R v Price

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Greenberg JA and Fagan JA
• Judgment Date: 18 November 1954
• Citation: 1955 (1) SA 219 (A)
• Court: Appellate Division

Greenberg, J.A.:

The Court allowed the appeal on the special entry and D set aside the convictions and sentences against the appellant, reasons to be given later.

The appellant, together with another person whose appeal had been withdrawn, was charged on a number of counts (a) with breaches of the regulations dealing with the price and control of hides and (b) with E falsitas. The Minister of Justice, acting under sec. 216 (5) of the Criminal Procedure and Evidence Act, 31 of 1917, as amended, ordered that he be tried by a Judge and two assessors and he was arraigned on these charges in the Port Elizabeth Circuit Local Division before SAMPSON, J., and two assessors. He pleaded not guilty and at the close of the Crown case, after a protracted hearing, his counsel informed the F Court that he proposed to close the case for the defence without calling evidence in regard to the verdict and that he thought it would be conducive to the saving of time if he indicated the attitude, 'as at present advised' that he proposed to take up on the various counts. In the course of doing so, he stated that he did not dispute, in regard to certain counts, that the evidence established the offences charged, but G did dispute the appellant's guilt on other counts. In dealing with certain of the counts on which counsel did not dispute his client's guilt, he stated that the appellant pleaded guilty to those counts. It does not appear that a plea of guilty on any of the counts was recorded by the Court and it is clear that no such verdict was entered. After this, counsel on both sides were heard in argument at the conclusion of H which, the entry 'verdict reserved' was made on the record and the Court adjourned to consider its verdict. During the adjournment and before a verdict on any count had been determined, one of the assessors collapsed and died. At a later sitting of the Court, at which the learned Judge presided, with the remaining assessor present, counsel for the appellant made a request for an order, in terms of sec. 214 (3) of the

Greenberg JA

Act, that the case proceed before the Court as then constituted, i.e. as consisting of the learned Judge and the remaining assessor. This request was supported by counsel for the Crown. After hearing argument from both counsel the learned Judge made an order in terms of the request. The Court thereupon adjourned and at a later date delivered its verdict, A convicting the appellant on a number of counts and acquitting him on others. Both members of the Court agreed on this verdict. There-after the learned judge heard evidence led on behalf of the appellant in mitigation and passed sentence on the counts on which there had been a conviction.

On behalf of the appellant the following special entry was made:

'Whether the presiding Judge, notwithstanding the application made to B that end on behalf of the accused and the concurrence therewith of the Crown, wrongly and irregularly ordered the proceedings to continue after the death of the assessor, Mr. Scheepers, inasmuch as there was after his death, no longer a properly constituted Court.'

The learned Judge also granted the appellant leave to appeal on a number C of points and, on the application of counsel for the Crown, reserved a point of law for the consideration of this Court.

It was rightly not contended on behalf of the Crown that the appellant was precluded in any way, because of the request made on...