ModulE: TLI4801

Author Engelbrecht, J.
Year of Publication 2010
Title Morris Technique in Litigation
Publisher Juta
Chapter number Chapter 19
Chapter title Criminal cases
Page numbers 347-406
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 CHAPTER 19

Criminal Cases
R evised by Johann Enp,elbrecht SC
(Member of til e Pretoria Bm)

19.1 AN INTRODUCTION TO CRIME

n. e m c m bc r th at in a crimin al tri al th e o dd s arc aga ins t yo u , th at yo u arc a foo l and
yo ur client is a rogue . 1

This m ay have bee n the pos ition when this pungent ad vice was penned. With
the new di spensa tion in So uth Afri ca cam e th e C o nstitution. 2 Sec ti o n 35 no w
co nfers ce rtain in ali enabl e ri ghts on any p erson arres ted or detained and ensures
a fair trial for every accused .3 T o ensure a fair trial, presiding offi ce rs in criminal
trials mu st ensure th at all co nstitutional ri ghts w ere ri gi dl y adhered to during
th e investigati o n stage, at th e tim e o f the arrest, during detenti o n and during
the tri al. In ge neral, the blanket legal profession al pri vil ege th at attached to th e
contents of th e poli ce doc ket m ade w ay for th e ri ght of th e acc used to as k for
di scovery o f all the statem e nts in the poli ce do cket as w ell as th e do cum entary
evid en ce on w hi ch th e state reli es, providing a most useful w eapon in the hand s
o f th e cross- exa miner: in con sistencies o r co ntradictio ns betwee n th e statem ent
m ade to th e in vesti ga tor and the evidence o f th e witn ess during th e actu al tri al
can now be rea dily exposed . On th e oth er hand , it must be rem embered that
poli ce e ffi ciency has in crea ed. So too has science . So too , vari o us am endm ents
to th e C rimin al Procedure Act 51 of 1977 (the Act) have m ade it m ost difficult
to tak e adva ntage o f the techni cal defec ts that co uld oft times be found to
invalidate a summ o ns, charge or indictm ent and so to nullify a conviction. Las t,
and by no m ea ns least, th e in ge nuity of a ge neration o f our prede cessors h as
taug ht prosecuto rs a tec hniqu e o f effi ciency that n"li ght have been lac king in
pas t days .
Perhap too m any guilty people are acquitted for all I know. P erhaps,
moreover, it neve r happens th at inno ce nt people are convi cted. Perh aps all
inves ti ga tin g o ffi ce rs and all publi c prosec uto rs scrupu lou sly perform. their duty
o f plac ing befo re the co urt alJ availabl e evidence, even if it assists th e accu ed.
Perh aps it has neve r happened that an in vestigatin g officer o r a publi c
prosec uto r has coach ed and rehea rsed a state witn ess . All these thin gs remain
m atters o f sh ee r speculati o n. All that I ca n say with any degree of certain ty, is
th at as th e wa r betwee n crimin als and society becomes m o re intense, bo th sid es

1 From 111r Firs/ Forty Years by H H M o rris KC. All other quora ri om in thi s chapte r, whe re no t
otherwise specif1cJ, are fi·om thf' same book .
2 Constitutio n or th e Repub lic of So uth Afi·ica. 19%.

-' S" .Z11111<1 1995 (2) SA 642 (CC) , 1995 ( 1) SAC R 568 (CC).

3-+7
348 Technique in Litigation

tend to extren1.es. If your client is innoc ent it will require all your ability to
secure an acquittal, for s01ne very capable people will believe the opposite and
will be working to secure a conviction. They will be working, moreover, in a
procedural system which is constantly being refined to aid them in their task.
The procedure at a sun1.mary trial is now stipulated ins 115 of the Act which
requires the judicial officer, if the accused pleads not guilty, to ask hin1. if he
wishes to 1nake a statement indicating the basis of his defence. If the accused
does not make such a state1nent, or if he tnakes a statement that requires
clariftcation, the court 1nay then put questions to the accused in order to
ascertain the basis of his defence. If the explanation contains admissions, these
adn1.issions may then be recorded, with the consent of the accused, as fon11.al
admissions in terms of s 220 of the Act. Such adnussions provide sufficient
proof of the facts adnutted and the state need not prove those facts. 4 Section 115
does not remove the right of the accused to renuin silent during the plea stage
of the trial. As far as the legal 'adviser' is concerned he n1.ay reply on behalf of the
accused, who n1.ust then be asked whether he confinns what has been stated on
his behalf.
The object of these provisions is obviously to expedite the proceedings, and
to dispense in son1.e cases with witnesses whose evidence would not be
disputed. Fron1. the point of view of the state the business of the prosecution is
facilitated; fron1. the point of view of the accused the advantages of the section
may be regarded as dubious-probably from the point of view of the
prosecution and the den1.ands ofjustice, the procedure is to be recon1.n1.ended.
To obtain an acquittal in a cri1ninal case you yourself must be a master of
every branch of technique- or just plain lucky. You will have been taught that
in our law, an accused person is presumed to be innocent until he is proved to
be guilty. At the back of your nund n1.ay lurk a belief that this contrasts n1.ost
equitably with the law of France where an accused n1.ust prove his innocence
- and Devil's I land take the hindmost. In practice you 1nay son1.etimes
wonder in frustration whether you have confused the two systen1.s. When you
think this, however, it is ti1ne to take a long hard look, not at the systen1. of
justice in SouthAfiica, for all its fault , but at your client or, perhaps, at yourself
Courts err. Appeal courts err, too. Son1.etin1.es, however, the court does not err.
Not every accused person is a Dreyfus. 5 On the laws of chance alone you nught
expect a conviction in SO per cent of your crinunal defences. But these laws do
not apply, for reasons already suggested. If you are engaged in a gan1.e, which is
open to 01ne doubt, it is a gan1.e of skill- about the 'chance' aspect there will
be son1.e 1nention tnade later. So your client's conviction may be due to the

4
S v Seleke 1980 (3) SA 745 (A) 754G .
5 Ca ptain Alfred Dreyfu s w as a French oldier w ho was co urt- m artialled in France in the 1890s
for allegedl y selling military secrets to German y. Fo und guil ty and sentenced to life imprisonment on
the no torio us D evil's Island p enal colo ny in French G uiana, his unfair trial and conviction - which
many felt was spurred by anti-semitism - becam e a ca use celebre. Th e real spy is now generall y
considered to have bee n o ne Esterh azy.
Cri111iua/ Cases 349

plain simple exigencies of the case or, in a few cases, to the lack of skill of his
co unsel or atto rn ey. Whence, then , springs your sense of fi·u stratio n::> The
answer becomes m y first proposition.
C riminal law invol ves perso ns, emotions and tragic co nsequ ences . Without.
a feelin g for tho se factors yo u will do less than yo ur b es t. Although yo u sho uld
realise these hum anisti c aspec ts and co ndu ct your case with th ei r rea lisa tion,
yo u must at the sa m e tim e prese rve a degree of deta chm ent that wi ll leave yo ur
judgm en t keen and uncloud ed.
Do not mak e your cl ient's case your own . If you do, yo u h:lVe to handle two ba d
cases. H e has bought your servi ces and no t yo ur emotio ns.

As yo u proceed on a caree r invo lvin g th e defence of perso ns charged with

crime yo u w ill beco m e painfully consciou s of o ne of th e charac teri sti cs of
clients. By th e tim e th ey beco m e cli ents they do not need an advocate but a
nec ro mancer. They will usually have killed their defence stone cold dead. You
w ill dem olish w itnesses and wa it in k een anti cipation for the magi c words to
float through th e co urt: 'Not guilty.' But fin all y th ere is th e evidence o f th e
inves tigating o ffi cer who co nfid es to the co urt that yo ur client has indulge d in
a few statem ents and expl anati o ns that make you r fl esh creep. M any yea rs ago ,
in a moment of frankness, a detec tive once co nfided to counsel that the police
might 'volu nteer ' a little evidence if th ey kn ew th e accused w as guil ty and th ey
co uldn 't qu ite prove it. But th at was m any yea rs ago and, aft er a succession o f
cases w h ere the accused do es not dispute the statem.ents ascribed to him , yo u
w ill realise that the tongue is the most powerful w ea pon in the fight against
cnm e.
[n this lies my second proposition. Anything that yo ur client ca n do , you ca n
do better. Jn argum ent there is not mu ch danger arisin g fi·om coun sel's oral
indiscreti o ns. At all o th er stages of the case yo u must weigh yo ur words as th o ugh
th ey were gold - w heth er you are cross-examining a witness , obj ecting to
evidence or m aking an applica tion. The less yo u say th e less you ma y err.
M y th ird proposition is more consolin g. Previo usly, dealing with civi l
litiga tion, we suggested th at so meone waits to take advanta ge of any mistake
that you m ay m ake . In criminal law, Sllbj ec t to the second propositi o n I have
stated, it is yo ur turn to w ait for mistakes . When yo u find on e take th e sa me
advantage of it that others wou ld take of yo urs. Beware, however, of
im.petuosity. If yo u show yo ur hand too soon the m istak e m ay be rectified . It is
only experi ence, and a thorough knowledge of the law and rul es of evid ence,
that w ill enabl e yo u to detec t th e mistak e w hen it occ urs. M any am endm ents to
the law result from th e tact that co unsel knew a mistake when he saw o ne and
bided hi time before capitalising o n it. One exa mple was, in a n egligent
driving ca e, where the prosec uti o n tailed to prove that th e offen ce was
comrnitted on a publi c road. 6 The law reports and th e biographies of successful
counsel will disclose others. This is th e elem ent of' chance' of w hi ch I spoke ea rli er.

1' S 11 f-1 1988 (3) SA 545 (A ) and S v Kr11ger m a11rlrre 1989 (1) SA 785 (A).
350 Teclmique in Litigation

If I 1nay suggest a philosophy of crin-:1e it is this: from the n'loinent that your
client is arrested and charged, everything that happens is profit. Things can get
no worse, for the very act of charging him manifests his liability to punishn-:1ent,
whatever that punishment 1nay be. There is a reason behind this philosophy. I
have known counsel to debate long and earnestly in chan-:1bers as to whether a
point oflaw in a criminal case was a 'good' point or not. To 1ny n1ind that is not
the test. Arguing a bad point will not 1nake the case any worse - but
ren1en1ber, 'bad cases make bad law'. If the point has substance it has a potential
for profit. The successful crinunallawyer is one who sees the profit and seizes it
before it eludes his grasp. Anything m_ay be profit- as I said before .

19.2 PRO DEO OR LEGAL AID DEFENCES

Junior counsel, in his early days at the Bar, n-:1ay well have gleaned his
experience of crime from pro Deo and 'dock' defences . These have now been
replaced by Legal Aid defences. The observations to be 1nade, however, retnain
valid. There has been son-:1e criticism of the fact that the defence of persons
charged with one of the most serious of critnes- 1nurder- should so often be
entrusted to the most inexperienced of counsel. Until the econmnics of the
tnatter can be adjusted it n-:1ust ren1ain so. And when the econmnics are adjusted
the taxpayer will by no means welcmne the adjustment.
Yet I doubt whether the unfortunate accused does suffer quite as much
prejudice as the critics ay. The Legal Aid brief is usually prepared with n1ore
thoroughness than counsel, in later years, will devote to cases involving large
un-:1s of 1noney and abstruse principles of law. If you err as your predecessors
have done, it will be an error that you will hopefully not have cause to regret. If
coun el appears to be inept, the court will inevitably con-:1e to the assistance of
the accused.
Counsel's duty to interview his client, and the consequences of failure to do
so, are dealt with in S v Majola 7 where counsel in a pro Deo matter had not
ascertained whether his client wished to give evidence. The following passage
from the judgrnent ofTrollip AJA is relevant: 8
Secondly, that an act or omission by a legal representative of one of the parties to
criminal litigation (in contradistinction to one by the trial Court itself) can constitute
an irregularity vitiating the proceedings appears from S v Twopenny and Otl1ers (AD,
delivered on 8 September 1981), and cf S v Mushimba and Others1977 (2) SA 829 (A).
Here, due to a bona_fide misunderstanding by appellant's counsel ofhis duty towards
his client, appellant was not afforded the opportunity of discussing, considering and
deciding whether or not to testify on his own defence, and of terminating the
mandate of his counsel if, contrary to his wi hes, the latter insisted that he should not
testify. That constituted an irregularity in the proceedings. I agree that Nfatonsi's case,
1958 (2) SA 450 (A), is therefore distinguishable on the facts. That the irregularity
resulted in a failure of justice, justifying this Court making the above-mentioned

7 1982 (1) SA 125 (A) _

H At 133D-G.
Criminal Cases 351

o rders (cf s 322(1 ) of the Act) is ampl y borne out by the facts that the Co urt a quo, i n ~
co nvi ctin g the appellant, reli ed heavil y and repeatedly on his C1ilure to testify and th e
appellan t was aggrieved by not havi ng been affo rd ed th e oppo rtuni ty of testi fy ing.

The ri ght of an acc used to a fair trial can under circumstances lead to a
postp o nement of th e tri al when th e accused is dis. atisfied w ith the pro Deo
advo cate w ho had been appointed on his behalf, if the dissa tisfa ctio n is not
feigned or unreasonable 9
M arcus AJ pointed out in S 11 Nt uli 10 that the South African system of
criminal procedure i adversa ri al in nature and that in such a system, legal
represe ntation for the acc used becomes indispensable. Unless co unsel properly
represents his ch ent, th e right to a fair trial and the right to a fai r appeal ma y be
nega ted.
You will interview yo ur client and take his statem ent- twi ce as carefully
becau se there is no attorney to do the spadework for you. You will rea d and
ana lyse th e authoriti es on ' intention to kill' and whatever other facet of the
crime n1.ay arise in yo ur case. Yo u will prepare yourself with authoriti es to
support w hatever con tention you may decide to mak e. Wh en you hav e don e
thi s, alth ough you may not present or co ndu ct yo ur case with the sure tou ch
and skill of someone ten years yo ur se nior, yo u w ilJ at least succeed in placing
before the co urt most of w hat co uld possibly be said for yo ur client. If yo u have
done your job co nscientiously, it is but rarely that the co urt wilJ let yo ur chent
suffer for yo ur want of experi ence .
l hope that I shall be forgiv en ifl now add a few of th e hn es which follow the
passage quoted at the beginning of thi s c hapter:
You w ill need all th e assistance yo u ca n get, and th ere are many in court that can help
yo u. Be co urteo us to everyo ne - even to the judge . G et o n fri endl y terms w ith
everyone assoc iated wi th your tri al. rn th e end most of them will be o ut to help yo u
.... On e of the most im portant persons at a trial is the prosecuto r. H e ca n help yo u
in a va t·iety o f ways. H e may take a plea that suits yo ur cli ent. On yo ur co nviction he
m::ty say a few words in yo ur favo ur. H e ca n always m eet yo u in the matter of dates .
His very dem ea no ur in th e case may be of ass istan ce to yo u . Th e co urt orde rly and
th e inte rpreter may be useful. A sho rth and-writer on ce put m e o n to a point I had not
seen . That point saved my c]j ent. Co urtesy pays d ivi dends.

The Legal Aid defence imposes a duty on co unsel which, to so m e extent, ca n

be more ea ily discharged with a liberality of courtesy.
Counsel becom es not only his client's defend er, but also his attorney. Very
often the defen ce involves th e calling of witn esses other than the accused. In
such cases counsel - yo u - must perso nall y take steps to secure th e
attendance of those witnesses .
Since you do not have an instructing attorn ey (other than th e Lega l Aid
Board), you should req ues t th e Registrar of the High Court, or when on circuit
th e clerk of the magistrate's co urt, th e judge' regi trar or the court itself to

' S v Dangatyc 199-i (2) SA C R. 1 (SCA) at 23a-c.

10
2003 (-i) SA 258 (W), 2003 ( I ) SA CR. 613 (W) .
352 Technique in Litigation

arrange for the issue of a subpoena or to otherwise arrange for the attendance of
the witness. This is not m.uch of a practical difficulty. Sin1ply hand any one of
them a list of the witnesses and their addresses . If the Director of Public
Prosecutions, in cases of urgency, requests the inve tigating officer to bring the
witness to court, that officer, I an1 told, is instructed not to enter into any
discussions w ith the witness. Whether this instruction is complied with remains
an open question.
Since yo u 1nay, as your preparation of the case develops, c01ne across
additional points w hich need be put to your client you should not hesitate to
arrange to see hi1n as often as you need. You can , of course, go to the prison
where he is being detained, but it is often better to have hi1n brought to the
court where the services of an interpreter will be made available to you -
subj ect to the exigencies of the service . The chief clerk in the Director 's office
is (in theory) the official who will assist in arranging for the availability of the
accused.
It do e happ en, rarely perhaps, that your own resources are inadequate for
the prop er preparation of your case- and I do not mean to i1nply that you do
not possess the requisite skill. Such an in tance occurred in what was then the
Witwatersrand Local Division, some years ago . There were three sets of
counsel because of the conflicting intere ts of the acc used . Accused Nos 1 and 3
were defended pro Deo w hilst acc used No 2 had instructed her own attorney
and counsel. During the course of their preparation pro D eo counsel found that
it wa neces ary to investiga te the history of a particular shop in Johannesburg.
This involved the exan1inatio n of building plans and records, as well as the
tracing of witnesses who n1ight be able to give whatever evidence was
necessary. All of this is work not nonnally pe1fonned by co unsel - even pro
Deo counsel. When the difficulty was put to the deputy attorney-general h e
suggested that application should be n1ade to court for the appoint1nent
of attorneys to act pro D eo for accused No 1 and No 3 respectively. The
application was n1ade and granted.
Accordingly, in a prop er case, where the wo rk required is, as I have said,
beyond yo ur resources, you may consider follo,ving a sin1ilar procedure . Also
you nuy deen1 this to be essential in cases where there is a good reason to
nuintain secrecy in regard to the identity of witnesses who1n you desire to
subpo ena and where you do not wish to disclose the infonnation. In such a
case, I uggest, the court wo uld not require yo u to disclose the identity of the
witne ses in yo ur application, but would accept yo ur staten1ent from the Bar as
to the difficulty that had arisen. N aturally, yo u will exercise the highest degree
of responsibility in giving the court your assurance - if you don't, you n1ay
subsequently gain the in1pression that the ceiling has collapsed on you.
Finally, on this topic, I venture to suggest that, in a case where counsel
desires to have attorneys appointed to assist him on a sin1ilar basis, the court
wo uld not require a fonnal application but would probably act on an oral
application by co unsel, brought before it at a ti1ne arranged with the
Crilllinal Cases 353

prosec uti o n . Again, yo u w iU have to exe rcise a high degree of resp o nsibility in
making any such appli cation.
Pre en tl y co un sel (pro Deo) is appo inted by th e Judi cial Ca re Ce ntre and a
bri ef wiU o nly be handed to lega l represe ntati ve if he is registered with the
ce ntre . The on us is o n th e lega l representative to ensure that he is so registered.

