S v Siwela

• Jurisdiction: South Africa

S v Siwela
1981 (2) SA 56 (T)

1981 (2) SA p56

Citation	1981 (2) SA 56 (T)
Court	Transvaal Provincial Division
Judge	Van Dyk J and Van Dijkhorst J
Heard	October 23, 1980
Judgment	October 23, 1980

Flynote : Sleutelwoorde

Criminal procedure — Appeal — Record — Rectification of — Procedure under F Rule 66 (6) of Act 32 of 1944, and 60 (5) if necessary, to be followed — Rule 66 (6) applies also to case where record correctly reflects what interpreter said, but interpreter's interpretation of what witness said faulty in material respects.

Criminal procedure — Appeal — Record — Rectification of — Inherent jurisdiction of Supreme Court under its powers of review under Rule of G Court 53 — When to be exercised — Applicant having run into difficulties in trying to get satisfaction under Rule 66 (6) of Act 32 of 1944 — Court exercising its jurisdiction in circumstances despite applicant not having followed the proper procedure laid down in Rule 53 of Uniform Rules. H

Headnote : Kopnota

The Supreme Court can, upon a substantive application to it by the accused or the Attorney-General, rectify the record in a magistrate's court in a criminal trial. This power to rectify the record is exercised by virtue of the inherent jurisdiction of the Supreme Court. The procedure to be followed is set out in R v Bates and Reidy 1902 TS 199 at 200. The magistrate should be given proper notice of the application to amend the record and he should comment thereon. But normally an appellant would be required to follow the procedure laid down by Rule 66 (6) of Act 32 of 1944, together with an application for an extension of the time limit, if required, under Rule 60 (5). And the fact that the transcript may correctly reflect what the interpreter said does not preclude any one of the parties from objecting in terms of this Rule that the record does not reflect what the witness said. The Rule is applicable

1981 (2) SA p57

when the record differs from what the witness testified or stated in any language, ie where the interpreter wrongly interpreted what the witness said.

Where, however, the applicant's attempt to employ the use of the Rule had met with difficulties, the interpreter's interpretation of what the witness said having been faulty in material respects and as such there A had been a gross irregularity and a failure of justice, and the applicant had approached the Supreme Court on review, that Court, in the circumstances, the magistrate having been given due notice and having chosen not to place any information before the Court, exercised its inherent jurisdiction, set aside the conviction and sentence, and remitted the matter to be tried de novo before a different magistrate, despite the applicant not having followed the proper procedure under Rule 53 of the B Uniform Rules of Court.

Case Information

Review of proceedings in a magistrate's court. The facts appear from the reasons for judgment.

G J Essey for the applicant.

J R Gautschi for the State. C

Judgment

Van Dijkhorst, J.:

The appellant was charged with and convicted of culpable homicide on 6 May 1980 in the regional court sitting at Soweto. On conviction he was sentenced to four years' imprisonment.

D It was alleged that the appellant had, on or about 7 December 1979 and at Chiawelo, stabbed and killed Solly Memaranzre. The appeal against the conviction and sentence was noted on 25 May 1980. At the trial the appellant had given his evidence through the medium of a Zulu interpreter, one W J Mboweni. In addition thereto, the proceedings as such had been E interpreted by this interpreter. At the commencement of the trial the appellant had been asked to give an explanation of his plea in terms of s 115 of Act 51 of 1977 and to make certain admissions. The trial proceedings were mechanically recorded. After the appeal had been noted the appellant's attorney obtained a transcript of the record and then F decided to listen to the actual recordings of the court proceedings. This was done and it emerged that the proceedings and the evidence had not been properly translated and that the transcript, although an accurate record of what had been translated, was not a proper translation of the evidence given and the admissions made. A comparison of the translation as given by the said Mboweni at the trial and the actual translation of the G evidence and proceedings I hereunder set out. The record reads:

"Beskuldigde, ingevolge art 115 (2) (b) kan jy nou erkennings maak van bewerings. As jy sulke erkennings maak dan moet jy ook toestem dat dit op rekord geplaas word. Dit sal dan beteken dat die Staat nie daardie bewerings hoef te bewys nie. Wil jy erken dat jy die oorledene met die mes gesteek het? - Ek erken dit, Edelagbare.

H Erken jy dat hy dood is as gevolg van daardie steekwond? - Ek erken dit Edelagbare.

Erken jy ook die identiteit van die oorledene, dat hy Solly Mahlangu is? - Ek erken dit, Edelagbare.

Jy stem toe dat dit as erkennings van daardie bewerings op rekord geplaas word? - Ja, Edelagbare."

The correct rendering of what the accused said, is the following: The magistrate said:

"Beskuldigde, ingevolge art 115 (2) (b) kan jy nou erkennings maak van bewerings. As jy sulke erkennings maak, dan moet jy ook toestem dat dit op rekord geplaas word as erkennings van daardie bewerings."

1981 (2) SA p58

Van Dijkhorst J

The interpreter then said to the accused:

"Nou, as jy al hierdie dinge erken..."

The court then said:

A "Dit sal dan beteken dat die Staat nie daardie bewerings hoef te bewys nie."

The interpreter then said to the accused:

"Jy erken dat jy die mes gevat het en hom daarmee gesteek het, waarvan hy gesterf het?"

There is no reply from the accused to this statement. The court then said:

"Erken jy dat hy dood is as gevolg van daardie steekwond?"

B The interpreter then said to the accused:

"Jy erken dat hy as gevolg van die wond gesterf het, as gevolg...