S v Malindi and Others

• Jurisdiction: South Africa
• Citation: 1990 (1) SA 962 (A)

S v Malindi and Others
1990 (1) SA 962 (A)

1990 (1) SA p962

Citation	1990 (1) SA 962 (A)
Court	Appellate Division
Judge	Corbett CJ, Botha JA, Smalberger JA, Kumleben JA, Nicholas AJA
Heard	November 27, 1989
Judgment	December 15, 1989

Flynote : Sleutelwoorde G

Criminal procedure — Trial — Assessors — Dismissal of — Criminal H Procedure Act 51 of 1977 s 147 — Section 147 only applicable where assessor unable to act because of some actual physical or mental incapacity — Section not applicable to situation where assessor legally incompetent to act for reasons which warrant his recusal — Inability must arise during the trial — Parties entitled to be heard before Judge decides to act in terms of section — Where Judge acts in terms of s 147 I incumbent upon him to hear the parties on question of further conduct of case.

Headnote : Kopnota

The appellants had been tried in a Provincial Division on charges of treason, alternatively terrorism in contravention of s 54(1) of the Internal Security Act 74 of 1982. At the end of a lengthy trial they J were found guilty, some of treason and others of terrorism.

1990 (1) SA p963

A The trial had started before a Judge and two assessors but some 17 months after it had commenced the Judge made an order in terms of s 147 of the Act holding that one assessor had become unable to act as assessor and directing that the trial proceed before himself and the other assessor. The Judge based his decision to recuse the assessor on the fact that the assessor had signed a petition drawn up by the United Democratic Front and that this petition was part of a campaign which was in the opinion of the Judge an important facet of the State's case against the appellants. Neither the appellants nor the State were given B an opportunity of debating the matter or placing their views before the Court before the Judge came to this decision. The appellants brought an application for the quashing of the trial, alternatively for the recusal of the Judge, but this was refused. The appellants were granted leave to appeal and certain special entries were also made. The Appellate Division gave leave for two of the special entries to be argued and adjudicated upon separately and for this purpose only a shortened version of the record was required to be placed before the Court. The special entry related to the powers of the Judge under s 147(1) of the C Criminal Procedure Act 51 of 1977 to dismiss an assessor, it being contended by the appellants that the Judge did not have that power in the circumstances as the assessor had not 'become unable' to act as his alleged inability existed at the commencement of the trial; that on the ordinary meaning of the words 'unable to act' the assessor was not unable; and that the parties should have been given an opportunity of D being heard in regard to the recusal.

Held, that the word 'unable' in the context of s 147(1) conveyed an actual inability to perform the function of acting as an assessor and such inability could derive from an inherent physical or mental condition or a situation which physically prevented the assessor from attending the trial: the word was inappropriate to describe the situation where an assessor became legally incompetent to continue to act in a case because of some act or occurrence which warranted his E recusal.

Held, further, that s 147(1) applied only to a situation where an inability arose during a trial and as the alleged inability in the present case existed at the commencement of the case there was no room for the application of s 147(1) to the facts of the case.

Held, further, that where a Judge acting in terms of s 147 has found that an assessor has become unable to act as such it is incumbent upon him to hear the parties on the question as to the further conduct of the proceedings.

Held, further, that in general the parties were entitled to be heard before the Judge came to the decision that an assessor had become unable F to act.

Held, accordingly, that, as the Judge had acted incorrectly in applying s 147 and that from thereon the trial had proceeded before an improperly constituted Court, the appeal had to succeed and the convictions and sentences set aside.

Case Information

Appeal from convictions and sentences in the Transvaal Provincial Division (Van Dijkhorst J). The facts appear from the reasons for G judgment.

A Chaskalson SC (with him G Bizos SC, K S Tip and G J Marcus) for the appellants referred to the following authorities: Basarabas v The Queen 144 DLR (3d) 115; R v Price 1955 (1) SA 219 (A); S v Malinga 1987 (3) SA 490 (A); H R v Mati 1960 (1) SA 304 (A); S v Adriantos 1965 (3) SA 436 (A); S v Balomenos 1972 (1) PH H33 (A); S v Mkhise 1988 (2) SA 868 (A); S v Gqeba 1989 (3) SA 712 (A); Jaga v Dönges NO 1950 (4) SA 653 (A); Melmoth Town Board v Marius Mostert (Pty) Ltd 1984 (3) SA 718 (A); Santam Insurance Ltd v Taylor 1985 (1) SA 514 (A); University of Cape Town v Cape Bar Council 1986 (4) SA 903 (A); R v Gubudela 1959 (4) SA 93 (E); I S v Radebe 1973 (1) SA 796 (A); SA Motor Acceptance Corporation (Edms) Bpk v Oberholzer 1974 (4) SA 808 (T); Kruger v Sekretaris van Binnelandse Inkomste 1970 (4) SA 687 (A); S v Adams (Special Criminal Court: 4 August 1958 unreported); R v Matsego 1956 (3) SA 411 (A); S v Apolis 1965 (4) SA 178 (C); S v Gcaba 1965 (4) SA 325 (N); S v Moseli J (2) 1969 (1) SA 650 (O); Winter v Administrator-in-Executive