19.3 DEFENDING THE GUILTY

Second only to th e 'sho uld a doc to r .. .?' line offa tuiti es is th e o ne which goes,
m o re or less, 's ho uld a la\;vyer defend a m an whom he knows to be guilty'?
Mu ch has bee n written on thi s topi c, lea rn edly, superftciaUy o r eve n Aippantly.
P erhaps an illustration wilJ convey th e answe r.
Juni or co unsel, a n1an of some experi ence - or so he thou ght- had been
instru cted to defend a person charged w ith murd er. It was th e co mmon pro Deo
case: a gambling-room in a township , a tin fu ll of skoki aa n or so m e o ther
he ll's-brew, an argum.e nt abo ut mon ey se ttled w ith a qui ck stroke of th e knife
before th e victim kn ew w hat it was all abo ut. Counsel duly intervi ewed his
cli ent and found, to his mild surpri se, th at the defence was not intoxica ti o n but
an abbi. I say 'mild ' because in th ose less enli ghtened days under th e Liquor Act
of 1928 m any black people \Vere relu ctant to admit drinking. Counsel then
proceeded to investigate th e alibi and to seek for supporting witnesses. Th e
acc used provided some nam es and co unsel th en took th e necessary steps to
have them traced. After a few days he re ce ived a tel ephone ca lJ from th e
investiga tin g offi ce r, to say th at the witnesses co uld not be found and that,
indeed , th e poli ce had b een trying for so m e tim e to tra ce th em at the instance of
th e accused . This latter sta tem ent alon e shou ld have caused co un sel to think.
But experien ce, le t it be remarked, is a serie of les ons. B y th e day of th e tri al
th e missin g witnesses had not been traced, and co un se l had no doubt th at they
did not exist. Acco rdin gly he so ught o ut th e Crown prosec utor and di sc ussed
the acceptance of a plea of guilty of culpable homi cide - th e basis bein g that
the acc used's tate of intox ica ti o n rendered him in capable of forming the
inte ntion to kilJ w hi ch is required in cases of murder. 11 The Crown prosec utor
agreed to acce pt the plea, and cou nsel proceeded to intervi ew his client and telJ
him th e goo d news. Somewhat to co un sel's this tim e more profound surprise,
the acc used was not ove tj oyed at th e prospec t of receivin g a sentence of so m e
four years' impriso nm ent with hard labour and dec lined to pl ead gui lty to the
lesser charge. His defence, he insisted, was an alibi. An alibi m eant he wasn't
th ere. If he wasn 't there, he didn' t do it. In th ese circumstances th e tri al
proceeded. Th e Crown called its first witnes and co un se l proceeded with hi s
cross-exa min ati o n designed to es tablish circumstances which would redu ce the
crim e fi·om murd er to culpable homi cide. When this witness had furni sh ed
enough info rm ati on , counsel ad dressed th e co urt, cravin g a short adjournment
in order to discuss the prospect of a plea of guilty of culpable homi cide. The

11
R ,,1\ 'dh/""" 19-fi AD 369.
354 Technique in Litigation

adjournrnent was granted, but the accused rem_ained adam_ant and

uninfluenced by the prospect of the death penalty, a prospect rendered a little
rem_ote as a result of the evidence thus far given, but a prospect nevertheless.
When all argu1nent and per uasion had failed, counsel shrugged his shoulders,
both literally and n1etaphorically, and the trial proceeded. So did the cross
examination of the f1rst witness. Counsel deem_ed it inadvisable to ask the
si1nple question 'I put it to you that the accused wasn't there', because he
thought that was a stupid question and that the witness would, as the Bible says,
answer a fool according to his folly. Accordingly he probed a little, seeking
either to draw the witness into a contradiction or to close up son1e escape
routes in the Inethods previously describ ed. To his surprise, the third and 1nost
profound in the case, the witness conunenced to give evidence inconsistent
with that given at the preparatory exan1ination. In a short tin1e the evidence of
this gentle1nan was den1olished. That left two 1nore eyewitnesses, but with
these counsel wasted no tin1e on the n1itigatory points - which indeed had
already been established if needed. H e pro ceeded straight to the point of
identification and, within a short ti1ne, there were three descriptions of the
perpetrator and the deed, all so utterly irreconcilable that the accused was not
even put on his defence.
Not for a 1non1ent do I venture to suggest that the accused was as innocent of
this crin1e as a babe unborn. The truth will forever remain locked in the
conscience of one person only, and will die with him. What I do suggest i that
counsel erred in presun1ing to judge guilt of his client, even though three
eyewitnesses said upon oath 'I saw the accused stab the deceased to death and
run away'. The lesson to be learned fro1n this is that you are there to fight the
case on the facts your client presents to you.
It is not your function actually to pronounce upon the guilt of your client.
Equally it is not your function 1nentally to judge of his guilt or innocence. Just
as, en1otionally, you should not n1ake his case yours, no les should you abstain
from conden1ning him in your own n1ind. In the jargon of the An1erican
underworld, you are his 'n1outhpiece'; on1eti1nes a little less in that you 1nay
not be able to say what h e tell you , son1eti1nes a little n1ore in that, unlike the
ordinary n1outhpiec e, you are to superin1pose skill and technique upon his
utterances .
Where yo u are a little less than a n1outhpiece it is because your client has said
a little 1nore than he ought. 12 Where he confe ses his guilt the scope for
defending hin1 is drastically curtailed. The first limitation is that you 1nay not
call your client as a witness to testify as to his innocence or, I would remark,
even to say anything inconsistent with what h e has told you. This is an instance
of your duty to the court overriding your duty to your client. The second
lin1itation is felt in the cross-exanlination of witnesses because you n1ay not
suggest to then1 anything inconsistent with w hat yo ur client has told you

12 But seeS ,, .\Joscli (1) 1969 (1) SA .54-6 (0 ).

C rimiual Cases 355

thou gh yo u ma y cross- exa min e o n credibi lity. If! mi ght essay a crud e exa mpl e
I wo uld take th e sa nte case describ ed in this sec tion and assum e that instea d o f
raising an alibi the acc used sa id ' Tstabbed him , but yo u just have to get me off,'
co uns el would no t be entitl ed, in cross-examination, to say to a witness:
'! put it to yo u that th e accused did not stab the deceased.'
H e wo uld , however, be entitl ed to cross-exa min e th e witness as to th e
co ndition s of visibility, th number of p eopl e prese nt, eve rybo dy's parti cul ar
state of intox icatio n and excitem ent, as well a. th e witness's own o pportunity of
observation. Then, l venture to suggest, it would not be imp ermi ssibl e to put
the fo ll owing qu e ti o n o r an appro priate variant:
' H ow, the n , ca n yo u possibly say w ho stabbed th e deceased)'
was o nce pl aced in a similar situation. My cli ent, during consultation ,
admitted that he was at th e murd er sce ne th at night dri vin g hi s ca r. H e was
adam ant howe ver th at he was alon e./\ witness testifi ed th at a ca r simi lar to th at
of m y client entered th e premise the parti cular ni g ht. The evidence was
further th at apart from the dri ver, w ho was not identifi ed, th ere was a passe nge r
in th e ca r. I was en titl ed to put it to the witn ess th at m y client neve r entered the
premises acco mpani ed by ano ther perso n.
In argum ent , similarl y, it co uld be ubrn itted th at althou gh the acc used
mi ght have done the deed , yet, on the evidence, it co uld egu aUy have bee n the
ac t of so m eo ne else and th at th e acc used should be give n th e benefit of the
do ubt. Th e judge might then say to yo u : 'Mr Brown , if the acc used did no t do
so, why didn't he go into the witness-box and tell us this?'
Thi s, of co urse, is a very diffi cult qu estion to esca pe and o ne which th e co urt
mi ght be entitled to put to yo u . Yet it sho uld be suffi cien t respon se to say:
' M 'Lord , th e o nus is on the tate. If the evidence for the sta te leaves th e m atter
in do ubt then the accused is e ntitled to the be nefit of th at doubt and there is no
on us up o n him to say anything in o rd er to obtain that benefi t. '
H owever, in all cases w here yo ur client has m ade a rash co nfession to yo u ,
yo u ho uld ca refull y exp lain th e ]jm.itations imposed up o n yo ur own conduct
of his case. H e sho uld also be inform ed th at such limitations would no t apply
we re he to bri ef o th er counsel and refi·ain from m aki ng a similar con fession to
him. It is then for him to decide w hether he thinks th at hi s in ve ntive facu lty
will prov ide him w ith an answer to the charge .
Where yo ur client elects to co ntinu e to repose hi s trust in yo u there is a
further aspec t to hi s defence. You m ay we ll assum e th at miracles will not
happen , that the prosecutor will not fa il to prove an elem ent ofhis case, th at the
state w itn esses w ill not co ntradi ct eac h other (for are th ey and you r cli ent no t arf
irfe111 already'?) and that a co nviction is a ve ry stro ng probabili ty. In thi s case the
final pi cture depends in large measure upon the angle of th e li ghtin g . Yo ur
client m ay stand out in bold relief o r he may be lost in such an intri cacy of light
and shade tha t the co urt must be impelled rather to condemn the harshn ess of
fate in selecting him as its sac rifi cial offe ring. The chi aroscu ro of circumstance
an d causation is no creatu re of chance . Neglected, it may be lo t and th e w hol e
356 Technique in Litigation

bac kground 1nay blend into nothingness w ith one prom.ontory- your client.
It is yo ur task to crea te that chiaroscuro. It is a task that co1n1nences when,
having confessed to you, yo ur client desires yo u still to defend him.. Perhaps,
however, the generalised suggestions which I can offer as a guide will better be
gleaned fron1 the sections which follow, particularly those dealing w ith
consultations, pleading guilty and admissions, cross-exa1nination, argun1ent
and mitigation. Of all these I regard consultation as para1nount.

19.4 CONSULTATION

19.4.1 Consulting criminally, generally

Counsel's preparation starts before the consultation. B efore a consultation is
arranged counsel n1ust insist on a brief that contains full p articulars of the charge
(in the lower courts) or the indictn1ent (in the High Court), copies of all the
staten1ent in the police docket as well as the docun1entary evidence . As a
general rule the defence is entitled to these docun1ents . 13 Counsel tnust study
these do cuments in prepara tion for the consultation. As a junior counsel with
little or no exp erience I found it a salutary practice (and as a silk with n1uch
n1ore experience I still cling to this habit) to co n1pile a strategic plan. My
strategic plan is the basis on which I conduct the trial. The strategic plan
contains a definition of the crime(s) levelled against the acc used by the state, so
that the elen1ents of the cri1ne are always available to n1e. The relevant case law
n1ust be studied and a reference to the leading judg1nents on each of the
ele1nents is noted. The san1e applies mutatis mutandis where statu tory crin1es are
involved. The elen1ents of the crin1e are gleaned fron1 the relevant statutory
provision that was contravened. It is of the greatest of in1portance to study the
relevant case law in order to ascertain the interpretation given to the section by
the relevant judgn1ents.
Counsel's n1oment of truth, if I n1ay be pardoned that journalistic cliche,
c01nes when his instru cting attorney and the client sit opposite hi1n at his desk.
With his hon1ework done counsel will feel comfortable and ready to set about
the business of defence. To a large degree the result will be affected by the
conduct of the consultation.
It is a very simple n1atter to take p en and pap er and to write down w hat your
client says . The attorney can do this too , with as little effort and probably with
n1ore in1agination. Counsel's task is far more con1plex than that. If counsel has
been briefed, it is because h e is dee1ned to be a specialist in the field of defence.
H e should approach the case with the knowledge, skill and thoroughness of a
specialist. H e thus conducts his consultation according to a system, with
definitive objectives in view. These objects are already tabled in the strategic

13
Slwbalala anrl Others /J Attomey-C encral ~(Trmts l!aal and A nother 1996 ( l) SA 725 (CC) , 1995 (2)
SACR 761 (CC).
C riminal Cases 357

plan 14 and during co nsultati o n th e nee d rn ay ari se to am plify o r change yo ur

strategic plan ie, th e defe nce is an alibi o r necessity, etc. Of co urse, then yo u
wi ll as soon as possible stud y the releva nt case law o n th ese to pics . lt is no t,
positi ve ly no t, one of those o bj ec tives to asce rtain w hether yo ur cli ent is guilty.

19.4.2 Six suggestions

Yo ur investi gations w ill be shap ed to o ne o r m o re of th e fo lJ owi ng ends,
bea rin g in min d th at yo u have alrea dy asce rtained the case against yo ur cli ent:
to asce rtain w hat state m ents o r admi ss io ns yo ur cli ent h a made;
to ascertain yo ur client's defe nce;
to asce rtain w hat Gc to rs bea r up o n th e co ndu ct of th e defe nce;
to asce rtai n w hat factors mu st b e established in o rd er to paint the best
possibl e p icture o f yo ur cl ient in the event of a co nvicti on;
to exa min e th e diffi culti es in yo ur cli ent's case;
to be ca reful abo ut as kin g tac tless qu e· ti o ns.
T he fir t pro bl em , obvio usly, is to reco ncil e th e case aga inst yo ur client and
yo ur cl ient's defe nce . If yo u say to yo ur cli ent: 'T ell m e w hat happened', he
m ay well reply: 'T he po li ce arrested m e but I do n' t kn ow w hat it is all abo ut.'
T hat's fin e, beca use yo u th en proceed o n the lin es I have m enti o ned.
H owever, the repl y m ay be ' W ell, these two chaps ca m e w ith ten di am o nd
rin gs w hi ch th ey sa id they had swiped fi·o m so m e j ewe ll er-chap and th ey sa id
we co uld split it fifty- fifty iff wo uld se ll them .' T his sto ry ca n b e to ld w ith any
degree of coll o qui alism and in a wide va ri ety of acce nts. It immedi ately crea tes
th e pro bl em of defe ndin g th cli ent w ho has co nfesse d to you . P erh aps, then , it
wo uld be welJ to take th e above topics in turn and to offe r bri e f suggesti ons o n
each .

19.4.3 Ascertain what statements or admissions your client

has made
A tec hniqu e empl oyed so m e yea rs ago by o ne of th e o utstandin g crimin al
lawye rs of hi s tim e seem s to be re m arkabl y imple and effective . l-I e wo uld ask
his cli e nt 'tell m e, w h at do th e p o hce say happened ?' T his wo uld e nable th e
cli ent to give a fai r pi cture of th e case aga inst him w itho ut co mmittin g him self
to a confessio n. It m ay no t always be necessary to go as fa r as thi s b eca use in
m any cases th e charge will spea k fo r itself o r ca n be m ade to sp ea k a little m o re
pl ainl y by n'lea ns of a requ est fo r furth er parti culars. On e way o r ano th er,
however, yo u mu st find o ut precisely w hat case yo ur cli ent has to m ee t.
I have alrea dy comm ented , w ith sadness, o n th e loqu acity of cli ents w hen
arrested or interroga ted. Yo u should have a he althy respec t fo r th e po li ce fo rce,
bo th as detec ti ves and as psyc ho logists. Seld o m do es a clie nt co nsult hi s lawye r
befo re the po li ce app roac h him and in vite him to 'assist' o r 'explain ' o r to ' m ake

14
See chapte r -+ , w here one's app roac h w cases in ge ne ral, an d extrac tin g the esse n ce of ca,es in
pa rti cu lar, was disc ussed.
358 Technique in Litigation

a state1nent'. If he did take a wise prelinunary step he would no doubt be

advised to say nothing and sign nothing. It is thus yo ur business to find out how
tnuch damage your client has done, and on this point there is no need to be so
afraid of tactless questions. You should investigate every occasion on which
your client 1net or spoke to a n1.ember of the police force between the date of
the offence and the consultation with yourself You need 1nemorise precisely
two sin1.ple questions, no less and (whatever yo u do) no n1.ore. The questions
are:
'What did he say?'
'What did you say?'
You repeat these questions as often as the occasion de1nands. Do not, at this
stage, start yo ur own private cross-exa1nination w ith questions such as :
'Why did yo u say that?'
'Wh y didn't you tell him_such-and-such?'
True enough, you 1nay have to investigate these n1.atters, but yo ur function is to
ascertain and not to den1.olish . At this stage, therefore, yo u classifY these latter
que tions as 'stupid' .

19.4.4 Ascertaining your client's defence

Fron1. this prelin1.inary investigation yo u h ave sufficient to appreciate your
client's difficulties . You therefore invite hi1n to tell yo u his defence. So1netin1.es
he will invite you to tell hin1.. In most cases yo u could do a lot better than him.
In all cases you will decline.
It 1nay be well, before extending your invitation , to point out to your client
the m anner in which yo u will be handicapped should he elect to adnut his guilt.
However, the decision 1nust be his, for you h ave no interest in influencing hin1.
to adopt any particular line of defence .
Let us pause h ere, for this is an in1portant aspect of your practice, requiring
some degree of skill and a great degree of care . Some cases are sin1ple, so si1nple
that you could go into court after a ten-nunute talk with your client. Others,
such a fraud charges, h ave son1.e complexity and require consultations
extending over days .
It is not enough to say: 'Tell 1ne all about it' and to switch on your tape
recorder. No client, unless h e has a string of previous convictions, can really
appreciate what is important and w hat is not. As a result he often omits n1atter
w hich is relevant and significant. Nor will h e necessarily remember all the
details of his story if allowed to tell it in his own fashion. In short, as each
sentence is noted or recorded, yo u are testing it, weighing it, looking for both
causation and consequence, and considering its probability or i1nprobability.
All of these considerations 1nay have to be discussed before you proceed to the
next event in the chronology. Most important of all is to watch for on1ission of
son1e intern1ediate fact. This n1.ay be due to a 'screening' process - conscious
or subconscious - by yo ur client. Not for the ake of idle curiosity alone will
yo u ask about the n1issing factor. These unconsidered trifles have the habit of
Criminal Cases 359

turning up at disconcerting moments during cross-examjn ation of your client,

usually under the title of 'Why wasn't this put to the state witnesses?' Coup led
wi th a sub-title of'Yo ur co unsel can't be quite the foo l he loo ks, so yo u must be
a li ar?' Of co urse wh en the prosec utor asks: 'Did you tell this to yo ur co un sel?'
you will o bj ect. T he obj ec tio n wi ll be uph eld, but the damage is absolutely
un avoidabl e .
If I dil ate at ino rdinate length o n th is topic it is in an attempt to make o ne
point of such sigruficance that in years to com e yo u m ay eve n foq,ri ve m e . The
point is th at nothing mu st be all owed to com.e as a surp rise to yo u.
The ascerta inment of the identity of state witnesses is m ade simple by the fact
tha t yo u are in possession of the ir tatements. Where th e evidence of a sta te
witness differs fro m the defence ve rsion a qu estion along the following lines ca n
be asked: 'Why would he falsely imp lica te yo u ?' T he purpose of thi s in quiry is
a continuation of yo ur ascertainm ent of the sta te case, and also to ass ist in th e
preparation of cross- exa rrunati on. T he m atter requires to b e developed by
in vestiga ti o n of the circum stances pertaining to each potenti al w itn ess, both
from the perso nal aspec t and also as a w itne s. By 'perso nal as pec t' l mean all
circums tance extraneo us to his evidence w hich mi ght be used in cross-
exa rrun ati on to attack hi s evidence o n gro unds of credibility, bias and so o n .
T hese w ill include, in appropriate cases, points su ch as opportunity fo r
obse rva ti o n and other material bea rin g o n the acceptance or rej ection of his
story.
Factors affecting the case or bea ring upon th e co ndu ct of th e defence are
infinitely variable . Your purpose is to avoid being taken by surp rise at th e trial.
T he pl ea dings (the sumnwns, ch arge or indi ctment as we ll as the list of
substanti al facts) wi ll be as cryptic as th e prosec utor ca n make them and as th e
law all ows. Litiga tion , we are ofte n told by th e co urts, is not a ga m e of chance
and it seems to be th e purpose of the civil Uniform Rul e of Co urt to elimi nate
the elem ent of surprise . The Act does no t reflect any co mparable tend ency, and
w itho ut thoro ugh prelinun ary investi ga ti o n yo u may be unprepared to mee t
so m e or o ther aspec t of th e state ca e.
The importance of co nsul tations and investigation ca nn ot be over-
emph asi ed . T hey are th e very fo undation of the proper co ndu ct of crimin al
cases .
It is at thi tage that yo u weigh up every aspec t of yo ur cli ent 's statem.ent,
in ves ti gatin g furth er w hat m ay be obsc ure and asking yourself th e impli ca tion s
of parti cular to pi cs o r points. Each topi c o r point may then call fo r m ore
detail ed disc us ion in greater or lesse r degree .
At thi s stage, too, yo u commenc e to consider your client's previo us
inca utio us utterances and the effec t of w hat he said o r did not say. ince yo u are
not cross-examjning him, it m ay be wi er to point o ut to him th at what he said
(or did not say) raises problems in the li ght, say, of th e defence now raised in
co nsultati on.
If there is an inconsistency betwee n w hat was said to the po li ce and w hat is
now raised as the defence, th at inco nsistency must be exanuned and explain ed
360 Technique in Litigation

else it will founder the whole defence, for few courts are inclined to overlook
such inconsistencies. While, it is true, an accused person is at present under no
obligation to speak when he is interrogated or charged, ifhe does talk, he n'lay
in cross-examination be asked to explain any on'lission which later becon'les
apparent as a result of the conduct of his defence. In other words, if he does
speak, he n'lay legititnately be expected to speak fully and anything added later
can euphetnistically be used against hin'l in a court of law.
When your client's attention is directed to considerations of this nature h e
will no doubt ask you:
'What shall I say if the prosecutor asks me this in cross-examination?'

While you 1nay well discuss the implications of any particular answer, you
should carefully avoid suggesting how your client could n'leet the difficulty.
Apart fron'l the ethical considerations there are a few prag1natic proble1ns:
If your client relies upon coun el' suggestion and not his own knowledge,
he will possibly remen'lber only a portion of that suggestion. The prosecutor
n'lay, then, in cross-exanunation, adopt the technique previously discussed in
chapter 12 under the heading of'The Half-truth', with disa trous results- for
you. Inevitably there wilJ be factors unknown to you and of which your
uggestion does not take cognisance. Keep your ingenuity then for better
causes . If you need further argun'lent on this then'le, ask yourself how, when
your suggested answer is further tested in cross-exanunation, your client will
fare in explaining, say, 'his' n'lental processes on which that answer is based.

19.4.5 Consulting in the presence of others

A further point in regard to consultation with your client is that, throughout,
you will be vigilant in your watch for witnesses whose words will add weight to
his own.
Fron'l this it see1ns logical to consider the question of consulting with the
supporting witnesses . Generally speaking, your 1nethods and objectives are the
same as those n'lentioned previously. There is, however, one vita] cautionary
rule and there is one modification. A a cautionary rule I would advise that you
should not consult with your client in the presence of his supporting witnesses,
and v£ce versa. While legal professional privilege attaches as between yo urself
and your client, it does not extend to outsiders w ho are at the consultation.
This includes witnesses and, in fact, all who attend the consultation otherwise
than in the exercise of a duty, such as a stenograph er, an interpreter or the legal
representatives. Consequently, not only should you generally consult with
witnesses out of the presence of your client, but you should be careful about
what you disclose to the1n with regard to the defence of your client, if you
disclose anything to them at all, lest they blurt anything out in the witness-box.
For the modification, fortunately, 1ny suggestions proceed in the direction of
relaxation. I say, therefore, that you need not tread so warily, nor need you fear
the consequences of tactlessness. Indeed, the 1nore tactless you are the better
you can judge whether the witness is an ally or a Trojan horse. Ask hin'l
Cril-n in al Cases 361

anyth in g or everything; yo u then have a measure of his potenti al for damage if

he is call ed by the defence. But do not allow yourself to be misled by an
appa rent strength and co nfid ence o r a manifest p usill an imity on his part.
Particularly by the former, for, as has been remarked before in this co ntext:
'Gym form and ring form are often two very differe nt things.'

19.4.6 Having an eye on possible mitigation

During the co urse of the trial yo u w ill , in cross- exami ning the state witnesses,
have an eye to a possible find ing of guilty, and will try to esta blish fac ts w hich
redu ce the grav ity of the offence or w hi ch mitigate the gu ilt of your client. Of
co urse, yo u will tread so ftly, beca use the ave rage judicial office r is by no rneans
inse nsitive to the atm osp here of the case and must not be all owed to tlDnk that
yo ur sole objective is to reduce the severity of the senten ce. The facts w hi ch
yo u will try to establish , howeve r, as I have tritely remarked in other contexts,
vary infinitely and cann o t eve n be ana lysed into ca tego ri es. In this rega rd, yo u
share m y own diffi culty. f ca nnot tell yo u w hat those facts are. or do yo u
know w hat they may be in any parti cular type of case . T hat mea ns that on ly
yo ur client ca n tell yo u.
N ext problem on the list, therefore , is how to eli cit these fac ts from your
client so th at you have at least so me idea of w here yo u are go ing. Before you set
about the process, howeve r, you should spare at leas t a passing glance for the
following top ic, dealing with tac tl ess questions. H aving done this, yo u ca n ask
yo ur client a few questions. lt may be found most useful, in this co ntext,
sometimes to put aside any disc ussion of the merits of the case entirely. Ask him
abo ut himself, h.i.s fami ly, background, history, empl oyment and problems. If,
o ut of aJJ this, yo u are unabl e to find ome line that w ill warra nt exploration
th en ei ther th ere is nothing to be said for yo ur client or else you sho uld ·rick to
opini ons and pleadings.
By this time yo u know what the case aga inst yo ur cli ent will be; yo u know
his defence; you know th e hum an being who i invo lved in th e con Ai ct. H ere ,
then, yo u appl y your client's personali ty to the state case, and yo u sho uld be
able to judge how far yo u ma y safely go in asking yo ur client questions on this
topic.

