R v Siwesa

• Jurisdiction: South Africa
• Judge: Fagan CJ, Schreiner JA, Reynolds JA, Beyers JA and Van Blerk AJA
• Judgment Date: 04 March 1957
• Hearing Date: 26 February 1957
• Court: Appellate Division

R v Siwesa
1957 (2) SA 223 (A)

1957 (2) SA p223

Citation	1957 (2) SA 223 (A)
Court	Appellate Division
Judge	Fagan CJ, Schreiner JA, Reynolds JA, Beyers JA and Van Blerk AJA
Heard	February 26, 1957
Judgment	March 4, 1957

Flynote : Sleutelwoorde A

Criminal procedure — Appeal — Further evidence on — When allowed by Appellate Division — Power to allow such evidence flows from sec. 4 of Act 1 of 1911 — Only permissible when there is an appeal — When sec. 363 (4) and sec. 363 (6) (iv) of Act 56 of 1955 should be invoked — Exceptional circumstance — What amounts to.

Headnote : Kopnota

B The power of the Appellate Division to allow further evidence to be led after the conclusion of the trial flows from section 4 of Act 1 of 1911. That power only arises 'on the hearing of any appeal' and does not exist before there is an appeal. If the trial Court grants leave to appeal the Appellate Division can be approached under section 4, for there is then an appeal; and if the trial Court has refused leave the convicted person C can apply to the Appellate Division under section 363 (4) of Act 56 of 1955 for leave to appeal, and this may be granted with a view to an application for leave to reopen the case and adduce further evidence. If, in such a case, an application were referred to the full Court under section 363 (6) (iv), it would presumably be convenient as a rule to hear at the same time the application for leave to appeal and the application for leave to adduce further evidence.

The mere fact that the accused unwisely allowed himself to be persuaded D to adopt a course at variance with the recommendation of his counsel does not constitute an exceptional circumstance such as to warrant the Appellate Division in allowing him to give evidence which he was advised but refused to give at his trial.

Case Information

Application to set aside a conviction and sentence and to remit the case E to the trial Court for further evidence. The facts appear from the judgment of SCHREINER, J.A.

P. J. Botbyl for the applicant (at the request of the Court): The application is prematurely before the Court; see secs. 362 - 6 of Act 56 of 1955, sec. 4 of Act 1 of 1911, Shein v Excess Insurance Co., Ltd., 1912 AD at pp. 427 - 8. But I ask for a postponement of F consideration of the application until leave to appeal has been obtained; see R v Ncube, 1955 (2) SA 152. The fresh evidence sought to be called is material to the merits of the case. There is a possible explanation based on allegations which may be true, as to why the evidence desired was not put before the Court a quo; cf. R v Foley, 1926 T.P.D. at p. 171. If the conviction be left undisturbed, there is a G possibility that a miscarriage of justice will result; cf. R v Suttig, 1929 T.P.D. at p. 678; R v Ramsay and Another, 1948 (2) SA at p. 444; R v Kanyele and Others, 1944 AD at p. 294; R v Zackey, 1945 AD at p. 516. If the matter is remitted for further evidence, facts may come to light which may be of assistance to the Court a quo in deciding what sentence to impose; see R v McCaw, 1949 (2) SA at p. H 652; R v Gray, 1947 (4) SA at p. 559; R v Kleinbooi Telesa, 1919 T.P.D. at p. 189; R v van Niekerk, 1924 T.P.D. at p. 487; R v Khotoane, 1934 OPD at p. 126.

W. H. Edelstein, for the Crown: I take the point in limine that the application is not properly before the Court; see secs. 362 - 6 of Act...