S v Gumbi and Others

• Jurisdiction: South Africa

S v Gumbi and Others
2018 (2) SACR 676 (SCA)

2018 (2) SACR p676

Citation	2018 (2) SACR 676 (SCA)
Case No	414/2017; [2018] ZASCA 125
Court	Supreme Court of Appeal
Judge	Ponnan JA, Wallis JA, Mocumie JA, Molemela JA and Mothle AJA
Heard	August 31, 2018
Judgment	September 26, 2018
Counsel	AC Klopper for the appellants.; A Johnson for the state.

Flynote : Sleutelwoorde

Evidence — Evidence given at former criminal trial — Admissibility of — Trial judge becoming incapacitated during trial and unable to pronounce G verdict — Trial resuming before new judge who proceeded, by consent of parties, on record of previous proceedings — Inquiry postulated by s 214 of Criminal Procedure Act 51 of 1977 not conducted — Accordingly no evidence before new judge and conviction and sentence set aside on appeal.

Headnote : Kopnota

The H appellants were being tried in the High Court on a number of serious charges. After the state and the defence had closed their cases, the court had made rulings on two admissibility trials and the prosecution and defence had been heard in argument, the trial judge reserved judgment. Before he could deliver a verdict, however, he became incapacitated and could not continue with the trial. The prosecutor then lodged an application for a I special review seeking instructions on how the matter should proceed.

Two judges considered the application and held that the trial had to start de novo, and, with the consent of all the parties in terms of s 215 of the Criminal Procedure Act 51 of 1977 (the CPA), proceed on the evidence as recorded at the original trial. The matter then proceeded on that basis and the new judge convicted the appellants and sentenced them to terms of J imprisonment. On appeal,

2018 (2) SACR p677

Held, that the inquiry postulated by s 214 of the CPA had not been undertaken by A the new judge and the court was left completely in the dark as to whether she had purported to act under paras (a) or (b) of the provision. There was, moreover, no ruling by the judge in respect of the admissibility of the evidence of each witness or what factors weighed in the exercise of her discretion. She had also not considered whether the proper exercise of her B discretion required her to first peruse the evidence of each witness or to afford counsel a proper opportunity to address her in argument on the dangers presented by the receipt of the evidence of each such witness — the fact that the evidence satisfied the requirements of s 214 was no assurance that the evidence had necessarily to be relied upon. (See [12].)

Held, further, that, as the evidence adduced before the original judge was not C properly admitted under the CPA, it did not constitute evidence against the appellants at the subsequent trial and there was accordingly no evidence at all upon which the appellants could have been convicted. Neither the appellants nor their counsel could, by their acquiescence, validate the invalid procedure adopted by the new judge. The appeal was upheld, and the convictions and sentences set aside. (See [13] – [14].) D

Cases cited

Director of Public Prosecutions, Transvaal v Viljoen 2005 (1) SACR 505 (SCA) ([2005] 2 All SA 355): dictum in para [33] applied

R v Andrews 1920 AD 290: referred to E

R v Dladla (1) 1961 (3) SA 919 (D): referred to

R v Rautenbach 1949 (1) SA 135 (A): referred to

R v Stoltz 1925 WLD 38: dictum at 39 applied

S v Cordozo 1975 (1) SA 635 (T): referred to

S v Machaba and Another 2016 (1) SACR 1 (SCA) ([2015] ZASCA 60): dictum in para [27] applied F

S v Mamase and Others 2010 (1) SACR 121 (SCA): referred to

S v Moodie 1961 (4) SA 752 (A): referred to

S v Ngubane 1985 (3) SA 677 (A): referred to

S v Nzuza 1963 (3) SA 631 (A): referred to

S v Serobe and Another 1968 (4) SA 420 (A): dictum at 426C – F applied

S v Sexwale and Others (2) 1978 (3) SA 788 (T): referred to G

S v Swanepoel 1979 (1) SA 478 (A): referred to

S v Thomas and Another 1978 (1) SA 329 (A): referred to

S v Zuma and Others 2006 (2) SACR 69 (D): referred to.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, ss 214(a), (b) and 215: see H Juta's Statutes of South Africa vol 1 at 2-325 to 2-326.

Case Information

AC Klopper for the appellants.

A Johnson for the state. I

An appeal from a conviction and sentence in the Gauteng Division, Pretoria (Potterill J).

Order

The appeal is upheld, and the convictions and sentences are set aside. J

2018 (2) SACR p678

Judgment

Ponnan JA A (Wallis JA, Mocumie JA, Molemela JA and Mothle AJA concurring):

[1] The appellants were indicted on a multiplicity of charges before the Gauteng Division of the High Court, Pretoria. Although the offences were allegedly committed on 4 April 2007, the trial only commenced B some seven years later, during August 2014, before Webster J. The evidence of several witnesses was led in the main trial, as also two admissibility trials. At the conclusion of the latter, Webster J provisionally admitted into evidence statements made by two of the appellants. The appellants testified in their defence and some called witnesses. C Thereafter, both the prosecution and defence submitted written heads and were heard in argument, at the conclusion of which Webster J adjourned to consider his verdict. However, before a verdict on any of the charges had been determined, the judge became incapacitated due to illness, leaving his final conclusions unpronounced.

[2] D The prosecutor then lodged what was described as an 'application for special review' with the High Court. It was there stated:

'10.

The application seeks to obtain permission for a special review of the matter by two (2) judges in chambers.

11.

These honourable judges are to consider whether or not, a judgment can be delivered in the absence of the presiding officer E who heard the evidence during the trial and whether same can be done without the parties having to argue the matter again.

12.

If the judges vested with the matter are of the view that they are unable to deliver a verdict that they make an order with regards the finalisation of this matter.'

[3] F The judges (Jordaan J and Potterill J), who considered the application, took the view that:

'2.

From the outset it is trite that review judges sitting in chambers can never constitute a trial court; thus two judges cannot give a judgment as a trial court. These two judges were not seized with the trial and there is no procedure that authorises two judges to G deliver a judgment pursuant to evidence being led.

. . .

4.

We are of the opinion that in open court on 11 February 2016 a single judge can place on record that the State and all the accused, duly informed, consent that the trial start de novo. The de novo trial can then with consent of all the parties in terms of s 215 of the Act H proceed on the evidence as recorded at the former trial. The arguments of the parties of the formal trial can stand or can be supplemented at the parties' request.'

[4] The matter came before Potterill J on 11 February 2016. What I occurred on that day appears from the following extract from the record:

'Court: . . . So in the main we agree that the matter must start de novo. We cannot get to another conclusion. If the matter can proceed on the record as it stands, then I would be able to do it in this term. If not, if it cannot happen like that, then a new judge would have to be allocated to do it next term or whatever. So I do not know Ms Johnson is there J any submissions from your side first of all?

2018 (2) SACR p679

Ponnan JA (Wallis JA, Mocumie JA, Molemela JA and Mothle AJA concurring)

Ms Johnson: As the court pleases M'Lady I acknowledge receipt of the A communication. I do understand the communication. I also understand the predicament that both presiding officers were vested with in chambers and I appreciate it that it cannot proceed on special review. It is so that the trial can start de novo and the state obviously then would have no objection to the trial starting de novo. That being said I have insight into the provisions of section 215 of the Criminal Procedure Act B and in terms thereof the exact record together with all of the exhibits that had been provided for the special review, are in fact the proceedings of the entire trial. None of the parties had any objections to that entire record as well as all the exhibits being submitted for review, so I can see no reason why any of the parties should object, obviously that is their prerogative but I see no reason why they should object because C in...