19.4.7 Preparing your client to testify, and for the decision as

to whether he will testify
It w ill be neces ·a1-y to prepare yo ur client for the ordeal in th e vvitness-bo x. The
wo rd 'prepare' must not be misunderstood because , as was pointed out ea rli er
on, the intenti on is to co nvey to yo ur client th e problems that may arise and not
to tell him how to answe r them.
The fi rst qu es tion that must be considered, but not necessaril y decided, is
whether your client w ill .in fac t give evidence at all. The final decision can only
be made after th e close of the state case. Naturall y, you are well aware of the
authori ti es on the effec t of th e fai lure of the acc used to answer the state case. In
thi s rega rd there .is a distinction between direct evidence implicating the
362 Technique in Litigation

accused in the comnlission of the crime and circumstantial evidence . In S v

Chabalala 15 it was held:
The app ellant was faced with direc t and apparently credible evidence which made
him the prime mover in the offence. H e was also called on to answer evidence of a
similar nature relating to the parade. Both attacks were those of a single witness and
capable of being neutralised by an honest rebuttal. There ca n be no acceptable
explanation for him not rising to the challenge. If he was innocent appellant mu st
have ascertain ed his own whereabou ts and activities on 29 M ay and been able to
vo uch for his non-participation. H e was also readily able to confirm that the
complain ant ind eed placed his hand on someone else's shoulder. To have rem ained
sil ent in the face of th e evidence was damning. H e thereby left the prima faci e case to
speak for itself One is bound to conclude that the totality of the evidence tak en in
conjunction w ith his silence excluded any reasonabl e doubt about his guilt.

The reasoning is son1ewhat different w here the acc used is confronted only with
circumstantial evidence. In S v Parrow Holn1es JA stated the approach as
follows: 16
1 pause here to refer briefly to the so-called doctrine of recent possession of stolen
prop erty. In so fur as here relevant, it usually takes this fornt: On proof of possession
by the accused of recently stolen property, the Co urt may (not must) convict him of
theft in the absen ce of an inno cent explanation w hich might reaso nably be tru e. This
is an epigrammatic way of saying th at the Court should think its way through the
totality of the facts of each parti cul ar case, and must acquit the accused unless it can
infer, as the o nly reasonable inference, that he stole the prop erty. (Whether the
further inference ca n be drawn that he broke into th e premises i a charge such as th e
prese nt one, will depend on the circum stances) . The o nus of proof rem ains on the
tate throughout. H ence, even if, after th e closing of the cases for the state and the
defence, it is inferen tially probable that the accused stole the prop erty, he must be
acquitted unless the only reasonable inference is that he did so; for the law demand
proofbeyo nd reaso nabl e doubt.

We seem to have progressed a long way over the centuries, fron1 the position
where the accused was not con1petent to testifY in his defence , to the position
- or so it nught seem-where, if he does not, h e 1night as well plead guilty.
N evertheless in every case you n1ust debate with the acc used the desirability or
n eces ity ofhis entering the witness-box. You n eed not, of course, be as cynical
as I have been, but your client n1ust be 1nade to realise the consequences of
failing to testifY. In this regard you can only advise your client what to do-the
final decision ren1ains with hi1n.
It is not an unreasonable assun1ption to n1ake that your client will not be a
good witness. In fact, h e 1nay be a very bad witness. Yet that is his problen1, not
yours . Ifhe wishes to give evidence, it is my view that you should not dissuade
hin1. I have already discussed one aspect of this topic in paragraph 2.5 above, so
I refer again to that paragraph and the cases cited. If yo ur client does not wish to

15 2003 (3) SACR 134 (SC A) para 21. See too 11 Boesak 2001 (J) SA 912 (CC), 2001 (1) SACR
1 (CC).
16
1973 (1) SA 603 (AD) at 604.
C riminal Cases 363

testify, again, he probably has a very good reaso n for this attitude. lt might be
well ca utiously to investi ga te those reaso ns and, at the sa m e time, point out the
limitations th at will be placed on cross- exa mination of the state witnesses and
on argument should he not enter the witness- box. I hav e kno wn cases where
co un sel has asked for written instru ction s wh en told that th e cli ent do es not
wish to testify.

19.4.8 Examining the difficulties in your client's case

Let us assume, however, that the client wishes to testify or, at least, that no final
de cision is to be m ade until th e end of the state case . It now beco mes ne cessa ry
to co nsid er what diffi culti es will arise in the defence case w hi ch ma y call for
explanation under cross- exa mination. I ha ve already partially desc rib ed the
process in paragraph 19.3 abo ve. Now it must be taken furth er. Wh en yo u find
a diffi culty, or an in consistency, it must be put to your cli ent.
I think that it is not in1.proper to say, for exa mpl e: 'We ll , you say XYZ . Now
if th at is so the prosec utor will put to yo u ABCD beca use that does no t see m to
be consistent with XYZ. If he does thi s what i yo ur answe r?' Nor does it
appea r wrong, when yo ur client says that th e answe r is KLMN , to point out
that th e answer is unsa tisfacto ry, beca use, for example, K co ntains A orB or C
or more th an one of them.
T his is what I mea n by ' preparing' yo ur cli ent for cross- examination. In the
process, yo u prepare yo urself, beca use yo u recognise the probl ems and yo u
prepare to mee t th em , eith er in argument, or by the exercise of res traint and
ca utio n in the cross- examination of the state witnesses. The latter techniqu e, if
yo u are lu cky, m ay res ult in th e probl em being compl etely ove rl oo ked by the
prosec utor when the client does in fact give evi dence. U sually thi s is th e bes t
co urse; I repeat th at anythin g your client ca n do , yo u ca n do better - with
parti cular reference to the ill-co nsidered utterance. Th erefo re, if yo u ca n div ert
atte ntion from a probl em and avo id arou sing it, so much th e better. If yo u don 't
anticipate it, yo u have neglected yo ur co nsultatio n .
It is no part of yo ur function to provide answers, explanati ons or reconciliati ons.
In effec t yo u will condu ct a era -examination of yo ur cli ent at this stage, not with
the object of coachin g him in the answers to be given later - because he wouldn't
remember th em anyway- but to fmd out whether th ere are answers and to give
yo ur client time to think over the explanations tendered. On this latter basis it
mi ght be advisable in fact to give him time to refl ect on his answers by adjourning
th e consultati on to another day. Always reme1Eber that there is nothing in th e
book to say that you are limited to one consultation.
Do no t forget that, in terms of s 335 of the Act, yo ur client is entitled to a
copy of any written statement he may have made to the police. Ge t this and
subj ec t it to th e trea tment I have suggested .

19.4.9 Do not ask tactless questions

I have already, in paragraph 19.3 above, indicated what the co nseq uences of
tactl ess questions may be. Perhaps , then , I co uld again attempt an epi gram to
364 Technique in Litigation

convey my meaning: in a civil case you 1nust be told everything; in a crin1inal

case you n1ust know everything but be told only what is good for you.
Your knowledge of everything will come fron1 many sources. You may get
pieces of the jigsaw puzzle from defence witnesses. You n1ay draw shrewd
deductions from con1paring the statements of the state witnesses (which your
will have read on receipt of the docket contents) with your client's version.
With this knowledge behind you, you n1ustjudge what questions n1ay safely be
put to your client in consultation. As a rough and ready guide you can,
n1oreover, take a tactless question to be one which might cause your client to
make a confession of his guilt or to make a statement inconsistent with his
defence. This is not pure sophistry, neither is it cynical sophistry. Every accused
person is, as a matter of public policy I would suggest, entitled to defend hin1self
against a crin1inal charge. If an accused is entitled to defend hi1nselfhe should be
in no worse position because he has engaged an expert to do it. To sonv~ extent
he is in a worse position because he 1nay defend hin1self untran1melled by a
secret knowledge of his own guilt. If he is defended by an expert the latter 's
code of conduct will not allow him that degree of freedon1 of action which the
client enjoys. The expert, therefore, 1nust n1aintain the fullest possible freedon1
of action by not seeking the key to his client' conscience .
You are the expert. It nught also be added that if you cannot learn how to
avoid asking your client tactless questions then you n1ay not be able to avoid
asking such questions of witnesses.
I ren1e1nber an incident when an attorney was defending an accused person.
That attorney was one of the most skilled and devastating exponents of the art of
cross-exa1nination. The cross-exan1ination of one of the state witnesses had
proceeded, and very effectively at that. When the attorney sat down the
n1agistrate who was trying the case looked puzzled. He paused for a few
1non1ents and looked at the attorney. He then turned to the witness and asked a
question, a sig11ificant question let it be remarked, receiving an answer
c01npletely favourable to the accused. The attorney then rose to his feet and said:
'Thank you, your Worship, that is the question I was afraid to ask.'
That was the truth. A n1an ofhis ability would not overlook a vital question. Yet
the answer was uncertain and, if unfavourable, could have done the client
harn1. It was n1ore profitable, therefore to maintain a tactful silence and rely
upon what uccess had already been achieved .
I a1n well aware that this illustration is out of context. It 1nade a profound
in1pression on n1e at the tin1e and I include it now, rather than later, because the
n1essage it carries is as applicable at this stage as at the stage of cross-
exanunation.

19.5 PREPARATION
19.5.1 Criminal preparation, generally
In the nuin, preparation for a crin1inal case differs very little fron1 preparation
for a civil trial. The first essential is a thorough acquaintance with the facts. Your
Criminal Cases 365

brief sho uld therefore contai n copies of all the statem ents filed in part A of the
po li ce docket (sta tem ents of all the state w itn es es), part B (co pies of all the
do cume ntary evi dence in possession of th e state), and the indi ctm ent (in the
Hi gh Co urt) o r ch arge (in the lower court) prefe rred agai nst you r client. The
indictment w ill includ e amongs t others a list of th e names o f the state witn esses.
I find it prud ent to refer in more detail to th e judgment in Slwbnlnla17 w here the
co urt made th e following order:
A. 1. The ' blanket docke t privilege' exp ressed by the rul e in R v Stcyn
1954 (1) SA 324 (A) is inco nsistent with th e Constituti on to the
ex ten t to which it protects fi-om disclosure all the documents in a
police docket, in all circumstances, regardl ess as to whether o r not
such disclosure is justified for th e purposes o f enablin g th e accused
properly to exercise hi s or her right to a fair trial in terms ofs 25(3).
2. The claim of the acc used for access to do cum ents in the police
do cket ca nnot be defea ted m erely on the grounds th at such co ntents
are protec ted by a bl anket privil ege in term s of th e decisio n in Stcyn's
case.
3. Ordinarily an acc used perso n should be entitl ed to have access to
documents in th e poli ce do cket which are exc ulpato ry (o r which are
prim a facie likely to be helpful to the defence) unl ess, in very rare
cases, th e State is able to justi fy th e refu sal of su ch access o n th e
grounds that it is no t justifi ed for the purposes of a fa ir tri al.
4. Ordinari ly th e ri ght to a fair trial wou ld in clude access to the
statements of witnesses (w heth er or not th e State intends to ca ll such
witnesses) and such of the co ntents of a police docket as are releva nt
in order to enable an accused person properly to exe rcise th at ri ght,
but the prosecution may, in a parti c ul ar case, be able to justify the
deni al of such access on the grounds that it is not justified fo r th e
purposes of a fair tri al. This wou ld depend o n th e circum ranees of
each case .
5. The tate is entitled to resist a clain1. by th e accused fo r access to any
particul ar document in the po li ce docke t on the gro und s that such
access is not justifi ed for th e purposes of enablin g the acc used
properly to exe rcise hi s or her ri ght to a fair tri al or on the ground
th at it has reason to be li eve th at th ere is a reaso nabl e risk that acce s to
th e relevant do cum ent wo uld lead to th e disclosure of th e identity of
an informer or State secrets or on the grounds that th ere was a
reaso nabl e risk that such disclosure might lead to the intim..idation of
w itn esses or othetwise prejudice th e proper ends ofjustice.
6. Even where the State has sa tisfi ed th e Court that th e denial of access
to th e relevant do cum ents is justifi ed o n th e grounds se t out in
paragraph 5 h ereof, it does not follow that access to such statem ents,

17
Slwba lala and 01hers IJ Altomey-Cmrral ofTran.waal and Anotl1 er 1996 (J) SA 725 (CC) at 790.
366 Technique in Litigation

either then or subsequently must necessarily be denied to the

accused. The Court still retains a discretion. It should balance the
degree of risk involved in attracting the potential prejudicial
consequences for the proper ends ofjustice referred to in paragraph 5
(if such access is pernlitted) against the degree of the risk that a fair
trial n'lay not enure for the accused (if such access is denied). A ruling
by the Court pursuant to this paragraph shall be an interlocutory
ruling subject to further amendment, review or recall in the light of
circumstances disclosed by the further course of the trial.
B. 1. Insofar and to the extent that the rule of practice pertaining to the
right of an accused or his legal representative to consult with
witnesses for the State prohibits such consultation without the
permission of the prosecuting authority, in all cases and regardless of
the circumstances, it is not consistent with the Constitution.
2. An accused person has a right to consult a State witness without prior
pennission of the prosecuting authority in circun'lstances where his
or her right to a fair trial would be impaired, if, on the special facts of
a particular case, the accu ed cannot properly obtain a fair trial
without such consultation.
3. The accused or his or her legal representative should in such
circumstances approach the Attorney-General or an official
authorised by the Attorney-General for consent to hold such
consultation. If such consent is granted the Attorney-General or
such official shall be entitled to be pre ent at such consultation and to
record what transpires during the consultation. If the consent of the
Attorn y-General is refused the accu ed shall be entitled to approach
the Court for such pernu sion to consult the relevant witness .
4. The right referred to in paragraph 2 does not entitle an accused
person to c01npel such consultation with a State witness: -
(a) if such State witness declines to be so consulted; or
(b) if it is established on behalf of the State that it has reasonable
grounds to believe uch consultation nlight lead to the
intinudation of the witness or a tampering with ills or her
evidence or that it 1night lead to the disclosure ofState secrets or
the identity of informers or that it nught otherwise prejudice
the proper ends ofjustice.
5. Even in the circumstances referred to in paragraph 4(b), the Court
n'lay, in the circmnstances of a particular case, exercise a discretion to
pennit such con ultation in the interest ofjustice subject to suitable
safeguards.
The onus resting on the state to make proper discovery was reiterated in
Crossberg v 5. 18

JH Crossbe1g v S 2008 (2) SACR 317 (SCA).

Cril/linnl Cases 367

Yo u w ill now have a good idea of the potential witnesses and a m ethod of
approac h for each wi tness. To ac hi eve this l suggest th at d urin g co nsultation
your enquiry shou ld develop along the following lines: 'Do you know w itness
A? H e says . .. . Why would h e f<dsely im p li cate yo u? ' Th e list is not exhaustive
and yo ur qu es tions would diffe r acco rding to th e fac tu al dispute, eg, w here
id enti ty is in dispute yo u will in vestigate in detail how yo ur cli ent was dressed ,
any fac ial charac teri sti cs and co mpare thi s w ith any descriptions give n by the
witness .
In many crimin al cases there is a furth er aspec t of preparati o n to w hi ch you
m ight profitably direct you r attention. In this hi ghly civilised soc iety of o urs
crime is no longe r necessaril y some thin g that hurts yo ur neighbour. It v.rould be
laughable indeed to compare the Te n Commandm ents w ith the statute law of
any self- res pec tin g society. And when we throw in rul es, regul ati o ns,
proclama ti o ns, ordinances and by-laws for good m easure, we hav a we lter of
precept th e co mprehensio n of w hi ch , let alone its reco ll ec tion , is well nigh
impossible. Wh en , therefore, yo ur client 's sin s li e in th e contrave nti o n of o ne
of th ese ena ctments, it is essenti al to have a loo k at th e enac tm ent itself There
are two goo d reasons for thi s:
Firstly, it is well to know w hat the case is all about. ot only vvill yo u know
when- if eve r - the state fails to prove one of the eleme nts of th e ctim e (yo u
w ill kn ow this from th e info rm ation contain ed in yo ur strategic plan) but also
yo u will in ome exceptio nal cases fmd that, unh ap pily, th e on us is cast up o n
th e acc used to prove his inno ce nce . 19 In such a case yo u should have a so und
knowledge of the judgments of th e Co nstitution al Co urt (a nd o ther co urts)
rega rding pres umption. Where a statut01y ena ctm ent p laces a true reverse
onus on th e acc used , such a presumption is unco nstitutionaJ.2° Be fore a
presum.ption is un constituti o nal , it mu st be suc h that it is in cons istent ,;vith the
pre umpti o n o f inn oce nce in that a tru e reverse onus is placed o n th e acc used to
prove hi inno ce nce. As part of this aspec t of the m atter I would remark th at it
is n ecessary to stud y not o nly the regulation o r section under which your cli ent
is ch arge d, but also the whole of th e regulations and th e enablin g statute. It is
not unco mmon for a statute to provide for th e proof of the offence o r certain
esse nti al elem ents th ereof by m ea ns of presumptions. As part o f yo ur
preparation yo u should study th e co nstitutionality of the presumption. If yo u
don 't and th e presumpti o n is not un co nstitutional and you are un awa re of th e
presumption you m ay be embarrassed , and yo ur cli ent m ay be prej udi ced for
want of rebuttal of some thing th at yo u thought the State was obliged to prove
but had not.
Seco ndly, a close stud y of the relative ena ctm ents, ptincipal o r subsidiary,

,., That wou ld usually be upon a ba lance of probabil ities. See Ex pnrlc J\,fiuisrer o_()usricc: lu re R 11
Bofou 1941 AD 345 and the numerous annotations thereto. Suc h cases will in th e pre,cnt dispensation
be ve ry rare indeed.
2 " S 11 Mnualll cla aud Auvrher (Director-Ccucral C!{Jusrice inte1veuiu.~) 2000 (3) SA I (CC) an d the

no te r- u p thereon , wh ich abo unds w ith exa mpl es.

368 Technique in Litigatiou

may afford a legal defence such as ultra vires. Frmn which you turn to study
authorities on that topic, sadly to find that what seen1ed so clear becon1es
son1ewhat opaque when you try to ascertain and apply the tests laid down by
the courts.
No snull part of preparation is to take the latest copy of one of the standard
textbooks on cri1ninallaw and reread the chapter in which your type of case is
discussed. Find a few of the relevant decisions, read a few of the annotations,
and never neglect the odd n1oment of introspection of which was referred to in
chapter 4. Fron1 the reported cases you will learn many lessons; fron1 your
introspection you will find how to follow then1.
It will probably be only later in your career that you will have cause to
consider n1y next topic, by which tin1e you will probably know n1ore about the
technique than I can offer. However, from time to tin1e there will be cases in
which the decision will depend upon matters such as ballistics, graphology,
toxicology or son1e other obscure science . I have already dealt with the
cross-exa1nination of expert witnesses. I repeat that, if there is to be a decisive
- or in1portant - issue based on expert evidence, you n1ust be as n1uch a
master of the topic as the witness who will be put up against you. You n1ust
recognise that scientific investigation and scientific crinunal investigation have
improved enonnously in South Africa and you will probably not have the good
fortune to meet an expert who clai1ns to have measured a distance of one
ten-thousandth of an inch 'with n1y eye'.
Your preparation will consist in a study of the relevant textbooks on firearn1 ,
questioned docun1ents or whatever your proble1n may be. You nught also look
for biographies or autobiographies which contain accounts of sin1ilar cases. I
would suggest that the textbooks on cross-exa1nination would help, but you
should be on your guard against a sun1ing that experts are all as stupid as is
suggested in son1e of the 'classics' on the topic.
At the earlier stage of your career your 1nay find yourself involved-
professionally only, I hope - in cases of negligent driving, or of driving under
the influence of alcohol. Now, in these cases yo u n1ay 1neet two classes of
expert witnesses - those who deal with n1otorcars and those who deal w ith
person . The trouble, it see1ns, arises when the motorcars are not kept away
fron1 the persons, or rather vice versa . Since you may expect quite a few of
these cases, it is worth your while to acquire at least a background of the
technical knowledge on which they are to be approached. What I mean is that
you should nuke a study of n1otorcars as 1nechanical objects and driving as a
science. Most people drive - or fondly believe they drive - without 1nuch
knowledge of what 1nakes a car go, n1uch less what n1akes it stop. Frmn a
lawyer's point of view braking, steering and lighting systen1s n1erit particular
study. The other aspect, the personal, is dealt with in the textbooks on n1edical
jurisprudence. One way of dealing with questions of intoxication is to make an
appointment with an expert in the field (usually a physician), and to discuss
your problen1 with hi1n so that you can gain a better understanding of the
issues. A few discussions with your more experienced colleagues will also teach
Cri111in al Cases 369

yo u how to se t abo ut th e preparation of yo ur cross-exa min ation of the

p olicem an, the indignant citi zen and th e distri ct surgeo n .
At thi s stage yo u finalise yo ur tac ti cal p lan that goes hand-in-h and with yo ur
strategic plan. Your tactica l plan w ill incl ud e top ics such as th e nam es of th e
witnesses that sho uld be called on behalf of th e defen ce and the tenor of th eir
ev idence as well as tha t of th e state w itnesses, what is in di spute and topi cs (not
qu estions) w hi ch sho ul d be addressed during cross-exa mination in order to get
the defence ve rsion acce pted at th e end of the day. T he list is not ex hausti ve and
eac h case w ill present its own tac tica l plan. As an exa mpl e, w here the defenc e is
an alibi and identity is in di spute yo u w iiJ fi·om your strategic plan know what
questions should be put during cross-examination in o rd er to destro y th e
reliability of suc h identification. 2 1 Thi s yo u w ill ge t after a stud y of th e
judgm e nts p ertaining to identi ty. The sa m e ap plies to th e ca uti o nary rul es if
appli ca bl e.

