S v Agliotti

• Jurisdiction: South Africa
• Citation: 2011 (2) SACR 437 (GSJ)

S v Agliotti
2011 (2) SACR 437 (GSJ)

2011 (2) SACR p437

Citation	2011 (2) SACR 437 (GSJ)
Case No	SS 154/2009
Court	South Gauteng High Court, Johannesburg
Judge	Kgomo J
Heard	July 26, 2010
Judgment	November 25, 2010
Counsel	DD Dakana (with Mr Gcaleka and Mr Mashiane) for the State.; LM Hodes SC (with K Mokotedi) for the accused.

Flynote : Sleutelwoorde

General principles of liability — Conspiracy — Riotous Assemblies Act 17 of 1956 B — Conspiring in contravention of s 18(2)(a) — Whether this provision may be utilised where envisaged crime completed — While State not prohibited from doing so, person cannot be convicted of committing both main crime and conspiracy — Charges merging, similar to where successful attempt to commit crime merging with completed crime. C

Murder — Assisted suicide and euthanasia — Law relating to criminal liability of persons participating therein reviewed and discussed — Courts holding inconsistent views and handing down contradictory judgments — South African Law Commission finding that intentional killing, be it called murder, D euthanasia or assisted suicide, generally prohibited — Constitutional Court, upon considering constitutionality of euthanasia, confirming that right to life subject to limitation in terms of s 33 of interim Constitution, 1994 — Person assisting another in committing suicide would be guilty of offence — Thus, as in present case, anyone conspiring with, aiding and/or abetting another to commit suicide, also guilty of offence. E

Prosecution — Conduct of — Calling of witnesses in terms of s 204 of Criminal Procedure Act 51 of 1977 — Manipulation by prosecution of witnesses' testimony-in-chief on matters not covered by their witness statements made in terms of s 204 — Such manipulation constituting irregular, possibly unconstitutional, conduct rendering trial unfair — In casu, startling similarities between s 204 statements of State witnesses, and their having F testified about aspects not covered therein, indicative of collusion and prosecutorial interference — Also, affidavit supplementary to s 204 statement belatedly implicating accused indicative of recent fabrication — Manner in which prosecution conducted violating accused's right to fair trial.

Headnote : Kopnota

The accused's alleged co-conspirators, as witnesses for the prosecution under G s 204 of the Criminal Procedure Act 51 of 1977, admitted to various degrees of involvement in a conspiracy to commit five murders — one of which was attempted and another, the assisted suicide/murder of a co-conspirator, completed. Given their respective roles as alleged, the only co-conspirator that could have implicated the accused did not do so in his H s 204 statement, doing so in a later supplementary affidavit only to be discredited under cross-examination. This not only raised issues of prosecutorial conduct, but left the State without a prima facie case against the accused at the close of its case. The accused accordingly applied for his discharge in terms of s 174 of the Criminal Procedure Act 51 of 1977. I

Held, that s 18(2)(a) of the Riotous Assemblies Act did not differentiate between a successful conspiracy — one followed by the actual commission of the offence — and one not followed by any further steps towards the commission of the crime. While our courts have held that this provision ought to be utilised only if the envisaged crime had not yet been committed, there was no absolute prohibition on the State charging somebody with conspiracy even when the main crime had in fact been committed. It would of course J

2011 (2) SACR p438

A be wrong convicting a person of both the conspiracy and the main crime since the two would merge, like where a successful attempt to commit a crime merged with the completed crime. (Paragraph [9] at 441i–442b.)

Held, further, that, in South Africa, a person assisting any other person to commit suicide — let alone actually killing the suicide requestor — would be guilty of an offence. Consequently, anyone who conspired with, aided and/or B abetted another to commit suicide, albeit called assisted suicide, would also be guilty of an offence. (Paragraph [21] at 449e–f.)

Held, further, that any manipulation of a State witness's evidence in an attempt at ensuring that he/she testified in court about matters that were not covered by his/her statement, or of which he/she had no independent knowledge — and more so where the statement was in terms of s 204 of the C Criminal Procedure Act — was irregular, could be unconstitutional, and rendered a trial unfair. The startling similarities between the statements indicated that there could have been collusion between them in the compilation of those statements. The timing of the supplementary affidavit, which belatedly tended to implicate the accused, pointed at manipulation and recent fabrication. That witnesses testified about matters not covered in D their s 204 statements showed a semblance of interference on the part of either the investigating or prosecuting team, cajoling witnesses into implicating the accused where the witnesses did not spontaneously implicate the accused. The manner in which the prosecution was conducted violated the accused's right to a fair trial.(Paragraphs [285]–[288] and [298] at 459b–h and 462d–e.) Accused discharged in terms of s 174.

