S v Ndou and Others

• Jurisdiction: South Africa
• Judge: Ogilvie Thompson JA, Potgieter JA and Muller AJA
• Judgment Date: 15 December 1970
• Citation: 1971 (1) SA 668 (A)
• Hearing Date: 02 November 1970
• Court: Appellate Division

Ogilvie Thompson, J.A.:

This is an appeal by the State on a question of law reserved. The circumstances culminating in that reservation may be briefly stated. In December, 1969, the 19 respondents were arraigned in the Transvaal Provincial Division on a charge of contravening sec. 11 (c) read with sec. 3 (1) E (a) (iv) and various other stated sections of, and Proclamations relating to, the Suppression of Communism Act, 44 of 1950 or, alternatively, of contravening sec. 11 (a) read with sec. 11 (i) and various other stated sections of, and Proclamations relating to, that Act. The respondents all pleaded not guilty and, with various adjournments, the trial F proceeded before BEKKER, J., until 16th February, 1970. On that date, with the State's case not yet concluded, the Attorney-General of the Transvaal appeared in person and informed the Court that, in terms of secs. 8 (1) and (2) and 169 (6) of the Code, he was stopping the prosecution. Pursuant to the sections mentioned, the respondents were entitled to a verdict, and BEKKER, J., accordingly found them all not guilty G and discharged them. Although the trial thus terminated, plainly cannot be said to have in fact established either the guilt or the innocence of the respondents in relation to the charges preferred against them in the indictment, it was - in my view, correctly - not questioned in this Court that the verdict of not guilty entered by BEKKER, J., falls, in law, H to be regarded as an acquittal on the merits (vide sec. 169 (6) of the Code; S. v. Vorster. 1961 (4) SA 863 (O) at p. 867B, and S. v. Mthetwa, 1970 (2) SA 310 (N)). It would, however, appear, although not expressly so stated in the papers before us, that the State's motive in stopping the prosecution as aforesaid was - possibly because of the discovery of further information associated with the arrest of one Benjamin Sello Ramotse hereinafter mentioned - its intention to charge the respondents under the rather more stringent provisions of the Terrorism Act, 83 of 1967. For the 19

Ogilvie Thompson JA

respondents were, together with the said Ramotse, subsequently indicted in the Transvaal Provincial Division on a charge of having participated, prior to their trial before BEKKER, J., in terroristic activities in contravention of sec. 2 (1) of the A Terrorism Act, 83 of 1967, read together with secs. 1, 2 (2), 4, 5 and 9 of that Act. At the commencement of the trial on this last-mentioned indictment before VILJOEN, J., On 3rd August, 1970, a postponement was granted at the request of the defence. When the trial was resumed on 24th August, 1970, the aforementioned Ramotse, No. 1 accused in the indictment, B pleaded that the Court had no jurisdiction to try him by reason of the circumstance that he had been arrested outside the Republic and thereafter brought within the jurisdiction of the Court. Ramotse's special plea was ultimately rejected, and his case is not before us. Relying upon the verdict of not guilty pronounced by BEKKER, J., on 16th February, 1970, the C remaining accused, the present respondents, all pleaded, in terms of sec. 169 (2) (d) of the Code, that they had already been acquitted of the offence with which they were now charged. This plea of autrefois acquit was upheld by VILJOEN, J.. who, at the request of the State, however reserved, in terms of sec. 366 of the Code, for the consideration of this Court the following question of law, viz.:

"Whether the Court was correct in holding that the special D plea in terms of sec. 169 (2) (d) of the Criminal Law and Procedure Act, 56 of 1955, was valid in law."

It is an essential clement of the plea of autrefois acquit that the previous acquittal should have been on the merits (see S. v. Moodie, 1962 (1) SA 587 (AD) at p. 589F and p. 596F, and S. v. Naidoo, 1962 (4) SA 348 (AD) at p. 353E). As E explained above, the verdict entered by BEKKER, J., must in law be regarded as an acquittal on the merits. It is also common cause that the first indictment was not excipiable and that the Court hearing the trial on that indictment was one of competent jurisdiction. It is, therefore, clear that at the first trial all the respondents were in jeopardy in the sense referred to by WESSELS, C.J., in R. v. Manasewitz, 1933 AD F 165 at p. 168. That premised, it is further beyond all doubt that the respondents cannot in law be tried again for the same offence in respect of which they, in the circumstances mentioned above, obtained a verdict of acquittal from BEKKER, J. See R. v. Manasewitz, supra, and Ex parte Minister of Justice: In re R. v. Moseme, 1936 AD 52. In the latter case G DE VILLIERS, J.A., after remarking that a plea of autrefois acquit may be available to an accused who, subsequent to acquittal, is brought to trial

"on a charge of another offence arising out of the same transaction",

went on, at p. 60, to say:

"In order to succeed it is as a general rule essential for an accused person to show (inter alia) that he was legally in jeopardy, on his first trial, of being convicted of the offence wherewith he is charged on his second trial."

