S v Ndevu and Others

• Jurisdiction: South Africa
• Judgment Date: 04 August 1990
• Citation: 1991 (1) SACR 416 (E)

S v Ndevu and Others
1991 (1) SACR 416 (E)

1991 (1) SACR p416

Citation	1991 (1) SACR 416 (E)
Court	Eastern Cape Division
Judge	Du Toit AJ
Heard	August 3, 1990
Judgment	August 4, 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

Flynote : Sleutelwoorde H

Indictment and charge — Further particulars to — Amendment of — Contention that amendment would prejudice accused inasmuch as it would I deprive them of a basis for attacking credibility of State witnesses rejected — Amendment would not preclude counsel or the Court from referring to or relying on the unamended particulars.

Indictment and charge — Further particulars to — Amendment of — No authority for or merit in contention that as a matter of law further particulars to an indictment cannot be amended or, in any event, not after plea — Further particulars constituting particularity to J indictment and, once delivered, trial

1991 (1) SACR p417

A proceeds as if indictment amended in conformity with such particulars — Amendment of further particulars merely a practical manner of further amending the charge which the further particulars had amended — Criminal Procedure Act 51 of 1977, s 87(2).

Headnote : Kopnota

The Court rejected an objection by defence counsel in a criminal trial to an application by the State for the amendment of certain further B particulars to the indictment in which it was contended that the accused would be prejudiced by the amendment inasmuch as it would deprive them of a basis for attacking the credibility of State witnesses. The basis for the contention was said to be that, after the further particulars were amended, the original further particulars would no longer form part of the record, they would be a closed book and could not be referred to C or relied upon for the purposes of argument. In rejecting the defence objection, the Court pointed out that the amendment could in no way preclude counsel or the Court from referring to, or 'relying' on, the particulars in their unamended form.

The Court also rejected as having no authority in support of it and being without merit another objection by the defence that, as a matter of law, further particulars furnished to an indictment could not be D amended or, in any event, not after plea. The Court pointed out that further particulars to the indictment constituted particularity in respect of the charge and, in terms of s 87(2) of the Criminal Procedure Act 51 of 1977, after delivery to the accused they 'shall be entered in the record, and the trial shall proceed as if the charge had been amended in conformity with such particulars'. An application for the E amendment of the further particulars was merely the practical manner of seeking further to amend the charge which the further particulars had amended as provided by s 87(2).

Case Information

Application during the course of a criminal trial in the East London Circuit Local Division for the amendment of certain further particulars F to the indictment. The nature of the issues appears from the reasons for judgment.

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.

Cur adv vult.

G Postea (4 August 1988).

Judgment

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...