S v Mnyamana and Another

• Jurisdiction: South Africa
• Citation: 1990 (1) SACR 137 (A)

S v Mnyamana and Another
1990 (1) SACR 137 (A)

1990 (1) SACR p137

Citation	1990 (1) SACR 137 (A)
Court	Appellate Division
Judge	Friedmann AJA
Heard	November 3, 1989
Judgment	November 20, 1989
Counsel	M Basslian for the appellants; S J Redpath for the State

Flynote : Sleutelwoorde

Evidence — Witnesses — Accomplice — Discharge from prosecution of witness in terms of s 204(2) of Criminal Procedure Act 51 of 1977 — Irregular for Court to grant witness such discharge before conclusion of case — Such irregularity, however, not per se vitiating trial but effect thereof to be determined in each case. C

Headnote : Kopnota

It amounts to an irregularity for a court to grant a witness a discharge from prosecution in terms of s 204(2) of the Criminal Procedure Act 51 of 1977 before the conclusion of the case. Before such a discharge may be granted the court is required to be of opinion that the witness has answered frankly and honestly all questions that have been put to him. This involves an assessment of the witness's evidence and a decision by D the court that the witness has been frank and honest. A witness may of course be honest, but mistaken. However, a finding that he had been honest is fundamental in regard to the ultimate determination of that witness' credibility. The making of a finding such as this before hearing the rest of the evidence precludes the court, for the purposes of this finding, E from comparing such a witness's evidence with that of others who might be called to testify in regard to the same facts. Ultimately the court has to determine whether, on all the evidence, a conviction of the accused is justified. By granting a discharge to an accomplice at the completion of his evidence, the court not only gives the wrong impression to the accused who might feel that the court is prejudging the issue, but granting a F discharge at that early stage without a proper evaluation of the witness' evidence in the light of all the other evidence that might be adduced could well have a detrimental effect on the court's own thinking. The fact that the Act makes no provision for the withdrawal of a discharge, once it has been granted by the court, is an indication that it was not contemplated that it should be given until the end of the case.

G The Court, in an appeal from convictions and sentences for murder, and on an application of the abovementioned principles, held that the Court a quo's discharge of two accomplices after they had testified but before the end of the case, was premature and amounted to an irregularity. The Court held, however, that the irregularity was not one which per se vitiated the trial. Due to the fact, however, that the conviction of the appellants could in any event not be supported on the evidence, it was H unnecessary to consider, as would normally have to be done, the effect of the irregularity. The Court accordingly set aside the convictions and sentences of both appellants.

Case Information

Appeal from convictions and sentences in the Queenstown Circuit Local Division (Solomon AJ). The facts appear from the judgment of Friedman AJA. I M Basslian for the appellants referred to the following authorities:

As to the premature discharge in terms of s 204 of Act 51 of 1977, see Hiemstra Suid-Afrikaanse Strafproses 3rd ed at 416; R v McMillan and Another 1958 (4) SA 461 (A) at 469D-470B; S v Dlamini 1978 (4) SA 917 J (N) at 919H-920B; S v Lubbe 1981 (2) SA 854 (C) at 858C. As to

1990 (1) SACR p138

A the assessors not being sworn in, see S v Moodie 1961 (4) SA 752 (A); S v Bosman 1988 (2) SA 485 (A); S v Wesi 1979 (4) SA 1041 (B); R v Price 1955 (1) SA 219 (A) at 222H-224E. As to whether the appellants' guilt had been proved beyond reasonable doubt, see S v Hlapezula and Others 1965 (4) SA 439 (A) at 440D-441C; R v Ncanana 1948 (4) SA 399 (A) at 405; R v Nqamtweni and Another 1959 (1) SA 894 (A) at 897G-898D; S v Dladla 1980 (1) SA 526 (A) at 529A-E; R v M 1946 AD 1023 at 1026-7; R v Difford 1939 AD 370 at 373.

