S v Mthembu and Others

• Jurisdiction: South Africa

S v Mthembu and Others
1988 (1) SA 145 (A)

1988 (1) SA p145

Citation	1988 (1) SA 145 (A)
Court	Appellate Division
Judge	Grosskopf JA, Smalberger JA and M T Steyn AJA
Heard	September 8, 1987
Judgment	September 24, 1987

Flynote : Sleutelwoorde

F Criminal procedure — Evidence — Production and admission of — Criminal Procedure Act 51 of 1977 ss 197 and 211 — Irregular for State to lead evidence of inadmissible confession or previous conviction — If accused voluntarily introduces such evidence it does not constitute an irregularity — If cross-examination permissible it must be limited to the extent that any further details sought are relevant to issues in G trial.

Criminal procedure — Evidence — Production and admission of — Prejudicial evidence coming to light in trial not constituting an irregularity per se — The need, however, exists to guard against irregularity and potential prejudice — Practice of allowing accused to H appear in court in prison clothes censured — Only instance where such attire may be justified is where trial involves offence committed in prison or related to imprisonment.

Headnote : Kopnota

While it would be irregular for the State to lead evidence of an I accused's inadmissible confession or previous conviction (in the latter case other than in circumstances permitted by s 197 of the Criminal Procedure Act 51 of 1977, or in other instances where special provision is made therefor, as in ss 240 and 241 of the Act), the voluntary introduction of such evidence by an accused does not constitute an irregularity. Non constat that where an accused voluntarily reveals in evidence that he has a previous conviction he exposes himself to cross-examination thereon. If cross-examination in relation thereto is J permissible at all (having regard to the

1988 (1) SA p146

A provisions of ss 197 and 211 of the Act) it must be limited to the extent that any further details sought are relevant (in the legal sense) to an issue in the trial.

However regrettable, it is not an infrequent occurrence at a trial that prejudicial evidence, subsequently ruled inadmissible, comes to light. This does not per se constitute an irregularity. The extent of the influence which inadmissible evidence of prejudicial information which comes to light during a trial may have on the subconscious mind of the B presiding judicial officer (and/or where appropriate his assessors) particularly where issues of credibility are being dealt with cannot always be gauged. It is for this very reason that the need exists to guard against anything irregular or untoward happening at a trial which has the potential for prejudicing an accused person. Despite having said this, the need to avoid potential prejudice remains. For this reason it once again becomes necessary to pass stricture on the practice of allowing the accused person to appear in court in prison garb. The C practice is undesirable and is to be deprecated. It is to be trusted that the responsible authorities will heed this and similar comments that have been made in the past and act accordingly. The only instance where the appearance of an accused in prison garb may be justified is where his trial involves an offence committed in prison or one related to his imprisonment, eg escaping from custody. D

Case Information

Appeal from convictions and sentences in the Witwatersrand Local Division (Flemming J). The facts appear from the judgment of Smalberger JA.

M Wagener, for the first and second appellents at the request of the Court, cited the following authorities: R v Noorbhai 1945 AD 58; S v Moodie 1961 (4) SA 752 (A); R v Mkabile 1935 TPD 107; R v Mitchell 1929 TPD 727; R v Mgwenya 1931 AD 3; R v Solomon 1902 TS 119; R v Alli Ahmed E 1913 TPD 500; S v Magwaza 1985 (3) SA 29 (A); S v Malinga and Others 1963 (1) SA 692 (A); R v Ndhlangisa and Another 1946 AD 1101; R v Nsele 1955 (2) SA 145 (A); S v Mbatha en Andere 1987 (2) SA 272 (A).

F G A Borchers, for third appellant at the request of the Court, cited the following authorities: S v Mofokeng and Another 1968 (4) SA 852 (W); R v Thompson [1983] 2 QB 12; S v Ndlovu 1983 (4) SA 507 (ZS); R v Ndoyana and Another 1958 (2) SA 562 (E); S v Mkwanazi 1966 (1) SA 736 (A); S v Khoza and Others 1984 (1) SA 57 (A); S v Mbatha and Others 1987 (2) SA 272 (A); S v Dhlamini 1971 (1) SA 807 (A); S v Mpetha and Others G (2) 1983 (1) SA 576 (C); R v Difford 1937 AD 370; R v M 1946 AD 1023; S v Tuge 1966 (4) SA 565 (A) at 568F; R v Saffy and Bennett 1944 AD 391 at 442; R v Meyer 1953 (4) SA 26 (W); R v Barlow 1941 AD 1 at 5; R v Kgaladi 1943 AD 255 at 263; R v Mgwenya 1931 AD 3 at 7; R v Mocke 1949 (4) SA 95 (T) at 100; R v Dominic 1913 TPD 582 at 584; R v Chondi and H Another 1933 OPD 267 at 270; S v Papiyana 1986 (2) PH H115 (A); Khan v Koch NO 1970 (2) SA 403 (R) at 404.

