S v Baleka and Others (4)

• Jurisdiction: South Africa
• Court: Transvaal Provincial Division
• Judge: Van Dijkhorst J
• Judgment Date: 02 April 1987
• Citation: 1988 (4) SA 688 (T)

Van Dijkhorst J:

On 10 March 1987 I made a statement in Court. It was to D the effect that I had been informed the previous day that one of my assessors, Dr W A Joubert, had participated in the Million Signature Campaign of the United Democratic Front by signing one of its declarations, declaring inter alia that he gave full support for the UDF 'in its efforts to unite our people in their fight against the constitution and Koornhof Bills'. It is the State's case that the UDF's E efforts to unite the people in their fight against the constitution and the Koornhof Bills (by which is meant, inter alia, the statutes creating the Black Local Authorities) are unlawful and treasonable. After due consideration I formed the opinion that in the circumstances Dr Joubert had to recuse himself and I held that he had become unable to act as assessor. In terms of s 147 of the Criminal Procedure Act 51 of 1977 I F directed that the trial proceed before the remaining members of the Court.

Having reserved their rights in this respect, the 19 accused on 20 March 1987 brought an application for the quashing of the trial on three grounds, alternatively for the recusal of myself, and further alternatively for the recusal of my other assessor, Mr W F Krugel. After G hearing argument on four consecutive days and giving certain rulings on the admissibility of reports, the applications for the recusal of myself and my remaining assessor were withdrawn. I dismissed the application in toto. Here are my reasons.

H The three grounds for the application to quash the proceedings were:

'(i)

The dismissal of the assessor, Prof W A Joubert, was made without power and was wrong in law and in consequence thereof the Court which is now hearing the trial is not a properly constituted Court.

Alternatively:

(ii)

The dismissal of the assessor, Prof W A Joubert, by the presiding Judge constituted a material irregularity which was I such a gross departure from established rules of practice and procedure that the accused can no longer properly be tried by the Court which is hearing the trial.

Alternatively:

(iii)

The failure by the presiding Judge to hear the accused on how the discretion given to him by s 147 of the Criminal Procedure Act should be exercised, prior to ruling that the trial be J continued before himself and the assessor,

Van Dijkhorst J

A Mr W F Krugel, constituted a material irregularity which cannot now be remedied, and in consequence whereof the trial cannot properly be continued.'

The word 'dismissal' is a misnomer. The order made was a ruling that Dr Joubert has become unable to act as assessor in terms of s 147 of the Criminal Procedure Act 51 of 1977 and a direction that the trial proceed B before the remaining members of the Court.

The argument of the applicants ran thus:

1.

A court has power to direct that the trial be stopped and the proceedings be quashed when an irregularity has occurred which makes it undesirable for the trial to be continued. Reliance was C placed on R v Matsego and Others 1956 (3) SA 411 (A) at 417H; S v Apolis 1965 (4) SA 178 (C) at 179D; S v Gcaba 1965 (4) SA 325 (N) and S v Moselli en 'n Ander (2) 1969 (1) SA 650 (O) at 653 - 4.

2.

In S v Moodie 1961 (4) SA 752 (A) the Appellate Division formulated the following rules with regard to irregularities:

(i)

D The general rule with regard to irregularities is that the court will be satisfied that there has in fact been a failure of justice if it cannot hold that a reasonable trial court would inevitably have convicted if there had been no irregularity.

(ii)

In an exceptional case, where the irregularity consists of E such a gross departure from established rules of procedure that the accused has not been properly tried, this is per se a failure of justice, and it is unnecessary to apply the test of enquiring whether a reasonable trial court would have inevitably convicted if there had been no irregularity.

(iii)

F Whether a case falls within (i) or (ii) depends upon the nature and the degree of the irregularity.

3.

It was argued that what happened in the instant case is an irregularity of the second category and per se amounted to a failure of justice and that in such a case the power to quash the proceedings ought to be exercised. It was argued that even in cases G where the irregularity falls into the first category described in Moodie's case, the power to quash exists and should be exercised where the irregularity can result in a suspicion that the trial has not been conducted fairly.

Two questions arise: Can this Court reconsider the validity of its H previous decision? Was the ruling given an irregularity?

On the first question the decision has to be against the applicants.

The decision that s 147 was applicable and the decision to invoke it without calling upon the State or defence was made after due deliberation. To find on the correctness of that decision would be a I review by the Court of its own decision. That it cannot do. It is functus officio. West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173 at 178; Estate Garlick v Commissioner for Inland Revenue 1934 AD 499 at 502; S v Suliman 1968 (3) SA 219 (T) at 224H - 225B.

