The State v Naidoo

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Steyn CJ, Botha JA and Holmes JA
• Judgment Date: 29 August 1962
• Citation: 1962 (4) SA 348 (A)
• Hearing Date: 28 August 1962

Holmes, J.A.:

These are our reasons for having made the order appearing at the end hereof.

H The matter came before us from the Durban and Coast Local Division by way of two questions of law reserved under sec. 366 of Act 56 of 1955. The respondent, to whom I shall refer as the accused, was convicted of murder by a jury in the Durban and Coast Local Division and was sentenced to death. Thereafter a special entry was made on the record, the alleged irregularity being that an Indian interpreter had not been sworn. He had interpreted for three of the witnesses, who testified in Tamil. The appeal on the special entry was upheld by this Court; see The State v Naidoo, 1962 (2) SA 625. My Brother WILLIAMSON, who gave the judgment of the Court, said at p. 634:

Holmes JA

'In the result, it must be held that what was placed before the jury as being the evidence of the appellant and the two persons in question was an unsworn account of what these persons were represented to have said in the witness box. The production of such unsworn testimony to the jury constituted an irregularity in the proceedings.'

A The learned Judge of Appeal then examined the facts, including the valid evidence in respect of which there had been no irregularity, and came to the conclusion that it could not be said that the jury would inevitably have convicted on the valid evidence. Accordingly the appeal was allowed and the conviction and sentence were set aside.

B Thereafter the Attorney General re-indicted the respondent on the same charge of murder. The trial came before KENNEDY, J., before whom the accused pleaded autrefoit acquit, under sec. 169 (2) (d) of Act 56 of 1955. The prosecutor in reply relied on sec. 370 (c) of that Act which, in so far as here relevant, reads as follows:

'Whenever a conviction and sentence are set aside by the Court of appeal on the ground that:

(c)

C there has been any other technical irregularity or defect in the procedure, proceedings in respect of the same offence to which the conviction and sentence referred may again be instituted either on the original charge, suitably amended where necessary, or upon any other charge as if the accused had not previously been arraigned, tried and convicted: . . .'

KENNEDY, J., upheld the plea and added 'and the accused is found not guilty and discharged'.

D Thereafter two questions of law were reserved. I shall deal with the second question first. It was:

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