Magmoed v Janse van Rensburg and Others

• Jurisdiction: South Africa

Magmoed v Janse van Rensburg and Others
1993 (1) SACR 67 (A)

1993 (1) SACR p67

Citation	1993 (1) SACR 67 (A)
Court	Appellate Division
Judge	Corbett CJ
Heard	September 21-22, 1992; September 23, 1992
Judgment	November 25, 1992
Counsel	J Browde SC (with him JJ Gauntlett SC and LA Rose Innes) for the appellant; BW Burman SC (with him JJ Wessels and PJJ de Jager) for the respondents

Flynote : Sleutelwoorde H

Appeal — Reservation of questions of law — Question of law — What constitutes — Whether proven facts bring conduct of accused within ambit of crime charged is a question of law which can be reserved in terms of s I 319 of Criminal Procedure Act 51 of 1977 — Not a question of law whether evidence establishes one or more of factual ingredients of a particular crime where there is no doubt or dispute as to what such ingredients are — Inference drawn from proven facts that accused had by agreement formed a common purpose is an inference of fact and not of law — Whether trial Court had correctly decided such issue is a question of fact — Question J whether trial Court had correctly concluded on basis of its

1993 (1) SACR p68

A factual findings and uncontroverted evidence that no unlawful common purpose on part of any accused established a question of fact — Such cannot competently be reserved as a question of law in terms of s 319.

Trial — The prosecution — No similar general policy of concern for interests of prosecutor in procedures of criminal justice system as there is for an accused. B

Appeal — Reservation of questions of law — By prosecution — Competency of — Not competent for prosecution to raise as a question of law in terms of s 319 of Criminal Procedure Act 51 of 1977 the question whether on evidence before trial Court a reasonable court could not have acquitted accused.

C Evidence — Privilege — What is — Privilege is a personal right to refuse to disclose admissible evidence.

Evidence — Privilege — Privilege against self-incrimination — Privilege that of witness and must be claimed by him — In ruling on privilege Court to be satisfied, from circumstances of case and nature of evidence witness called to give, that there is reasonable ground to apprehend danger to D witness from his being compelled to answer — Witness to be given considerable latitude in deciding what is likely to be an incriminating reply.

Evidence — Privilege — Privilege against self-incrimination — Available to person called as witness at inquest proceedings.

Evidence — Privilege — Privilege against self-incrimination — E Established rule of practice of our courts that presiding officer has duty to inform witness of his right to decline to answer incriminating question — Practice the consequence of fact that many witnesses, particularly the uneducated, likely to be wholly ignorant of right to decline to answer such questions — But proof that uncautioned witness actually aware of his rights would ordinarily render the incriminating evidence admissible, F despite non-observance of the practice — Lieutenant in Railways Police giving self-incriminating replies to questions in his evidence in prior criminal prosecution — On facts, highly unlikely that he was ignorant of his right to refuse to answer incriminating questions and falling outside class of persons requiring to be cautioned about answering such questions — Failing direct evidence of witness' state of mind at time of giving G such evidence, trial Judge in subsequent criminal proceedings against witness entitled to assume that he was aware of his rights — Witness' evidence in prior criminal prosecution accordingly admissible in subsequent criminal proceedings.

Evidence — Privilege — Privilege against self-incrimination — Objection by witness to answering of question wrongly overruled by presiding officer — Reply to question, if incriminating, not admissible in subsequent H criminal proceedings against witness — Presiding officer in inquest proceedings making erroneous general ruling that witnesses could object to question only where answer involved direct incrimination of witness in unlawful conduct — Effect thereof that objections to kind of evidence witnesses expected to give would not be upheld and placed them in same position as they would have been in had they objected and their objections I overruled — 'Taint' of general ruling affecting whole inquest proceedings — Whole of inquest evidence inadmissible.

