THE
HIGH COURT OF SWAZILAND
Criminal
Case No. 46/2000
In
the matter between:
REX
Vs
CELANI
MAPONI NGUBANE JABULANI BHEMBE MBONGENI SANDILE BHEMBE NHLANHLA
VILAKATI
CORAM
: MASUKUJ.
For
the Applicant : Mr T.A. Dlamini
For
the Respondent : Mr N.M. Maseko
RULING
ON APPLICATION FOR RECALLING OF WITNESS 9th SEPTEMBER, 2004
Introduction
The
question for determination in this Ruling is whether a witness,
Sifiso Charles Dlamini (PW 8), who testified in this trial, was
cross-examined at length and eventually excused by the Court, should
be recalled for further cross-examination at the instance of the
Applicant,
Accused
1.
The
Applicant has brought this application for the recalling of PW 8, in
terms of the provisions of Section 199 of the Criminal Procedure and
Evidence Act No.67 of 1938, as amended, (hereinafter referred to as
"the Act").
2
Background
During
the course of the trial, PW 8 was introduced and warned by the Court
to stay in attendance until formally excused by the Court, This was
on the 24th May, 2004. Subsequent to that day, Mr B.S. Dlamini,
Accused 1's erstwhile attorney, consulted with this witness and this
became evident when the witness was eventually called to testify.
This was raised by Mr B.S. Dlamini himself in cross-examining the
said witness.
In
view of this conduct, which the Court adjudged as being improper and
unethical, Mr Dlamini, in the interests of justice and fairness, was
ordered to withdraw his services on behalf of the 1st Accused. He did
withdraw as ordered and in his position, Mr T.A. Dlamini took over
representing the 1st Accused as well, in addition to his original
client, Accused 4. It is important to note that this development i.e.
the change of attorneys for Accused 1, occurred after PW 8 had been
excused by the Court. At that stage, he had completed his evidence,
having been cross-examined, at length, if I may add, by the defence.
It
was after Mr T.A. Dlamini took over and consulted with his client
Accused 1 that he now moves the application, claiming, during an oral
address, that his client's instructions in relation to certain
matters were not carried out by his erstwhile attorney, particularly
in relation to the evidence of PW 8, whom he seeks to recall in order
to put those issues that were omitted by Mr B.S. Dlamini.
The
affidavit filed by the Applicant is starkly deficient regarding the
reasons why PW 8 should be recalled, obliviously to his inconvenience
and why a disruption of the proceedings which are nearing
finalisation is necessary.
All
that is stated by the Applicant in this regard, is to be found in
paragraphs 14 and 15 of the Founding Affidavit, where he states the
following: -
14
"During the course of the numerous consultations with Attorney
T. Dlamini it transpired that despite the instructions I had given to
Mr B. Dlamini certain portions of the accomplice's evidence had gone
unchallenged by my former defence Attorney.
3
15
"I have been advised and verily believe that in terms of Section
199 (2) a court of law has a duty to, amongst others, recall and
re-examine any person if his evidence appears to it essential to the
just and proper decision of the case. Legal argument shall be
advanced on my behalf in this regard,"
The
Crown, represented by Mr Maseko, vigorously opposed this application
on the grounds that during PW 8's sojourn in the witness box, Accused
1 was represented by a duly qualified legal practitioner and that the
said witness had been cross-examined at length and eventually
excused. At no time, Mr Maseko argued, did the Accused 1 indicate
that his instructions were not carried out or were inaccurately
carried out, in which case he would have made his intention to confer
with his attorney known to the Court in the first instance and if the
situation continued unabated, then he would make his protestations
known to the Court with a view, possibly, of terminating his
attorney's mandate.
It
was Mr Maseko's contention that the Application, in view of the
foregoing, particularly considering the stage at which it was moved,
was unreasonable and obstructive. The Court was in this regard
referred to R VS MAKHUDU 19S3 (4) SA 143 TPD at 144 D.
The
Law applicable.
