Sefatsa and Others v Attorney-General, Transvaal, and Another

• Jurisdiction: South Africa
• Judge: Rabie ACJ, Corbett JA, Joubert JA, Hoexter JA, van Heerden JA
• Judgment Date: 23 November 1988
• Citation: 1989 (1) SA 821 (A)
• Hearing Date: 07 September 1988
• Court: Appellate Division

Rabie ACJ:

This is an application for leave to appeal against the dismissal by Human AJ, sitting in the Transvaal Provincial Division, of an application to reopen a criminal trial and to make a special entry on the record of the case. The facts relating to the matter are set out below.

D The six petitioners were on 10 December 1985 found guilty by a Court consisting of Human AJ and two assessors of the murder on 3 September 1984 of Mr Kuzwayo Jacob Dlamini, the deputy mayor of the town council of Lekoa. No extenuating circumstances were found to exist in the case of any of the petitioners - who were respectively accused Nos 1, 2, E 3, 4, 7 and 8 at the trial - and they were accordingly all sentenced to death. The petitioners were also convicted on a charge of subversion in contravention of s 54(2) of the Internal Security Act 74 of 1982. They were all sentenced to eight years' imprisonment on this count. Thereupon they appealed, with the leave of the trial Judge, to the Appellate Division against their convictions and sentences on both the F aforesaid counts. The appeals were heard by this Court on 2 November 1987 and were dismissed in toto on 1 December 1987: see S v Safatsa and Others 1988 (1) SA 868 (A).

On 16 March 1988 an application was brought before Human AJ for a stay of the execution of the petitioners, which had been set for 18 G March 1988, pending the determination of an application for the reopening of the trial. The application was granted subject to the proviso that the application be brought by not later than 18 April 1988, failing which the stay would lapse. The application to reopen the trial was launched by a notice of motion dated 15 April 1988, and the relief H prayed for was an order that the trial of the petitioners be reopened

'(a)

for the further cross-examination of the witness Joseph Motsumi Manete;

(b)

for the further cross-examination of any other State or defence witness arising from and in the light of the further cross-examination of Manete;

(c)

I for the hearing of any other or further evidence which the Court, in the exercise of its discretion, may require to be called;

(d)

to reappraise in the light of (a), (b) and (c) above, the convictions and sentences of all the applicants.'

Manete (referred to in para (a) above), of whom more will be said J later in the judgment, gave evidence for the State at the aforesaid trial and

Rabie ACJ

A implicated the fifth and sixth petitioners in the events of 3 September 1984 when the aforesaid Dlamini was murdered. See the report of the judgment of this Court in 1988 (1) SA 868 at 872C - G, 873C - D, 876C - H and 892G - 893A.

In a notice of motion dated 1 June 1988 the petitioners stated that they would at the hearing of their application for the reopening of B the trial - which hearing took place on 7 and 8 June - seek leave to amend their notice of motion of 15 April 1988 by asking for the following additional relief:

'(1)

condoning the applicants' failure to apply for a special entry to be made on the record either during their trial or within the period of 14 days after their convictions on charges of murder and subversion in terms of an indictment issued by the C Attorney-General on 27 August 1985;

(2)

permitting the special entry hereinafter stated to be made on the record;

(3)

directing the hearing of the evidence of Joseph Motsumi Manete D and Johannes Mongaule, in regard to their allegations, as recorded in the documents supporting the notice of motion dated 15 April 1988, that they were threatened and assaulted by members of the South African Police and were thereby procured to give false evidence against the applicants at the said trial;

(4)

E directing the hearing of the evidence of Mohamed Suliman Bham and Amichand Soman in regard to the statements made to them by Joseph Motsumi Manete concerning his said treatment by the police and the truth of his evidence at the trial;

(5)

directing the hearing of such other evidence as this Court may decide is required for the settling of the said special entry;

(6)

F directing that after the hearing of the aforesaid evidence, and should such evidence warrant it, a special entry be made on the record of the trial as follows:

(a)

the perjured evidence of the witness Joseph Motsumi Manete, as procured by members of the South African Police, has resulted in a G fraud having been practised on the trial Court by such members, thus constituting an illegality or defect in the proceedings which has caused a failure of justice;

(b)

the threats and assaults by members of the South African Police on Joseph Motsumi Manete and Johannes Mongaule, revealing as H they do a systematic intimidation and a systematic procuring of false evidence, show a fraudulent system at work in regard to the whole trial when read with the evidence given at the trial, thus constituting an illegality or defect in the proceedings which has caused a failure of justice;

(7)

directing the grant of alternative relief.'

