S v De Jager

• Jurisdiction: South Africa
• Judge: Beyers JA, Rumpff JA and Holmes JA
• Judgment Date: 09 March 1965
• Citation: 1965 (2) SA 612 (A)
• Hearing Date: 15 February 1965
• Court: Appellate Division

Holmes, J.A.:

The applicant was convicted by GALGUT, J., in the Witwatersrand Local Division, inter alia, of the theft of R22,665. At the hearing of the appeal he applied in limine for leave to lead certain evidence in this Court.

Holmes JA

This Court can, in a proper case, hear evidence on appeal; see R v Carr, 1949 (2) SA 693 (AD); but the usual course, if a sufficient case has been made out, is to set aside the conviction and sentence and send the case back for the hearing of the further evidence, as was done, A for example, in R v Mhlongo and Another, 1935 AD 133. However, it is well settled that it is only in an exceptional case that the Court will adopt either of the foregoing courses. It is clearly not in the interests of the administration of justice that issues of fact, once judicially investigated and pronounced upon, should lightly be re-opened B and amplified. And there is always the possibility, such is human frailty, that an accused, having seen where the shoe pinches, might tend to shape evidence to meet the difficulty. Accordingly, this Court has, over a series of decisions, worked out certain basic requirements. They have not always been formulated in the same words, but their tenor throughout has been to emphasise the Court's reluctance to re-open a C trial. They may be summarised as follows:

(a)

There should be some reasonably sufficient explanation, based on allegations which may be true, why the evidence which it is sought to lead was not led at the trial.

(b)

There should be a prima facie likelihood of the truth of the evidence.

(c)

D The evidence should be materially relevant to the outcome of the trial.

See R v de Beer, 1949 (3) SA 740 (AD) at p. 748; R v Weimers and Others, 1960 (3) SA 508 (AD) at pp. 514 - 5; R v Madikane, 1960 (4) SA 776 (AD) E at p. 780; R v Nkala, 1964 (1) SA 493 (AD); and S v Gert Stynder, (1 October, 1964).

Non-fulfilment of any one of these requirements would ordinarily be fatal to the application, but every case must be decided on its particular merits, and there may be rare instances where, for some special reason, the Court will be more disposed to grant the relief; see R v de Beer, supra at p. 748. Such a case was S v Nkala, supra, F where the accused's explanation was not such as would ordinarily be sufficient but it was accepted, not without some hesitation, in the special circumstance of that case.

With that prelude I turn more fully to the facts...