Section
199 of the Act, reads as follows: -
"The
Court may at any stage subpoena any person as a witness or examine
any person in attendance though not subpoenaed as a witness, or may
recall any persons already examined.
The
Court shall subpoena and examine or recall and re-examine any person
if his evidence appears to it essential to the just decision of the
case."
An
interpretation of this Section and whose language was in pari materia
with the above was undertaken in Swift, "Law of Procedure",
2nd Edition, Butterworths, 1969. It is worth pointing out that the
wording of similar Sections in the Republic of South Africa as
exemplified in subsequent amendments is not the same as ours and
extreme care should
4
therefor
be taken not to fail into the pitfall of assuming that all the
interpretations and decisions in respect of that Section apply
wholesale to this jurisdiction, particularly relating to the amended
version of the Section.
At
page 369, Swift discusses the implications of the then Section 210 of
the Criminal Procedure Act, of 1955 as follows:-
"The
power given to the Court in the first part of the section is a
discretionary power, which vested in the judge alone and in the
exercise of which the assessors and jury have no voice...Normally,
the Court acts under this section mero motu but in practice it from
time to time occurs that a suggestion that the section should be
invoked is made either by the Crown or by the defence. When such a
suggestion is made, the Court will, before exercising its powers
under section 247 (210), no doubt ordinarily require to have some
indication of the general nature of the evidence to be given by the
proposed witness, but it appears to me to be manifestly undesirable
that the details of the proposed witness' testimony should be
conveyed to the court before the latter has decided whether or not
the proposed witness is to be called at all. This will especially be
the case where there also exists any additional reason, personal to
the proposed witness, which may militate against his being called by
the Court." See also the numerous cases therein cited.
In
relation to the second aspect of the Section, the learned author
states the following at page
372:-
"The
discretionary power to subpoena mentioned in the first part of the
section becomes a duty if the evidence of the witness appears to the
court essential to the just decision of the case, and "if once a
Court comes to the conclusion that it is essential to the just
decision of the case to call or recall a witness, it becomes
imperative on the Court to do so, and no discretion is then left to
the Court... "
The
logical question then becomes, what is meant by the words "just
decision of the case", in the above rendering?
5
The
same learned author, at page 372 defines the said words as follows: -
"By
the words 'just decision of the case', I understand the legislature
to mean to do justice as between the prosecution and the accused".
Hoffman
and Zeffert, in their work entitled "The South African Law of
Evidence" 4th Edition, Butterworths, 1997, say the following
regarding the issue at page 473: -
"The
judge must decide for himself on the information available to him,
and if it appears that his evidence is essential, there is an
unqualified duty to call him."
The
learned authors Du Toit et al, "Commentary on the Criminal
Procedure Act", Juta, 1995, at page 23-13 say the following: -
"It
is for the Court to decide whether the evidence is essential. If it
appears that the evidence was in fact essential to the just decision
of the case a failure to call the witness could be an irregularity. "
Blackwell
J., in R VS MAKHUDU 1953 (4) SA 143 (T.P.D.) at page 144 formulated
the applicable principle as follows: -
"This
question of recalling a Crown witness for cross-examination came
before my Brother Steyn and myself on the 31st July, in the case of
MONOSI VS REGINA, 1953 P.H. H.131, in which much the same
circumstances existed and I expressed the opinion then, and I
reiterate it to day that magistrates should not deny a request that a
Crown witness be recalled for further cross-examination unless they
think that such a request is unreasonable or obstructive." (my
own emphasis).
I
should however hasten to point out that the decision immediately
above is not one based on the provisions of any statutory enactment.
It is predicated on the imperatives of justice and fairness, which
have to characterise criminal proceedings, in particular.
6
Applying
the Law to the facts
It
now behoves me, having had the benefit of the above authorities, to
consider whether in the present situation, the criteria set out above
have been met by the Applicant.
The
first thing to note is that from the Applicant's Founding Affidavit,
particularly at paragraph 15, it is contended that the latter part of
the Section, as analysed by Swift applies i.e. the Court is not being
motioned to exercise its discretion in the recalling of the witness,
but that the recalling of the witness in question is essential to the
just decision of the case and that by extension, a refusal to have
him recalled could result in an irregularity.
