S v Ndevu and Others
Jurisdiction | South Africa |
Judge | Du Toit AJ |
Judgment Date | 04 August 1990 |
Citation | 1991 (1) SACR 416 (E) |
Hearing Date | 03 August 1990 |
Counsel | G J Bursey (with him T R Tyler) for the State D Chetty for accused Nos 1, 4, 5 and 9 V E M Tshabalala for accused Nos 2, 3, 6, 7, 8 and 10 |
Court | Eastern Cape Division |
Du Toit AJ:
This trial today entered its fifth week and we have thus far listened to the evidence of 10 witnesses called by the State, which has not yet closed its case.
Yesterday Mr Bursey, who with Mr Tyler appears for the State, sought H amendments to the indictment, to the summary of substantial facts and to the document headed 'further particulars to indictment' by way of the substitution of new pages for existing pages of these three documents.
Counsel for the defence had no objection to the amendment of the indictment or of the summary of substantial facts, but do oppose the amendment of the further particulars.
Since there was no objection to the amendment of the indictment and, I in my view, it cannot prejudice the accused in their defence, I ordered, in terms of s 86(1) of the Criminal Procedure Act 51 of 1977, that charges 3 and 10 of the indictment be amended as requested, viz by the substitution of the new pp 2 and 3 for the existing pp 2 and 3 thereof. In the absence of any objection to the amendment of the summary of substantial facts, I also gave the State leave to amend the summary by J the replacement of both pages thereof.
Du Toit AJ
A Mr Chetty on behalf of accused Nos 1, 4, 5, and 9 and 10 objected to the amendment of the further particulars on the same two grounds. Firstly, it is contended that the accused will be prejudiced by the amendment inasmuch as it will deprive them of a basis for attacking the credibility of State witnesses. The rather tortuous argument, as I understand it, goes like this: presently there is a 'variance between B the evidence led and the particulars supplied'. In view of the variance the defence can contend that the witnesses called by the State should be disbelieved since the particulars were of necessity based on information obtained from the witnesses. The amendment is designed to 'resolve the variance' and thus will deprive the defence of any argument based on such variance.
The basis for this surprising submission is said to be that the C particulars, as they presently exist, will no longer 'form part of the record', they will be a closed book and cannot be referred to or relied on for purposes of argument. Counsel contended that R v Wilken 1945 EDL 246 at 254 is authority for this contention. Nowhere in Wilken's case do I find a suggestion of support for the contention. The accused Wilken was charged with negligent driving and the Crown furnished certain D ...
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