19.5.2 Preparing witnesses

I have alread y dealt with thi s to some exte nt in paragrap h 19.4 above .
At th e o utse t yo u mu st remember th at th e court was n o t there. It is your
primary fun ction to pl ace the defence versio n co herently and chrono logicall y
before the Co urt. Conside r you rself as th e director of the film , th e w itn ess as
the actor, th e facts as the script, and the co urt as the audi ence. From this it
logica ll y fo ll ows that yo u mu st direct and co ntrol th e Aow o f the evidence . I
in terpose to rema rk th at co nfid ence boosts conftd ence : self-ass uredn es boosts
self-assuredness . R emember yo ur w itn ess loo ks up to yo u -your behavio ur
inAu ences his testimo ny.
At th e o utset th e w itness must be told to always tell the truth, to take his time
to answe r a qu estion esp ecially during cross-examin ation, to make sure th e
question is und erstood and if un sure as k th at th e qu es tion be repeated, to o nl y
answe r th e question and not to vo lunteer facts, to use plain lan g uage, no t to lose
hi s temper and lastly not to impro vise o r guess - if he does no t know the
answ er he says so o r th at he ca nn o t remember. It is also important that yo u te ll
the w itness no t to argue w ith the cross- exa miner and to m ake and keep eye
co ntac t w ith th e court. I prefer that my witnesses stand w hilst testifying and that
th ey are pro perly dressed. The former is a m atter of perso nal preference . Th e
latter is no n-negotiable.
T h en follow th e next phase. At thi s stage yo u as lega l representative of the
acc used have already consulted wi th th e acc used and potenti al witnesses, and
yo ur tri al plan is at hand. Ea ch witness mu st th en be prepared for hi s testimony.
The w itness must know th e chro no logical orde r in whi ch hi s tes timony w ill be
presented. It is essential th at the witness is aufait wi th the fac ts that he has to
testify abo ut , and in what form th e q uesti o ns w ill be put and how to reac t to a
qu estion. T h en th e co urt situ ation sho uld be simulated and the w itn es mu st be

21
Sec for example R "Alp11ri11.(! 1900 ( I) SA 785 (T ) and S '' !vfc/,/ape 1963 (2) SA 29 (A).
370 Technique in Litigation

taken through his evidence with due regard to the basic principles of how to
conduct exarnination in chief Possible problem areas, ie, previous inconsistent
statem_ents, fatnily ties, im_probabilities in the version of the witness, etc. must
be addressed and explained.

19.6 SEPARATE TRIALS

If fortune makes strange bedfellows, critne tnakes uncomfortable ones . The
cam_araderie that prevailed at the tin1e of the (alleged) offence wears thin with
the passing of time and the loquacity of the less resolute of the (alleged)
wrongdoers. Solace n1ay be sought in the judicial separation authorised in
terms ofs 157(2) of the Act. Although this section provides that a court tnay, on
application of the prosecutor or any of the accused, direct eparate trials of
persons who are charged jointly, it is in practice not with any degree of alacrity
that the courts will exercise these powers.
If your client's co-accused has become an incubus you n1ay decide to tnake
the application. If he tnay becon1e a chink in the armour you should start to
consider how to get rid of hin1.
You will, or course, refer to the reported cases, to find out where you are
going and how, and also to learn what problen1s will arise.
No doubt, as Van den Heever JA expressed it in R v Bagas, 22
It is expedient that persons charged with the same offence should be tried together.

But your concern is not expediency. You have only one purpose in mind: the
defence of your client, to the point of acquittal if possible. Thus, whenever
your client's co-accused is an existing or potential threat, you should consider
an application for a separation of trials. Thus the Mallalieu case, 2 3 a cause celebre in
its time, affords a diverting exercise in speculation as to how the verdict would
have gone had the court not (quite rightly) ordered a separation of trials and had
it not (not so rightly) ordered that the case of the n1ale of the pairing Mr
Mallalieu , should be heard first. Miss Tolputt's alleged confession rnight well
have prejudiced Ma llalieu in the nunds of the jurors. In Kritz inger's case,
however, it was suggested that where the court refuses a separation of trials
because the prejudice to the State would outweigh the prejudice to the
accused, it should 'avoid the possibility of prejudice to the accused' by careful
explanation to the jury as to how the evidence can be used. 2 4 Without a jury
the problem is purely psychological.
As a starting point you can consider the judgtnent inS v Ntuli and Others :2 5
Now s 155 (now s 157 (2)) of the Code endows th e trial Court with a discretion to
direc t, if it thinks fit, that persons jointly charged with th e same offence should be
tri ed separately ( ee R v Bagas 1952 (1) SA -l-37 (A) at 441 F; R v ]\Tzuz a and Another

22
1952 ( l) SA437 (A) at441.
23
R '' :vfallalieu "' To/putt 1932 NPD 80 .
24 R 11 Kritz iu,~cr 1952 (4) SA 65 1 (W ), per R amsbo ttom j at 65-J.C.
25 1987 (2) SA 69 (A) at 72H-73G.
Criminal Cases 371

1952 (4) SA 376 (A) at 380A, 38 1 E) . It fo llows th at appellate interference with the
exe rcise ot that discreti on w ill only be justi fie d on o ne ot th e recognised, restricted
grou nds, that is that the trial o urt commjned an irregulari ty or misdirection of such
a kind , o r acted so unreaso nabl y or imprope rly, that irs dec ision was thereby vitia ted
(c t Ba,eas'~ case supra at 441 F- H ; Nz uza's case su pra at 3ROD). And , even it o ne o r
mo re ot tho~e grounds is esta blished o n appea l, this Co urt will not se t asid e the
co nviction in questio n unle s it is sa tisfied that a Failure otjusti ce has res ulted th ere
fi·om (s 369(1) otthe Code) .
1n exercising its d iscretion the trial Court has to weigh up the likelih ood ot
prejudice to the applica nt acc used resulting fi·om a joint trial agai nst th e likelihood ot
prej udjce to the o ther accused or the State if thei r trials arc separated, and decide
w hether o r not, in the interests of justice, a separation o r tri als should be granted .
' Prej udi ce' there m eans prejudice in the se nse that no inju stice shou ld be ca used to
the party concerned, in cl ud ing th e State. (These principles are cull ed fi·om the cases
ot Ba,rzas, N::u:::a (s upra) and R v Heyne J956 (3) SA 60-J. (A) at 630A.) The weight to
be given to each otthe relevan t facto rs in the adjudica tion o tthis issue is for th e trial
Co urt to assess in th e exercise of its ruscrction.

B e fore an appli ca tion for se paration of trials will succeed th e appli ca nt mu st

show that he w ill ·uffer substanti al prejudi ce . 26 Th e m ere fact that a co-a cc used
m ade a co nfess ion im.plicating yo ur c]j eut would not autom.atically provide a
ground for a se parati o n oftrials _27 ec tion 219 provides thJt a confession is o nly
admi ssible against th e perso n who m ade th e co nfession.
In S v Makeba and A nother28 th e court held :
The use ot Mbongqi 's confession as co rroboration tor khum buzo's evidence was a
fata l fl aw in the asse sment of hi s evidence. Section 2 19 ot th e Criminal Proced ure
Act 51 ot 1977 Forbids it. T hat section provides :
' No conFession made by any person shall be admissibl e as evidence agai nst another
person. '

Eve n indirec t use of the co nfess ion fo r purposes of co rroboration is not

permitted. In Makeba an accused had m ade a co nfession and the trial Co urt in
co nvi cting the o ther acc u ed had excluded from its co nsideration the
sta te m e nts in the co nfession w hi ch had directl y impli ca ted the o th er accuse d ,
but had used th e co nfessio n to esta blish an esse nti al part of the chain of
circ um stanti al evidence lead in g to their co n victi o n. On appeal it was held that
th e trial Co urt had reli ed o n in admi ssible eviden ce and the appeal was all owed.
It follows , th erefore, that no rel iance sho uld have been placed on Mbongqi's
confession as corroborati on for Skhumbuzo's ev idence, either directly o r
indirectl y. That m isdirection was fundamenta l to th e credibility finding in
favor of Skhumbuzo on whic h the co nviction essentially dep ended . (lt is o f
co urse unn ecessa ry in thi s ca e to co nsider the admissibili ty of a co-accused's

2
R '' Krirzi11.~cr supra fi1 23 at 654F.
''
27 Section 219; S ,, ,\/a/.irba a11d .l11othcr 2003 (2) ':>A .R 1213 (SCA) .
~' 2003 (2) SAC I ~ 12H (SCA)" para 14.
372 Technique in Litigation

extra-curial admission- as opposed to a confession.) This approach received

the imprimatur of the Constitutional Court.29
In view of the decision in R v Matsinya 30 which affirms that the order in
which the separated trials are to be h eard is a m_atter to be decided by the
Director ofPublic Prosecutions, you should not lose sight of the possibility that
the co-accused n1ay be tried first and called as a witness against your client. Of
course, even if the trial proceeds jointly, he tnay testify in his own defence and
so becon1e a witness against your client- or he n1ay not.
On balance I would express the view that wherever a co-accused has n1ade a
confession or adnussion, or where there is a possibility of prejudice to your
client for any other reason, you should apply for a separation of trials. The cases
in which your decision will be wrong are so few as to be negligible. If your
application fails you will have lost nothing. If it succeeds and your client is tried
first you will have gained something, for even judges of appeal have expressed
doubts as to whether a trial judge can so completely disregard inadtnissible
evidence of this nature as to avoid any possibility of prejudice. 3 1 If your
application succeeds and the co-accused is tried ftrst, subsequently to be called
as a state witness against your client, then at least you will have been provided
with some material for cross-exan1ination. In this regard I suggest you refer to
my parting words in paragraph 19.1 above.

19.7 THE INDICTMENT, SUMMONS OR CHARGE

Even a criminal case must have pleadings, in order to tell the court what the
issues are. The indictment, smnmons or charge (to which I shall sin1ply refer as
the indictment) serves also to tell the accused what case he has to tneet. You
should not be reluctant to use it for that purpose.
Section 87 provides for the delivery of particulars before or at the trial, in any
event before evidence has been led. The sooner you obtain particulars, the
more expeditiously can you set about the preparation of your case. Usually the
prosecutor will furnish further particulars upon the filing of a proper request
without waiting for an order of court, which is another reason for not delaying
your request. The details which you will seek n1ust vary according to
circun1stances, but you should always have regard to the provisions of the
relevant sections of the Act, which may restrict the degree of particularity to
which your client is entitled.
As in civil cases, the object of further particulars is to litnit the issues, and not
to broaden them perhaps to the extent of obscurity. Thus, in the case of S v
Sadeke3 2 Dowling] said:
The function of particulars is not to enlarge thC:' issues. These particulars which I have
read out appear to me to be intended to embrace every possible form of negligence in

29 \llolimi v S 2008 (3) SA 608 (CC), 2008 (2) SACR 76 (CC) .

30
1945 AD 802.
31
Eg W atem1cyer JAin R v Kohlinfila Qrvabe 1939 AD 255 at 262-3.
32
1964 (2) SA 674 (T) at 675-6.
Cri111innl Cases 373

driving a motor ve hicle. And I go so far as to say that no prosecutor, having the record
of evidence he intends to lead before him, could in the circumstances of this case bona
.fide ha ve offered the defence those particu lars.
The pract;ce to me prese nts itself as an ab use of process which should be
discontinued forthwith ; aud partimlars should be given with reJ?,ard to the evidence which is
iuteuded to be led.
The State is bound by the furthe r particulars suppli ed.
Wh en the qu estion of parti culars has been disposed of, or perhaps even
without the necessity of asking for particulars, yo u will turn to co nsider the
formal val idity of the indictment. Yo u w ill ask yourself whether it is open to
objection or whether there should be an exception or motion to quash, in
w hi ch case the appropriate appli catio n must be made before the acc used
pleads. 33 It is in this co ntext that yo ur study and analysis of any releva nt
statutory provisions becomes important, although there is no reaso n w hy such
appli cation shou ld no t be made in appropriate cases where the indictm.ent
charges an offence und er co n11110 n law. Bear in mind, however, th at you are
obliged to give reasonab le notice to the Director of Publi c Prosecutions or
prosecutor of your inten6o n to exce pt o r n1.ove to quash th e charge. 34
Yo u may find , in th e majo ri ty of cases, th at yo ur victory upo n an exception
o r motion to quas h wi ll be Pyrrhi c. Usually it will be possible to ame nd the
indictm en t or to re-indict. H owever, there will be cases, such as where th e
provisions up on w hi ch the state relies are ultra vires, where th ere is no possibility
of refl·am ing the charge, and that will be th e end of th e matter. ln this context
yo u might remember that th e validity of a regul ation may long have been
accep ted with o ut chall enge - unti l th e first time -and yours may w ell be that
first time. 35
In terms of · 86 the court ca n also order an amendment of th e charge or
indictment. It does not autho ri se amendm ents to charges th at bring about the
substitution of a new charge. The co ncept of'amendment' impli es a degree of
retention of that w hi ch is to be chan ged .36

19.8 PLEADING GUILTY AND MAKING ADMISSIONS

T he ques ti o n of w hether to all ow yo ur client to plead gui lty is a vexed one. If
he in sists on doing so yo u ho uJd hesitate to dissuade him , althou gh th e courts
have o ften said th at th e se ntence sho uld not be more severe because th e accused
has denied his guilt. That means, logically, that he shou ld not be given a more
lenient se ntence as a reward for having pleaded gui lty. On the other hand my
own view is that yo u should never encourage yo ur client to enter such a plea . It
is on this point that many practitioners think differently. Perh aps [ could

·'-' Section 85, read with ss 86 and 87.

4
' Section 106(3) .
" Compa re, howeve r, Couunissioner_(c>r i11/and R.t'ven11 e v Laz arus' Estate 1958 (1) SA 31 1 (A) at
32213.
·"' S 11 Kw,~a m A ndere 1989 (1) SA 785 (A).
374 Technique in Litigation

illustrate my point by referring to a case - unreported - that occurred some

forty years ago or 1nore.
By reason of a series of unhappy and extraneous coincidences the police
stopped a n1otorcar which was proceeding fron1j ohannesburg to Durban. The
occupants were all arrested and placed in a police van for conveyance to the
police station at the town en route. The next step was the discovery in the police
van of a paper bag containing lun1ps of unwrought gold. The senior occupant
of the car, who was the head of the family which was travelling therein, was
duly charged with the possession of this gold, it being alleged that in fact the
paper bag can1e from his clothing. Bail was arranged and the accused proceeded
to consult his attorney. Subsequently the accused appeared before the
magistrate of the town in question. What passed between the accused and his
attorney is veiled in obscurity, but a plea of guilty was entered on the record.
There was an address in n1itigation, after fonnal evidence had been led of the
arrest of the accused and the finding of the gold. The accused then found, to his
consternation, that not only was a substantial fine i1nposed, but also his car was
forfeited to the State because it had been used as a means of conveyance in the
c01nmission of the offence. The fine was paid, the car was retained by the state
and the accused returned to Johannesburg, sadder and poorer. He then
consulted another attorney who briefed counsel to advise on the n1atter. By a
stroke of good fortune the proceedings were defective, in that the plea of guilty
had been uttered not by the accused but by his legal representative. The
Supreme Court set aside the proceedings as irregular, and in due course the
accused reappeared in the san1e town, before a different magistrate, on the same
charge. This time the plea was one of'not guilty'. The defence then proceeded
to e tablish that the accused and his companions had been in the custody of a
police constable when they were being taken to the police station by van.
When they alighted the constable got out of the van first in order to shepherd
his flock to the charge office. Only after they had all been locked in the cells was
the bag containing the lumps of gold found - on the floor of the van. The
constable was unable to say which of the arrested persons, four or five in
nun1ber, had placed or dropped it on the floor. Thus there was no evidence that
the particular accused had ever been in possession of that gold. The result was
an acquittal, a refund of the fine and restoration of the car.
Perhaps the accused had confessed his guilt to his first legal representative .
We shall never know. I think, however, that the n1essage is plain enough to see
and for this reason I counsel against advising your client to plead guilty. By
calling on the state to prove its case he has nothing to lose and everything to
ga1n.
If at the end you decide to plead guilty, make sure that the 'act' of the accused
which you admit on his behalf falls within the para1neters of the offence
charged.
On the topic of making admissions I have n1erely a concise quotation- the
underlying reasoning being similar:
Criminal Cases 375

Never make an admission unl ess it pays yo u or the point is entire ly immaterial. It pay~
you when it dispenses with a witness who might be dangerou s.
Should you decide to plead guilty, you sho uld co nsider utili sing the provisions
of s 1OSA, which provides for a sentence agreement that is entered into by the
accused and the sta te. In practice yo u will approac h the representa ti ve of th e
state w ith the proposal that a sentence agreem ent be entered into , and a
sugges tion as to w hat a just and proper senten ce wou ld be hav ing regard to all
the relevant facts. This is whe re yo u must be rea]jstic beca use at th e end of th e
day the co urt's imprimatur must be placed on th e agreement. If th e co urt does
not conftrm th e agreem ent yo u simply withdraw fi·om the agreement and the
tri al starts de novo before ano th er co urt. Nothin g co ntained in the agreement
m ay be used in the subseq uent trial. You also have the choice not to w ithdraw
from th e agr eemen t and to proceed with the sentencing process .

19.9 CROSS-EXAMINATION
19.9.1 Cross-examining criminally, generally
The objectives in cross-exa n1in ation are th ose which were discussed in chapter
12. The ca uti o nary rul es are the san'le. The m an ner in which yo u go to work is
the sa m e. The co nsequences of erro r, however, are more drasti c and it behoves
yo u to tread even more warily. Let m e m ake a few addition al sugges tions:
If the witness has not given any evid ence adverse to yo ur parti cular
defence think twice before yo u cross-exa min e at all. As it h a bee n so
succinctly stated :
Do n 't le t your client invite you to give the state wit ness hell j ust beca use he is a
state witness and therefore a witness against your cbent.
It is essential that before accepting or rej ec ting the invitation to cross-
examin e a witness, yo u analyse the testimony of the w itn ess. I suggest that
yo u apply the following analysis:
• Is there any evidence in the testimony of th e witness that
corrobo rates th e defence version? If the answer is in the affi rm ative
do not cross-exa mine th e witness on those aspec ts. Yo u may we ll
find th at during cross-exam.ination this version changes to yo ur
detriment. The go lden rule is that yo u do not highli ght that which is
already in yo ur favo ur.
• You will be in posses ion of th e statem ent th e witness made to the
poli ce. Is there any evidence co ntain ed in that statem ent that
co rroborates th e defence version that was not elicited by th e State
dming examin ation- in-chi ef? If the answe r is yes th en that is an area
for cross-examin ation. From your preparation yo u will also kno w
whether such facts exi t. You have observed the witness durin g hi
testim o ny and if yo u are satisfi ed that h e is an ho n est witness try and
eli cit those facts by ad ro it cross-examin ati o n.
• Does any part of hi s evide nce con tradi ct any part of th e state's case
against yo ur client? Leave th:lt un challenged.
376 Technique in Litigation

• From the information contained in the witness' statem.ent or the

information at your disposal are there facts not elicited during
evidence in chief that will contradict the state's version? That is then
the area for cross-examination. Elicit those facts.
• Can you destroy the credibility of the w itness by showing a conflict
between his evidence and m.ore objective evidence or that his
evidence is improbable because it conflicts with the probabilities?
• Can the credibility of the witness be destroyed because of the
witness's perception, memory or ability to comm_unicate?
• Can the credibility of the witness be destroyed because of a previous
inconsistent staten1ent or conduct inconsistent with hi s evidence?
• Can the credibility of the witn ess be destroyed by reason of interest,
bias or bad character?
• A proper preparation would enable yo u to in11nediately recognise
whether or not the evidence establishes the jurisdictional pillars on
which a conviction can follow for the particular crin1e, eg, was the
accused legally found 'in possession', 37 did the witness lay a
foundation for the adnussibility of a confession, 38 etc . If the evidence
does not, leave this aspect for argmnent. If the evidence do es, try and
destroy the credence of this evidence during cross- exam ination.
• If applicable, where the cautionary rules of evidence apply to the
witness, highlight the reason for the rule during cross-exan1ination
and apply that to the witness. If you are dealing with the evidenc e of
a child bear in mind the factors that a court n1ust take into account to
determine the con1petency of that child as a witness. Direct your
cross-examination along these lines.
If the witness is rude, offensive or resentful, uffer hin1 patiently and do
not follow him into the gutter.
Do not cross-exanune crossly. You will not cross-exanune efficiently if
you do so. A modicu111 of righteous indignation at the right n1o1nent nuy
do a little more good and may even infect the court with the right virus.
If necessary, postpone your 'sixty-four dollar question' until you have got
all that you want from the witness.39 Seek his co-operation. Be friendly.
Criminal cases differ vitally from civil because the former are so intensely
personal. You must not forget that one of your objectives throughout is to
paint the best possible picture of your client and of the facts . You can often
do this with the co-operation of the state witnesses. A state witness who
has had a 'sixty-four dollar question' thrown at him hardly feels like
co-operating. Ren1ember, n1oreover, that the witness does not know
what is in your mind. Usually he did not want to be a witness in the first
place. He has been inconvenienced by having to attend court and he has

37 Sections 36 and 37 of the General Law Amendment Act 62 of 1955.

38
Section 217 ofAct 51 of1977 .
39 See the cliscussion of'The attack, and the sixty-four dollar question ', in paragraph 12.5.9 above .
Cri111innl Cnses 377

not bee n mollifi ed by havin g to wait his turn to enter the witness- bo x.
o r, in th e magistrates' co urts, will his temper have been improved by a
seri es of remands w hil e the sta te was trying to get some co herence into its
case . So when you ri se to cross-examine yo u just assum e until th e
co ntrary is proved that the witness is hos tile. Not ne cessa rily hostil e to
yo ur client; more probabl y he wishes he had never see n or heard of yo ur
clien t in th e first place . H e is hostile to yo u, beca use you are going to keep
him in the witness-box, yo u are going to humiLi ate him, and you are
go in g to ' tty to m ake him o ut a bar ' . Th e witness resents yo u, distmsts
yo u, fears yo u, and will defend himself aga inst you.
Wh en yo u have got all thi s into yo ur head, you ca n start your work. And
yo ur firs t task is to make the w itn ess into a witn ess for th e defe nce . lfhe is
rud e, smil e - praying that it may be the smile on the face of th e tiger. lfh e
is relu ctant, coax . If he is defensive, reassure.
T hen, w hen yo u have got all yo u can, decide quickly what is left aga inst
yo ur cl ient. If nothing is left, w hy then, th ere is nothing more to do. If
th ere is a residu e, the tim e may have come to show th e witness that his
first- form ed op ini on of yo u was more accurate than th e later impression.
Th en is th e time for the 'six ty-four doll ar qu estion s', in co nsistent
statenients, irreco ncilable fac ts, credibility, character or wh ateve r else you
have against this particular w itn ess.
One more wo rd of wa rning. It would be a mistake to assume that th e
investiga tin g o ffi cer is necessa ri ly hostile to yo ur client. The man has a
duty to perform. Vety seldom - l shall no t say never, beca use these thin gs
do happe n - has he a motive to misrepresent. More often th an in th e case
of th e average w itn ess do es he have ca use to remember. Worse still , the
investi ga tin g officer has a thing call ed a 'docket'. On this docket he n1.akes
no tes w hen the m atters are fi·es h in his memory. H e does not have to
refresh his m em01y fi·om th e docket when he is in the witness- box; he has
bee n wo rkin g w ith it for so long that he knows it by heart. All of which
mea n that it is safe r to sec ure his co-operation than to try to discredit him .

