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

• Jurisdiction: South Africa
• Citation: 1989 (1) SA 821 (A)

Sefatsa and Others v Attorney-General, Transvaal, and Another
1989 (1) SA 821 (A)

1989 (1) SA p821

Citation	1989 (1) SA 821 (A)
Court	Appellate Division
Judge	Rabie ACJ, Corbett JA, Joubert JA, Hoexter JA, van Heerden JA
Heard	September 7, 1988
Judgment	November 23, 1988

Flynote : Sleutelwoorde B

Criminal procedure — Trial — Reopening of — Application for after dismissal of appeals against convictions entered at trial — Whether Provincial Division or Appellate Division has inherent C jurisdiction to reopen trial — All Superior Courts, including Appellate Division, creatures of statute and their jurisdiction relating to criminal matters governed by Criminal Procedure Act 51 of 1977 and other such relevant statutory provisions as there may be — Provisions of s 316(3) and (4) of Act not applicable in present case as appeal D procedure had already been exhausted — Neither Provincial Division nor Appellate Division having inherent jurisdiction to reopen trial.

Criminal procedure — Appeal — Special entry in terms of s 317 of Act 51 of 1977 — Application for reopening of trial and leading of further evidence with view to making of such special entry — E Application made at stage after Appellate Division had dismissed appeals against convictions entered at such trial — No authority supporting the making of a special entry regarding conviction after dismissal of appeal against conviction — Legislature had not intended that such special entry could be made under those circumstances — Neither Provincial Division nor Appellate Division having jurisdiction to accede F to request for such special entry in present case.

Headnote : Kopnota

The six petitioners were, during December 1985, convicted in a Provincial Division of the murder of D, the deputy mayor of the town council of Lekoa, and all were sentenced to death. The Court also convicted them on a charge of subversion in contravention of s 54(2) G of the Internal Security Act 74 of 1982, and sentenced them to eight years' imprisonment on this count. They appealed to the Appellate Division against their convictions and sentences on both aforesaid counts, and during November 1987 the appeals were heard and dismissed in toto. Thereafter, in March 1988, an application was brought before the Court a quo for a stay of execution of the petitioners (which had been set for 18 March 1988) pending determination of an application for the H reopening of the trial. The application was granted and the application to reopen the trial was launched on 15 April 1988. The relief prayed for was an order that the trial of the petitioners be reopened for the further cross-examination of a witness M and the further cross-examination of any other State or defence witness arising from such further cross-examination of M, for hearing of any other or further evidence which the Court may require to be called, and for the reappraisal of the convictions and sentences of all the petitioners. (M had given evidence for the State at the trial of the petitioners and had I implicated the fifth and sixth petitioners in D's murder.) In a further notice of motion dated 1 June 1988, the petitioners stated that they would at the hearing of the application for reopening of the trial seek leave to amend their notice of motion by requesting that a special entry be made on the record in terms of s 317 of the Criminal Procedure Act 51 of 1977 directing the hearing of the evidence of the witnesses M and JM in regard to their allegations of assault on them by members of the South African Police in order to procure their false evidence against J the petitioners at their trial,

1989 (1) SA p822

A and should such evidence warrant it, a special entry to the effect that the perjured evidence of M, as procured by members of the Police, resulted in fraud practised on the trial Court, thus constituting an illegality which had caused a failure of justice.

The Court a quo dismissed the application to reopen the trial, holding that it was functus officio, and also refused the application for amendment of the application set out in the notice of motion of 1 June B 1988, holding that further cross-examination of M would be an exercise in futility and that granting the application would be an abuse of the process of the Court. The petitioners applied to the Court a quo for leave to appeal against its dismissal of their aforesaid applications of 15 April and 1 June 1988, which leave the Court refused. They then submitted a petition to the Chief Justice seeking leave to appeal against the Court a quo's refusal of leave to appeal. It was this petition which had to be considered by the Court in the instant case. The two main issues which the Court had to decide was (a) whether C the trial Court, alternatively, the Appellate Division, had jurisdiction to reopen the trial on the grounds advanced in the Court below and (b) whether the Court a quo should have directed further evidence to be heard in order to determine whether a special entry should be made on the record of the trial.

