S v Nkata and Others

• Jurisdiction: South Africa

S v Nkata and Others
1990 (4) SA 250 (A)

1990 (4) SA p250

Citation	1990 (4) SA 250 (A)
Court	Appellate Division
Judge	Joubert JA, E M Grosskopf JA, Eksteen JA
Heard	May 21, 1990
Judgment	July 16, 1990

Flynote : Sleutelwoorde B

Criminal procedure — Appeal — Special entry in terms of s 317 of Criminal Procedure Act 51 of 1977 — Application for — Can be refused on grounds that granting thereof would be an abuse of process of Court C only when it is quite certain that there is no prospect at all of success on appeal — Such test to be applied even where irregularity or illegality appears ex facie record of proceedings.

Criminal procedure — Evidence — Privilege — Legal professional privilege — Accused communicating with her counsel during latter's D cross-examination of State witness — State not entitled to cross-examine accused on contents of such communication which clearly related to trial being conducted.

Criminal procedure — Trial — Cross-examination — Of accused by State — On disputed document subject to its admissibility being proved at end E of defence case — Such a most undesirable procedure and fraught with possible prejudice to accused — Court allowing special entry in terms of s 317 of Criminal Procedure Act 51 of 1977 being made on record.

Criminal procedure — Evidence — Confession — Inadmissible confession — No portion of inadmissible confession, not even preamble F thereof, may be used to cross-examine accused on.

Headnote : Kopnota

A Court to whom an application is made for a special entry to be made on the record in terms of s 317 of the Criminal Procedure Act 51 of 1977 may only refuse such special entry on the ground that the granting of it would be an abuse of the process of the Court when it is quite certain G that there is no prospect at all of an appeal based on the alleged irregularity succeeding, and this test applies even where the irregularity or illegality appears ex facie the record of the proceedings.

The four appellants had been convicted of murder and sentenced by the trial Court. Their application for certain special entries to be made on the record in terms of s 317 of the Criminal Procedure Act 51 of 1977 had been refused by the trial Court and their application to the H Appellate Division for the special entries was referred to the Appellate Division for argument. That Court found that certain irregularities had taken place during the trial in the Court a quo: (1) The Court had allowed the State to cross-examine appellant No 1 on the contents of a confidential communication she had made to her legal representative during the course of the trial and which clearly related to the trial - such communication was privileged and appellant No 1 was not obliged to disclose it. (2) The Court had allowed cross-examination of appellant No I 4 on his statement to the police before it had been proved to have been freely and voluntarily made, subject to proper proof at the end of the defence case. The Court on appeal remarked that this was a most undesirable procedure and one fraught with possible prejudice to the accused person. (3) The Court, contrary to the rule that no portion of an inadmissible confession can be used to cross-examine an accused on, had allowed the State to use the preamble of an inadmissible confession J by appellant No 3 for purposes of cross-examination of that appellant.

1990 (4) SA p251

A The Court accordingly held that the Court a quo should have made special entries in terms of s 317 of Act 51 of 1977 in each of the above instances in which it was sought by the appellants, but, as the irregularities they concerned had not resulted in a failure of justice, that the appeal based on those entries should be dismissed. The application for leave to appeal on the merits and against sentence was also dismissed, except insofar as it related to the failure of the trial Court to find extenuating circumstances in respect of appellant No 2. B

Case Information

Appeal from a decision in the East London Circuit Local Division (Grobbelaar AJ). The facts appear from the judgment of Eksteen JA.

L S Melunsky SC (with him L S Kalimashe) for the appellants.

L Moffitt for the State.

C Cur adv vult.

Postea (July 16).

Judgment

Eksteen JA:

Six people - five young men and a 49-year-old woman - were D charged before the East London Circuit Local Division with murder in that on 12 October 1985 and at Duncan Village in the district of East London they had wrongfully and intentionally killed Wiseman Mrwebi. After a lengthy trial the first and third accused were acquitted. The other four accused were all found guilty of murder. Extenuating circumstances were found to have been present in the case of accused No E 2 (the 49-year-old woman) and she was sentenced to 18 years' imprisonment. No extenuating circumstances were found in respect of accused Nos 4, 5 and 6 and each of them was sentenced to death.

