Recent Case: Criminal procedure

JurisdictionSouth Africa
Date16 August 2019
AuthorMichael Cowling
Citation(2010) 23 SACJ 132
Pages132-149
Published date16 August 2019
Criminal procedure
MICHAEL COWLING
Pietermaritzburg
Appeal — grounds — irregularities
It is trite law that not every misdirection or irregularity during the
course of a criminal trial will result in a conviction or sentence being
set aside on appeal. In S v Seboko 2009 (2) SACR 573 (NCK) the
accused had been convicted of two counts of rape and sentenced
to 15 years’ imprisonment on each charge, the said sentences to run
concurrently. On appeal it was established that cer tain hearsay evi-
dence of the complainant had been admitted. The reason for this was
that she had deceased prior to the commencement of the trial. The
issue is dealt with under Law of Evidence elsewhere in this issue. In
the end the court held that the accused ‘has had a grossly unfair trial,
and in my view the prejudice which endured therefrom is so serious
that the conviction on count 2 cannot stand’ (at para 20).
It is submitted that this decision raises the vexed question of when
an irregularity can be said to be so gross as to vitiate the trial. There
is no easy answer to this question, but it needs to be examined taking
account of all relevant factors concerning the trial process as well as
the conspectus of the evidence. In this regard it could well be asked
whether, in weighing up the fact that the accused was unrepresented,
consideration should be given to the fact that he dismissed his legal
aid appointed representative and chose to represent himself. Secondly,
it was also accepted that the accused, who was the only defence
witness, was found to be untruthful. In addition, it was found that the
circumstantial evidence against the accused was overwhelming and
hence the state had proved its case beyond reasonable doubt.
In the light of the above, it can be argued that the court could well
have found that, in the circumstances of this case (particularly the
fact that the accused had brazenly attacked the complainant in broad
daylight), the admission of the hearsay evidence was not so gross
an irregularity as to result in a failure of justice. Instead, in such a
case, the test in S v Moodie 1961 (4) SA 752(A) prescribes that a court
should rely on all the other circumstantial evidence, other than that
tainted by the irregularity (ie the hearsay evidence of the deceased
complainant). In such a situation the conviction would have been
upheld.
132 SACJ . (2010) 1
(2010) 23 SACJ 132
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Arrest — purpose of arrest — to prosecute arrestee
In SWEAT v Minister of Safety & Security 2009 (2) SACR 417 (WCC)
the applicant applied for an interdict preventing the alleged continued
unlawful and wrongful arrest of sex workers by the police. This was
based on the allegation that the said sex workers were being arrested
‘for the ulterior purpose of harassing them, rather than for the lawful
purpose of having them prosecuted’ (at 421c). Therefore the crisp
question to be decided by the court was whether it is lawful to arrest
any person in circumstances where the arrestors were aware that there
was a high degree of probability that no prosecution would result.
Section 40 of the Criminal Procedure Act 51 of 1977 confers upon
peace off‌icers the right to arrest without a warrant in certain circum-
stances. However, this right of arrest is qualif‌ied by the condition that
the object of arrest must be to bring the arrestee before a court of law
with the ultimate purpose being the prosecution of the latter. In this
regard the court referred to the decision in Tsose v Minister of Justice
1951 (3) SA 10 (A) where a distinction was made between the object
and motive of an arrest. Whereas the object is vital (in the sense that
such object must be the ultimate prosecution of the arrestee), the
motive is irrelevant.
In this regard, it was held that just as ‘the best motive will not cure
an otherwise illegal arrest, so the worst motive will not render an
otherwise legal arrest illegal’ (at 17h). This is relevant in the present
case because many of the arresting off‌icers expressed a desire that the
arrested sex workers would ultimately be prosecuted. However, it was
held that this was ir relevant because, notwithstanding such a desire
or motive, the arresting off‌icers were well aware of the fact that the
arrests generally never resulted in prosecutions. As a result it was held
that the arrests in such circumstances were unlawful.
Arrest — without warrant — detention in custody
Any policeman affecting an arrest bears the onus of proving that such
arrest and subsequent detention were not unlawful. In Minister of Safety
and Security v Du Plessis 2010 (1) SACR 49 (ECG) the respondent was
arrested without warrant on a charge of being drunk and disorderly in
a public street, in terms of s 40(1)(a) of the Criminal Procedure Act 51
of 1977. The decision to arrest was not in issue since it was held that
the plaintiff had been under the inf‌luence of alcohol at the time and
he was ac ting in a noisy and disorderly manner thereby contributing
a nuisance and danger to himself and other road users. Instead, the
crisp issue in this case was the subsequent detention in custody of the
plaintiff which endured for 17 hours. Thus the question that needed to
be answered was why was it necessary to detain the plaintiff for this
Recent cases 133
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