Annotations:

Cases cited

Reported cases

Southern Africa

Ex parte Die Minister van Justisie: In re S v Grotjohn 1970 (3) SA 355 (A): considered F

R v Adams and Others1959 (1) SA 646 (SCC): applied

R v B1956 (3) SA 363 (E): dictum at 365 applied

R v Dladla and Others (2)1961 (3) SA 921 (N): not followed

R v Heyne and Others (1)1958 (1) SA 607 (W): dictum at 609 applied

R v Kritzinger and Others1952 (2) SA 401 (W): not followed G

R v Mall and Others (1)1960 (2) SA 340 (N): applied

Rex v Milne and Erleigh (7)1951 (1) SA 791 (A): referred to

R v Nbakwa 1956 (2) SA 557 (SR): considered

R v Njenje and Others 1966 (1) SA 369 (SRA): referred to

Rex v Peverett1940 AD 213: considered

R v S1959 (1) SA 680 (C): dictum at 683 applied H

S v Basson2001 (1) SACR 235 (T): referred to

S v Bouwer1964 (3) SA 800 (O): applied

S v Chogugudza 1996 (1) SACR 477 (ZS) (1996 (3) BCLR 427): referred to

S v Cooper and Others1976 (2) SA 875 (T): applied

S v Gordon1962 (4) SA 727 (N): considered I

S v Hibbert1979 (4) SA 717 (D): considered

S v Khanyapa1979 (1) SA 824 (A): considered

S v Khoza en 'n Ander1973 (4) SA 23 (O): applied

S v Lavhengwa1996 (2) SACR 453 (W): applied

S v Lubaxa2001 (2) SACR 703 (SCA) (2001 (4) SA 1251; [2002] 2 All SA 107): J applied

2011 (2) SACR p439

S v Makwanyane and Another1995 (2) SACR 1 (CC) (1995 (3) SA 391; A 1995 (6) BCLR 665): considered

S v Manekwane1996 (2) SACR 264 (E)

S v Mashele1990 (1) SACR 678 (T): referred to

S v Mathebula and Another1997 (1) SACR 10 (W) (1997 (1) BCLR 123): dictum at 35e applied

S v Motlhabane and Others1995 (2) SACR 528 (B) (1995 (8) BCLR 951): B dictum at 535g applied

S v Moumbaris and Others1974 (1) SA 681 (T): dictum at 687 applied

S v Mpetha and Others1983 (4) SA 262 (C): applied

S v Nandha Gopal Naidoo 1966 (1) PH H104 (W): applied

S v National Board of Executors Ltd and Others1971 (3) SA 817 (D): not followed C

S v Ndlangamandla and Another1999 (1) SACR 391 (W): dictum at 393g – i applied

S v Nel1987 (4) SA 950 (W): dictum at 961D – E applied

S v Rozani; Rozani v Director of Public Prosecutions, Western Cape, and Others2009 (1) SACR 540 (C): dictum at 550d applied

S v Shuping and Others1983 (2) SA 119 (B): not followed D

S v Sibuyi1993 (1) SACR 235 (A): dictum at 249e applied

S v Swartz and Another2001 (1) SACR 334 (W): considered

S v Zuma2006 (2) SACR 191 (W) (2006 (7) BCLR 790; [2006] 3 All SA 8): applied.

England E

R v McDonnel[1966] 1 QB 233 ([1966] 1 All ER 193): considered.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 174: see Juta's Statutes of South Africa F 2010/11 vol 1 at 2-380

The Riotous Assemblies Act 17 of 1956, s 18(2)(a): see Juta's Statutes of South Africa 2010/11 vol 1 at 2-308.

Case Information

Application in terms of s 174 of the Criminal Procedure Act 51 of 1977 for the discharge of the accused at the close of the State case in a criminal trial on a charge of conspiracy to commit murder and other charges. The facts appear from the reasons for judgment. G

DD Dakana (with Mr Gcaleka and Mr Mashiane) for the State.

LM Hodes SC (with K Mokotedi) for the accused.

Cur adv vult.

Postea (November 25). H

Judgment

Kgomo J:

[1] At the close of the State case herein, after a long and/or protracted hearing, the accused herein is applying for his discharge in terms of s 174 of the Criminal Procedure Act 51 of 1977, as amended (the Criminal Procedure Act). I

[2] The basis of the application is:

2.1

that the accused did not receive a fair trial in that the prosecution, while in possession of statements and other evidential material, failed or neglected or refused to act in accordance with their duty J

2011 (2) SACR p440

Kgomo J

A or legal obligation to make same available to the court and/or the defence, as well as manipulated or attempted to manipulate the witnesses' evidence so as to ensure that they testified in chief about matters that were not covered by their statements, more particularly those statements that the witnesses made in terms of s 204 of the Criminal Procedure Act, thereby rendering the whole B process unconstitutional and the trial unfair; and/or

2.2

that the State has not made out a prima facie case against the accused at the close of its case and that to put the accused on his defence when there is no evidence on record upon which a person, acting carefully, can convict the accused, would be...