19.9.2 Remember to always put the defence version

Durin g cross-exa mination you must always put th e defence version to th e state
w itn esses. Wh en and how this sho uld be done is succin ctly stated in S v
Sco tt- Crossley: 40
[26 1 The court a quo held agJinst the appeilant the fact th at his full version as to
everything th at had transpired on the day in question was not put to certain Sta te
w itn e. es . Th e court reasoned:
' At the stage that th e version of acc u eel 3 was put to Mnisi for th e first tim e as
aforestatcd. th e fo ll owing witnesses on th e facts had already testifi ed and were
cross-examined: forget Ndlovu, ergeant Ferreira, Zodwa M ath eb ula and T huli
Siwela. Accordingly th e case or ve rsion of accused 3 was not put to these witnesses.

4
" 2008 ( I) SAC R 223 ( CA).
378 Technique in Litigation

The principle as stated in S v Van As 1991 (2) SAC R 74 (W) is that the failure of th e
accused to put his version or case to state witnesses will in an appropriate case justifY
an adverse inference being drawn against such an acc used when assessing or
evaluating the credibility ofhis version.
But it is not necessary for an accused ' version to be put in all its detail to every witn ess
w ho takes the stand to give evidence for the state. The limits of the obligation to put
the defence version to state w itnesses appear from the following passage in Phipson
Evidence 7 ed 460 quoted in R v M: 4 1
'As a rul e a party should put to each ofhis opp onent's witnesses in turn so m.uch. of his
own case as concerns that particular witness, 4 2 or in which h e had a share .... Ifhe asks
no questions he will, in England, though not perhaps in Ireland, generally be taken
to accept the w itness's account . .. . Moreo ver, where it is intended to suggest that
the w itness is not speaking the truth up on a parti cular point, his attention must first
be directed to the fac t by cross- examinatio n, so that he m ay have an opportuni ty of
explanati o n . . .. Failure to cross- examine, however, w ill not always amount to an
acceptance of the witness's tes timony, e.g. if the witness has had notice to the
contrary beforehand, or the story i itself o f an incredibl e or romancing
character. . . .' .
It must also be emphasised that the failure to put a ver ion, even where it should have
been put, do es not necessa rily warrant an inference that the accused's version is a
r cent fabrica tio n. The words 'in an appropri ate case' taken by the trial judge from. S
v Va n As are important. As D avis AJA said of the passage in Phipson just quoted:
'These rem arks are not intended to Jay down any inflexibl e rules even in civil cases,
and in a criminal case still grea ter latitude should usually be allowed.'
The lea rned judge w ent on to say [at 1028-9]:
'That at that tage the girls should have bee n cross- examined I have no doubt;
indeed, I have difficulty in imagining w hy this was not done. Whatever the reason
it w as certainly unfortunate that he [the attorney forth accused] did not do so.
But in the circumstances of this case I am unable to draw any inferen ce adverse to
the accused from his fa ilure. When Lydia was recalled it must again be sa id that he
should have taken advantage of the opportunity to cross-examine; but then it is
only fa ir to say that the prosec utor, o r at leas t the m agistrate, should have put the
tory to her at that stage . And he might well also have recalled the complainant;
co mpare R ex IJ Filanius (1916 T PD 415 at 418), per M ason, J. The lea rned Judge,
w ho delivered the judgm ent of the Co urt a quo, gave a numb er of points on which
"severe criti cism can be directed to th e evidence of the app ellant (the accused) and
his w itness (C am ph r)" . The first is the fa ilure to put the defence case to the two
girls; this he describe as "m ost signiftcant". But ignificant of w hat? Significant, as
I wo uld suggest und er the circum tances of this particular case , of nothing but an
error ofju dgm ent o n the part of the atto rney.'
T he adverse inference drawn by the court aga inst the app ell ant for th e failure to put
the full defence versio n to the w itness N dhlovu was no t justified and a misdirec tion.
H e was at no stage at the scene on the fam1.. The sam e applies to the evidence of
Siwela - she did not testifY on th e events w hich occurred on that fatal night as sh e
was no t p resent, having left shortly after 13:00 - and to the other witnesses

41
1946AD 1023 at 1028. See also S111all v Slllit/11954 (3) SA434 (S WA) at 438E-G and S v Va n As
1989 (3) SA881 (W ), 1991 (2) SACR 7-t (W) at 108c-h .
-+~ Emphasis supp lied.
Criminal Cases 379

m e nti oned in th e judgment of th e trial court, w ho w e re neve r at the fa rm o n th e day

in qu esti on .

19.9.3 Previous inconsistent statements

Cross-examining a witne s o n his previous in co nsi stent stateme nt will o nl y be
effective and of valu e if th e folJowing guidelines are observe d:
As I ha ve m enti o ned, in the prese nt nu tter th e cross- examination of the state
w itn esses, insofar as it was directed at th e co ntents of th eir pobce ~ ta tem e nts, w as
don e properl y. In each instance th e ·witness was asked to co nfi rm that he had made a
sta teme nt to th e poli ce. Th e wi tn ess was the n asked whe th er that wh ich he to ld th e
police man was written dow n; wheth er it was read back to him ; w hether he was as ked
to confirm th e correctness th ereof; and wh eth er, havi ng do ne so, he was asked to
sign , o r place hi s m ark, or thumb-print, on the tatement. Th e w itn ess was th en as ked
to identi fY, w ith reference to his signature o r mark (except, obviously, w here a
thumb- print had bee n placed o n th e statem e nt), that the statement in qu estio n was in
f..1c t th e statem e nt he m ade. On ce co nfirmatio n of this had been obta in ed, counse l
proceeded to go through th e whol e state m ent with th e witness. After eac h sentence,
o r o n occasio n after a w ho le paragraph , had been read to the witn ess he w as asked
wh ether he had in fac t sai d to th e poli ce what had been read to him (a nd th erefore
written down ). So m etim es the answe r was in th e affirma ti ve. o th er times not.
Hav ing go ne through this exercise, th e w itn ess was th en referred to differences
betwee n such wi tne s' earli er eviden ce and those portion s of the police statem ent
wh ich he had con fim1ed reflected w hat he had to ld th e poli ce . In so me in stances
th ese differences were mark ed, in o thers th e differences co uld be described as subtl e .
Wh ere app ropriate, th e witness was as ked w hy certain facts menti o ned durin g his
ev idence did not appea r in the state ment, w ith it being suggested that th e r ea~o n
th e re for was th at he had no t to ld the po li ce. The witn ess was as ked w hy th ere were
such co ntradi ctio ns and/ o r o missions. th ereby bein g afforded an oppo rtunity to
provide an explanation. 4 3

If th e witness den ies either m aking the state m ent or th e reliability thereof, eg,
he deni es th at the state me nt was read bac k to him or that so methin g wa said ,
call th e police officer w ho reco rd ed th e statem ent to testify - such officer will
n ever co ncede that he falsel y recorded information.

19.9.4 Cross-exam ining on the opening statement

It is permitted, dep ending upon the statem ents made by the prosec utor in hi s
opening add ress, to cro s-exa min e a wi tness in rega rd thereto. f n this rega rd th e
judgment ofEra musJ in S v Nfbata and Oth ers~ 4 ca n be referred to.

19.9.5 The criminal trap

In criminal cases yo u will enco unter a sp ec ial typ e of w itness, whose very
function is to observe and to rem emb er, w ith th e object oflater tes tifyin g as to
hi s o bservations. H e is th e trap. In fac t, in some instances, he may instiga te the
parti cular in cident which h e o bserves.

41
· S" CoPC/1(/cr and Orlrcrs 20()() ( l ) AC:R 322 (E) at 327/rf
44
1977 (1) A 379 (0 ) a t 380.
380 Technique in Litigation

The si1nplest form of trap is that instituted to discourage m.otorists from

speeding. As a matter of passing interest, if yo u ever have occasion to
cross- exanune traffic officers in this type of case, you nught care to refer to an
article written by a byn1.an, as well as to the cases where electronic devices have
been involved. 45
Perhaps of greater m01nent are cases of trapping persons for contraventions,
or alleged contraventions, of the laws relating to gold and dia1nonds . It seem.s
that the same type of witness is involved in all these cases, and the san1.e
techniques in cross-exa1nination appear to be called for. In some instances, of
course, there will be no reason to doubt the integrity of the witnesses, and the
attack n1.ust be on observation, reliability and n1.emory. In regard to traps of a
particular type I would quote fr01n a judgment of Claassen ]: 46
The trap usually received one-third of th e money w hich is seized. See R IJ Zahlen
1951 PH (1) H 69 . This is a large and easy source of income for the trap , and
accordingly he will not be particular abo ut his victim, as also appears from the
evidence of the m essen ger of the co urt, Myburgh, ie, that the trap Vlok in a loud
voice offered him_diamonds for sale. This was done so that the interest of the sa id
Sander, who heard it and who also apparently acted as inciter in his own interest, was
aroused. Where such persons are paid and act off their own bat serious thought must
be given to this and th e courts must discourage it with all their might. It amounts to
a prostitution of the police force, and it approaches the prostitution of our courts. I
perso nally regard it as degrading to have to listen to such evidence . I cannot describ e
it in any wise as an honourable procedure. I have difficulty with the eviden ce of
detectives who bring this so rt of case to consummation. At one stage their conduct is
entirely mendacious, fraudul ent and full of false pretences and then afterwards from a
certain stage it is submitted that th ey are honest and upright persons. It is
co ntradictory of any concept of m oral principles. It is said that in the case of such an
official there can be no wrong motive, as, for example, in the case of the trap. I do not
agree, because before arrest of the victim their only purpose is, by m eans of deceit, to
do everything to persuade an ordinary member of the public to commit an offence,
to get their hands on his money and then to arrest him. I emphasise that I am now
speaking of ca es where innocent perso ns land in trouble through the activities of
detective , and such cases are not unknow n.

You will, of course, study this and o ther cases on the topic more fully and,
before you set out with aU flags flying, yo u will tactfully find out what you can
about your client's background and the circun1.stances in which he found
hin1.self the victin1. of a trap. In any event, I an1. sure that you will b en efit fr01n a
circmnspect application of the learned judge's dicta to your own case. See also

45 De J ongh, HM 'The Gatsometer and Stopwatch Speed Checking' Ty dskr!f IJi r Hedcudaa,r.zse
R el.sgcleerheid Vol 31 (1968) at 147 and 253. The cases areS v Ma(~o lis 1964 (4) SA 579 (T), S v DallJSOII
1966 (1) SA 259 (N), S u D11 Plessis J 966 (1) SA 607 (C) and S IJ Lucas 1968 (2) SA 592 (E) . In order
to get further ass ista nce in th ese cases I suggest that yo u refer also to S IJ Currin 1961 (4) SA 393 (0)
and R IJ Peche 1967 (4) SA 252 (RAD) .
.j(, R v Vlok and Vlok 1954 (l) SA 203 (SWA) at 206.
Crirninal Cases 381

S IJ Sellenrn in regard to the co urt's app roach to sentence w here a ' trap' is
involved. I suggest, apart fi-om what was set o ut in chap ter 12 , two methods of
testin g th e reliabili ty of the evidence given:
If t\:vo or more perso ns have participated as a trap- you r cl ient shou ld be
able to tell you th is - it is reaso nable to supp ose that they w ill tell the
sa me sto ry in their evidence-in-chi ef. They must then, in cross-
exam ination, be taken outside the e sential fea tures of th eir common
narrative and the results compared . The process is laborio us, it is
frustrating and it mi g ht tire the patience of th e co urt. Those
consid erations mu st take seco nd place. In cross-exam ination of th e first
w itn ess you take hi s evidence-in -chief and exam in e it point by point. As
examples of rudim entary questio ns yo u might take this approac h:
'When yo u emered the roo m where was the accused '?
' Was he standing or sittin g''
'Was he alo ne''
' Did you notice th e furn iture in the room<'
' ext to what piece of furniture did yo u find th e acc used?'
"H ow was he d ressed?'
' What was he doing when you came in''
'Wh:.~ t did he do then ?'
' Who spo ke first' '

N ow, whatever yo u do, do no t elevate th ese specifi c questions into a

prae to ri an formu la. M odifY, adapt and improve on th em. And do no t
expec t spectac ul ar resu lts from th e first w itness.
It is when the seco nd w itn ess testifi es th at you w ill find out w h ether
yo u h ave succeeded . You put exac tl y th e sa me qu estions on details,
looking for a different set of answer . I repea t that thi s is no abracadabra;
but 1 ha ve known traps to give such radi ca lly different stori es that the
magistrate has acceded to an appli ca tion for di c harge at th e end of the
state case. On th e other hand , there are more conviction s th an ac quitta ls.
If yo u are fortunate enough to get a substantial discrepancy in
qu estio ning th e seco nd witne s yo u w iLl exp eri ence an alm ost irresistibl e
urge to a k th e foLl owing question:
'Dut th e previo us witness sa id X, Y and Z o n this point. Is he wrong o r are yo u
wrong)'

What possible benefit is th ere in suc h a qu estion? Th e discrepancy exists.

It is for the co urt to say w ho is wro ng. Will the witness say: ' I am wrong?'
Will he say ' th e last w itness is wrong?' eith er of these t\vo courses will
appeaJ to him . You do not know w hat he wi!J say; probably he will try to
recon cil e hi s own version with X, Y and Z . By the time yo u have finish ed
chasin g him throu gh his reconcili ation , you wi ll have destroyed the
disc repan cy and lost the theme of yo ur cross-exa mjnation. l kno\v that I

47
1992 (2) SA 795 (A).
382 Technique in Litigation

have n1ade this point previously, 48 and I make it again, because, despite all
that is written in the books on cross-exam_ination, this is one of the most
difficult lessons to learn .
With regard to the second method of testing evidence - when a police
officer testifies as to his own observations, subj ect to what I stated
previously in paragraph 19 .4. 9, you should n1ake it an invariable rule to
call for the notes which he n1ade at the tin1e of the observations.
Son1etin1es he has used the back of a cigarette box and later written the
notes into the docket before discarding the cigarette box . Why no court
appears to have c01nmented strongly on this practice is a little difficult to
understand. However, if entri es were n1ade in a pocket-book, call for this
docun1ent. If it is not at co urt, per ist in your application so that you can
examine the original entries . Perhaps you will draw a blank, but there has
b een n1ore than one case where a policeman's notebook contained ex post
facto erasures and alterations .
You n1ight also reme1nber, particularly in the case of p1otor accidents
and traffi c offences, that the notebook or original do cun1ent is a source of
potential profit. For one reason or another original rneasuren1ents and
observations seem to be highly susceptible to error, s01netirnes to such an
extent as to nuke the late r plan or evidence totally unacceptable. Thus, in
one case, all n1easuren1ents were take n fr01n 'fixed point-fencing pole'.
An insp ection in loco showed a row of 'fencing poles' all sinular and
indistinguishable one from another, w ith nothing to identify the one
selected.
Where the nature of the evidence against your client comes from a trap
or the use of an undercover operation the provisions of s 252A of the Act
should be remernbered and canvassed during cross examination. These
provisiOns are:
(a) whether, prior to the setting of a trap or the use of an undercover
operation, approval, if it was required, wa obtained fron1 the
director of public prosecutions to engage such investigation methods
and the extent to which the instructions or guidelines issued by the
director of public prosecutions were adhered to ;
(b) the nature of the offence under investigation, including-
(i) whether the security of the state, the safety of the public, the
maintenance of public order or the national economy I S
seriously threatened thereby;
(ii) the prevalence of the offence in the area concerned; and
(iii) the seriousness of such offence;
(c) the availability of other techniques for the detection, investigation or
uncovering of the co nu11ission of the offence or the prevention

48
See paragraphs 12-5.13 and 12.5.14 above, dealing with the need to avo id arguing wi th the
witne s, and to restrict your cross-examination to facts, not conclusions.
Cri111in al Cases 383

thereof in the pa rti cular circumsta nces of the case an d in th e area

concerned;
(d) w heth er an average person w ho was in the position of the accused,
would have been induced into th e commissio n o f an offence by th e
kind of co nduct empl oyed by the official or his or her agen t concern ed;
(e) th e degree o f persistence and number of attemp ts m ade by th e
official o r his agent befo re the acc used succ umbed and co m.rni tted
the offence;
(f) th e type of in d uce m ent used, including th e degree of deceit,
trickery, misrepresen tatio n or rewa rd ;
(g) the timi ng o f the condu ct, in partic ular w heth er th e official or hi s
age nt insti gated the co mmissio n of th e offen ce o r becam e involved
in an existin g unl aw ful ac ti vity;
(h) w hether the condu ct in vo lved an exploi tati o n of human
charac teristi cs such as em o tion s, sympathy or fri endship o r an
explo itatio n of th e acc used 's perso nal, professio nal o r eco nomi c
circum stances in o rd er to in crease the probabili ty o f th e co mnu ssion
of the offence;
(i) w hether the o fft cial o r hi agent has explo ited a particul ar
vulnerability o f th e acc used such as a m ental handi cap o r a substance
addi cti o n;
U) th e pro po rti o nality betwee n the involvem ent of th e o ffi cial o r his
agent as compared to that o f the accused, including an assessm ent of
th e extent of th e harm ca used o r risked by th e offi cial o r hi s agent as
compared to th at o f th e acc used , and th e commi ssio n of any ill egal
ac ts by th e official or hi s age nt;
(k) any threa t , impli ed or expressed , by the o ffi cial o r his agent aga inst
th e acc used;
(I) w heth er, before the trap was se t or the und ercove r op erati o n was
used , there ex isted any suspicion , entertain ed upon reaso nabl e
gro unds, th at th e acc used had committed an offence sin'lilar to th at to
whi ch the charge relates;
(m) w hether the offi cial o r hi s agent ac ted in good o r bad faith ; o r
(n) any o ther fac tor w hi ch in th e o pini o n of th e co urt has a bea ring o n
th e qu esti o n.
Th e info rm ati o n so o btained m ay eith er sh ow that the accused w ill no t
receive a fair tri al if th e evidence o f th e trap is admitted , or w ill serve a
miti ga ting fac to rs w he n entence is considered .

19.9.6 Cross-examination as to identity

Identity is ofte n th e m ost impo rtant point in a criminal case. Yo u sho uld study
the cases wh ere th e co urts have discussed th e to pi c, 49 beca use yo u ca n ga ther

4
~ For example R 11 Shekele attd Anoilter1953 (1) SA 636 (T). R 11 Nyende 1956 (2) A 55 (T ), R I'
Mokoena 1958 (2) SA 212 (T) at 215-7 , S 11 .\leltlape 1963 (2) A 29 (T ) at 33- 4, S 11 Mthell/ 1(/ 1972
384 Technique in Litigation

from. the reports what particular line of cross-examination should be pursued in

the defence of your client. I n1.ight remark in passing that 'identity ' is often
conconutant with an alibi, a subj ect which is considered later in this chapter.
The m.ethod I suggest now can be described either as a variation of closing
escape routes or as test by fact. 50 In essence you do not challenge identity in the
n1.anner ofbulls at gates . Instead you investigate the topics which bear on ability
to identify, and then, if you have the witness encon1.p assed w ith negative
circun1.stances such as no lighting, great excitement, lapse of tin1.e, fle eting
observation, no abnorn1.al features, 5 1 you put the vital question. However, you
should not ask:
'Why do you say it was the accused? '

That is a stupid question, and you will receive an answer according to your
folly.
It n1.ight be almost as stupid to say:
'I put it to you that, in these circumstances, you could not possibly identifY the
accused.'

It is in all probability enough if you put no more than:

'I put it to yo u that it was not the acc used.'

In reply yo u will receive the answer 'it was'- spoken in tones ranging frorn
indignant to petulant. But take the least possible risk of provoking an iten1. of
identification which you had not thought of It is useful to ren1.en1.ber the
words ofVan den H eever JA 52 on this topic:
The positive assurance with w hich an honest witness will som etimes swear to the
identity of an accused person is in itself no guarantee of the correctness of that
evidence. One often finds th at a woman who was totally un abl e to point out her
assailant on an id entifica6on parade will, when the acc used is arrested on the strength
of other evidence, swear positively at the trial that she recognises him. as her assailant.