Evidence — Privilege — Privilege against self-incrimination — Rationale for privilege the encouragement of persons to come forward to give evidence by protecting them from injury or needless annoyance in consequence of doing so — Such rationale less appropriate in case of police officer obliged to give evidence about matters arising from his J police duties, particularly

1993 (1) SACR p69

A where incriminating questions relate to propriety or lawfulness of manner of performance of such duties — Although court should uphold privilege if such police officer refuses to answer incriminating questions, if he does answer there is less reason than in other cases to exclude the evidence in subsequent proceedings — Propriety of police conduct a matter of public concern — Public policy requiring that such conduct be, as far as B possible, open to scrutiny in courts — Such factor tending to countervail rationale for excluding self-incriminating evidence.

Appeal — Reservation of questions of law — Question of law raised by (private) prosecutor and answered in his favour — Accused having been acquitted by trial Court — Only relief Court empowered to grant is setting aside of acquittal and ordering of re-trial de novo before another C Judge and assessors — Court having discretion in matter — Discretion exercised against such order by reason of original trial having been complex and lengthy; events with which case concerned had occurred seven years previously and witnesses' and accused's recollections would have dimmed considerably; prosecutor not keen to have a trial de novo, but D preferring re-opening of case; and trial de novo would again place accused in jeopardy with no certainty that he would be convicted.

Headnote : Kopnota

It is a genuine question of law, for the purposes of a reservation of a question of law in terms of s 319 of the Criminal Procedure Act 51 of 1977, whether the proven facts bring the conduct of the accused within the ambit of the crime charged. Such a question involves an enquiry as to the E essence and scope of the crime charged by asking whether the proven facts in the particular case constitute the commission of the crime. This is clearly a question of law. But a question of law is not raised by asking whether the evidence establishes one or more of the factual ingredients of a particular crime, where there is no doubt or dispute as to what those ingredients are.

F An inference drawn from proven facts that the accused had by agreement formed a common purpose which embraced, say, the possibility of an unlawful killing is an inference of fact, and not one of law. It is a secondary fact. It is seldom in a case of murder that there is direct evidence of the perpetrator's actual state of mind. Consequently, whether the unlawful killing was accompanied by dolus in one of its forms on his part is normally a matter of inference from the primary facts. Clearly G this is an inference of fact and any question as to whether the trial Court correctly decided this issue is a question of fact.

The Court accordingly held that the question whether the trial Court in the present case had correctly concluded on the basis of its factual findings and the uncontroverted evidence (the respondents (the accused) in the trial Court in a private prosecution for murder not having testified) H that no unlawful common purpose on the part of any of the accused had been established beyond reasonable doubt was a question of fact and could not competently be reserved as a question of law in terms of s 319 of Act 51 of 1977.

The procedures of our criminal justice system and the decisions of our I Courts evince a general policy of concern for an accused person in a criminal case. This is illustrated by, for example, the rule that he should be fairly tried; the general principle that he should not be convicted unless his guilt is established by the prosecution beyond reasonable doubt; the rule that he should not be placed in double jeopardy by being tried again after he has been acquitted or convicted; and the various rules which exclude certain types of evidence on the ground that J it was improperly obtained or is of

1993 (1) SACR p70

A doubtful relevance or cogency or would be unduly prejudicial to the accused. A similar concern in our law for the interests of the prosecutor cannot be detected. Indeed, the various measures to protect the interests of the accused and to ensure that he is not wrongly convicted place, pro tanto, limitations on the power of the prosecution to obtain a conviction.

It is not competent for the prosecution to raise as a question of law in B terms of s 319 of the Criminal Procedure Act 51 of 1977 the enquiry as to whether on the evidence placed before the trial Court a reasonable court could not have acquitted the accused.

In the sphere of the law of evidence a privilege may be described as a personal right to refuse to disclose admissible evidence. One such C privilege is that against self-incrimination. In terms thereof a witness may refuse to answer a question where the answer may tend to expose him to a criminal charge (s 203 of the Criminal Procedure Act). The privilege is that of the witness and generally must be claimed by him. Where the privilege is claimed, the court must rule thereon. Before allowing the claim of privilege, the Court must be satisfied from the circumstances of D ...