An application was thereupon made to the trial Judge for five special entries in terms of s 317 of the Criminal Procedure Act 51 of 1977 F (hereinafter referred to as 'the Act') for the reservation of three points of law in terms of s 319 of the Act; and for leave to appeal on the merits both against the convictions and the sentences. All these applications were refused. An application to this Court in terms of ss 316(6), 317(5) and 319(3) followed, as a result of which the following order was made:

'1.

The application for condonation of the late filing of the G applicants' petition is granted.

2.

The application for -

(a)

special entries to be made on the record in terms of s 317 of Act 51 of 1977 ("the Act");

(b)

the reservation of questions of law in terms of s 319 of the H Act; and

(c)

leave to appeal in terms of s 316 of the Act,

are referred to the Appellate Division, in terms of ss 316(8)(d), 317(5) and 319(3) of the Act, for consideration upon argument in respect of, inter alia, the following matters:

(1)

whether the factual allegations in the petition, relating to I the special entries and the questions of law, accurately reflect the relevant aspects of the actual course of the proceedings in the Court a quo;

(2)

whether the matters alleged in respect of each of the five special entries sought to be made constitute irregularities J or illegalities for the purposes of s 317 of the Act;

1990 (4) SA p252

Eksteen JA

(3)

A whether the three alleged questions of law sought to be reserved constitute questions of law for the purposes of s 319 of the Act;

(4)

whether the view expressed in S v Xaba 1983 (3) SA 717 (A) at 733D applies in a case where the full details of an alleged irregularity or illegality appear ex facie the record of the proceedings; B

(5)

whether the petitioners can claim as of right that their applications for special entries to be made and for questions of law to be reserved be considered without reference to, and divorced from any consideration of the further questions whether there has been a failure of justice in terms of s C 322(1) of the Act and whether there were reasonable prospects of success in an appeal;

(6)

any other matters that counsel for the petitioners or counsel for the State may wish to advance as being relevant to a consideration of the applications.

3.

D In the event of any of the applications for special entries to be made, or for questions of law to be reserved, or for leave to appeal, being granted, counsel are requested to be prepared forthwith to argue the appeal on its merits.

4.

A full record, as if on appeal, must be prepared and lodged for E hearing of argument on the applications, and s 318(2) of the Act (except for the proviso thereto) shall apply, as if notice has been given under s 318(1). (The record must include the present petition and this order made thereon, and also the applications as addressed to and argued before the Court a quo.)'

F At the trial it was not disputed that the deceased, Wiseman or Dan Mrwebi - nicknamed Maglasana - died on 12 October 1985 after having been burnt by the so-called 'necklace' method - ie after having been drenched in petrol and set alight with motor-car tyres round his body. The district surgeon who conducted the post mortem examination gave the G cause of death as '100% burns'. After considering the evidence led at the trial, the Court a quo summarised the objective facts established by the evidence as follows:

'Die Hof bevind dat 'n groep van persone op 12 Oktober 1985 gedurende die vroeë aand buite die woning van getuie Beauty Ngxama te Gwijanastraat 91 vergader het; dat sommige van die groep persone daarop H haar woning binnegegaan het en die oorledene met geweld uit die woning verwyder het; dat die oorledene buite die woning aangerand is en dat daar gesê is dat hy 'n mpimpi is; dat die oorledene daarna deur sommige lede van die groep eers langs Gwijana- en daarna langs Tappastrate getrek is; dat terwyl die oorledene in Tappastraat getrek is, die groep persone gesê het, "Maglasana is 'n mpimpi, hy moet verbrand word"; dat die oorledene by die hek van Tappastraat 32 losgebreek het en vasgeklou I het aan die getuie Joyce Sokuyeka, wat probeer inmeng het ten behoewe van die oorledene; dat nadat die oorledene aangerand is, hy van getuie Joyce losgetrek is en toe verder in Tappastraat getrek is; dat die oorledene weer losgebreek het in Tappastraat en in die huis van getuie Nomzi Goyi ingehardloop het; dat die oorledene daarna verder in Tappastraat tot in Sandilestraat getrek is waar die oorledene weer J losgebreek het en die erf van 'n sekere Spokes binnegegaan het

1990 (4) SA p253

Eksteen JA

A waar die oorledene weer aangerand is; dat die oorledene daarna vanaf Sandilestraat tot in Ntsenyerostraat getrek is en nog steeds aangerand is; dat die groep persone by...