The
question that follows there from is whether there has been placed
before Court sufficient information on the Affidavit and on the basis
of which the Court can come to an informed decision on whether the
evidence sought to be led is such that it is essential to the just
decision of the case. See S VS B AND ANOTHER 1980 (2) SA 946 (A.D.)
at 953 A.
As
recorded earlier above, the application should be granted if the
evidence of the witness proposed to be called appears to the Court
essential. The question of whether the evidence is essential or not
can only be answered from a consideration of the general nature of
the evidence to be adduced. See Swift (supra) at page 369. The
difficulty that faces this Court in casu is that the affidavit
discloses nothing that is close to a resemblance of the general
nature of the evidence sought to be led. Without that information,
the Court is not given the material upon which to make an informed
decision.
The
general nature of the evidence sought to be led or the general
parameters of the cross-examination ought to have been set out in the
Founding Affidavit, as I had ordered that the application be reduced
to writing, in order to eliminate the element of surprise on the part
of the Crown. It was therefor, in light of the Order made, improper
for the Applicant's attorney to seek to place this information before
Court via another medium i.e. facts disguised as submissions in his
oral address.
From
the oral address, Mr Dlamini's main argument was that the Applicant's
erstwhile Attorney, Mr B.S. Dlamini, did not put the Applicant's
instructions to PW 8 and that that failure may have dire consequences
on the Applicant as he may be convicted. It was further
7
argued
on the Applicant's behalf, that because of the default of Mr B.S.
Dlamini, it cannot be said that the Applicant had a fair opportunity
to defend himself against the Crown's accusations. The argument went
to the extent that Mr B.S. Dlamini may be regarded as having refuted
his erstwhile client's instructions.
In
support of that argument, the Court was referred by Mr Dlamini to the
recent case of S VS MOFOKENG 2004 (1) SACR 349 (WLD), where the
Appellant had been charged and convicted of robbery with aggravating
circumstances by a Magistrate's Court. He was sentenced to eight (8)
years imprisonment and he lodged an appeal against both conviction
and sentence. An advocate from the Johannesburg Justice Centre
drafted and signed heads of argument on the Appellant's behalf and in
which the former conceded that both the conviction and sentence were
proper and condign. The Appellant was not present at the hearing and
there was no indication that there had been a volte face in his
initial vigorious appeal against both conviction and sentence.
The
hearing of the appeal served before Louw A.J. and Gudelsky A.J. and
they took a position unfavourable to the Advocate, whose name was
ordered not to be disclosed, on whether he had not refuted his
client's instructions. An amicus curiae was thus appointed to consult
with the Appellant; to ascertain whether the Appellant intended to
persist with the appeal; to prepare heads of argument and to argue
the appeal on the Appellant's behalf. The judgement of the Court was
referred to the Chairman of the Johannesburg Bar Council.
Before
discussing the principle enunciated in the above and other cases, I
have mentioned the absence of information on the basis of which the
Court can exercise its powers in terms of Section 199 of the Act. Mr
Dlamini sought to make up for the deficiency by providing the reasons
in his oral address. As indicated above, this was an improper course
in light of the Order that the application be reduced to writing but
I will, in the interests of justice, recognising that this is a
criminal matter and in which the Applicant faces the possibility of a
capital punishment, have recourse to the oral reasons advanced. In
future however, where an affidavit is ordered to be filed, all the
relevant allegations must be made therein and no attempt to
substitute what should be on affidavit with embellishing oral
arguments should lightly be allowed.
8
Mr
Dlamini informed the Court that after taking instructions from the
Applicant, following the withdrawal of Mr B.S. Dlamini, he found that
certain crucial portions of the Applicant's case had not been put to
PW 8. In this regard, he stated that the cross-examination of PW 8,
if sanctioned by the Court, would be confined solely to the telephone
calls allegedly made by the Applicant to PW 8.
