S v Shuma and Another *

• Jurisdiction: South Africa
• Judge: Erasmus J
• Judgment Date: 07 June 1994
• Docket Number: CC 12/93
• Court: Eastern Cape Division
• Hearing Date: 07 June 1994
• Citation: 1994 (4) SA 583 (E)

Erasmus J:

At this stage of the proceedings only accused No 2 and accused No 3 remain before Court. Mr Daubermann, who appears on behalf of both accused, applies for separation of their trials. Mr Nel opposes the C application on behalf of the State.

Accused No 2 has completed his testimony, but has not closed his case. It is his case that he was not involved in the events which are the subject of the charges brought by the State. He testified that on the day preceding the events, he had travelled from Johannesburg to East London to D the house of accused No 3 in Mdantsane where he met accused No 3. He was accompanied by one Charles Molefu and two of his erstwhile co-accused now absconded. The following morning, he and his companions left the house of accused No 3 in order to return to Johannesburg. On the way, they were waylaid by armed men who robbed them of their vehicle. He and his companions were ejected from the vehicle in the general vicinity of the E scene of the crimes. He sought assistance, but was arrested by the police where he was sitting under a tree. (It will be suggested, I assume, that these other persons were the perpetrators of the crimes now laid at the door of the accused.)

I would mention that this was the first intimation the Court had that F there was a link between the accused. During the State case - according to our notes - only the following was put by counsel on behalf of accused No 2 and 3 respectively:

'Accused No 2 will admit that he was found under a bush, but will say that he was travelling in a vehicle in vicinity of bush. After that vehicle was hijacked by persons unknown to him in the vicinity of the bush, he was G made to alight. Fearing for his life he ran into fields and hid in the bush where you found him.'

And

'Accused No 3 will say that he left that morning with one Sisiko(?) for Cofimvaba. He left his home at No 708 Mdantsane. He did not return the H same day, but at a later stage. He did not go to the store.'

Defence counsel informs us that accused No 3 has decided not to give evidence. He further states that accused No 2 wishes to call No 3 as a witness in his case. Accused No 3, however, refuses to take the stand for accused No 2 while on trial, but will be prepared to do so should the trials be separated. (I trust that there is no conflict of interests here I between the accused.)

In terms of s 190(1)(a) of the Criminal Procedure Act 51 of 1977, as interpreted in S v Chamane1962 (2) SA 428 (A), accused No 3, being a co-accused of No 2, is a competent but not a compellable witness on his behalf. Defence counsel submits that the Court will grant the application J for separation in order by so doing to enable accused No 2 to compel

Erasmus J

A accused No 3 to testify in his defence. Refusal of the application will - in his submission - prejudice accused No 2 and would therefore constitute an irregularity in the proceedings.

In support of his contention, Mr Daubermann referred the Court to a ruling in S v M A Mthi and Another (case No CC 33/92), a matter in which he B appeared. In his brief judgment in that matter, delivered on 18 September 1992, Kroon J simply set out the immediate circumstances in which the application for separation had been brought. The learned Judge, however, did not discuss the surrounding circumstances; nor did he refer to any authority. I mentioned to counsel that I was aware that my Brother Jennett had refused a similar application. The matter stood down in order to C obtain a copy of the judgment in that case. When the hearing resumed, Mr Nel handed to the Court a document which I take to be the Judge's written notes. These notes indicated that Jennett J had considered the matter at some length with reference to a number of decisions. As the judgment was D clearly relevant to the application before Court, it was decided that a copy thereof be obtained.

The Judge's written notes indicated that present defence counsel had appeared also in that matter.

It is of course improper for counsel not to mention judgments which are E against them of which they are aware. Mr Daubermann, however, apologised in Chambers to me for not referring the Court to the decision by Jennett J. He stated that he had forgotten about the judgment.

The following day I was furnished with a copy of the judgment. It was delivered on 22 March 1993 in the matter of S v B E Sombani and Another (case No CC 6/93). I refer to it later.

The relevant section of the Criminal Code, s 157(2), provides as follows:

F 'Where two or more persons are charged jointly, whether with the same offence or with different offences, the court may at any time during the trial, upon the application of the prosecutor or of any of the accused, direct that the trial of any one or more of the accused shall be held separately from the trial of the other accused, and the court may abstain G from giving judgment in respect of any of such accused.'

It is to be noted that the Legislature employs the word 'may'; from which, in the general context of the provision, it follows that the Court has a discretion either to order or to refuse to order a separation of trials. (See R v Nzuza and Another1952 (4) SA 376 (A) at 380B; S v Ntuli and H Others1978 (2) SA 69 (A) at 73D; S v Somciza1990 (1) SA 361 (A) at 367E-F.) The discretion is to be judicially exercised in the promotion of the interests of justice. In S v Somciza (supra at 367F) Friedman AJA remarked as follows:

'In exercising its discretion under that section, the trial court has to weigh up the prejudice likely to be caused to the applicant by a refusal I to separate, against the prejudice likely to be suffered by the other accused or the State if the trials are separated and then to decide whether or not, in the interests of justice, a separation of trials should be ordered.'

The interests of justice is a wide concept. In the framework of s 157 it encompasses the interests of the individual accused, as well as - or as against - the wider interests of society...