H It is thus settled law that, provided the constituent elements of jeopardy as stated in Manasewitz's case obtain, an accused may not be charged a second time with the same offence of which be has previously been acquitted. It is, however, also equally well established that, in this context, "the same offence" is not necessarily confined to "the identical offence". (See R. v. Constance en 'n Ander, 1960 (4) SA 629 (AD) at p. 635B and p. 636D). Thus, in delivering the judgment of this Court in R. v. Long, 1958 (1) SA 115, SCHREINER, J.A., said (with mention

Ogilvie Thompson JA

of R. v. Manasewitz and R. v. Moseme, supra, and also of R. v. Barron, (1914) 2 K.B. 57.) at p. 117, that:

"The pleas recognised by sec. 169 (2) (d) of the Criminal Code is 'that he has already been acquitted of the offence with which he is charged'. It is not enough to support the plea that the facts are the same in both trials. The offences charged must be the same, but substantial identity is sufficient. If A the accused could have ben convicted at the former trial of the offence with which he is subsequently charged there is substantial identity, since in such a case acquittal on the former charge necessarily involves acquittal on the subsequent charge. Another way of putting it is that he must legally have been in jeopardy on the first trial of being convicted of the offence with which he was charged on the second trial."

Again in O'Neill v. South african Railways and Harbours, 1958 (3) SA 269 (AD) B at p. 276, it was, in clarification of some remarks which had been made in Neethling v. South African Railways, 1938 AD 487, regarding the expression autrefois acquit, stated by the same distinguished Judge that:

"The expression was, in my view, introduced to support the conclusion that, looking at the substance of the matter, as C should be done in cases of autrefois acquit, it is not merely the names of the crime and the misconduct that matter but their real equivalence. This consideration of the substance was held to justify treating the offences as the same whenever the charge on the first was such as in law to permit a verdict of guilty on the second to be returned."

The question for decision in this appeal thus revolves around the true limits of "substantial identity" in relation to a plea of autrefois acquit. It is common cause that participation in D terroristic activities in contravention of sec. 2 (1) of the Terrorism Act (the charge in the second indictment) was not one of the competent verdicts which could have been returned on the first indictment without invoking the provisions of sec. 204 of the Code. An alternative argument based upon that section was E - albeit somewhat tentatively - advanced before us. Having regard to the crimes respectively alleged in the two indictments, it appears to me to be very doubtful whether the provisions of sec. 204 could be applied in the present case (R. v. Moosa and Others, 1960 (3) SA 517 (AD) at pp. 531 et seq.). In view of the conclusion which I have reached it is, F however, unnecessary to express any final opinion on the point. I shall assume, without deciding, in favour of the State that the section has no application, and accordingly proceed upon the basis that the charge in the second indictment was not one of the competent verdicts which could have been returned on the first indictment. Respondents' basic contention, which was upheld in the Court a quo, is that their plea of autrefois G acquit is legally valid inasmuch as they have already been acquitted (by BEKKER, J.), of the criminal conduct charged against them in the second indictment. In the course of his well-prepared and comprehensive argument on behalf of the State, Mr. Liebenberg, while conceding what he termed a "substantial correspondence" between the two indictments, H pointed to various features which he submitted constitute vital differences in the offences - both statutory - respectively charged in the two indictments. To those features and that submission I shall advert later in this judgment. It is, however, necessary first to examine Mr. Liebenberg's main contention, founded primarily upon SCHREINER, J.A.'s, above-cited statement in Long's case, but also supported by sundry judicial dicta in both our own and the English Courts, that, in relation to a plea of autrefois acquit, "substantial identity" comprises only such offences as would

Ogilvie Thompson JA

have been competent verdicts under the first indictment. In short, the State contends that a plea of autrefois acquit can, in relation to the aspect under discussion, succeed only if the offence charged in the second indictment is either (i) the A identical offence of which the accused was previously acquitted or (ii) is an offence which would have been a...