South Africa: High Courts - Gauteng

Registrar’s Ref No:      98/2004
DPP Ref No:               JPV 2004/0069
Soweto Case No:          443/1079/2002

In the matter of -

THE STATE
vs
ZWANE, Erick Nhlanhla

         REASONS FOR RULING

E M DU TOIT AJ:                                                      Given on 2005 09 22

         Pursuant to my ruling as to the order in which the concluding addresses at this stage of the proceedings are to be presented, Counsel were granted time in which to prepare argument and the trial was adjourned. It is clearly desirable that these my reasons for the ruling be given before the commencement of argument.

“In my opinion section 52 of the Act clearly was not intended to provide for either an appeal or a review. ” at p 17,

and     

“The obvious interpretation of the section, in my opinion, is that a Judge of the High Court sits as a Judge of first instance in the matter, both as regards verdict and as regards sentence.” at p 12.

         The trial proceeded before me in terms of s 52(3) of the Act, the presently relevant provisions whereof read as follows:

“(a) ...

(c) If a judge acts under the proviso to paragraph (b), he or she shall inform the accused accordingly and postpone the case for judgment, ... .

(d) The Court in question may at any sitting thereof hear any evidence and for that purpose summon any person to appear to give evidence or to produce any document or other article.

(e) Such Court, whether or not it has heard evidence and after it has obtained and considered a statement referred to in paragraph (b), may—

(i) confirm the conviction and thereupon impose a sentence as contemplated in section 51 (1) or (2), as the case may be;
(ii) alter the conviction to a conviction of another offence referred to in Schedule 2 and thereupon impose a sentence as contemplated in section 51 (1) or (2), as the case may be;
(iii) alter the conviction to a conviction of an offence other than an offence referred to in Schedule 2 and thereupon impose the sentence the Court may deem fit;
(iv) set aside the conviction;
(v) remit the case to the regional court with instruction to deal with any matter in such manner as the High Court may deem fit; or
(vi) make any such order in regard to any matter or thing connected with such person or the proceedings in regard to such person as the High Court deems likely to promote the ends of justice.”.

         As I also held in Thobela’s case supra: At p 22

“ ... I am of the view that, upon a proper construction of section 52 of the Act, the expression ‘in accordance with justice’ in subsection 52(3)(b) means that the accused’s guilt has in regular manner been established beyond reasonable doubt.”.

It follows that in my view the expression:

“... is of the opinion that the proceedings are not in accordance with justice or that doubt exists whether the proceedings are in accordance with justice”,

in context does not mean a finding made, or a settled opinion or doubt formed, without further evidence and/or benefit of argument, that the guilt of the accused has not in regular manner been established beyond reasonable doubt. If such were to be the interpretation, there would be no point in ante omnia vide the proviso to para 52(3)(a) and the prefatory wording of para 52(3)(e) obtaining a statement from the presiding magistrate, nor would there be any room for a subsequent “confirmation” of the conviction. In my opinion the expression means no more than that in the view of the Judge the case is not so clear or free from difficulty as to warrant a deviation from normal procedure and render it unnecessary to hear argument on any aspect relevant to verdict or to the prior exercise by him or her of a discretion, including a discretion conferred by the Act.

“[49] ... It is, in the first instance, the duty of the High Courts to flesh out the procedures enacted in s 52 in a manner consistent with the accused’s right to a fair trial.”.

“(1)  After all the evidence has been adduced, the prosecutor may address the court, and thereafter the accused may address the court.

(2)  The prosecutor may reply on any matter of law raised by the accused in his address, and may, with leave of the court, reply on any matter of fact raised by the accused in his address.”,

and invited Mr Baloyi, who now appears for the State, to address me.

“This Court has not brought in any independent conviction in respect of any one of them and did not even have to uphold their convictions. What did happen is that this court took the proceedings in the lower court under review and came to the conclusion that justice was properly done during such proceedings.” My translation of “Hierdie Hof het geen onafhanklike skuldigbevinding ten opsigte
van enigeen van hulle uitgebring nie en het selfs nie eens nodig gehad om hul skuldigbe-vindings te bekragtig nie. Wat wel gebeur het, is dat hierdie hof die verrigtinge in die laer hof onder hersiening geneem het en tot die gevolgtrekking gekom het dat reg tydens sodanige verrigtinge behoorlik geskied het.”.

The Supreme Court of Appeal held that that reasoning is inconsistent with its earlier decision in S v B 2003 (1) SACR 52 (SCA), quoting the last two sentences of the following dictum by Streicher JA in that case: at 61c-f

E M DU TOIT

ACTING JUDGE OF THE HIGH COURT

M D Baloyi for the State
M S Themba for the accused