It
was his contention that the failure by Mr Dlamini, the erstwhile
attorney, to put these crucial questions amounted to an abrogation of
the Applicant's instructions and could result in this Court
convicting an innocent man. It was further argued that the
application for PW 8 to be recalled was, to enable the Court to have
the full facts before it prior to returning the verdict, particularly
on the first Count. He argued further that the Applicant cannot in
law challenge the competency of his representative after the verdict
has been handed down.
In
the case of S VS MOFOKENG (supra) at page 355 a -c, the learned
Judge, cited with approval the case of S VS HALGRYN 2002 2 SACR 211
(SCA), where Harms J.A., in part stated the following: -
"Whether
a defence was so incompetent that it made the trial unfair is once
again a factual question that does not depend on the degree of ex
post facto dissatisfaction of the litigant. Convicted persons are
seldom satisfied with the performance of their defence counsel. The
assessment must be objective usually, if not invariably, without the
benefit of hindsight... The Court must place himself in the shoes of
the defence counsel bearing in mind that the prime responsibility in
conducting the case is that of counsel who has to make decisions
often with little time to reflect ...The failure to consult, stands
on a different footing from the failure to cross-examine effectively
or the decision to call or not to call a particular witness. It is
relatively easy to determine whether the right to counsel was
rendered nugatory in the former type of case but in the latter
instance, where counsel's discretion is involved, the scope is
limited. "
It
would appear, from Mr Dlamini's argument that we are in this case
dealing with the latter aspect, which is clearly difficult to
determine, as it involves the discretion, experience and approach to
the matter, based on the professional decision of the particular
attorney. In this
9
case,
there is clearly no allegation to the effect that instructions were
not taken from the Applicant.
In
measuring the effectiveness of counsel, in criminal matters, the
learned Louw A.J. referred to an American decision in STRICKLAND VS
WASHINGTON 466 US 668 (1984). In this regard, Louw A.J. said the
following:-
"In
terms of the test, a litigant in a criminal matter who contends that
he had ineffective assistance of counsel has to show, not only that
counsel did not function as the type of Counsel guaranteed by the
Sixth Amendment to the United States Constitution and did not provide
reasonably effective assistance, but also that counsel's errors were
so serious as to have deprived the litigant of a fair trial. He must
show a reasonable probability that, but for counsel's unprofessional
errors, the results would have been different."
Louw
A.J. in further enunciating this test, stated the following
cautionary remark's at page 358 d-e:-
"This
approach is certainly strict. The Court is highly differential to the
conduct of the case by counsel Taking into account all the very many
conflicting forces which influence the making of decisions in the
forensic process, the Court does not easily find that there has been
a failure to justice, simply because the representation by counsel
was not as excellent as it could have been."
In
this case, I am of the view that the principles enunciated, do not
have a bearing on this case as they apply to cases where the right to
full legal representation is being attacked as being a fatal
irregularity on appeal or review. This should not be confused with
the application in terms of Section 199 for the recall of a witness.
The attack of a right to a fair hearing unfortunately has the
tendency to cast aspersions on the professional competency of a
practitioner and one that should not, for that reason be lightly
resorted to without the benefit of anxious consideration and
reflection. I do however find myself in duty bound to make a
pronouncement on the issue as raised by Mr Dlamini.
10
I
am very much alive to the fact that this is a yardstick that is
normally employed ex post facto and after the verdict has been
delivered. It is however in my view, a useful one to employ even at
this stage, considering, in the process, the manner in which the
trial has been conducted by the attorney whose handling of the matter
is complained of. The question, in this wise is whether it can be
said that the Applicant has been deprived of a fair trial by his
erstwhile attorney, appreciating as we should, that the matters that
would be in question, relate to his erstwhile attorney's professional
judgement as indicated earlier.
There
is nothing on the record that in my view would corroborate the
Applicant's view and assessment of Ms erstwhile Counsel's
performance, as evidenced by the submissions made on his behalf. To
the contrary, it would appear on an objective basis, which I am in a
position to assess, being the trial Judge, that he put whatever
questions he felt were proper to all the witnesses. I should, in this
regard, also point out that he did so with vigour and even
cross-examined the witnesses generally in a satisfactory fashion,
questioning issues that other counsel would find immaterial or
settled. I have in mind the attack on the admissibility of receipts
handed in by PW 3 and PW 6 in proof of purchase of certain items
introduced in Court as exhibits.