I The events which gave rise to the applications of 15 April 1988 and 1 June 1988 may be briefly stated at this stage. Manete, as I have said, gave evidence at the trial in which he implicated the fifth and sixth petitioners in the murder of the aforesaid Dlamini on 3 September 1984. In the course of the trial counsel for the defence, while in the process of cross-examining Manete, informed the Court that he was in J possession of a statement which

Rabie ACJ

A Manete had made to an attorney, that it was prima facie a privileged statement, but that he wished to cross-examine Manete on it. In reply to a question by the learned Judge counsel indicated that according to the statement Manete had not voluntarily implicated accused Nos 7 and 8 (the fifth and sixth petitioners), but had been forced by the police to do so. Manete objected to being cross-examined on the statement, B pleading that it was a privileged communication which he had made to an attorney when seeking legal advice. Human AJ upheld the objection and cross-examination on the statement was accordingly disallowed. This Court held that this ruling by Human AJ could not be faulted: see 1988 (1) SA at 876G - H. The judgment on appeal, as stated above, was given C on 1 December 1987. On 27 January 1988 Manete signed a document in which he waived all privileges attaching to communications made by him to an attorney, Mr Mohamed Suliman Bham, during 1985 and 1986 in the course of their attorney and client relationship. (According to an affidavit made by the said Bham, Manete made statements to him during September D and October 1985, in February 1986, and on 15 March 1988.) A similar waiver, relating to a statement made by Manete to Mr Amichand Soman, an attorney of Johannesburg, was signed by Manete on 15 March 1988. Details of the various statements made by Manete will be mentioned later in the judgment.

E Human AJ dismissed the application to reopen the trial and also refused the application for the amendment of the application set out in the notice of motion dated 1 June 1988. With regard to the dismissal of the application for the reopening of the trial, the learned Judge held, briefly put, that he was functus officio, the accused in the trial having been convicted and sentenced and their appeals having been dismissed by the Appellate Division, and that he had no jurisdiction F to reopen the trial for the hearing of further evidence. As to the refusal of the proposed amendment, which was aimed at the hearing of further evidence with a view to the making of a special entry on the record of the trial, he held that the further cross-examination of Manete would be an exercise in futility and that the granting of the G application would be an abuse of the process of the Court. The statements made by Manete which were before Human AJ are, insofar as relevant, set out below.

On 11 May 1985, Manete consulted Mr Soman, who recorded what Manete said to him in the following terms:

'I am 20 years old and I am presently living with my aunt in 65/3 H Evaton Road, Evaton. My permanent address is 2339. I am still a student at FUBA doing speech and drama. I completed my matric in 1983 at Mohlodi High School, Sharpeville.

In November 1984 I was arrested by the Security Police of Sebokeng. I was detained for two days and then released. I was questioned about the death of one of the councillors of Sharpeville, a Mr Dlamini. I did not tell the police anything. I refused. I was assaulted. I was I pushed against the wall, kicked and punched on my face. The policemen who interrogated me were policemen dressed in camouflage outfits. I cannot recognise them now. I made no statement and I was released.

On my release I was told to report the following Monday to the Sebokeng police station. I went as instructed to. I cannot remember the date. When I arrived at the police station I was told to wait for the Security Police from John Vorster Square. I waited for three hours J but they did not arrive. I took a taxi home and I was

Rabie ACJ

A followed by the Security Police of Sebokeng. I went to Shaledi's motel and I played chess. While playing chess three white policemen approached me and asked me to go to the police station. I refused because I had already been there. They left me after telling me not to talk with the people.

I was again detained in April 1985 by Krugersdorp Security Police. I was taken to Krugersdorp police station. I was assaulted and forced B to write a statement about the councillor, Dlamini. They wanted to know about the people who killed Mr Dlamini. I made a statement and I mentioned Don Mokhesi and Duma Khumalo's names. These names were given to (me) by the police and I was forced to write these names in the statement.

I was forced to say that Rev Moselane and other UDF...