19.9. 7 Identification parades

From identity it is but a short step to identification parades, designed to
establish that a complainant or other witness can in fact select the right person as
the accused . It is part of your function to test the fairness and reliability of this
fonn of parade, over which neither the acc used nor his attorney has any degree
of control.
Your investigation will take place in cross-exanunation of every witness who
identifies the accused and also of the police officer who arranged and

(3) SA 766 (A) at 768A-C and S v Sithole 1999 (1) SACR 585 (W ) at 591. Also see annotations on the
reports of these cases. Compare, however, S IJ Sinkanka nka 1963 (2) SA 531 (A) at 54 3D. Also refer to
Vflills Cirw 111sta ntial Evidence 7 ed 192-205.
50 See paragraphs 12.5.1 0 and 12.5.20 above.
51
Compare R v Sclwombie 1945 AD 541 at 544.
52 R v Masenrang 1950 (2) SA 488 (A) at 493.
Cri111in al Cases 385

co ndu cted th e parade. Yo u ho uld first read th e cases 53 in o rder to see w hat
wea kn esses have been fo und in this m eth od o f proo f and , th en , test th e
follo w in g points:
how m any peo ple w ere prese nted at the parade;
the ph ysica l appea ran ce of o ther perso ns o n the parade;
co mpari so n o f th e fac ial and o th er appearance of th ose perso ns w ith th e
acc used ;
the attire o f o th er pe rsons o n th e parade;
co mp anson o f the attire o f those perso ns with th at of th e acc used;
info rm ati o n give n to th e witn esses w ho were asked to identi fy th e
'suspec t' ;
what th ose w itnesses we re as ked to identify;
wh at oppo rtunity the witnesses had of obse rvin g th e mu sterin g o f th e
parad e; w hat o ppo rtuni ty th e witn esses had of di sc us ion befo re and after
the parade; di sc ussio ns betwee n the witnesses inter sc o r with th e poli ce ;
w h ether anythin g happen ed, w heth er deliberately or unintenti o nall y,
fi·o m w hich th e witn ess co uld draw an inference as to th e state o f mind o f
th e police o ffi ce r w ho arranged o r sup ervised th e parade .
Of co urse, despite m y critica l remarks at th e commence ment of thi s
subparagraph , an identifi ca tio n parade is o fth e grea tes t assistance to th e acc used
w here th e w itn e s fa ils to point o ut the correc t - or any - perso n .

19.9.8 Cross-examination on identification by voice

Fro m the recogniti o n o f an acc used perso n o n an identifi ca tion parade it is but
a sho rt step , in th e o ffi cial mi nd , to identifi ca tion by vo ice . l do no t take as m y
them e the pro pos itio n th at it is no t possible to recognise voices. But just try to
pass th e tim e in th e m o tio n co urt by tryin g to identify yo ur co ll eagues by th eir
vo ices- yo u w ill find th at yo u are, to say th e least, no t always successful. M y
co ntenti o n is th at the identifi ca tion o f an utter stranger by so me real o r fa ncied
vocal timbre is so fraught w ith danger that it should be trea ted with th e utm os t
rese rve . Yo u ca n study the releva nt cases 5 -l and perh aps direc t yo ur cross-
exa minati o n alo ng the followin g lin es :
tin"le fo r w hi ch th e criminal's vo ice was hea rd ;
circum tances in whi ch it was hea rd , includin g agitati o n o n the part of th e
w itness;
co mp etin g so un ds and so o n;
circumstances in w hi ch th e acc used 's voi ce was tested ; o th er vo ices tested ;
time for w hich th e vo ice was tested;
comp etin g so unds at time of tes t.

" For example R" 0/ia 1935 TPD 213, R" I J1 19-+7 (2) SA 70H (A). R "i\1/asclll rll l.f! I <)50 (2) SA 4HH
(A), R ,, .\'am. allllll)' I <)56 (4) SA 629 (T ), R '' )1 a111f ll11ot!Jcr 1959 (2) SA II () (W), R ".\fp111i11g 1%0
( I) SA 7H5 (T ) and S '' t-:1111111111o l <)') I (4) SA 3 10 (A).
51
Such as R '' Ccrickc 1<)4 1 CPJJ ac 211, S '' M 1963 (3) SA I H3 (T) ar 185 and 1?. '' C!Jirarc I <)()6 (2)
SA ()90 (RAD).
386 Technique in Litigation

It tnay be pern1issible in this context to ignore son1e of tny previous advice

but only when you are satidJed that you know the answer bifore you put the question.
You n1ay ask the w itness whether there was any special characteristic by which
he recognised the accused's voice. Before you ask this ques tion you will have
consulted with the accused at length, listening carefully for any such
characteristic. It nuy be a deep voice, or a shrill one, or there n1ay be a lisp, or
a slurred 'r', perhaps a rolling 'r' or even one or other of the n1any accents to be
heard in this country. But until yo u are satisfied that there is no feature of
identification, however slight, do not ask the question and do not ask the
witness to describe the voice.

19.9.9 Cross-examining fingerprints

Identification by means of fingerprints is popularly reputed to be infallible, and
if it is yo ur n1isfortune to have one of these cases yo ur problem will b e well nigh
insuperable. 55
However, you will obtain a fair idea ofhow to approach the topi c by reading
the few cases I have quoted, together with others yo u will find, and fron1 the
general discussion of the topic by Wills.56 Perhaps the most fruitful line of
cross-examination, also of argument, is the investigation of the tin1e at which
the accused's fingerprint could have been placed ·where it was found. 57
Fingerprint evidence must not overawe you, and I quote fron1 the judgtnent
in Nksatlala's case at 546: 58
Where, as here, th ere is only one fm gerprint, where it does not appea r to be an ideally
clear one and where th e points of resemblance that are visible are nea r to the
minimum in numb er, it is of the greate t imp ortance that the expert evidence,
w hether it is that of one or more witnesses, should be closely scrutinized to eliminate,
as far as is humanly possibl e, all risk of error.
In the presen t case, however, there was no cross- examination of the expert on the
question of iden tity and it was not challenged on appeal. It must accordingly be
accepted that the app ellant's fingerprint was found on th e window of the car on the
day of the robbery.

19.9.1 0 Cross-examining DNA

Identification by n1eans of DNA evidence is infallible, provided that the
paper- trail is acc urate and complete. Your attack tnust thus be concentrated on
the accuracy and reliability of the paper-trail.

55
R ld forela1947 (3) SA 147 (A), R v S111it J9S2 (3) SA447 (A), S 11 Ki111i111bi 1%3 (3) SA250 (C),
v Na la 1965 (4) SA 360 (A) and S I' Jfaliudi 1983 (4) SA 99 (T). ln regard to th e different point of
view dealing with comparative charts, ee S v Van ll')1k 1982 (2) SA 148 (NC) and S v Nya t/1 e 1988 (2)
SA2l 1 (0).
s<, Cirm 111sfantial E 1'idcncc 7 ed 205-23.
57 As in R v Du Plessis 194-t AD 314 at 322 and 323, and R I' Nksatla la 1960 (3) 5-+3 (A) at 551.

sx CompareS I' Ki111i111bi 1963 (3) SA 250 (C).

Cri111illnl C ases 387

19.9.11 Cross-examining handwriting

Evidence as to th e identifi ca ti o n of an accused person by his handwriting is no t
as acceptable as fin gerprint evidence, 59 and your task in cross- exa nun atio n is
so m ewhat easier. Wh at yo u w ill loo k fo r are:
an examin ati o n , w ith th e expert, o f th e training he has rece ive d in hi s
science;
the possible so urces o f errors in identifi catio n ge nerally;
th e va ri ati o ns that exist in th e handw riting o f perso n w ith no m o tive to
disgui se;
th e impossibili ty ofbein g c rtain as to identity;
th e effec t of th e use of d ifferent types o f writing instrum ent on th e
qu esti o n of co mpari son or identifi ca tion ;
di simil ariti es between th e d isputed doc um ent and any ' test' do cument.
o do ubt yo u w ill also be w atchful fo r pro blems of spelling, w hether th ese
affec t the State w itn esses o r the acc used.

19.9.12 Test by fact

P erh aps one sho rt il lustratio n w ill be of va lu e in th e co ntext of cross-
exa m inati o n in criminal cases . It is th e cross-exa min ation o f the compl ain ant in
an attempted rap e case, but mi ght se rve as a ge neral model fo r appl ying th e ' tes t
by Get' . It co m es fro m a so urce o ften qu o ted in this chapter.
Th e co mpl aina n t alleged th at, w hil e her husband was away w orking a night
shift, th e acc used , th eir lo dge r, entered her roo m and attemp ted to rape her.
Sh e sa id th at she m anaged to push him o ut of th e ro om and he left th e hou se.
Th ere w ere two releva nt fac ts kno wn to th e acc used: the husband had a
mi stress; and a qu arrel had taken place betwee n th e hu sband and wife o n th e
m o rning after the attempted rape.
The cross-examin ation proceeded:
' Wh en yo ur h usband left you that n ig ht h e kissed yo u ?'
' Ye .'
' Yo u an d he parted o n th e usual terms of affect io n''
' Yes.'
'After he left yo u had n o v i s i to r~''
' T hat is so. ' 60
' W hen he returned next morni ng yo u had a tremendous row with him ''
' Yes.'
'You we re sho uting at h im and abusing h im ?'
'Yes.'
'That was not bc ca u ~e th e accused had attempted to rape you''
'Oh, no. '
' It w as because of so methi ng yo ur husba nd had done' '

'" R ,, T 1958 (2) SA 676 (A ), k ,, Chidota I %6 (3) SA -+28 (RAJ)) and R " ;\ faynldc 1968 (2) SA 80 I
(R.AD). See also O sborn Q11csrio11cd DowTrTcrlls 2 ed ( 19-+6) as an example of textbook; on the topi c.
''" Thm clming an c'scape route. Cf para graph 12.5. I() in chapter 12.
388 Technique in Litigation

'Yes .'
'And that "something" you found out after he had gone on night shift?'
'Ye .' 6 1
'And you told us you had no visitor that night?'
'Yes.'
'There was only one person who could have told you that "something", and that was
the accused?'
'Yes.'
'So he did not go out that night?'
'I made a mistake.'
'He told you that while you were in England your husband had been carrying on
with another woman?'
'Yes.'
'Did you tell your husband that you had found out that he had been carrying on with
another woman?'
'Yes.'
'Did you tell your husband that it was the accu sed who had told yo u this?'
'Yes.'
'Your husband then asked you where this took place and you told him it was in your
bedroom?'
'Yes.'
' It was after this that you told him for the first time that th e accused had attempted to
rape you?'
'Yes.'

At this stage the State's case collapsed.

19.9.13 Cross-examination as to character

The consequences of cross-exa1nining a state witness or co-accused as to his
character are well known. It is necessary for my purposes n1.erely to renund you
of the relevant section of the Act 62 and to refer you to the textbooks on
evidence and critninallaw for the necessary discussion.
The advice is so eletnentary that I aln1.ost apologise for giving it. However,
there is a trap, so it n1.ay be that I shall be forgiven. The advice is that your
consultation should have been so thorough that, if your client has an Achilles
heel, you should be aware of it. In other words, unless he cannot be attacked on
the aspect of character you will studiously, albeit regretfully, refrain fron1.
attacking the State witnesses on this point. Of course, you may well be inclined
to take the well-known 'calculated risk' and content yourself with subnutting
in argutnent that even your client's disreputable past does not n1.ean that he is
guilty of the offence wherewith he is charged. I cannot, however,
conscientiously recon1.n1.end this procedure.
The trap lurks in the case where you represent n1.ore than one accused, one
of whon1., perhaps, n1.ay be vulnerable to the provisions of the section. In such

61 This is a vital qu esti on. It permits o f o nly one an w er.

62
Secti on 227 .
C rim inal Cases 389

a case it has been held 6 -' th at an inca uti o us attack o n the characte r of a tate
w itness will allow cross-exa min atio n of th at o ne unfo rtunate accused as to his
characte r, alth o ugh h i. co-acc used m ay have nothing to fea r. l twas suggested in
the j udgm ent, pe rh aps o nl y by implica ti o n , that th e p ositi o n mi gh t possibly be
diffe rent w here co unse l, in cross-exa mining th e state w itn ess as to character,
indi ca tes that he does so o n behalf o f o ne or o th er of the acc used w ho is n ot
vuln erable to a retalia to ry attac k as to hi s own charac ter. Th is, of co ur e, poses
pro blem s.
Firstl y, th e cross-exa minatio n , o ne m.ight legitimate ly upp ose, o ught to be
o f su ch a nature that it co ul d reaso nably be acce pted that th e instru ctio ns di d in
fac t com e fi·o m th e acc used perso n wh o enj oyed an un ulli ed charac ter.
Seco ndl y, the m o m ent yo u suffer a split perso nality of th e nature indi ca ted ,
yo u autom ati ca lly te ll the co urt th at there is so m ethin g w ro ng w ith o ne o f yo ur
cli ents.
Thirdl y, it loo ks like a 'stunt' and, fo r some reaso n , So uth Af1i ca n co urts do
no t appea r to like stunts (the positio n m ay be different where the doll ar h olds
sway) . Th e tru e solu tio n to this dilemm a is se parate represe ntati o n o f the
acc used but, in criminal cases, fund · do not always permit th e lu x ury o f a
plurali ty o f plea ders.

19.10 OBJECTIONS TO EVIDENCE

Whil e yo ur cli ent is und er cross-exa minati o n it is, o f co urse, yo ur fun cti o n to
see th at he is pro tected fro m inadmissible or impro per qu es tions. Parti cularl y
yo u sh o uld be o n th e w atch fo r qu esti o ns su ch as ' Wh y did yo u no t tell th e
poli ce w hat yo u n ow tell th e co m·r:' ' It has been held th at thi s is no t pro per,
beca use, w hen arrested , an acc u ed is, or o ug ht to be, w arned that he is no t
obliged to say anythin g.6 4
In o rdin ary circum stances, if in adnussible evid ence is tend ered co unsel
obj ec ts to it. As o ften as no t th e co urt itself will raise a qu ery eve n befo re
co unse l's th o ught processe have gaJva ni sed him into ac tivity. At o ne tim e a
little in admi ssible evidence was a w ind fa ll , beca use it co uld lend substance to an
oth erwi se tenu o us appeaL The mod ern trend , howeve r, legi slati ve and judi cial,
is no t to uph old such app eals unless th ere has b ee n a fa ilure ofjustice 6 5 o r real
substanti al prejudice . This being o , it would eem advisa bl e to obj ec t to
improper qu esti o ns and in admi ss ible evidence .
An interesting case o n thi topic, and o ne whose stud y is w ell worth your
whil e, is R 11 Noo rvh ai66 In that case th e acc used appea red befo re a judge and
jury, charge d w ith th e crime o f murder. It w as wh at Da vis AJA desc ribed as 'a
m ost unusual crime' . The acc u ed v.ras all eged to have sh o t his enem y, th e
deceased , 'in cold blood ' in th e presence of hi s se rvant , and then to have

''J R 11 1-!cync en Andere (2) 1958 ( I) SA (i 12 (W) .

64
R " Patel J 9-+6 AD 903 at 908, c itin g R 11 Mashelcle and A nother 19-t-t AD 57 1 at 583- 5.
65
R t1 Patel 19-+ 6 AD 903.
6(, 19-tS AD 58.
390 Technique in Litigation

obtained the services of two other persons to dispose of the body. The
attorney-general, for son1e reason which does not appear ever to h ave been
fully elucidated, had prepared a list ofbooks borrowed by the accused from a
local library. The list categorized the books into 'Crin1e' or 'Western Crin1e'
with one volume described as 'War'. Davis AJA dryly observes in parentheses:
'How "Holy Deadlock", presumably by A P H erbert, cmnes to be described as
"Cri1ne" was not explained.' The list was put in by consent and the accused was
cross-exanuned upon the list without objection being made by counsel. I shall
not venture to inquire whether counsel blundered or whether he took a
calculated risk (a carefully calculated risk). If it was a calculated ri kit is well to
see how the point was dealt with by the judge a quo as well as by Davis AJA on
app eal.
The judge a quo stated (quoted at 66):
Exhibit 'G' was then put in, I gathered, by con ent. I was at that tim e quite in the dark
a to the nature of the books to w hich it referred, or as to the purpose of the evidence
it provided, and having regard to [coun el's] attitude, I felt under no duty to inquire.
In giving the judg1nent on appeal Davis AJA said at 76:
In the present case it is possible that counsel allowed the documents to be put in by
inadvertence, thinking that an admission was only being asked of the correctness of a
list ofbooks, under 318, to save th e calling of the librarian, and it m ay be that, once
having wro ngly let it go in, he thought that th e less attention h e drew to it, by
objections to cross- exa mination, the better for his client. Still, the fact that he did
allow it to go in by consent and that he raised no objection to the cross-examination
of the accused thereon, has not been lost ight ofby this court in considering whether
the appeal, based upon this irregularity, should be allowed.
At 76 to 79 of the report is a discussion of the suggested bases of adnussibility in
regard to the list, the learned judge of appeal finding ulti1nately that the list was
inadnu sible and prejudicial to the accused. Nor, as he ren1arks, were the jury
warned to dismiss it fron1 their nunds. The remainder of the judgn1ent, as far as
it is relevant for present purposes, reads as follows (at 80):
H ad I any doubt whether this evidence was capable of having influenced the verdict
of the jury and whether it may in fact have done so, my doubt might have bee n
resolved against the prisoner by co unsel's consent to the docum ent being put in and
his lac k of objection to the cross- examina tion. But I have none. It was contended
that the evidence against the accused was so overwhelming that the jury must in any
case inevitably have convicted. But there were difficulties in the case for the Crown;
it contained curious features-for instance, the strangeness of the story told by Amos ,
and the unsatisfactory and contradi ctory character of the medical evidence . It cannot
therefore be said that, without the inadmissible evidence, and having regard only to
the rest of the evidence, strong as it undoubtedly was, the jury would inevitably have
convicted and that no reasonable men could have don e otherwise (cf R v D e Villiers
1944 AD 493). N or can the fact that, in spite of this inadmissible evidence , one
juryman disagreed w ith the verdict of the majority, be left out of con ideration. 'By
itself' it is not of great importance- cf Tslu"ngumuz i & another v A ttorney-General of the
Colony of Nata l [1908] AC 248-but, in the circumstances w hich are now und er
considerati on, it does not stand alone and should not be left out of acco unt.
Criminal Cases 39 1

For th ese reaso ns the accused in m y opinio n su ffe red at his trial actua l and
substantial prejudi ce from th is irregularity, wh ich constitu ted a failure ofjusti ce in
tcnm of the decision in R v Rose ( 1937 AD 467).
Th e wa rning is pl ain to see. T he cou rts are no t readil y go ing to penali se an
acc used p erson fo r want of objectio n by hi s co un sel,67 but w here the absten tion
is show n to be de li berate there may b e a fi rst tin1e.

19.11 THE DEFENCE CASE

19.11.1 The accused
It is trite law th at the o nu s is o n th e State to pro ve th e guilt of the accused
beyond reaso nabl e do ubt. T h en ari ses a pro bl em . If at th e cl ose o f the case fo r
th e prosecuti o n th ere was no ev id ence th at yo ur client had co mJru tted the
o ffen ce charged o r any o ffence o f w hich he ca n be co n victed o n th e charge,
yo u w ill p ro bably have appli ed , su ccessfull y. fo r th e disc harge of yo ur cli ent. If
yo ur appli ca tio n was un successful th en yo u have reach ed th e point of n o
return , fo r a decisio n has to b made w heth er your cli ent is to give evidence in
hi s defence.
If th e Sta te had su cceed ed in p roving a pri111ajacic case, then the fa ct that the acc used
fa il ed to go into the w itness-box to refu te thi case wo uld have tra nsform ed this printa
facie proof into proof beyond a reasonab le do ubt that she had co mmi tted the
offe nce."'B
The use of the phrase 'p rinta facie case' is unfortun ate. It is o nl y w h en th e
evide nce produ ced call fo r an answ er that o n e ca n say th at th ere is pril/lafacie
proof, w hi ch in the abse nce o f an answer beco m.es con cl usive pro of. 69 It
frequ entl y happens that an accuse d is ac quitted despite th e fac t that a disc harge
was refu sed at th e end of th e state case. T he reason is ob vio us if rega rd is had to
th e level o f proof req uired w hi ch , at the e nd o f th e ca e, is pro of beyond a
reaso nabl e do ubt. At th e end o f the State case th e qu esti o n is w heth er th ere is
ev iden ce o n w hi ch a reaso nable co urt ca n convict. 70
That these rem arks (in Swartz ) w ere obiter and poss ibl y a little ove rstated is
not th e problem. What is o f utm ost co ncern is, at th e least, th at yo ur cli ent's
fai Iure to testi fY is a facto r to be taken into acco unt and m ay transfo rm prima facie
proo finto proof beyond reaso nable do ubt. Yo u might have regard to th e w o rds
o f Mal an JAin a min o ri ty judgme n t7 1 later appli ed by th e App ellate Di visio n 72
as a correc t exp ositio n of the juristi c process involved:
If an a<;sau lt- usi ng the term in its w idest possible acce pta ti o n- i co m m itted u pon a
perso n w hich ca uses deat h either ins tanta neously o r w ithi n a very short tim e
the reafter and no explanation is give n of the nature of the as ault by the person w ithin

67
CompareS" illka11kallka a11d llllotller 1963 (2) SA 531 (A) 538F.
"~ Per Van Z yl J in ,, S11'arlz 1966 (2) SA 333 (C) at 334F.
m Ex parre Mi11is1er q()u s1ice: l11 rc R '')awbso11 a11d Ul ' )' 1931 AD 466 at 47H.
70 ,, i\'dlallgamandla 1999 ( I) SAC R 39 1 (VI).
7 1 R ,, Mlambo 1957 (4) SA 727 (A) at 737.
72 S ,, Ra111a 1966 (2) SA 395 (A) at 400-1 .
392 Technique i11 Litigation

whose knowledge it solely lies, a court will be fully justified in drawing the infere nce
that it was of such an aggravated nature that the a sailant knew or ough t to have
known that death might resu lt.

