S v Leepile and Others (1)

• Jurisdiction: South Africa
• Judge: Ackermann J
• Judgment Date: 10 September 1985
• Citation: 1986 (2) SA 333 (W)
• Court: Witwatersrand Local Division

Ackermann J:

After the first State witness, Warrant Officer Pienaar, had concluded his testimony on Friday 6 September, 1985, Mr Ferreira, on behalf of the State, applied in terms of s 153 (2) (b) of the Criminal Procedure Act 51 of 1977 for a direction that the next witness, whose true identity was not disclosed, but was referred to by the name of Mpise, should testify without his identity being revealed to anyone, not even I to defence counsel or the Court. Mr Ferreira at that stage indicated that he was not seeking a direction in terms of s 153 (2) (a) of the Criminal Procedure Act that Mpise should testify behind closed doors.

At the same time Mr Ferreira intimated that he would, on some future occasion in the trial, bring another application supported by evidence for the evidence of certain witnesses to J be given behind closed doors. When the hearing resumed on 10 September 1985, Mr Ferreira indicated that he

Ackermann J

was not proceeding with the aforementioned application in its A limited form, but was now applying in respect of all Black State witnesses and including the person referred to as Mpise, for a direction in terms of s 153 (2) of the Code, that -

(a)

these witnesses should testify in camera and

(b)

their identity be not revealed to anyone, not even to B defence counsel or the Court.

Alternatively a direction was sought that the testimony of such witnesses be heard behind closed doors in terms of ss (1) of s 153. The application in all its forms was opposed on behalf of the accused by Mr Farlam who, together with Mr Cameron, appears for them.

Mr Ferreira adduced the evidence of Brigadiers Stadtler and C Muller and thereafter argument proceeded. I shall consider the application first in regard to ss (2) and thereafter in regard to ss (1) of s 153.

Before considering counsel's main submissions in this regard, I should like to deal with a specific argument raised by Mr Farlam regarding the witness called Mpise. His submission was D that the State's attitude had undergone a complete volte-face. Whereas originally the State had only sought an order protecting Mpise's identity, Mpise was now included in the witnesses in respect of whom a complete in camera hearing was being sought. In the absence of an explanation from the State for this change in stance, it could only have been prompted, so E Mr Farlam submitted, by bad faith and that on this ground alone the application for an in camera hearing of Mpise's evidence should be refused.

Mr Ferreira, however, informed the Court that the change was not arbitrary, but brought about by a consultation he had had with Brigadiers Stadtler and Muller and that his decision was F based on the information so obtained. Under these circumstances I have difficulty in inferring that the change in stance was capricious, let alone motivated by bad faith. I am, therefore, unable to accede to Mr Farlam's request in this regard

Subsection (2) of s 153 of the Criminal Procedure Act reads as follows:

"If it appears to any Court at criminal proceedings that there is a likelihood that harm might result to any person, other G than an accused, if he testifies at such proceedings, the Court may direct -

(a)

that such person shall testify behind closed doors and that no person shall be present when such evidence is given unless his presence is necessary in connection with such proceedings or is authorised by the Court;

(b)

that the identity of such persons shall not be revealed for a period specified by the Court."

The jurisdictional facts which have to be established before H the Court's discretion to make a direction in terms of this subsection comes into play are:

"A likelihood that harm might result to any person... if he testifies at such proceedings."

In the Afrikaans text (the signed text) this pre-condition is I stated to exist where it is -

"... waarskynlik dat... leed iemand... aangedoen kan word indien hy by daardie verrigtinge getuig."

The establishment of this fact does not compel the Court to make any direction in terms of the subsection, but only confers a discretion to do so on the Court, which discretion must, of J course, be exercised judicially on the particular facts of each case.

Ackermann J

A Although the discretionary nature of the decision is recognised in certain of the cases which were cited in argument (implicity in S v Madlavu and Others 1978 (4) SA 218 (E) and expressly in S v Sekete and Others 1980 (1) SA 171 (N)), it is something which in my view needs to be emphasised. In S v B Sekete (supra at 172B) the following is stated in the judgment:

"Section 152 itself, however, recognises that that principle (ie that criminal trials are to be held in open Court) is not inviolable, for it says that criminal trials shall take place in open Court 'except where otherwise expressly provided by this Act'. Section 153 then deals with the circumstances in which such trials shall not take place in open Court."

The phrase "shall not take place in open Court" is, I venture C to suggest, unfortunate. It creates the impression that s 153 makes it mandatory for trials to be held behind closed doors in certain circumstances. This is clearly not so, because the words "may direct" ("kan die Hof gelas") are used both in ss (1) and (2). That the Judge in question could not really have intended to convey such a mandatory meaning is, I think, quite D clear from the rest of the judgment, in particular from 175C to 176D where the learned judge deals in express terms with the exercise of his discretion.

The phrase "a likelihood that harm might result" ("waarskynlik dat leed aangedoen kan word") is not easy to construe. "Likelihood" is defined in the Shorter Oxford English E Dictionary as "a probability", which is the meaning of "waarskynlik". The qualification "might result", which is introduced into the phrase, detracts from clarity however. Triers of fact have a working understanding of the meaning of expressions such as "probable", "reasonable", "possible" and "reasonably possible", but a "likelihood" that something "might" result, is not so clear. The word "might" detracts from F the degree of certainty imported by the word "likelihood".

In Madlavu's case supra CLOETE JP, in construing this phrase, sought assistance from the meanings ascribed to similar wording in other statutes by the Courts in S v Nel en 'n Ander 1963 (4) SA 73 (T) and S v Protea Medical Services (Pvt) Ltd and Another G 1972 (2) SA 386 (RA). At 222G the learned JUDGE PRESIDENT construed the phrase as meaning:

"That the harm to any person who testifies... must be a reasonable possibility and not a remote, far-fetched or fantastic one",

but pointed out that the requirement was:

"Not to be set so highly that a probability must exist that harm will result."

This construction was quoted with approval in Sekete's case H supra at 172G and was accepted as the correct test by counsel on both sides. It seems to me as sensible a construction, if I may say so, as the juxtaposition of the words "likelihood" and "might result" will allow and the one which I ought to apply.

Mr Farlam also emphasised, correctly in my view, that there I must be a causal link between the act of testifying and the harm to the witness, which is envisaged, before the jurisdictional facts are established. In considering the nature of the discretion conferred on the Court once the jurisdictional facts have been established, regard must be had in my view, to our common law relating to the conduct of criminal trials and which derives from the English Law. A J leading case in this regard, dealing with the exclusion of the public from trials, which has been cited with approval

Ackermann J

in R v Sorour 1952 (3) SA 305 (C); S v Sexwale and Others (3) A 1978 (3) SA 427 (T), as well as in the cases of Sekete and Madlavu (supra), is Scott v Scott 1913 AC 417.

In particular the following passage from the speech of Viscount HALDANE LC at 437 - 438 has oft been quoted with approval:

"... it may well be that justice could not be done at all if B it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordinly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of your jurisprudence, can be dealt with by the Judge as C resting in his mere discretion as to what is expedient. The latter must treat it as one of principle and as turning, not on convenience, but on necessity."

I think it necessary to point out that in the official reports this passage commences with the word "There", which makes the immediately preceding remarks of Lord HALDANE at 437, and which D I now quote, important for the context:

"While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of Justice must be to secure that justice is done. In the two cases of wards of Court and of lunatics, the E Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative and the disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary in order to attain its primary object, that the Court should exclude the public. The broad principle which ordinarirly governs it, therefore yields to the paramount duty, which is the care of the ward or the lunatic. The other case referred...