S v Malinde and Others

• Jurisdiction: South Africa

S v Malinde and Others
1990 (1) SA 57 (A)

1990 (1) SA p57

Citation	1990 (1) SA 57 (A)
Court	Appellate Division
Judge	Corbett CJ, Botha JA, Nicholas AJA
Heard	August 24, 1989
Judgment	September 25, 1989

Flynote : Sleutelwoorde E

Criminal procedure — Appeal — To Appellate Division — Piecemeal F hearing of appeal — Although Court in principle opposed to the piecemeal hearing of appeals exception may be made where unusual circumstances exist — Protracted trial before Judge and two assessors — Judge ordering recusal of one assessor during course of trial — Special entry made in respect of that recusal — Appellate Division granting order separating appeal so that special entry could be G determined first where it appeared that such issue could be decisive of the whole appeal and this would save all parties considerable time and expense and no one would be disadvantaged thereby — Appellants having further been required to establish that there was sufficient substance in their contentions.

H Criminal procedure — Appeal — To Appellate Division — Inherent power of Court to regulate its own procedure — Although no provision made for Court to order the piecemeal hearing of appeal, Court able to do so as this a matter of procedure.

Criminal procedure — Appeal — To Appellate Division — Record — Section 318(2) of Criminal Procedure Act 51 of 1977 does not prohibit I Appellate Division from deciding what material it should consider in order to decide an appeal.

Headnote : Kopnota

The petitioners had been convicted in a Provincial Division, some of treason and others of terrorism in contravention of s 54(1) of the Internal Security Act 74 of 1982. The trial commenced before a Judge and J two assessors in 1985 and ended in

1990 (1) SA p58

A November 1988. In March 1987 the Judge dismissed one of his assessors, purportedly acting in terms of s 147(1) of the Criminal Procedure Act 51 of 1977. The Judge was of the opinion that the assessor's participation in a 'One Million Signature Campaign' of the United Democratic Front, in that he had signed one of its declarations, made him unable to act as an assessor, as that organisation's efforts to organise, mobilise and activate the people was one of the main issues in the case. After the B Judge had made this order the legal representatives of the petitioners (and their fellow accused at that stage) applied for the quashing of the trial on the basis that the dismissal was incorrectly made and that the Judge and assessor should recuse themselves. In support of this application various reports made by the dismissed assessor were handed in to Court. The Court ruled that part of the second and the whole of the last of these reports were inadmissible. In a subsequent application for the noting of special entries on the record the Court ruled that an C affidavit containing a copy of the dismissed assessor's third report was inadmissible and could not be placed before the Court.

Leave to appeal on the merits of the conviction was granted on a limited basis and the petitioners intended to appeal in respect of the areas on which leave was refused by the trial Court. In terms of the special entry the Court was asked to rule inter alia on the following contentions: (1) that the trial Judge had wrongly construed s 147(1) of the Act as being applicable to the circumstances and had wrongly D concluded that he had the power to remove the assessor on that basis; (2) that the Judge purporting to act in terms of s 147(1), had ruled that the assessor had to recuse himself and had become unable to act as an assessor notwithstanding that there had been no application therefor from either the State or the defence and without hearing any argument thereon and that the assessor was not willing to recuse himself and that he was willing to continue as an assessor; (3) that the Judge thereafter continued the trial before an improperly constituted Court; and (4) that E as the trial Judge had during the application for the quashing of the trial ruled that the whole of the third report and part of the second were inadmissible he had made it impossible for the defence to rely on the contents of such report and make submissions in regard thereto which were relevant to the application for the quashing of the trial.

