (1996 (1) SA 1207; 1996 (1) BCLR 141)

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S v Radebe; S v Mbonani1988 (1) SA 191 (T)

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S v Shongwe en Andere1998 (2) SACR 321 (T)

S v Smile1998 (1) SACR 688 (SCA) E

S v Soci1998 (2) SACR 275 (E) (1998 (3) BCLR 376)

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

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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...