Secondly,
there was no indication by the Applicant during the hearing that he
wished certain ground to be traversed by his attorney during the
cross-examination of the Crown's witnesses, including PW 8. This
could have been done, as is normally the case, by the Applicant
raising his hand to indicate that he wished to confer with his
attorney at the time. I take due cognisance of the added fact that
there were numerous recesses, including morning and lunch breaks,
where such issues could have been raised and thrashed out between the
Applicant and his erstwhile attorney.
Thirdly,
at no point did the Applicant indicate his unhappiness with his
attorney. There was no indication of any dissatisfaction up to the
time that PW 8 was excused. I say this of course without the benefit
of the knowledge and extent of the exact instructions given by the
Applicant and to which I claim no privilege. If Mr. B.S. Dlamini did
go against such instructions, as is now being alleged, then, it was
incumbent upon the Applicant, who I must point, out struck me as an
intelligent and "streetwise", young man, who followed the
proceedings with relative ease, to point this out to the Court. The
Applicant was, in my assessment, not a docile person, a lamb being
led to the shearers as it were. To the contrary
11
he
exhibited his sharp acumen when he requested that his present
attorney takes over rather than introducing a fresh attorney in the
fray.
In
this regard, reference can be made to S VS BENNETT 1994 (1) SACR 392,
which I should again advise, related to an attempt to set aside
proceedings as a fatal irregularity because of the incompetence of
counsel I can however borrow from the reasoning in that case. At page
397-8
a - b, Horn A. J. stated the following:-
"The
Appellate Division held, as to this, that since the appellant had
taken no steps to withdraw his counsel's mandate and had expressed no
disagreement with the conduct of his case until after the verdict had
been given, the trial was regular and the correctness of the verdict
could not be challenged on appeal."
It
could be argued that the above quotation is not apposite in casu
because the complaint has been lodged during the continuance of the
proceedings and that the Applicant has not waited until the verdict.
The point being made however, is that the Applicant never objected to
the conduct of his trial, particularly during PW 8's sojourn in the
witness box.
In
R VS MATONSI 1958 (2) SA 450 (A-D), at page 457, Schreiner J.A.
stated the following:-
"Cases
of disagreement between the views of client and counsel arise from
time to time and counsel may find himself between the Scylla of
precipitately, therefore improperly withdrawing from the case, and
the Charyodis of unreasonably overriding his clients will. The
decision may be particularly difficult where the accused is being
defended on a capital charge by counsel who is acting pro deo without
other legal assistance ".
This
may be one of those disagreements in casu, which, looking at the
chronology of events, would be unlikely to sustain the Applicant's
argument. As indicated, more is needed, as recognised by Horn. A.J.
in S VS BENNETT (supra), at page 398 g - h in the following terms :-
"It
is that if complaints such as the appellant makes about the
incompetence of
12
counsel
could found a complaint of a fatal irregularity, there would be no
finality in any criminal trial until the proficiency of counsel who
represented the accused and which is complained about after the
event, had also been adjudicated upon. Regrettably, one of the events
which sometimes follows a conviction is recrimination from the
accused person who seeks to attribute his misfortune at having been
convicted not to his own guilt, but to his counsel."
Mr
Dlamini's argument that an accused cannot challenge the competency of
his counsel after a verdict has been given finds great and consistent
contradiction in the authorities he referred to. That line of
reasoning cannot therefor be allowed to influence the decision
whether or not to recall PW 8.
I
would on this score find that the Applicant has failed. From the
circumstances of this case, it cannot be held that the accused's
right to a fair opportunity to defend against the Crown's accusations
was compromised. I cannot, on the grounds stated by the Applicant,
find that it can be said that Mr B.S. Dlamini refuted his client's
instructions either.
