S v Muchindu

• Jurisdiction: South Africa
• Citation: 2000 (2) SACR 313 (W)

S v Muchindu
2000 (2) SACR 313 (W)

2000 (2) SACR p313

Citation	2000 (2) SACR 313 (W)
Court	Witwatersrand Local Division
Judge	Schutz J
Heard	April 26, 1994
Judgment	April 26, 1994
Counsel	Z van Zyl for the State.; N J Motata for the accused.

Flynote : Sleutelwoorde

Evidence — Confession — Trial-within-a-trial — Encapsulation of — Not necessary for evidence which has already been led in the main trial to be led in trial-within-the-trial if parties wish to refer to such evidence and court entitled to rely on such evidence. F

Headnote : Kopnota

It is not necessary for evidence which has already been led in the main trial to be led in a trial-within-the-trial if the parties wish to refer to such evidence and the court is entitled to rely on such evidence. G

Case Information

Ruling on an issue of evidence during the course of a criminal trial.

Z van Zyl for the State.

N J Motata for the accused. H

Judgment

Schutz J:

Some time ago I ruled that the State had satisfied the formal requirements for a statement made by accused No 3 to a magistrate (exh W) to be handed in, in terms of s 217(1)(b) of the Criminal Procedure Act 51 of 1977. There had been prior intimations in cross-examination that accused No 3 would allege that he had been I assaulted by the police at the time of his arrest on 30 May 1993, 10 days prior to the alleged making of the statement on 9 June 1993. Mr Motata declined to reveal whether he was also challenging that No 3 had made the statement. In these circumstances, with assent of both counsel and myself, a trial-within-a-trial commenced. The assessors continued to sit. J

2000 (2) SACR p314

Schutz J

A Where there may be such a dual challenge, it is a permissible course to hold a trial-within-a-trial: S v Dhlamini and Another 1971 (1) SA 807 (A) at 810H.

Accused No 3 and two witnesses called on his behalf have so far given evidence. During the course of this evidence it became clear that both Mr Motata for the defence, and Mr Van Zyl for the State assumed that no B reference could be made to evidence already led in the main trial. According to them, if resort were to be had to any such evidence it would have to be led all over again in the trial-within-a-trial. I was astonished at this suggestion, which seems to me to be as wasteful as it is pointless, and I required argument. No direct authority C was found for counsel's proposition, although I was told that in recent times this repetitive procedure has quite often been adopted in this Division.

When the matter was tested as a matter of principle, it became apparent, to my mind at least, that counsel have fallen into 'the logical perversion', against which Van den Heever J so frequently inveighed, of deducing 'the legal D results of a juristic act from a notion used as a label roughly to express its degree or direction of effectiveness', as the learned Judge put it in Van der Westhuizen v Engelbrecht and Spouse 1942 OPD 191 at 200. It seems to me that it is the misapplication of phrases like 'insulating the inquiry' (per Nicholas AJA in S v De Vries 1989 (1) SA 228 (A)) and 'a watertight compartment' (S v Sithebe 1992 (1) SACR 347 (A) at 351b) that has led to the E error. These expressions were not used in a vacuum, and to understand their ambit and purpose one should have regard to their context. Fortunately this is not a case in which we have to act on Julian's despairing statement, 'It is not possible to find an underlying reason for everything which was settled by our forebears' (D.1.3.20 - Watson translation): or that of Neratius following, 'Accordingly, it is not right to go ferreting after the F motives behind the things which are settled as law. To do otherwise is to subvert many present certainties' (D.1.3.21). There is no difficulty in ascertaining the reason why the phrases were used.

The reason for their use was explained by Nicholas AJA in S v De Vries (supra at 233H-234) and again by G Nienaber JA in S v Sithebe (supra at 350j-351c). The first passage reads:

'It is accordingly essential that the issue of voluntariness should be kept clearly distinct from the issue of guilt. This is achieved by insulating the inquiry into voluntariness in a compartment separate from the main trial. In England the enquiry into voluntariness is H made at "a trial on the voir dire'', or, simply, the voir dire, which is held in the absence of the jury. In South Africa it is made at a so-called "trial-within-the-trial''. Where therefore the question of admissibility of a confession is clearly raised, an accused person has the right to...