It was conceded by counsel for the petitioners that the two main legal grounds on which the Court a quo had based its finding that it had no jurisdiction to reopen their cases, viz the general rule that a D Court which has delivered judgment is ordinarily functus officio, and that the remedy of restitutio in integrum is, according to the judgment of the Appellate Division in Mokoena v Minister of Justice and Another 1968 (4) SA 708, not available in criminal cases, were formidable obstacles to the granting of the relief they sought. They submitted, however, that the Supreme Court has inherent jurisdiction to regulate its own procedures so as to do justice and to prevent abuse of its procedures by dishonest litigants and that a Superior Court has a E jurisdiction which is general and unlimited unless cut down or forbidden by law. The Court found that these submissions were too widely stated: a Superior Court - including the Appellate Division - was a creature of statute, ie the Criminal Procedure Act 51 of 1977 and such other relevant statutory provisions as there may be, and that it was incorrect to state, as a general proposition, that it has a jurisdiction which is general and unlimited unless forbidden by law. With regard to whether the Court a quo was correct in holding that it had no jurisdiction to F reopen the case to hear further evidence, the Court observed that the Appellate Division has held, in a number of judgments, that when a trial Judge has given final judgment, he has no jurisdiction to reconsider or to alter it and that this view also appeared from judgments in which it was recommended to the authorities that trial Judges should, in appropriate cases, be accorded power to reopen criminal proceedings and hear fresh evidence. These judicial observations led to the enactment of G s 316(3) and (4) of Act 51 of 1977, which provisions were not applicable in the present cases as the appeal procedure had been exhausted. Also, the case which the Judge a quo was asked to reopen was not only one in which he had become functus officio and which he was, for that reason, not able to reopen, but one in which an appeal against his judgment had been dismissed by the Appellate Division. He would not have been entitled to reopen the case after he had convicted the accused; and this being so, he would not have had jurisdiction to do so after his judgment H had, in effect, been confirmed by the Appellate Division when it dismissed the appeal against it. The Court therefore held that the Transvaal Provincial Division had no inherent jurisdiction to reopen the trial, and neither did the Appellate Division have such jurisdiction.

As regards the second issue to be decided, the Court held that there was no authority to support the granting of such relief: there was no judgment of the Appellate Division in which it had been held that I a special entry may be made after an appeal against a conviction has been dismissed by the Appellate Division, and the Legislature had not intended that a special entry relating to a conviction could be made after the dismissal of an appeal against that conviction.

The Court accordingly held that the Transvaal Provincial Division did not in law have the jurisdiction to accede to either of the petitions of the petitioners and that the Appellate Division also did not have power to grant the relief sought by the petitioners. The petitions J were therefore dismissed.

1989 (1) SA p823

A The decision in the Transvaal Provincial Division in Sefatsa and Others v Attorney-General, Transvaal, and Another 1988 (4) SA 297 confirmed.

Case Information

Petition to the Chief Justice seeking leave to appeal against the Transvaal Provincial Division's refusal (reported at 1988 (4) SA 297) to B reopen a trial in which the latter Court (Human AJ) had already delivered judgment and in which the appeals had been dismissed by the Appellate Division in S v Safatsa and Others 1988 (1) SA 868 (A). The facts appear from the judgment of Rabie ACJ.

S W Kentridge SC (with him J Unterhalter SC, I Mohamed SC, E Cameron and S V Naidoo) for the petitioners referred to the following C authorities: S v Safatsa and Others 1988 (1) SA 868 (A); Estate Garlick v Commissioner of Inland Revenue 1934 AD 499; S v Leeuw 1980 (3) SA 815 (A); Mokoena v Minister of Justice and Another 1968 (4) SA 708 (A); Herbstein and Van Winsen The Civil Practice of the Superior Courts in South Africa 3rd ed at 23; Joubert (ed) Law of South Africa vol 11 paras 404 - 5; Moulded Components and Rotomoulding SA (Pty) Ltd v D Coucourakis and Another 1979 (2) SA 457 (W) at 463A; S v Matshoba and Another 1977 (2) SA 671 (A) at 677H; R v Milne and Erleigh (6) 1951 (1) SA 1 (A) at 7B; R v Maharaj 1958 (4) SA 246 (A); R v D 1953 (4) SA 384 (A); R v Nzimande...