S v Maputle and Another

• Jurisdiction: South Africa
• Judge: Marais JA, Navsa JA and Cloete JA
• Judgment Date: 26 March 2003
• Citation: 2003 (2) SACR 15 (SCA)
• Docket Number: 179/2002
• Hearing Date: 17 March 2003
• Counsel: M Miller for the appellant. M P Nengovhela for the State.
• Court: Supreme Court of Appeal

Cloete JA:

[1] The appellants were convicted by a regional magistrate of robbery and each sentenced to ten years' imprisonment. The convictions I were confirmed by the Witwatersrand Local Division (Lewis J and Cachalia J) but three years of the second appellant's sentence was conditionally suspended. The judgment is reported in 2002 (1) SACR 550 (W).

[2] The Court a quo was of the view that this Court may differ from its J

Cloete JA

conclusion as to whether the second appellant's right to a fair trial in terms of s 35(3) of the Constitution of the A Republic of South Africa Act 108 of 1996 had been infringed and accordingly granted the second appellant leave to appeal to this Court on that question. It also granted leave to appeal to both appellants on their convictions generally, even although both judges were of the view 'that another Court is not likely (to) or may not reasonably arrive at another conclusion' in this regard. Leave to appeal against sentence B was refused.

[3] Leave to appeal against the convictions generally should not have been granted. There is obviously no merit in either appeal for the reasons adequately set out by the Court a quo at 551c - 552g, which it is not necessary to repeat. C The purpose of the requirement for leave to appeal is to protect an appeal Court against the burden of having to deal with appeals in which there are no prospects of success, and further to ensure that the roll of this Court is not clogged with hopeless cases: S v Rens 1996 (1) SACR 105 (CC) in paras [7] and [25] at 107e - f and 111j - 112b (1996 (1) SA 1218 at 1221A - B and 1225E - F; 1996 (2) BCLR 155); D S v Twala (South African Human Rights Commission Intervening) 1999 (2) SACR 622 (CC) in para [20] at 631c - d (2000 (1) SA 879 at 888F; 2000 (1) BCLR 106).

[4] The only question which requires detailed consideration is whether the second appellant's constitutional right to a fair trial in terms of s 35(3) of the Constitution was infringed because he appeared E before the magistrate in prison clothing, and the cover sheet to the proceedings before the magistrate reflected, under the heading 'date of arrest', that he was 'gevonnis'. In other words, the magistrate, before convicting the second appellant, must have been aware of the fact that he was dealing with an accused who had at least one previous F conviction which resulted in imprisonment.

[5] This Court, in deciding a matter on further appeal in terms of s 21 of the Supreme Court Act 59 of 1959, cannot, because of the provisions of s 22 of that Act read with the proviso in s 309(3) of the Criminal Procedure Act 51 of 1977 (the Act), reverse a conviction G by reason of an irregularity in the proceedings unless it appears to this Court that 'a failure of justice has in fact resulted from such irregularity'. The meaning of the proviso is that 'the Court, before setting aside the conviction, must be satisfied that there had been actual and substantial prejudice to the H accused' - R v Matsego and Others 1956 (3) SA 411 (A) at 418E.

[6] It is well established that there are two kinds of irregularities: the kind that per se vitiates the proceedings [1] and the kind which requires consideration of the question whether, on the evidence and credibility findings unaffected by the irregularity, there was proof of guilt beyond a reasonable doubt, in accordance with the test laid down in I S v Yusuf 1968 (2) SA 52 (A) at 57C - D. [2] It is necessary to emphasise that the

Cloete JA

word 'irregularity' has a technical meaning. Not every deviation from a norm constitutes an irregularity in law. Where the deviation is A fundamental, it is properly categorised as an irregularity per...