S v Baleka and Others (4)

• Jurisdiction: South Africa

S v Baleka and Others (4)
1988 (4) SA 688 (T)

1988 (4) SA p688

Citation	1988 (4) SA 688 (T)
Court	Transvaal Provincial Division
Judge	Van Dijkhorst J
Heard	March 30, 1987; March 31, 1987; April 1, 1987
Judgment	April 2, 1987

Flynote : Sleutelwoorde B

Criminal procedure — Trial — Assessors — Dismissal of — Criminal Procedure Act 51 of 1977, s 147 — If in opinion of presiding Judge, assessor becomes unable to act, Judge may order that trial proceed C before remaining member(s) of Court or that trial start de novo — Words 'unable' and 'onbekwaam' (Afrikaans text) wide enough to include disability flowing from legal impediment or disqualification — 'Becomes unable to act' means 'can act no more' — Section 147 therefore applying to all disqualifications, whether arising during trial or, having been latent, come to light during trial — Parties have no right to be heard D before Judge forms opinion — Neither do parties have right to be heard once Judge forms opinion but before Judge decides to invoke ss (a) or (b) of s 147.

Criminal procedure — Trial — Application for quashing of proceedings — Defence seeking to utilise report by an assessor who had been E discharged in terms of s 147 of Criminal Procedure Act 51 of 1977 containing information concerning discussions between members of the Bench in the trial — Such report inadmissible — Such disclosure might diminish confidence of the public in the general propriety of criminal verdicts.

Criminal procedure — Evidence — Admissibility of — Report by assessor F discharged in terms of s 147 of Criminal Procedure Act 51 of 1977 containing information of discussions between members of Bench in the trial — Inadmissibility of.

Headnote : Kopnota

Section 147 of the Criminal Procedure Act 51 of 1977 provides that if in G the opinion of the presiding Judge an assessor becomes unable to act during a trial, he may direct that the trial proceed before the remaining member(s) of Court or that the trial start de novo. The word used in s 110 of Act 56 of 1955 (the predecessor to s 147 of Act 51 of 1977) was 'incapable'. The word used in the Afrikaans text of both the 1955 and 1977 Acts was 'onbekwaam'.

The words 'onbekwaam', 'incapable' and 'unable' are all wide enough to embrace not only physical or mental disability, but also disability H flowing from legal impediments or disqualifications.

The phrase 'becomes unable to act' in s 147 means 'can act no more'. Section 147 therefore applies to all disqualifications, whether they arise during the trial or, having been latent, come to light only during the trial.

Section 147 gives the parties no right to be heard before the presiding Judge forms his opinion. Although he would normally hear the parties in private conference, the section does not oblige him, once he has formed I the opinion that an assessor is unable to act, to hear the parties before deciding to invoke ss (a) or (b) of s 147.

The Court, in considering an application during the course of a criminal trial for the quashing of the proceedings after the trial Judge had discharged an assessor in terms of s 147 of the Criminal Procedure Act 51 of 1977, held that a report by the discharged assessor in which there was information concerning discussions which had taken place between the trial Judge and the assessors during the course of the trial was J inadmissible. The Court approved and applied the dictum of Lord Hewart CJ

1988 (4) SA p689

A in R v Armstrong [1922] All ER Rep 153 at 157: 'If one juryman might communicate with the public upon the evidence and the verdict, so might his colleagues also, and if they all took this dangerous course, differences of individual opinion might be made manifest which, at least, could not fail to diminish the confidence that the public rightly has in the general propriety of criminal verdicts.'

Case Information

Application for the quashing of a trial; alternatively for the recusal B of the presiding Judge. The nature of the issues appears from the reasons for judgment.

I W B de Villiers SC (with him P B Jacobs, P Fick and W Hanekom) for the State.

G Bizos SC and A Chaskalson SC (with them K Tip, Z M Yacoob and G J C Marcus) for the accused.

[The application was dismissed on 2 April 1987 and the following reasons for judgment were handed down on 10 April 1987.]

Judgment

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,

1988 (4) SA p690

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.

1988 (4) SA p691

Van Dijkhorst J

A The power exercised in this case arises solely from...