Having
said the above, there is one consideration that lurks and hovers
precariously, exercising my mind considerably in the process. It is
true that no substance was set out as to why Section 199 ought to be
invoked in the Applicant's favour in the written application. The
grounds raised orally related more to the question of the Applicant's
attorney refuting his instructions, which I have found insupportable.
In
the case of R VS MAKHUDU (supra), Blackwell J. as recorded above,
stated that the criteria to be used in deciding whether or not to
recall a witness is whether the request is unreasonable and
obstructive. The learned Judge proceeded to state the following at
page 144 E-F:
"The
whole problem before our Courts is to arrive at the truth. You
cannot, you should not convict an accused person upon testimony led
by the Crown until you have probed that testimony to the fullest
legitimate degree. It sometimes happens that a point which should be
explored immediately in cross-examination is not explored. In the
earlier case I have mentioned, it was because of a change of legal
advisers, but, whatever the reason may be, my own feeling is that
Courts
13
should
lean over backwards, if I may use the phrase, in assisting the
defence to bring out any points which they are anxious to explore. No
prejudice is suffered by the Crown no harm is done to anybody, and
all that results is that the accused is given a fairer trial that he
might otherwise receive. "
These
are the considerations that have weighed heavily on me. The confines
of the issue(s) to be canvassed in cross-examination are well and
clearly demarcated. This is not an attempt at another bite to the
cherry being afforded the Applicant as it were. In my view,
considering the possibility of capital punishment that the Applicant
faces, the request for PW 8 to be recalled is not unreasonable or
obstructive. I also point out in the Applicant's favour that the
intention to make this application was evinced as soon as Mr T.A.
Dlamini took over the defence of the Applicant, although I must
mention that there was tardiness on his part in eventually moving the
application. I cannot, due to that fact, infer a malicious intent
which I would abhor, where the defence deliberately does not put the
case adequately to the Crown witnesses, resting on the forlorn hope
that the case against the client will be rendered weak and
unsustainable and when the defence notices that the bricks of the
case, together with mortar is concretising and constituting a weight
heavy enough to sink the accused into the murky pools of an adverse
verdict, they then move the application in terms of Section 199. It
would, in my view be wrong, to allow such an abuse of the provisions
of the Section.
In
view of the foregoing, I am of the view that the Applicant's request
be and is hereby granted, provided that PW 8's cross-examination is
confined solely to the question of the calls made by the Applicant to
PW 8. It may well be that re-opening the case in that regard could
satisfy the Court in seeing that his full case has been put. If that
is the case, then I am of the view that evidence would be rendered
essential to the just decision of the case. This would give effect,
hopefully, to the object of the Section, which is, "namely to
see that substantial justice is done, that an innocent person is not
punished and that a guilty person does not escape punishment."
See REX VS OMAR 1935 A.D. 230 per Wessels C.J.
This
decision must however not be viewed as authority for the proposition
that the request for the recall of a witness will be granted merely
for the asking. In this case, there was a change in representation
and an allegation that certain pertinent questions were not put to
the witness concerned. I do not think it would fair nor proper, to
wait until the verdict is handed
14
down
to actually ascertain what effect the cross-examination sought to be
allowed will have. Justice, in this case calls for the grant of the
application.
I
do hope that no approaches have been made with PW 8, in the
intervening period, particularly after he was excused by the Court,
to try to persuade him to change his testimony. This, if evident,
will be immediately picked up by the Court and appropriate sanctions
would inevitably land in the lap of the guilty party.
Procedure
to be followed
Since
this is not a witness who is called at the instance of the Court, it
is necessary to ascertain the rules that should apply. According to
Swift (supra), at page 373, the following applies:-
"
Where a State witness is recalled, the witness remains a State
witness and the prosecutor is not entitled to ask leading questions,
or to cross-examine his own witness.."
PW
8 is clearly a Crown witness and the above rules will have to apply
to him. It being common cause what issue he is sought to be
cross-examined on, I order the cross-examination to be strictly
confined thereto.
T.S.
MASUKU
Judge
