S v Pietersen

• Jurisdiction: South Africa
• Judge: H J Erasmus AJ
• Judgment Date: 10 October 2001
• Citation: 2002 (1) SACR 330 (C)
• Hearing Date: 10 October 2001
• Counsel: P J Snyman for accused No 1. Van Tonder for accused No 2. M Pothier for accused No 3. T Bluff for accused No 4. H Booysen for the State.
• Court: Cape Provincial Division

H J Erasmus AJ:

The four accused are standing trial on four counts: (i) murder; (ii) robbery with B aggravating circumstances, and (iii) and (iv) unlawful possession of arms and ammunition in contravention of the provisions of the Arms and Ammunition Act 75 of 1969.

After the State had closed its case, Mr Snyman, who appears on behalf of accused No 1, called his client to give evidence in his own defence. Mr Pothier, who appears for accused No C 3, while cross-examining accused No 1, indicated that he intended cross-examining accused No 1 to credit under the provisions of s 197(b) of the Criminal Procedure Act 51 of 1977 ('the Act'). The section reads as follows:

'An accused who gives evidence at criminal proceedings shall not be asked or required to answer any question tending to show that he has D committed or has been convicted of or has been charged with any offence other than the offence with which he is charged, or that he is of bad character, unless -

(a)

. . .

(b)

he gives evidence against any other person charged with the same offence or an offence in respect of the same facts;. . . ' E

In R v Bagas 1952 (1) SA 437 (A) at 440H - 441A Van den Heever JA said the following about the purpose of the similarly worded s 295(b) of the Criminal Procedure Act 31 of 1917:

'Paragraph (b) excepts from the general protection accorded to accused persons by the section every one ''who has given evidence against any person charged with the same offence''. This F provision is obviously not conceived as a procedural penalty, but in the interests of the other person charged with the same offence, who would otherwise have been precluded from exercising the normal rights of an accused person to discredit in cross-examination any witness who testified against him.'

In Murdoch v Taylor [1965] 1 All ER 406 (HL) at 415b it was held that the object of the similarly worded G s 1(f)(iii) of the Criminal Evidence Act, 1898, was 'clearly to confer a benefit on a co-accused' who may show, by reference to another accused's previous offences, that the latter's 'testimony is not worthy of belief'.

Accused No 1 and accused No 3 are 'charged with the same offence' H and they have been joined in the same trial (R v Manana 1926 OPD 1). In giving evidence in his own defence, accused No 1 gave evidence 'against' accused No 3 in that he supported the prosecution's case against accused No 3 that it was accused No 3 who shot the deceased, and that accused No 3 removed the body of the deceased from the 'bakkie' and pushed it over the precipice. (See Hoffmann and Zeffertt The SA Law of Evidence 4th ed at 45, I referring to Murdoch v Taylor (supra). See also R v Varley [1982] 2 All ER 519 (CA).)

It has been held that once an accused gives evidence against a co-accused charged with the same offence, the immunity afforded by s 197 is forfeited and the Court has no discretion to prevent an accused J

H J Erasmus AJ

from exercising his rights under s 197(b). The accused giving evidence is accordingly required to answer any question A tending to show that he has been convicted of any offence other than the offence with which he is charged (S v Mazibuko and Others 1988 (3) SA 190 (A) at 197H; see R v Ellis [1961] 2 All ER 928 (CA); Murdoch v Taylor (supra) and R v Varley (supra)). B

Mr Snyman conceded this much and Mr Pothier elicited the following from accused No 1: On 31 August 2000 he was sentenced to two life sentences and a lengthy term of imprisonment. The sentences were imposed in respect of two count of murder, one count of attempted murder and counts under the Arms and Ammunition Act 75 of 1969 for the unlawful possession of firearms and ammunition. [Accused No 1 was not certain whether he is also serving a sentence for robbery C with aggravating circumstances.] At his trial, he pleaded not guilty to all the charges and gave evidence in his own defence. Despite his plea and his evidence, he was found guilty and sentenced as set out above.

Mr Pothier sought to go beyond the fact of conviction and to elicit from accused No 1 the facts underlying - the details of the D crimes of which he had been found guilty, where and how the offences were committed, the evidence accused No 1 gave at his trial and, in particular, whether he had falsely sought to incriminate others. Mr Pothier said that although his purpose was to impugn the credit of accused No 1, it was inevitable that his cross-examination would elicit information of similar facts. E

Mr Snyman objected to this line of cross-examination. He contended that it would be highly prejudicial to his client and infringe upon his client's constitutional right to a fair trial as entrenched in...