S v Van der Westhuizen

• Jurisdiction: South Africa
• Citation: 2011 (2) SACR 26 (SCA)

S v Van der Westhuizen
2011 (2) SACR 26 (SCA)

2011 (2) SACR p26

Citation	2011 (2) SACR 26 (SCA)
Case No	266/10
Court	Supreme Court of Appeal
Judge	Cloete JA, Snyders JA and Theron JA
Heard	February 23, 2011
Judgment	March 28, 2011
Counsel	MO Julius (DPP, Cape Town and Bloemfontein) for the State.

Flynote : Sleutelwoorde

B Criminal procedure — Fundamental rights — Right to fair trial — Impartiality of prosecutor — Requirement in s 32 of National Prosecuting Authority Act 32 of 1998, that prosecutor must act impartially, discussed with reference to international codes and guidelines of prosecutorial conduct and those framed in terms of s 22(6) of NPA Act — In such codes and guidelines, duty C to act impartially used in sense of avoiding discrimination as part of general duty to act without fear, favour or prejudice, not in sense of not acting adversarially — Local and international case law on role of prosecutor considered — Prosecutor's function in adversarial system essentially to discredit defence's evidence for purpose of obtaining conviction — Where accused represented, calling evidence destructive of State's case not D function of prosecutor — Deciding which witnesses to call prosecutor's discretion — In casu, therefore, no substance in appellant's argument of not having received fair trial because State called some witnesses, but not others.

Criminal procedure — Fundamental rights — Right to fair trial — Plea and E sentence agreements — Whether accused can waive prohibition on disclosure of plea-bargain negotiations contained in s 105A(10) of Criminal Procedure Act 51 of 1977 — In casu, plea-bargain negotiations abandoned, but medico-legal reports relating to accused handed to prosecution and sent to expert witnesses for State — Proviso to s 105A(10) having effect that accused may waive protection afforded by section — A fortiori the F accused may therefore have agreed to use of such documents.

Criminal procedure — Fundamental rights — Right to fair trial — Unjustifiable curtailment of cross-examination of State witness — Application for special entry on record in terms of s 317(1) of Criminal Procedure Act 51 of 1977 — Court can avoid making special entry by recalling witness for G further cross-examination.

Criminal procedure — Evidence — Formal admissions recorded under Criminal Procedure Act 51 of 1977, s 220 — Effect of — In absence of explanation consistent with bona fides as to why accused made statement and why wishing to resile from it, such admissions stand — No contradiction thereof allowed, neither by leading evidence nor advancing arguments to that H effect.

Criminal procedure — Sentence — Factors to be taken into account — Diminished criminal responsibility — Deterrence and retribution not receding into background as purposes of sentencing, unless substantial diminished responsibility present.

Headnote : Kopnota

I The concept of impartiality in the South African and international codes and guidelines of prosecutorial conduct is not used in the sense of not acting adversarially, but in the sense of acting even-handedly, ie avoiding discrimination. The duty to act impartially is therefore part of the more general duty to act without fear, favour or prejudice. In an adversarial system the J prosecutor's function is essentially to discredit defence's evidence for the

2011 (2) SACR p27

very purpose of obtaining a conviction. Where an accused is represented, it A is not the function of a prosecutor to call evidence which is destructive of the State's case, or which advances the case of the accused. The duty of a prosecutor, to see that all available legal proof of the facts is presented, is discharged by making the evidence available to the accused's legal representatives; the prosecutor's obligation is not to put the information before the court.There is therefore no substance in the argument that the appellant B did not receive a fair trial because the State called some witnesses, and not others. (Paragraphs [9] – [14] at 32i – 33a, 33f – 34b, 35c – d, 36f – g and 37f – h, paraphrased.)

The prohibition on disclosure of plea-bargain negotiations contained in s 105A(10) of the Criminal Procedure Act 51 of 1977 applies equally to the situation, as in the present case, where no agreement is reached. However, C the effect of the proviso to the section is that an accused may waive the protection afforded by the section, and agree to the recording of admissions. A fortiori, an accused can agree to the use of documents, brought into existence for the purposes of s 105A proceedings, which do not contain admissions but are unfavourable or, for that matter, favourable to the accused. In the circumstances, the proposition that the appellant did not have a fair trial because reports handed to the State in the course of s 105A D proceedings had come into the hands of State witnesses and were commented on by the State witness, was untenable. (Paragraphs [16] and [18] at 38f – 39a and 40a, paraphrased.)

It is unnecessary to consider whether, initially, the court unjustifiably limited cross-examination, when any irregularity that there may have been in that regard was cured by the court allowing further cross-examination. The E submission, on appeal, that the procedure followed by the court was irregular and that the court was obliged to make special entries in terms of s 317(1) of the Criminal Procedure Act 51 of 1977, is devoid of authority, logic and merit. (Paragraphs [19] and [23] at 40d – e and 42e – f, paraphrased.)