It is, however, apposite to set out my reasons why the argument that the ruling and direction given amounted to an irregularity cannot be J upheld.

Van Dijkhorst J

A The power exercised in this case arises solely from the provisions of s 147 of the Criminal Procedure Act. To apply the common law principles of procedure on recusal, as the applicants seek to do, is fallacious.

The section reads:

'147(1) If an assessor dies or, in the opinion of the presiding Judge, becomes unable to act as assessor at any time during a trial, the B presiding Judge may direct -

(a)

that the trial proceed before the remaining member or members of the Court;

or

(b)

that the trial start de novo, and for that purpose summon an assessor in the place of the assessor who has died or has become unable to act at assessor.'

C The Afrikaans version is as follows:

'147(1) Indien 'n assessor te eniger tyd gedurende 'n verhoor sterf of, na die oordeel van die voorsittende Regter, onbekwaam raak om as assessor op te tree, kan die voorsittende Regter gelas -

(a)

dat die verhoor voor die oorblywende lid of lede van die Hof D voortgaan;

of

(b)

dat die verhoor de novo begin, en te dien einde 'n assessor oproep in die plek van die assessor wat gesterf het of onbekwaam geraak het om as assessor op te tree.'

Three questions arose:

(1)

whether the words 'becomes unable to act' should be limited to E physical and mental disability;

(2)

whether the word 'becomes' excludes cognisance of a latent disability which, having arisen prior to the trial, only comes to light after its commencement;

(3)

whether the Judge before forming his opinion should afford the F parties a hearing.

A historical review of the section may be of benefit. Section 216(2) of the Criminal Procedure and Evidence Act 31 of 1917 provided for trial by Judge and assessors. The Act contained no provision dealing with the contingency where an assessor dies or becomes incapacitated during the G trial. That contingency arose in R v Johnson 1947 (4) SA 849 (C) and R v Price 1955 (1) SA 219 (A). In the latter case it led to an unfortunate result. The Legislature reacted speedily by inserting s 216bis of Act 31 of 1917 by s 33 of Act 29 of 1955.

In the consolidated Criminal Procedure Act 56 of 1955 it became s 110. Except for references to renumbered sections, the English wording is H identical. The Dutch text becomes Afrikaans. I paraphrase s 110(1) and (3):

'If at any time during a trial... any assessor dies or becomes in the opinion of the Judge incapable of continuing to act as assessor, the Judge may, if he thinks fit, direct that the trial shall proceed without such assessor.'

I This applies where the summoning of assessors was optional. Where it was obligatory 'the consent of the accused and the prosecutor' was required for such direction.

The Afrikaans was:

'... 'n assessor te sterwe kom of volgens die oordeel van die Regter J onbekwaam word om verder as assessor te dien... '.

Van Dijkhorst J

A By s 9 of Act 92 of 1963 s 110 of Act 56 of 1955 was amended by the deletion of ss (3) which had required the consent of the accused and the prosecutor where assessors had been obligatory. Apart from this the section remained as paraphrased above.

This remained the law until the consolidating Criminal Code in 1977. B The word 'incapable' became 'unable'. The words 'of continuing to act as assessor' became 'to act as assessor'. The Afrikaans 'onbekwaam word om verder as assessor te dien' became 'onbekwaam raak om as assessor op te tree'. I do not think that much can be read into the change from 'incapable' to 'unable'. The Afrikaans (and before it the Dutch) had always been 'onbekwaam' and it surely cannot be said that the Afrikaans C text (which was the signed text in both Codes) changed its meaning because the English text exchanged synonyms.

It could also be argued that the English text was amended after O'Hagan J in R v Gubudela and Others 1959 (4) SA 93 (E) at 95H tentatively held that the words 'becomes incapable' in s 149(3) of Act 56 of 1955 applied only to the physical and mental incapacity of jurors. D One could then argue that the Legislature intended by the amendment to 'unable' to widen the scope of the section.

Whatever conclusions one may draw from the change, in my view 'onbekwaam', 'unable' and 'incapable' are all wide enough to embrace not only physical and mental disability, but also disability flowing from E legal impediments and disqualifications.

The Handwoordeboek van die Afrikaanse Taal, sv 'onbekwaam' gives, inter alia, 'ongeskik'.

Shorter Oxford English...