S J Redpath for the State referred to the following authorities: As B regards the assessors not having been sworn in, see Kellerman v Minister of Interior 1945 TPD 179 at 193. As to the prematurity or otherwise of the discharge of the witnesses in terms of s 204 of Act 51 of 1977, see R v McMillan and Another 1958 (4) SA 461 (A) at 469A-G; S v Dlamini 1978 (4) SA 917 (N) at 920A-D; S v Lubbe 1981 (2) SA 854 (C) at 858C-F. As to the Court a quo's correctness in the evaluation of the evidence, see S v Nolte C and Another 1965 (2) PH H195 at 471; R v Momekela and Another 1936 OPD 23 at 24; S v Safatsa and Others 1988 (1) SA 868 (A) at 890; S v Magerman 1981 (1) PH H17 (A); S v Nyembe 1982 (1) SA 835 (A) at 842E-G; S v Avon Bottle Store (Pty) Ltd 1963 (2) SA 389 (A); S v Hlapezula 1965 (4) SA 439 (A); S v Snyman 1968 (2) SA 582 (A) at 589E-H; Arthur v Bezuidenhout and Mieny 1962 (2) SA 566 (A) at 574A; S v Sigwahla 1967 (4) SA 566 (A) at D 569H; New Zealand Construction (Pty) Ltd v Carpet Craft 1976 (1) SA 345 (N) at 349C-G; S v Mgedezi and Others 1989 (1) SA 687 (A) at 703B; R v Mashelele and Another 1944 AD 571; S v Guess 1976 (4) SA 715 (A); S v Teixeira 1980 (3) SA 755 (A).

[The Court upheld the appellants' appeals on 3 November 1989 and handed down the following reasons for judgment on 20 November 1989.] E

Judgment

Friedman AJA:

On 3 November 1989 the appellants' appeals were upheld and their convictions and sentences set aside. The Court indicated that its reasons would follow. These are the reasons.

The two appellants were charged together with three co-accused in the Queenstown Circuit Court of the Eastern Cape Division, with the murder F of one Maqanda Gxalaba ('the deceased'). For convenience I shall refer to the appellants as they were described in the Court a quo, viz as accused Nos 1 and 2 respectively, and similarly to their co-accused as accused Nos 3, 4 and 5 respectively. Despite their pleas of not guilty, all the accused were found guilty by the Court a quo (Solomon AJ and G assessors). In the case of accused Nos 1 and 2 no extenuating circumstances were found and they were accordingly sentenced to death. In the case of the remaining accused, sentences of imprisonment were imposed. Leave having been granted by the trial Court accused Nos 1 and 2 appealed to this Court against their convictions and sentences.

They thereafter made an application to the Eastern Cape Division for H two special entries to be made on the record in terms of s 317 of the Criminal Procedure Act 51 of 1977. The special entries which they sought read as follows:

'The first and second appellants (the first and second accused in the above honourable Court) both suffered grave, irreparable and substantial prejudice in the course of the proceedings in the above honourable Court, due to the irregularity during their trial in that in the course I of the hearing and after the conclusion of the evidence of each of the in camera witnesses for the State, namely "X" and "A", the Court, prior to hearing all of the evidence in the case, discharged each of the State witnesses from prosecution in terms of the provisions of s 204 of Act 51 of 1977.

The first and second appellants (the first and second accused in the above honourable Court) both suffered grave, irreparable and substantial prejudice in the course of the proceedings in the above J honourable Court due to an

1990 (1) SACR p139

Friedman AJA

A irregularity during their trial in that the assessors Mr O L Oosthuizen and Mr J A F Nel were not sworn in as assessors and consequently the Court was not properly constituted.'

The first special entry was granted by Van Rensburg J, but the second special entry was refused. A petition to the Chief Justice for leave to have the second special entry made met with a similar fate.

B Despite the fact that there was no special entry on the record with regard to the alleged irregularity as to the swearing in of the assessors, appellants' counsel sought to argue that the irregularity was apparent from the record and that it was open to him to take the point. He based this on the fact that there was nothing on the record to indicate that the assessors had in fact been sworn in. This argument is unsound. There is no C provision in Act 51 of 1977 to the effect that the fact that assessors have been sworn in must...