For so long as a formal admission stands, it cannot be contradicted by an F accused, whether by way of evidence or in argument. To hold otherwise would defeat the purpose of s 220, eliminate the distinction between a formal admission in terms of that section and an informal admission which may be qualified or explained away, and thereby lead to confusion in criminal trials. The minimum that an accused who wishes to lead evidence or advance argument inconsistent with a formal admission in terms of s 220 would first have to show, before being allowed to do so, is that there G is an explanation, consistent with bona fides, why the admission was made in the first place; and why he or she now wishes to resile from it. (Paragraphs [34] and [37] at 47g – h and 49e – f.)

In view of his lack of insight, and relatively minor degree of diminished responsibility, deterrence and retribution as purposes of sentencing do not recede into the background, as in cases of substantial diminished H responsibility. (Paragraph [91] at 91e.)

Annotations:

Cases cited

Reported cases

Southern Africa

Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft Für Schädlingsbekämpfung I Mbh 1976 (3) SA 352 (A): referred to

Director of Public Prosecutions, Transvaal v Venter 2009 (1) SACR 165 (SCA) ([2008] 4 All SA 132): referred to

S v Adams 1983 (2) SA 577 (A): referred to

S v Daniëls en 'n Ander 1983 (3) SA 275 (A): dicta at 298G – H and 318C – 319A applied J

2011 (2) SACR p28

S v Groenewald 2005 (2) SACR 597 (SCA): dictum in para [33] applied A

S v Ingram 1995 (1) SACR 1 (A): dicta at 4e – g and 8d – i applied

S v Kalogoropoulos 1993 (1) SACR 12 (A): referred to

S v Kavin 1978 (2) SA 731 (W): distinguished

S v Kleynhans 2005 (2) SACR 582 (W): referred to

S v Lapping 1998 (1) SACR 409 (W) ([1998] 1 All SA 331): dictum at 411g – 412h applied B

S v Marx 2009 (2) SACR 562 (ECG): distinguished

S v McBride 1979 (4) SA 313 (W): distinguished

S v Mjoli and Another 1981 (3) SA 1233 (A): dictum at 1247B – C applied

S v Seleke en 'n Ander 1980 (3) SA 745 (A): dictum at 754F – H applied

S v Shaik and Others 2008 (1) SACR 1 (CC) (2008 (2) SA 208; 2007 (12) BCLR 1360): referred to

S v Shapiro 1994 (1) SACR 112 (A): dictum at 123c – f applied C

S v Smith 1990 (1) SACR 130 (A): dictum at 135b – g applied

Smyth v Ushewokunze and Another 1998 (3) SA 1125 (ZSC) (1997 (2) ILR 544; 1998 (2) BCLR 170): referred to.

Australia

Libke v R [2007] HCA 30 ((2007) 235 ALR 517): referred to.

Canada

Boucher v The Queen [1955] SCR 16 ((1955) 110 CCC 263): dictum at 23 – 24 applied

CanadianOxy Chemicals Ltd v Canada (Attorney General) [1999] 1 SCR 743: referred to E

Lemay v The King [1952] 1 SCR 232: referred to

Nelles v Ontario [1989] 2 SCR 170: referred to

Proulx v Quebec (Attorney General) 2001 SCC 66 ([2001] 3 SCR 9): referred to

R v Cook [1997] 1 SCR 1113 ((1997) 114 CCC (3d) 481 (SCC)): applied F

R v Stinchcombe [1991] 3 SCR 326: dictum at 15 applied

R v Yebes [1987] 2 SCR 168: dictum in para [28] applied.

England

Adel Muhammed El Dabbah v Attorney-General for Palestine [1944] AC 156: referred to G

Benedetto v The Queen; Labrador v The Queen [2003] UKPC 27 ([2003] 1 WLR 1545 (PC)): referred to

R v H [2004] 1 All ER 1269 (HL) ([2004] UKHL 3; [2004] 2 AC 134): referred to

Randall v The Queen [2002] UKPC 19 ([2002] 5 LRC 678; [2002] 1 WLR 2237 (PC)): dicta in paras [9] – [10] applied H

Seneviratne v R [1936] 3 All ER 36 (PC): dictum at 48 – 49 applied.

Ireland

DO v DPP [2006] IESC 12: referred to. I

United States

Berger v US 295 US 78 (1935): dictum at 88 applied.

Legislation cited

Statutes

The Constitution of the Republic of South Africa, 1996, s 179(4): see Juta's J Statutes of South Africa 2009/10 vol 5 at 1-60

2011 (2) SACR p29

The National Prosecuting Authority Act 32 of 1998, ss 22(6), 32(1)(a) A and 32(2)(a): see Juta's Statutes of South Africa 2009/10 vol 1 at 2-558 and 2-561

The Criminal Procedure Act 51 of 1977, ss 78(1), 78(2), 78(6), 78(7), 79(4), 105A(10)(a)(i), 113, 220 and 317: see Juta's Statutes of South Africa 2009/10 vol 1 at 2-360, 2-366, 2-368, 2-390 and 2-420. B

Case Information

An appeal from the Western Cape High Court, Cape Town (Louw J sitting as court of first instance).

M de la Harpe...