1990 (1) SA p964

A Committee 1973 (1) SA 873 (A); Turner v Jockey Club of South Africa 1974 (3) SA 633 (A); Momoniat v Minister of Law and Order 1986 (2) SA 264 (W); Attorney-General, Eastern Cape v Blom 1988 (4) SA 645 (A); R v Maharaj 1960 (4) SA 256 (N); S v Moodie 1961 (4) SA 752 (A); S v Rousseau 1979 (3) SA 895 (T); S v Ngcobo 1979 (3) SA 1358 (N); R v B Hertrich and Others (1982) 137 DLR (3d) 400; R v Fenton (1984) 11 CCC (3d) 109; S v Leepile and Others 1986 (2) SA 333 (W); R v Ngwevela 1954 (1) SA 123 (A); Nkwinti v Commissioner of Police 1986 (2) SA 421 (E); S v Wessels 1966 (4) SA 89 (C); John v Rees [1970] Ch 345; Stead v State Government Insurance Commission 1986 ALJR 662; Mahon v Air New Zealand Ltd [1984] 3 All ER 201 (PC); R v Krasner 1950 (2) SA 475 (A); R v C Venter 1944 AD 359; Mcunu v R 1938 NLR 229; Kruger v Ludick 1947 (3) SA 23 (A); Newell v Cronje 1985 (4) SA 692 (E); Dedlow v Minister of Defence and Provost Marshal 1915 TPD 543; Vaise v Delaval (1785) 99 ER 944; Ellis v Deheer [1922] 2 KB 113 (CA); Nanan v The State [1986] 3 All ER 248 (PC); Boston v W S Bagshaw and Sons [1967] 2 All ER 87; R v Wooller 171 ER 589; Ras Behari Lal v The King Emperor [1933] LT 3; The D Shorter Oxford English Dictionary; Webster's Third New International Dictionary; Black's Law Dictionary (5th ed); HAT; Bosman, Van der Merwe and Hiemstra Tweetalige Woordeboek; Joubert (ed) The Law of South Africa vol 5 para 594 at 428; Hiemstra Suid Afrikaanse Strafproses 4th ed at 320.

E P B Jacobs SC (with him P H H Fick and H Smith) for the State referred to the following authorities: S v Malinde en Andere 1990 (1) SA 57 (A); S v Gqeba and Others 1989 (3) SA 712 (A); SA Motor Acceptance Corp (Edms) Bpk v Oberholzer 1974 (4) SA 808 (T); S v Radebe 1973 (1) SA 796 (A); R v Milne & Erleigh (6) 1951 (1) SA 1 (A); R and Another v Foya and Another 1963 (3) SA 459 (FS); R v T 1953 (2) SA 479 (A); Damisa v F British & Overseas Insurance Co Ltd 1960 (1) SA 800 (D); Hleka v Johannesburg City Council 1949 (1) SA 842 (A); R v Lewis [1909] 78 LJ (KB) 722 (CCA); R v Kirke [1909] 43 ILT; R v Davison Cox 360; R v Katzeff 1944 CPD 483; R v Johnson 1947 (4) SA 849 (C); R v Mabaso 1952 (3) SA 521 (A); R v Price 1955 (1) SA 219 (A); Ras Behari Lal and Others G v The King Emperor 150 LT 3; R v Silber 1940 AD 187; Wellworths Bazaars Ltd v Chandler's Ltd and Another 1947 (2) SA 37 (A); R v Matsego and Others 1956 (3) SA 411 (A); R v H 1955 (2) SA 288 (T); R v Apolis 1965 (4) SA 178 (C); R v Bando 1914 OPD 82; SA Defence & Aid Fund and Another v Minister of Justice 1967 (1) SA 31 (C); R v Gubudela and Others 1959 (4) SA 93 (E); H Newell v Cronje and Another 1985 (4) SA 692 (E); Ex parte Wolpert 1917 WLD 98; R v Thompson [1962] 1 All ER 65; Ellis v Deheer [1922] 2 KB 113 (CA); R v Roads [1967] 2 All ER 84 (CA); Boston v Bagshaw & Sons [1966] 1 WLR 1135 (CA); Attorney-General v Baker and Others 1929 TPD 996; R v Krasner 1950 (2) SA 475 (A); Venter v R 1944 AD 359; Gardiner and Lansdown South African Criminal Law and Procedure 4th I ed; L C Steyn Uitleg van Wette 3rd ed; Paul Jackson Natural Justice (1973); De Vries, Verwijs and Kluyver Woordeboek der Nederlandsche Taal (1893) 10th ed; Handwoordeboek van die Afrikaanse Taal (HAT) (1973); Bosman and Van der Merwe Tweetalige Woordeboek 2nd ed; Hiemstra and Gonin Drietalige Regswoordeboek 2nd ed; Eksteen Groot Woordeboek 13th ed J (earlier Kritzinger, Schoones and Cronje); The Shorter

1990 (1) SA p965

Oxford English Dictionary on Historical Principles vol II 3rd ed; New Standard Dictionary of the English Language vol II M - Z; The Oxford English Dictionary vol XI T - U; Hiemstra SA Strafproses 4th ed; Joubert (ed) The Law of South Africa vol 5; Stroud Judicial Dictionary 4th ed; Cross On Evidence 5th ed; Wigmore On Evidence 3rd ed vol VIII; Schmidt Bewysreg 2nd ed; Hoffmann and Zeffertt South African Law of Evidence 3rd B ed; Taylor On Evidence 12th ed; Phipson On Evidence 13th ed. A

Cur adv vult.

Postea (December 15).

Judgment

C Corbett CJ:

The eleven appellants, together with eleven others, appeared before Van Dijkhorst J and two assessors in the Transvaal Provincial Division on charges of treason, alternatively terrorism (in terms of s 54(1) of the Internal Security Act 74 of 1982), subversion (in terms of s 54(2) of Act 74 of 1982), murder (five counts) and, after an amendment D to the indictment granted on 4...