S v Kwali

• Jurisdiction: South Africa
• Judge: Williamson JA, Wessels JA and Van Winsen AJA
• Judgment Date: 09 May 1967
• Hearing Date: 22 March 1967
• Court: Appellate Division

S v Kwali
1967 (3) SA 193 (A)

1967 (3) SA p193

Citation	1967 (3) SA 193 (A)
Court	Appellate Division
Judge	Williamson JA, Wessels JA and Van Winsen AJA
Heard	March 22, 1967
Judgment	May 9, 1967

Flynote : Sleutelwoorde A

Criminal procedure — Appeal — Hearing of further evidence — Trial Court hearing the evidence after conviction to determine whether there was an irregularity in the proceedings — Application by State to Appellate Division for further evidence — Matter remitted to B trial Court for hearing — Act 59, of 1959, sec. 22.

Headnote : Kopnota

When a trial Judge, after the conclusion of the trial, has conducted an enquiry to ascertain whether there has been an irregularity in the proceedings and further evidence is now sought to be adduced, not in relation to the trial itself but in connection with the enquiry, then the power of the Appellate Division to act in terms of section 22 of Act 59 of 1959 must be the same in such circumstances as if the evidence was to be evidence C in the trial; and the principles governing the consideration of the request made to adduce further evidence must also be the same.

At the trial of the appellant a municipal Bantu constable acted as interpreter. After the appellant had been sentenced, his counsel applied for the making of a special entry in terms of section 364 (1) of Act 56 of 1955 in regard to an alleged irregularity in the proceedings in the case of an unsworn or improperly sworn interpreter. Before making the D entry the trial Judge heard certain evidence in connection with the qualification of the interpreter employed during the trial. According to one W the interpreter had not been sworn in during the trial as an interpreter and he had never been sworn in in any court as an interpreter previously with one exception: he had on one occasion been sworn as an interpreter in a certain preparatory examination but his oath only made reference to his interpreting correctly in those proceedings. Prior to the appeal being heard a notice of motion was served on behalf of the Attorney-General that the State would, acting E under section 22 of Act 59 of 1959, apply for an order 'that the oral evidence of V, in terms of the attached affidavit, be received and that the appellant be given leave to call evidence in rebuttal or, alternatively, that the matter be remitted to the trial Court to hear such evidence or any other witnesses'. The affidavit of V, who had been an assistant magistrate in the district, was to the effect that the interpreter had acted regularly in that capacity in cases in the F magistrates' and regional courts, and that he had administered the oath, which was in general form, to the interpreter.

Held, as there was a reasonable explanation why the evidence of V had not been led, and as there was a prima facie likelihood of the truth of the evidence, and as it was materially relevant to the issue under consideration on appeal, that the order should be granted.

Held, further, that the Appeal Court should not under the circumstances hear the evidence but that the matter should be remitted to the trial Court to hear such further evidence. G

Case Information

Appeal on a special entry made in the Beaufort West Local Circuit Division (VAN ZYL, J). At the hearing the State applied for an order the nature of which appears from the judgment of WILLIAMSON, J.A.

J. J. F. Hefer, for the appellant, at the request of the Court: Daar was 'n onreëlmatigheid by die gebruik van die oningeswore tolk. Die betrokke tolk was nie 'n amptelike een nie, is vantevore eenmaal gebruik in 'n voorlopige ondersoek vir die doel waarvan hy ingesweer is maar vir doeleindes van die onderhawige saak, is hy nie ingesweer nie. Dié posisie is nie onderskeibaar van dié in S v Naidoo, 1962 (2) SA 625, nie. Hierdie onreëlmatigheid moes noodwendig 'n regskending soos bedoel in art. 369 (1) van die Strafproseswet tot gevolg gehad het aangesien die beskuldigde verkies het om getuienis onder eed af te lê en dit H

1967 (3) SA p194

wat hy gesê het, inderdaad nou niks meer as 'n onbeëdigde verklaring is nie. Afgesien daarvan het die Verhoorhof staatgemaak op die getuienis van Plaatjie en dit kan nie gesê word dat daarsonder 'n skuldigbevinding A uitgebring sou gewees het nie. Vgl. S v Naidoo, supra op bl. 636E - 637D en G - H.

K. von Lieres, for the State: This Court has the power to hearoral evidence on appeal. See sec. 22 of Act 59 of 1959; S v de Jager, 1965 (2) SA 612; R v Carr, 1949 (2) SA 693. Before the Court will exercise this power it must be satisfied that (a) there should be some reasonably sufficient explanation, based on allegations which may be B true, why the evidence which it is sought to lead was not led in the Court a quo; (b) there should be a prima facie likelihood of the truth of the evidence; (c) the evidence should be materially relevant to the outcome of the trial. See S v de Jager, supra at p. 613C - D2; R v Weimers and Others, 1960 (3) SA 508. In deciding upon this question C the Court must take an objective conspectus of all the relevant factors. See Melane v Santam Insurance Co. Ltd., 1962 (4) SA 531 at p. 532D4 to F2. As to the third requirement the terms of the oath administered are materially relevant to a just decision, especially in view of the fact that a general oath was taken. See S v Manjra, 1966 (4) SA 319 at p. 321E2 - G. It is by no means clear from Kibe's D evidence and exh. R.S.C. 2 whether a special or a general oath was administered. This is vital to appellant's case. See S v Manjra, supra. The vital question put to Kibe was badly formulated. The crucial factor, i.e. whether Kibe swore to a special (limited) oath or to an oath in general terms was not put to him nor was this aspect ever E canvassed. Neither did the trial Court bring in a finding as to the terms of the oath, although it accepted, quite correctly, that Kibe was sworn in at an earlier date. In view hereof this Court will now have to decide whether or not the facts alleged as a basis of the alleged irregularity are or are not true. See R v Matsego and Others...