Particularly where the accused's state of mind is relevant sh ould he be called as

a w itne s, for 73 -
where a question of the state of mind of an acc used person is in issue, it is no t ea y for
a court to come to a conclusion favourable to the accused as to his state ofnlind unless
he has himself given evidence on the subject.

A further n1atter to bear in mind is that while it n1ay seen1 an attrac tive
proposition to suggest in argun1ent that there are possible explanations for the
facts ·w hich are consistent w ith the innoce nce of th e accused, and that the
acc used sho uld accordingly b e given the benefit of the do ubt, there are limits to
the validity of such an argun1e nt. T h e court w ill 'not sp ec ulate o n the possible
existence of1na tters upo n w hich there is no evidence, or the existence of which
canno t reasonably be inferred fr01n th e evidence . ' 74
O n the strength of all the e authorities yo u w ill, no doubt, c01ne to the
conclusion that it will o nly b e rarely that yo u w ill no t call your cli ent as a
w itness in his own defence . T hat there are uch cases, however, equ ally do es
no t adnut of doubt. If h e w ill inevitably convict hi1nself different
con iderations n1ay apply and o ther tac tics n1ust be considered.

19.11.2 The wife, relatives and friends of the accused

If you are hesitant abo ut calling the acc used' wife as a witness because she n1ay
b e thought to be biased, reflect that she can be no more biased than your client
hi1nself. And, w ho knows, you n1ay even en counter a prosecutor with a
profound sense of chivalry. Nowadays, I warn, n1any won1en have turned to
prosecuting.
Sinular reasoning, as to bias, if not to chivalry, applies to other relatives and to
fri ends of the acc used. I offer o nly one w ord of caution- or precaution. If you
do call a relative or fri end to support the defen ce case b e sure that, immediately
the witness has identified hi1nself, h e tells the court fully about the relationship
or fri endship . If it comes out only in cross- exa1nination the resulting odour will
attac h not only to the w itness, but also to the accused; and not only to the
acc used, but also to his legal representatives .
N ever put into the w itness-box a witnes whon1 you have not interviewed.
N ever rely on the ipse dix it of your client that 'So-and-so can confinn this' or
w h atever so-and-so is alleged to be capable of saying.

19.11.3 Alibis
Alibis are very popular defences.

73 R v llfolt r 1944 TPD 105, per Schreiner J at 108. See also R v Deetlifs 1953 (1) SA 41 8 (A) at

422F, S v K /10/a 1966 (4) SA 322 (A) at 327F-G and S v F au.d Others 1967 (4) SA 639 (W ) at 644F-G.
74 R v d/iloll/1 1945 AD 369 at 386 and R '' L 1946 AD 190 at 196.
Criminal Cases 393

If yo ur defence is a so und alibi you should inform the co urt o r th e autho riti es
o f its nature as soon as possible so that the State m ay in vestiga te yo ur sto ry. If
yo u di sclose it fo r the first tin"le at yo ur tri al yo u may considerabl y weaken yo ur
de fence.
H oweve r, s 93 prov ides that where th e defence of an acc used is an alibi and
th e co urt befo re w hi ch th e proceedin gs are pe ndin g is o f th e opinion th ar the
acc used may be prejudi ced in making such defen ce if proof is admitted that th e
ac t o r offence in qu esti o n was committed o n a day o r at a time other th an the
day o r time sta ted in the charge, th e co urt shall rej ec t such proof
notwithstanding that th e day o r time in qu esti o n is w ithi n a peri od of three
months befo re o r after th e day o r tim e stated in th e charge, where upo n th e
sa m e co nsequ ences shall foll ow as are m enti o ned in proviso (b) of s 92 (2) .
There is no o nu s o n the acc used to prove hi s alibi . At th e end o f th e day th e
eviden ce is evalu ated in to to to dete rmine w hether th e ve rsio n o f th e acc used is
reaso nabl y possibly tru e. It was succin ctly put as fo llo ws in S tJ Tmiuer: 75
19] A co nspecw s of all rh e evidence is requ ired . Ev idence rh ar is reli ab le shou ld be
we ig hed alongside suc h evide nce as m ay be fo u nd ro be Glse. Indepe nd en tl y
ve ri fiab le ev ide nce, if any, sh o uld be we ig hed to see if it supp o rts any o f the evide n ce
re nd e red . In co nsid e rin g w hether evide nce is reli ab le, th e qu ali ty of th at evide nce
must of necessity be eva lu ated, as m ust co rro bo rative ev ide nce, if any. Evidence, of
co urse , m us t be eva.luared agai nst th e o nus o n any partic ul ar issue o r in respec t of th e
case in its entirety. Th e com partme ntalised and frag m en ted approac h of th e
magis trate is ill ogical and w ro ng.

Bear in nund that few alibis are so und.

o t always w ill yo u be bri efed in time to follow this advi ce-even if yo ur
alibi is so und.
B ewa re, I w o uld add , of th e alibi th at grows w ith the passage of tim e. I
rem ember a case so m e yea rs ago w he n th e tv.;o acc used wished to pro ve an alibi
fo r eleve n o'cloc k o n a particul ar Saturday night. They all eged th at they w ere
o utside their ho m e in J eppe, J o hann esburg, at th e precise m o m ent w hen ,
acc ordin g to the prosecuto r, th ey we re engage d in co mmitting a rape in a
plantati o n so m e distance away from. Th ey o bligingly provided coun sel w ith
tw o alibi witn e ses. In cross-exa n1inati o n , h o wever, a loo ph ole appea red in th e
alibi. N othing daunted , th ey provided two more w itn esses to plug th e
looph ole. T he process of o penin g up an d resea lin g loo ph o les co ntinu ed un til
the defen ce had thrown thirtee n w itn esses into th e breach. Co un sel fo r the
acc used now beli eves th at thirteen is an unlucky numb er.
Wh at o ugh t to be re m em bered in th e case of th e first alibi w itnesse i th at
the prosec u to r w ill have a classic op portuni ty to cross-exa nu ne o n th e li nes o f
'ca use to rem em ber'. U sually th e acc used v.;ill have b ee n arres ted o nl y some
days-even wee ks - afte r the offence. U suall y th e need for alibi w itnesses w ill
have become appa ren t o nl y at the stage o f p reparatio n fo r tri al. Prosecu tin g
co un sel seldom h as it so easy!

7
' 2003 ( l) SACR 35 (SCA) para 9.
394 Technique in Litigation

When the second alibi witness is called not only will the prosecutor repeat
the process, but he will doubtless invoke a technique sim_ilar to that discussed in
paragraph 19.9 .5 of this chapter. Moreover, if one witness is open to attack on
the 'cause to remember' theme, it would seem that the effectiveness of the
attack will increase by process of geometric and not of nuthematical
progressiOn.
A quotation from R v Ndhlovu 76 may conclude the topic:
It is true that the accused, as I have already mentioned earlier, gave no explanation of
what occurred. This must, of course, be taken into account against him- indeed, I
have done so. But it must be remembered that once he decided to say, quite
untruthfully, that he was not there at ali, he could thereafter give no explanation . And
his deciding to do so is not altogether surprising in an ignorant native, who felt that he
would be involved in serious trouble , no matter what he said, if once he admitted that
he was there.

Perhaps the more sophisticated clients will have their false alibis treated less
considerately.

19.11 .4 Specific defences and witnesses

Both at conunon law and under m any statutes, there are specific defences open
to an accused person. In such instances the onus will ordinarily be upon the
accused. Thus at cornn'lon law he will have to establish the defence of insanity.
On the other hand, though, the state bears the onus to prove all the elements of
the crime.
Perhaps the existence of a general onus on the State to prove guilt beyond a
reasonable doubt tends to obscure the task of the defence in cases of the type I
have n'lentioned, but I an'l not sure that practitioners always approach their task
with what I suggest is the proper state of 1nind. Your attitude n'lust be no
different fr01n what it would be if you were acting for the plaintiff in a civil case.
If you fail in a civil case, your client, the plaintiff, will probably suffer absolution
from the instance. If you fail in a crinunal case your client n'lay find himself in a
place where there is no absolution. I an'l not suggesting a formalised approach
such as advice on evidence but I do suggest that there must be a si1nilar
approach in preparation, while the defence should be conducted along the lines
suggested in chapters 4 to 8.
In other words, an analysis must be 1nade of the issues on which proof is
required and of the witnesses available to prove the elen'lents of such issues .
Often it will be necessary to call expert evidence - and this , too, apart from
those instance where the onus is on the accused. It is well, in presenting your
case, to re1nember that in crinnnal1natters that there are three distinct divisions
in regard to the onus which has to be discharged by an accused and, should an
appeal eventuate, you may regret any economy in the calling of supporting
witnesses. The categories are:

76
1945 AD 369 at 387-8.
Cri111inal Cases 395

Ordinary cases where the onus is on th e state to prove its case beyo nd
reasonable do ubt 77 and the acc used must be given the benefit of th e
do ubt; i e if his story m ay reaso nabl y be tru e he is entitl ed to an acquittaPH
Cases where a special defence must be proved by th e defence, o n a balance
of probabilities.
Cases where a special defence must simj]arl y be proved on a balan ce o f
probabilities, but the acceptance of that defence is a matter of judicial
discreti on , so that an appeal court will not ordinarily interfere, eve n if it
does no t agree with the views o f th e triaJjudge .79
It m ay be that, in prac ti ce, these distin ctions are of academi c importance,
beca use ideally yo u w ill call w hateve r w itn esses are available to supp ort each
element o f yo ur case.

19.12 ARGUMENT
19.12.1 Generally
E ve n in th ese cyni cal times it w ould be w ell not to neglec t the art o f orato ry,
whi ch has fo r centuri es bee n rega rded as the hi ghest attribute o f advocacy. It
will no t be yo ur lo t to sway a jury w ith an expositio n of eloqu ence so m oving
that non e co uld resist it. You may read the books to whi ch I have fro m time to
tim e referred,80 and find many fin e exampl es of addresses to juries in bo th civil
and crimin al cases . Fro m these exa mpl es yo u ca n lea rn mu ch, o nce yo u have
m as tered th e fund amental principl es of knowing wh at yo u are after and o n
what fo undati o ns yo ur o ratory must stand .
Whether yo u address a magistrate, a judge o r a judge and assesso rs, yo ur
argum ent w ill no t prevail by shee r eloqu ence o f rh etori c alo ne. Did the ju ry
tria] differ in any marked degree? In th e w ords o f co un el w ho argued cases
befo re juri es for so me 40 yea rs:
A n address by itse lf in a ju ry tri al w ill rarely secure an acqu ittal. M odern j uries arc
m o re soph istica ted and better info rm ed tha n they we re, say, fi fty years ago. Besides,
any judge who is wo rth his sa lt w ill easily dispose of any ho t ai r that you may ta lk ..
Let yo u r address be eighty pe r cent co ld analys is of the evidence and twenty pe r cent
rheto ric .

The sam e co un el had o ne further pi ece of advice :

D o not ta lk to rheju ry about thei r inte lli gence . If they have any you w ill o nl y sicken
them. If they have n' t the Aattery will nor he lp youB 1

77
Bur co mpare the judgment ofMalanJA in R 11,\ fla111b o 1957 (-+)SA 7'27 (A). See also S I', ·£cyuhcl)!
1983 (3) SA I-tO (A) and I' l/tl 11 Nickcrk 1981 (3) SA 787 (T) .
7
" Heslop 1' S 2007 (-t) A 3S ( CA). 2007 ( I) SACR 461 (SCA).
79
CompareS 11 Nell 1968 (2) SA 576 (A) and cases cited at 577 and 580, and S 11 1/tl u rlcr Bel)! 196S
(3) SA 250 (A).
*' Donovan kill i11 Trials and 'T(w i11 Cour£, H arris Illusllmious in Jlrii'Orncy and H i1Hs 011 Ar/,ocacy,
and Du Cann 'l'll c rl rl '!( T11e Arii'O(tl/C at 15-t and 1o7.
1
" See alsojudgej W Dono van Tiw in Cour1 -+5 and (>7-8.
396 Technique in Litigation

On these lines you n1.ay well approach a judge, or a judge and assessors.

19.1 2.2 A few pointers

No case ever suffered b ecause counsel reminded the court of the
incidence and nature of the onus, the ren1.inder being either direct or
oblique as suited the nature and sophistication of the tribunal.
It is en1.pty rhetoric, however, to talk of 'beyond reasonable doubt' and
'benefit of the doubt' unless you can show the court where the doubt is to
be found.
A co urt n1.ay convict upon the evidence of a single witness provided the
witness is a comp etent one. 82 M erely b ecause there are two, three or fifty
w itnesses in a case does not take it out of this category, where the surplus
wi tnesses do not relate to the question of guilt,83 eg, an a1nbulance driver
who conveyed the decea ed to hospital.
Ask yourself whether the case is one in which corroboration is required,
and, if so, what corroborative evidence has been tendered. If yours is such
a case it n1.ay be convenient to prese nt the argun1.ent on the following
lines:
• authorities as to the general principle;
• evidence of the con1.plainant;
• evidence tendered as corroboration; effec t of cross-exan1.ination;
• authorities where si1nilar corroborative evidence was tendered;
• the accused's evidence 8 4 in denial.
Atten1pt to destroy the cogency of the State case, bearing in mind that the
n1ore da1nage you can do the easier will it be for you to argue and the
court to find that the explanation of the acc used 'n1.ay reasonably be
tru e' .8 5

19.12.3 Planning and structure

In whatever way you present yo ur argun1.ent, at least have a plan. Quote the
law first if yo u will, or else discuss the evidence and then the law, but do not flit
from point to point like a butterfly. An argun1.ent is cogent and compelling if it
confirn1.s to the following precepts:
It n1ust be logical.
It must be coherent.
It should be brief.
It should not be repetitive.

H:! Secti o n 208 of th e Act. Sec also R JJ Mokoena 1932 OPD 79, R 11 Mokoena 1956 (3) SA 81 (A) ,

and S 1' Art111a11 1968 (3) SA 339 (A).

H-' See, ho wever R v Audoorlw111 1954 (3) SA 163 (N ) and Su,arts JJ R 1954 (2) PH H107 (0), which
la tter case considers the existence of' real' evide nce in additi on to the single witness .
H ~ On thi topic, particularly th e las t point made, seeS 11 Sn y111an 1968 (2) SA 582 (A) , especially at
589 H- 590D , and also S 11 A rt111an 1968 (3) SA 339 (A).
Hs R 11 D{{ford 1937 AD 370.
Cri111inal Cases 397

To atta in these ends you mi ght co nsider the following as a blueprint, bearing
in mind that the ftrst po int must always come first, while the second and third
points are reversibl e:
In your own mind look for and determine the essence of the matter. Your
subsequent arg ument w ill be designed to establish that esse nce in your
ow n favo ur.
Determine what principles of law will arise on the m erits of the case. Be
prepared w ith your notes of auth o riti es o n each point.
Discuss the evidence. The easy way is to go thro ugh the evidence of each
wi tness and make yo ur co mments. The more difficu lt is to take a se ries of
points and discuss the eviden ce o n eac h point. The topi c has been
discussed in chapter 16.
R em emb er that your disc ussion of eac h p oint of evidence mu st be
te leological - to show either that it does not lead to th e inference of guil t,
o r to show th at it leads to the o pposite co nclu sio n and to the acquitta l of
your client.
Bewa re of misleading yourse lfby a painstakin g dissec tio n and destru cti on
of the 111inntiae of the State case without regard to the cumul ati ve effect of
th ose minutiae. H6

19.12.4 Never, never, never surrender

Duting the co urse of argum ent th e co urt may criti cise so me of your
submissions. There is no m eri t in abandonin g any point which yo u m ay have
m ade - in any event, it belongs to yo ur cli ent, and you have n o right to
aba ndon it. After all, the court may be wrong and yo u m ay be tight.

19.13 MITIGATION
l do n o t propose to provide an ex haustiv e analysis of what constitutes
mitigating factors. N or do I pro pose to refer to th e doze ns of reported cases on
se ntence . I do ubt whether one rea!Jy achieves very mu ch , fi-om a positi ve point
of view, by refe rring to th e sente nce imposed for a similar offe nce in ano th er
case. I say thi s beca use the questio n of sentence is intimately bound up with the
nature and circum stance · of the offence and of the p erso nality and situ ati o n of
th e accu ed- yo ur cli ent, in his case . Althou gh I have decried the quotin g of
authoriti es on th e questi o n of se ntence, I do sugges t that you refer, in supp o rt of
th e proposition I have just mad e as w elJ as for the ge neral guid ance on
mitigatin g factor, to aj ud gnte nt ofVan H eerd enJ in a case on appea l,'0 where
th e lea rn ed judge di scusses th e fac tors affecting th e accused persona!Jy, th e
factors relatin g to the o ffence itself and the factors pertainin g to publi c policy.
Of co urse, yo u wi!J flnd many o th er equall y va lu ab le judgm ents.

"" Sec R ,, De l illiers 19-t-t AD 493 and cases annotated against th at repo rt, a~ also S 11 S11y11Ja11 1968
(2) SA 582 (A) at 589 H and cases th ere ci ted.
7
" S 11 Pi/lay 1968 (3) SA 2 1 (N ) at 24-5.
398 Technique in Litigation

The court is entitled, in terms of s 112(3) and s 27 4 of the Act, to 'receive

such evidence as it thinks fit in order to inform itself as to the proper sentence to
be passed'. This evidence must be on oath88 or the court n1.ay well be entitled to
disregard it. Son1.ehow or other one tends to gloss over the business of
mitigation and to rely on one's own eloquence to save one's client from the
undue rigours of the law. Let n1.e in no wise decry that eloquence or atten1.pt to
discourage your oratory, but without a foundation of fact, it is futile . There
have, it must be noted, been decisions to the effect that the court is not obliged
to hear argument in tnitigation, but it would be only on very rare occasions that
a court would deny you a further hearing. As to n1.itigation, there may be some
uncertainty as to the incidence or nature of the onus. It would see1n that the
accused must establish n1.itigating factors on a balance of probabilities, although
a court might be inclined sometimes to give hi1n the benefit of the doubt. 8 9
Do not allow your efforts on the topic of nutigation to be coloured by the
defeat you have sustained on the 1nerits of your defence. I have tried, in these
short notes, to 1nake the point that 1nitigation of sentence is a separate issue, a
new trial, and it should be approached with the same care and energy as any
other trial.
The accused must, at son1.e stage, have the opportunity of adducing evidence
in 1nitigation, and the failure to afford hin1. such opportunity an1.ounts to an
irregularity. 90
You will only do justice to your client in thi regard if you bear in nund:
What has to be considered is the triad consisting of the crime, the offender and the
interests of society. 9 1

In a 1nost illuminating judgment on the triad, 92 one of South Africa's most

distinguished judges, Judge Friedman (as he then was), analysed the correct
approach to the asses 1nent of a proper and individualised sentence. I quote this
judgment in detail because it sets out what evidence should be placed before
the sentencing officer to enable hin1. to pass a proper and individualised
sentence, and what the relevant sentencing pillars are that receive recognition.
The following quotation, although long, is deserving of careful study:
According to Winston Churchill in English Prisons and Borstal Systems (1952):
'The mood and temper of the public in regard to the treatment of crime and
criminal is one of the most unfailing te ts of the civilization of any country. A calm
and dispa sionate recognition of the rights of the accused against the State, and
even of convicted criminals against the State, a constant heart-searching by all
charged with the duty of punishment, a desire and eagerness to rehabilitate in the
world of industry all those who have paid their dues in the hard coinage of
punishment, tireles efforts towards the discovery of curative and regenerating