Because of the magnitude of the trial and the length of the record the F petitioners' legal representatives attempted to have the appeal heard piecemeal, ie for the Court to rule firstly on the merits of the special entry which might, if successful, be decisive of the matter. To this end the legal representatives sought an interview with the Chief Justice, in the presence of the representatives of the Attorney-General. At this meeting it was proposed that the special entries be heard separately but the State was opposed to such a course and the petitioners accordingly made the present application, which at the direction of the Court was G made on the basis of an annexure ('annexure A') which included a copy of the indictment and dealt with the events giving rise to the exclusion of the assessor and the subsequent application for quashing and recusal. In the petition the petitioners applied for an order: (a) that the special entries be heard separately; (b) in the event of such relief being given, the papers in the petition would constitute the record for the purposes of adjudication thereof; and (c) giving further directions for the prosecution of the appeal. The State formally opposed the H application on the following grounds: (1) that the special entries were incapable of being determined in isolation and that their determination was dependent on the prior determination of the significance of the Million Signature Campaign in the overall strategy of the UDF and such determination could not be made without reference to the full record of the trial proceedings; (2) that in the event of the special entry not being successful the State would thereby suffer prejudice and there would be a delay and a duplication of costs; and (3) that the Court was I not empowered to grant an order allowing the appeal to be heard on the basis of annexure A because of the provisions of 318(2) of the Criminal Procedure Act 51 of 1977 which, as the State argued, gave the Attorney-General a right to demand that the complete trial record be placed before the Appellate Division. The Court firstly, on examining its powers to grant such an order,

Held, that, although there was no specific provision made for such an order in the Appellate Division Rules of Court, the Court did have the J inherent power to regulate

1990 (1) SA p59

A its procedures in the interests of the proper administration of justice and, as the remedies sought by the appellants were procedural remedies and did not concern the Court's substantive jurisdiction, the Court was empowered to make provision therefor.

Held, further, that, although the Court was in principle strongly opposed to the hearing of appeal in piecemeal fashion, if overall, and with due regard to the divergent interests and considerations of convenience affecting the parties, it appeared that the advantages would B outweigh the disadvantages, the Court would normally grant such application if there appeared to be a reasonable degree of likelihood that the alleged advantage would in fact result.

Held, further, that it was not correct to say, as the Attorney-General had done, that s 318(c) conferred a 'right' on the Attorney-General to have the complete trial record before the Appellate Division: what the proviso to the subsection did say was that the Attorney-General had the C power to withhold his consent in which case the proviso could not operate. The substantive portion of the subsection did not trench at all on the inherent power of the Appellate Division to regulate its own practice and procedure in the interests of the administration of justice: it was directed to the Registrar of the Provincial and Local Division concerned and did no more than provide for the transmission of the record to the Appellate Division. The subsection did not prohibit the Appellate Division from deciding what material it should consider in order to decide an appeal and it was inconceivable that the Legislature D intended to oblige the Court to consider an appeal only on the basis of the complete record.

Held, further, that if the decision on the special entries were favourable to the appellants, the decision would probably dispose of the entire appeal and if so considerable savings of time for all concerned would be effected; if on the other hand the appeal on the special entries was to be dismissed, there would have resulted no prejudice to the State or a waste of time to the Court as a result thereof - the E only disadvantage could be suffered by the petitioners who had consented to suffer that risk.

Held, further, that the arguments advanced in support of the various points of substance contained in the special entries were cogent and the circumstances of the case were exceptional and justified the making of an order for the hearing of the appeal in two stages.

F Held, accordingly, that it should be ordered that the appeal on the special entry be heard as a preliminary appeal separately from the main appeal and the record for the purpose of the adjudication thereof be annexure A to the petition.

Case Information

Application on petition for directions concerning the prosecution of a criminal appeal from conviction and sentences in the Transvaal Provincial Division (Van Dijkhorst J). The facts appear from the reasons G for judgment of Nicholas AJA.

A Chaskalson SC, G Bizos SC, K S Tip and G Marcus for the petitioners referred to the following authorities: R v Knight 1935 AD 342 at 344 - 5; R v Velshi 1953 (2) SA 553 (A) at 561A - D; S v Majola 1982 (1) SA 125...