Miss C J Zwiegelaar for the State cited the following authorities: R v Bosch 1949 (1) SA 548 (A); S v Mokoena 1978 (1) SA 299 (O); S v Olifant 1982 (4) SA 52 (NC); R v Meyer 1925 TPD 390; R v Morrison and Auret 1930 TPD 419; S v Malinga 1962 (3) SA 174 (D); Makin v Attorney-General for I New South Wales 1894 AC 57 (PC); R v Rorke 1915 AD 145; R v Lipschitz 1921 AD 282; R v Pharenque 1927 AD 57; R v Kalkiwich and Kruger 1942 AD 79; R v Katz and Another 1946 AD 71; R v Khan 1954 (2) SA 340 (A); R v Solomons 1959 (2) SA 352 (A); S v Green 1962 (3) SA 886 (A); S v Mokoena 1967 (1) SA 440 (A); S v Sinkankana and Another 1963 (2) SA 531 (A); S v J Mushimba en Andere 1977 (2) SA 829 (A);

1988 (1) SA p147

S v Dozoreli 1983 (3) SA 259 (C); S v Khoza en Andere 1984 (1) SA 57 (A); S v Mbatha en Andere 1987 (2) SA 272 (A); S v Mdluli and Others 1972 (2) SA 839 (A); S v Dhlamini and Another 1971 (1) SA 807 (A); S v Lebea 1975 (4) SA 337 (W); S v Mbele 1981 (2) SA 738 (A); S v Gwevu and Another 1961 (4) SA 536 (E); S v Bvuure (1) 1974 (1) SA 206 (R); S v Malinga 1963 (1) SA 692 (A); S v Madlala 1969 (2) SA 637 (A); S v Williams and Another 1970 (2) SA 654 (A); S v Kramer en Andere 1972 (3) SA 331 (A); S v Shaik and Others 1983 (4) SA 57 (A); S v Sighwala 1967 (4) SA 566 (A); R v Horn 1958 (3) SA 457 (A); R v Mthembu 1950 (1) B SA 670 (A); R v Valachia 1945 AD 826; R v Vather and Another 1961 (1) SA 350 (A); S v Khoza 1982 (3) SA 1019 (A); S v Tovakepi 1973 (1) SA 694 (RA); S v Felix and Another 1980 (4) SA 604 (A); S v Mafela 1980 (3) SA 825 (A) C . A

Cur adv vult.

Postea (September 24). D

Judgment

Smalberger JA:

It is common cause that shortly after 6 am on 25 May 1984 a group of Black men entered the MGM Butchery situated on the corner of Market and Diagonal Streets, Johannesburg, intent on robbing the owner thereof, Joao de Gouveia Faulha (the deceased). One of their number was armed with a firearm, another with a knife. In the course of the ensuing events the deceased was robbed of his firearm and approximately R700, E and fatally wounded. The cause of his death was a gunshot wound of the chest, inflicted by a single shot fired by one of his assailants.

Consequent upon the aforegoing, the three appellants were arraigned in the Witwatersrand Local Division before Flemming J and two assessors on F counts of murder and robbery with aggravating circumstances. They were in due course convicted on both counts. On the murder count extenuating circumstances were found to be present in the case of the first appellant (on account of his age), but not so in the case of the other two appellants. Mandatory death sentences were accordingly imposed on the latter, while the first appellant was sentenced to 18 years' G imprisonment. On the robbery count each of the appellants was sentenced to nine years' imprisonment. Portions of the sentences imposed on the first appellant on each count were ordered to run concurrently with the sentence at present being served by him. Subsequently the three appellants were granted leave by the trial Judge to appeal in this Court H against their convictions and sentences on both counts.

At a very much later date the first and third appellants applied to the trial Judge for the noting of a special entry on the record in terms of s 317 of Criminal Procedure Act 51 of 1977 ('the Act') with regard to certain alleged irregularities which occurred at the trial, as well as I for condonation for failing to make the application timeously. The trial Judge refused condonation and made no order on the application. In the course of his judgment the trial Judge opined that the alleged irregularities could be canvassed during the hearing of the appeal without the need for a special entry. I refrain from commenting on the correctness or otherwise of the procedure followed by the first and J third appellants, or the decision

1988 (1) SA p148

Smalberger JA

A thereanent. Suffice it to say that the matters which formed the subject of the contemplated special entry were permitted to be fully canvassed on appeal.

Not one of the deceased's employees present at the butchery when the events referred to occurred was able to identify any of the perpetrators. The only evidence linking the three appellants with the B crimes of which they were convicted were statements in the form of confessions made by them to certain police officers (who ex officio are justices of the peace), together with, in the case of the first and third appellants, the subsequent pointing out of the locus where the crimes were committed. The admissibility of the statements made by the three appellants was contested in a trial within a trial, but after C hearing evidence and argument they were ruled admissible by the trial Court.

On appeal it was not contended on behalf of the first and second appellants that their statements had been wrongly admitted. Argument focused on the alleged irregularities involving the first appellant and D the effect thereof, and the...