HB R 11 Njinel/la and Another 1951 (2) SA 183 (C), and S 11 Van R ensburg 1968 (2) SA 622 (T).
89
S 11 Sh eparr/1 967 (4) SA 170 (W ). See also S v Cooke 1968 (3) SA 159 (E).
90
v Leso en 'n Ander 1975 (3) SA 694 (A).
91
S v Zinn 1969 (2) SA 537 (A) at .J-l-0.
92
S v Banda 1991 (2) SA 352 (BG).
Criminal C ases 399

processes, and an unfalterin g fa ith that there is a treas ure, if yo u ca n o nl y find it, in
th e hea rt of eve1y man- th ese are th e symbols whic h in th e treatm ent of crim e and
criminals mark and m easure th e stored-u p strength of a nati on. and are the sign and
proof of th e li vin g virtu e in it. '
The above quotation co ntains an eloq uent distillati o n of th e esse nti al elements in
th e imposition of punishm ent by a co urt.
It is a truism that se ntence is 'p re-emine ntl y a matte r fo r the di sc retion of th e tri al
Co urt', and this disc re ti o n must be 'j udi cially and prop erl y exercised'. Sec S I'
Cinllnolllis 19TS (-+)SA 867 (A) at 868F-H.
Th e Court, in imposin g senten ce, must have due rega rd to th e fa cts of the case, ami
in additi o n th ereto, must app ly ce rtain well-established lega l principl es relatin g co th e
extent and magnitude of puni , hm ent. An aweso m e res pons ibili ty is thereby vested in
the Court.
In ancient hi story reta liation and physica l ab use we re utilised co punish an offende r
for his crim es . With the advance of society, and its hum anistic va lu es, a m ovement
developed to redress the w rongs of the past in thi s rega rd. An cient prin cip les of
punishm ent ha ve been co nsiderably ameliorated and indeed save for a few countri es
have been jettiso ned in fa vo ur o f a more human and just app roa ch towards th e
question of punishm ent .
ln detennining a proper sentence th e lapida1y words of H o lmes JA in " F?..abie
197 5 (4) SA 855 (A) at 861 A-862 F con tain a co mprehen ive and use ful gu idelin e of
th e prin ciples to be appli ed in imposing sentence and are appli ed by th e Co urts in this
co u n tty.
After a careful anal ysis of th e principles appli cabl e to this subj ec t, H o lm es JA
summ ed up at 862C, in general, and wit h admirable brev ity, as fo !Jows, and I quote:
' Punishment sho uld fit the criminal as w ell as th e crime, be fai r to society, and be
bl ended with a m easure of mercy acco rdin g to the circumstances.'
In the sa m e case Co rb ett CJ (th en JA), after agreei ng with the reason give n by
H o lm es JA , stated at 865G-866C and I quote:
' In his Co mmentnry on the Pnndects 5.1.57 Voet w rites of th e need fo r Judges co be
free fi·om hatred, friendship, anger, pity and avarice . In a note on this sec tion in his
Supplem ent to the Co mmentary (published in l973) Van der Linden m ake
interesting re fe rence to th e vie·ws o f a number of w riters, classical :md o th erwise , as
to th e pro pe r j udicial attitude of mind to wa rds punishm ent. (A tramlati on of this
parti cular note co n ve ni entl y ap pears in the SelecriiJe Voet - Cane 's translation vol 2
at 72.) The no te (quoting Cane's tran !ario n) co mmen ces:
" It is tru e, as C ice ro says in his wo rk on Duties bk 1 ch 25, that ange r sho uld be
especial ly kept down in punishin g, beca use he who co m es to punishm ent in
wrath w ill never ho ld th at middl e co urse w hi ch li es betwee n th e too mu ch and
th e too littl e. It is true also that it would be des irable rh at th ey w ho ho ld th e
office o f Ju dges sho uld be like th e laws , whi ch approach punishm ent not in 3
spirit of 3nger but in o ne of equity."
Vander Linden furth er notes that among the most harmful fau lts ofJudges is, i11tcr
alia, a stri ving after sevetity (seiJeriratis nlferintio). Apropos this, a passage is quoted
from Seneca o n M ercy, including th e decla ration: "Seve ri ty I keep concea led,
m ercy ever read y" (sel!eritnfelll abdita111 , clel!rerlfialll i11 pro mpt11 habeo) . Van der Linden
concludes w ith a warning that mispl aced pity (illfellrpestiva rnisericordin) i. no less to
be censured.
D es pite their antiquity th ese wise remarks contai n nw ch th at is releva nt to
co nte mpora1y circumstance . (Th ey were referred to , wit h approva l, in S 11 Zir111
1969 (2) SA 537 (A) at S41 ). A judicial officer sho uld not approach punishm en t in
400 Technique in Litigation

a spirit of anger because, being human, that will make it difficult for him to achieve
that delicate balance between the crime, the criminal and the interes ts of society
w hich his task and the obj ects of punishment demand of him. Nor should he strive
after severity; nor, on the othe r hand, surrender to misplaced pity. While not
flinching from firmness, w h ere firmness is called for, he should approach his task
with a humane and compassionate understanding of human frailties and the
pressures of society which contribute to criminality. It is in the co ntext of this
attitude of mind that I see mercy as an element in the determination of th e
appropriate punishment in the light of all the circumstances of the particular case.'
Kotze AJA w ho co ncurred in the judgment of Holmes JA stated at 866D-E:
' In regard to w hat has been termed the "approach of mercy", I m erely wish to say
that I have always understood it to be the duty of a judicial officer, called upon to
impose punishment upon an offender, to consider to what extent th e particular
circumstances of a give n case require that justice should be tempered with mercy.'
I respectfully agree with what has been stated by the learned Judges in Rabie's case
with reference to the guidelines adumbrated therein.
In determining the se ntence to be passed on the accused I am guided by the
folJowing:
(a) The acknowledged objects and purpose of criminal punishm ent are deterrent,
preventive, reformative and retributi ve.
(i) D eterrent, this may be general (i. e., discouraging others than the accused
fi·om co mmittin g th e crim e), pecial (discouraging the specific offender
from doing it again), or both.
(ii) Preventive, to protect th e public hom furth er criminal condu ct by th e
accused. This may arise out of incapaci tation as a result of confinement to
pnson.
(iii) R eformative, co ncerning th e rehabilitation of the offende r by educational
or other co rrection al treatment in the most effective manner.
(iv) R etributive, the exac tion of a penalty which reflects the seriousness of the
offence, to promote respec t for the law, and to provid e appropriate
punishment for the offender.
Acco rding to Gordon Crim inal Lal/J of Scotland (J 967) at 50:
'The retributive th eory finds the justifi cation for punishment in a past act, a wrong
which requires punishment or expiation .. . . The other theories, reformative ,
preventive and deterrent, all find their justification in the futur e, in the good that
will be produced as a result of the punishment.'
Schreiner JA observed in R 1J Ka rg 1961 (1) SA 23 J (A) at 236A, while accep ting the
importance of th e element of deterrence, th at ' the retributive aspect has tended to
yield ground to the aspects of prevention and co rrec tion'. See also S IJ Rabie (s upra at
862A); Modern Criminal Lalll by Wayne R La Fave at 2-3.
(b) What must also be considered is the triad co nsisting of the crime, the offender
and the interests of society. See S v Zinn 1969 (2) SA 537 (A) at 540G; S IJ
Scheepers 1977 (2) SA 154 (A) .
I am in respectful agreem ent with what bas bee n stated in the e cases. See also S v
So ma 1980 (3) SA 143 (T) at 145E-F.
The elements of the triad contain an equilibrium and a tension. A court should,
w hen determinin g sentence, strive to accomplish and arrive at a judicious
co unterbalance between these elements in order to ensure that one element is not
unduly accentuated at the expen e of and to the exclusion of the others. This is not
merely a formula, nor a judicial incantation , the mere stating whereof satisfies the
Crimin al Cases 401

req uire m enrs. What is necessa ry is that th e Co urt shall consider, and tty to balance
evenl y, th e nature and circumstan ces of th e offence, th e chara cte risti cs of th e offe nder
and his circumstances and the impact of the crin1e on th e co mmuni ty, its we lfa re and
co nce rn. Thi<; concepti on a<; expo und ed by th e Courts is so und and is in co mpatibl e
w ith anyt h ing less.
Th e guidelin es th at 1 have re ferred to stem fi·om th e importan ce o f th e legal
prin cipl es appli cab le in se nten cing an o ffe nder.
Th erefo re all th e elcm enrs of th e triad , alth o ugh not idenrical, arc indissociab le.
(c) In con idering the offende r, du e rega rd must be had inter alia to th e fo ll owin g:
(i) his/ h er age and bac kground;
(ii) level of edu cation , arra inm ent, and position in society;
(iii ) fam il y circumstances , whet he r m arri ed o r not, and th e question of
dependants;
(iv) motive in com mitring th e offen ce, w heth er fo r p erso na l ga in o r fo r reaso ns
of ava ri ce, o r b ein g actuated by so m e m o ral o r laud ab le o bj ecti ve;
(v) w hether th e offender stood to gain by th e offence;
(v i) th e questi on of th e acc used be in g a fir t offender;
(vii) th e effect of punishm e nt o n th e o ffender, and m o re parti cularl y if a
senrence of im prisonment is imposed;
(viii) th e prospects of reformati o n and co rrection , and becoming a use ful
m e mber of society;
(ix) th e presence o r abse nce of re morse o r co nDition;
(x) w hethe r instead of imp ri son m ent an altern ati ve m ethod o f punishm enr
wo uld no t be appropri ate in th e circumstan ces;
(xi) a pe rceptive und erstandi ng of the acc used 's h u man fi·a i!ti es as effected by
the circwmtan ces surro undin g th e co mmission of th e offe nce in questi o n
and a bal an cing of th ose frai lti es aga inst the evil of th e offend er 's deed. See
5 '' S~QIIIa hla 1967 (4) SA 566 (A) at 571E-F.
(xii) Influ ence o r encou rage m ent of another. See S" De Boer 19(i8 (-f) SA 866
(A); S '' Lellllbcl~~ en 'n Ander 1975 (-f) SA 553 (A); S ''Va n Rooi en A ndere
1976 (2) SA 580 (A): S '' Kl111beka Cll Andere 1980 (4) SA 22 1 (0 ).
Th e above ]i <;t is not ex haustive, but I b eli eve that it contains pra gm atic tests for the
tru th of th e a<;se ni o n of conside rin g th e positi on of th e o ffender.
(d) The ctime . In pa sin g se nten ce the tri al co urt must take into acco unt th e m o ral
and ethi ca l nature of th e crim e, and the gravity of the offence . Iris acc epted and
is indeed logica l th at a more seriou s crim e w ill ca rry w ith it a greater m o ral
blam ewo rthiness th an a minor o r lc · se ri o us offence . This invo lves a moral and
valu e j udgm enr. A process of arid intell ectualism is insuffi cie nt. M ere th eo risin g
is not su fficient . Wh at m atte rs fin all y is how the Co urt view s th e crim e on it<;
own metits, and aU the releva nt proven fac ts and circumstan ces must be
ca refull y co nsid ered and assessed .
M erely to find that a crim e is by itself seri o us withollt regard to its settin g and its
fa cwal co ntext, and thereby co ncluding that the cri m e committed by th e offender is
th erefo re also seri o us, is not appropriate, :md may result in a setiou s misdi rection.
Th e Court doe<> no t and ca nnot rel y o n a ca talogu e of crim es . T o do so wo u ld res u lt
in a purely m echanistic approa ch , w hereby the Co urt, in its j udi ci:d discre ti on,
wo uld fail to pay d ue rega rd to the fac ts and circumstances of th e parti cul ar cri m e.
Co njoined to th e nature of th e crime are also th e con seq uences of th e ctim e. If the
co nseq uences are seri o us o r in deed incalc ulabl e, the aggravating circumstances wi ll
402 Technique in Litigation

be viewed m ore serio usly by the Co urt. On the other hand, if there we re no serious
consequences or results flowing from the crime, the aggravating circumstances
recede.
Th e sentence therefore must be co m mensurate with the gravity or otherwise of
the crime, and is a necessa ry co ncomita n t of p unishm ent. See Du Toit Strcif in Suid
Afrika at 89-91; S v Zinn (supra); S v H aasbroek 1969 (1) SA 356 (E).
(e) T he interests of the commun ity. The Co urt fulfils an important fun ction in
ap plying th e law in the community. It has a duty to m aintain law and order. The
Co urt operates in society and its decisions have an impact on individu als in the
ordinary circ umstances of daily life . It covers all possibl e gro und. There is no
sp here of life it does no t include. The Co urt m ust also by its decisions , and the
impositio n of sentence, p rom o te res pect fo r the law, and in doing so mu st reflect
the serio usness of the offence, and p rovide just punishment for the offender
while taking into acco unt the personal circumstances of the offender.
T he feelings and requirem ents of the community, the protec ti on of society against
the accused and o ther p o tential offenders mu st be co nsidered , as well as the
ma inte nance of p eace and tranquillity in the land needs to be taken into account. See
D u To it (op cit at 91- 2).
A weighty co nsideratio n in imp osing se ntence is also the pro tec tion of the
community. If an offender is a psych opath or a dange r to society, so ciety n eeds to be
protected , and the C ourt has a bounden duty to protec t society by imp osing an
appropriate sentence . In this respect th e prospects of rehabilitation or reformation o f
an offender mu st be given du e weight.
T he nature of the crime is of con iderable impo rtance. It m ay be of such
significa nce or so far reaching that impriso nment is the onl y adequate punishment.
See S v JV!aanuan 1976 (3) SA 510 (A); S v H older 1979 (2) SA 70 (A) at 77-8 .
While co nsidering the interests of society as a fac to r in detem'lining se ntence, th e
in terests of society should not be over-stresse d to the detriment o f the perso nal fac to rs
of the acc used. As has alrea dy been indicated, a balance sh ould be m aintained
be tween the different elements of the triad.
W hile it is clear that in crimes w hich imp inge on the peace and tranquillity of
society the interests of society come to the fo re and m ay result in a recession of the
perso nal circum stances o f th e offender, neverth eless the interests of society must no t
be over-emphasised at the expense of the personal circumstances of the accuse d. Du e
we ight m ust be give n to the personal circ umsta nces of the accused thro ugho ut th e
process of sente ncing. ee S v Quandt! en A ndere 1989 (1) SA 517 (A); Du To it and
O th ers Co m111 entary on tl1 e Cri111in a/ Procedu re Act at 28-7.
(D As a genera l principle equal punishment for eq ual o ffences is to be imposed
unless the personal characteristic of the respective acc used m ake such
differentia tion nece .. ary. See S tJ Giannoulis (s upra); S 11 Marx 1989 (1) SA 222
(A) at 225-6 .
(g) Mercy is regarded as a concomitant ofjustice. In S v Rabie (s upra at 861 D et seq)
Holmes JA stated:
'Then there is the approach of mercy or compassion or plain h umanity. It has
noth ing in co mmon with ma udlin sympathy fo r th e accu ed. W hile
recognising that fa ir punishment may sometimes have to be robust, mercy is
a balanced and humane quality of thought w hich tem pers one's approach
when cons idering the basic factors ofletting the p unishment fit the criminal,
as well as the cri m e, and being fair to society.'
The concept of mercy has been recognised by the Courts of this country. As has
been aid: 'Justice must be done but mercy, not a sledgehammer, is its concomitant.'
C,'iminal Cases 403

ee S v Harriso11 1970 (3) SA 684 (A) at 686A; v Spa rks a11 d Anoth er 1972 (3) SA 396
(A) at 410G.

These guidelines cl ea rly spell o ut how the qu estion of se ntence sho uld be
approac hed . A mere ex parte statem ent from the bar is insuffi cient. Evidence is
needed that will in clude expert testimony o f, for exa mpl e a forensic
criminologist, psychologist, psychiatri st or a social w orker.
In S 11 Lewis'n H eferJA said:
A pro bation officer's re po rt is so mething to w hi ch co nsiderable im po rtance is
attac hed (cf v Adams 197 1 (4) SA 125 (C) at 127 and S 11j anse11 and A 11oli1er 1975 ( I)
SA 425 (AD) at p 428 (bo th dea lin g wi th j uve nil es; S 11 Maxaku 1973 (4) SA 248 (C)
at 254). for it usually provides the Court with aU ava il abl e info rma ti on whi ch will
assist in un de rstand ing th e probl ems of th e acc used (S 11 H a11d A 11orher 1978 (4) SA
385 (E D ) at 386) and in determ ining the most appropri ate fo rm of pu n ishm ent.
Such a report alway req ui re careful co nsideratio n and often ct;ti cal analysis in order
to ensure th at the views of a proba tio n offt cer are not simply substituted fo r the
Court's own views (S v H a11d A rtorh er loc cit). But if th e recommendati ons contain ed
therein are no t fo ll owed, th e accused an d a Court of appea l is entitl ed to know w hy.

The a me applies to the report of any o ther expert, for exampl e the evidence of
a forensi c crinunologist. A word o f ca ution: w ith o ut a proper and in depth
consultation with th e expert yo u ca n not lead th e evid ence of the expert with
confidence . lt is esse ntial that you understand the content o f the report and are
comfortable with th e techni cal tenns of th e disciplin e of the expert -
rememb er the court is no t an expert in th e particul ar discipline and must be
made to und erstand th e evidence .
Bea r in mind th at miti gatin g fac to rs are not synon ymous with the term.
'substantial and co mp elling circum stances' that appears in s 51 of th e C rin-lln al
Law Am endm ent Act 105 o f 1997, dealing with presc rib ed nunimum
sentences .94
In S 11 M algas95 the court onsidered the phrase 's ub tantia1 and co mp ellin g
circumstances', and expressed itself as follows:
[25] W ha t sta nds out quite clearl y is that the cou rts are a good deal fi·ecr to depart
fro m the prescribed se nte nces than has been supposed in ome of th e previo usly
dec ided cases and th at it is they w ho arc to j udge w heth er o r not the circ umsta nces of
any particul ar case are such as to justify a departure. H owever, in doi ng so, th ey are to
respect, and not me rely pay li p serv ice to , th e Legislature's view th at th e pre cri bed
peri ods of imp risonmen t are to be taken to be o rdin aril y app rop riate w hen crimes of
th e spec ified kind are comm itted . In summary-
A. Secti o n 51 has lim ited but no t elincin ated th e co urts' disc retio n in im posi ng
sentence in respect of o ffences referred to in Part l of Schedule 2 (or
imprison m ent fo r o th er specifi ed pe1iods for offences li sted in o th er parts of
Schedu le 2).

93
1986 (2) PH H 96 (A).
'H See in gene ral, as to presc ribed 1ninimum se nte nces, S '' Nla{f!as 200 1 (2) SA 1222 (SCA), 200 1
(1) SACR 469 (S A), and 1/i/akaz i '' !2008] -+ All SA 396 (S A).
'" 2001 (2) SA 1222 (SCA), 2001 ( l) SACR 469 (S A).
404 Technique in Litigation

B. Courts are required to approach the imposition of sentence conscious that the
Legislature has ordained life imprisonment (or the particular prescribed period
of imprisonment) as the sentence that should ordinarily and in the absence of
weighty justification be imposed for the listed crimes in the specified
circumstances.
C. Unless there are, and can be seen to be, truly convincing reasons for a different
response, the crimes in question are therefore required to elicit a severe,
standardised and consistent response from the courts.
D. The specified sentences are not to be departed from lightly and for flimsy
reasons. Speculative hypotheses favourable to the offender, undue sympathy,
aversion to imprisoning first offenders, personal doubts as to the efficacy of the
policy underlying the legislation, and marginal differences in personal
circumstances or degrees of participation between co-offenders are to be
excluded.
E. The Legislature has however deliberately left it to the courts to decide whether
the circumstances of any particular ca e call for a departure from the prescribed
sentence. While the emphasis has shifted to the objective gravity of the type of
crime and the need for effective sanctions against it, this does not mean that all
other considerations are to be ignored.
F. All factors (other than those set out in D above) traditionally taken into account
in sentencing (whether or not they dimini h moral guilt) thus continue to play a
role; none is excluded at the outset from consideration in the sentencing
process.
G. The ultimate impact of all the circumstances relevant to sentencing must be
measured against the composite yardstick ('substantial and compelling') and
must be such as cumulatively justify a departure from the standardised response
that the Legislature has ordained.
H. In applying the statutory provision , it is inappropriately constricting to use the
concepts developed in dealing with appeals against sentence as the sole
criterion.
I. If the sentencing court on consideration of the circumstances of the particular
case is satisfied that they render the prescribed sentence unjust in that it would
be disproportionate to the crime, the criminal and the needs of society, so that
an injustice would be done by imposing that sentence, it is entitled to impo e a
lesser sentence.
]. In so doing, account must be taken of the fact that crime of that particular kind
has been singled out for evere punishment and that the sentence to be imposed
in lieu of the prescribed sentence should be assessed paying due regard to the
bench mark which the Legislature ha provided.

19.14 CRIMINAL APPEALS

The technique of appeals is dealt with in chapter 18, but that chapter does not
specifically deal with cri1ninal appeals . Chapter 18 however contains useful
hints on how to handle yourself in the appeal court and how heads of argument
should be prepared and argument presented.
There is no longer an auton1atic right of appeal from a lower court to a
higher court in criminal cases. Section 309B of the Crinunal Procedure Act
provides that any accused, other than a person conten1plated in the first proviso
to s 309(1) (a), who wishes to note an appeal against any conviction or against
Cri/1/in a/ Cases 405

any resu ltant se ntence or order of a lower co urt, mu st apply to that co urt for
leave to appeal aga in st that conviction, se ntence or order w ithin l-1- days96 after
the passing of th e se ntence or order fo Uowing o n the co nviction; or w ithin
such e tended peti od as th e co urt may o n app]j ca tion and for goo d ca use
shown, all ow.
Every application for leave to appea l must set fo rth clea rly and specifically
the grounds upon wh ich the accu sed desires to appeal. If the accu sed appli es
ora ll y for su ch leave imm ediately after the passin g of th e senten ce or o rder, he
must state such grounds, w hi ch m ust be recorded and form part of th e record.
If any application refened to in this sec tio n is refused , th e magistrate mu st
immed iately record his o r her reasons for such refusa l.
An applica tion for leave to ap peal m ay be accompa ni ed by an appli ca ti o n to
addu ce further evidence (hereafter referred to as an application fo r furth er
evidence) relating to the conviction, sentence o r o rd er in respect of which the
appeal is so ught to be noted.
An applica ti on for furth er eviden ce must be su ppo rted by an affidavit stating
that:
further evid nee whi ch would presum ably be acce pted as tru e, is
ava il able;
if accepted the evidence could reasonably lead to a different decision or
o rd er; and
there is a reaso nably acceptable explanati on for th e fa ilu re to produce th e
ev iden ce be fore the close of the tri al.
Section 309C pro vides that if any applica ti on
for co nd ona ti on,
for furth er eviden ce, or
for leave to appeal,
is refused by a lower co urt, the acc used ma y by petiti o n app ly to the Jud ge
President of the Hi gh Co urt h aving jurisdictio n to grant any one o r 1nore of the
appL ca ti ons in question.
Any petition must be m ade
w ithin 21 days 97 after the appli ca ti o n in question was refused o r
w ithin such extended period as may on an apph ca ti o n acco mpanyin g th at
petition, for good ca use sh own , be allowed.
An accu sed w ho submits a petition mu st at th e sam e tim e give notice thereof
to the clerk of the lower co urt where the co n viction or se ntence o r o rder was
made.
When receiving the noti ce the clerk of the co urt mu st without delay submit
to the registrar of the High Co urt co ncerned copies of-

96
ore rh ar because th ese arc days as presc ribed in an Act Js opposed ro a rul e, rh ey are calendar
days and not court days . In other wo rds, Sa rurdays, Sunda ys and public ho lidays arc in clud ed.
97
Calendar days. See fi1 96 .
406 Technique in Litigation

the application that was refused,

the magistrate's reasons for refusal of the application and
• the record of the proceedings in the magistrate's court in respect of which
the application was refused provided that
• if the accused was tried in a regional court and was legally
represented at the trial, or
• if the accused and the Director of Public Prosecutions agree thereto,
or
• if the prospective appeal is against the sentence only, or
• if the petition relates solely to an application for condonation, and
acopy of the judgn'lent, which includes the reasons for conviction and
sentence shall suffice for the purposes of the petition.
There is one exception where there is an auton'latic right to appeal. Section
309(1) (a)(ii) provides that if a person was sentenced to imprisonn'lent for life by
a regional court under s 51 (1) of the Crinunal Law An'lend1nent Act 105 of
1997, an appeal may be noted without having to apply for leave to appeal.