Attorney-General Transvaal v Kader (501/89) [1991] ZASCA 135; 1991 (4) SA 727 (AD); [1991] 2 All SA 543 (A) (27 September 1991)

Attorney-General Transvaal v Kader (501/89) [1991] ZASCA 135; 1991 (4) SA 727 (AD); [1991] 2 All SA 543 (A) (27 September 1991)

The Supreme Court of Appeal held that the phrase 'just excuse' in section 189(1) of the Criminal Procedure Act is not limited to legal excuses arising from privilege, admissibility, or compellability. Instead, it encompasses broader circumstances, including situations where it would be humanly intolerable for a witness to testify. The court affirmed that the respondent's psychological condition, supported by expert evidence, constituted a 'just excuse' for refusing to testify, as compelling him would likely result in severe psychic pain and a substantial risk of suicide. The court found that the court a quo correctly applied the balancing of public interest in the availability of evidence...

Citation
[1991] ZASCA 135
Parties
Appellant: Attorney-General, Transvaal; Respondent: Abdul Aziz Kader
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 September 1991
Case Number
501/89
Procedural Posture
Criminal Appeal / Appeal From the Transvaal Provincial Division Upholding Respondent's Appeal Against Conviction and Sentence in the Regional Court
Outcome
Appeal dismissed with costs, including costs of applications for condonation and leave to appeal in both courts, and costs of two counsel.
Judges
CORBETT, JOUBERT, E M GROSSKOPF, NIENABER, HARMS
Legal Topics
Testimonial Compellability, Just Excuse, Section 189 Criminal Procedure Act, Humanly Intolerable Standard
Criminal Law Testimonial Compellability Just Excuse Section 189 Criminal Procedure Act Humanly Intolerable Standard

Case Brief

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Parties

Attorney-General, Transvaal

Appellant

Abdul Aziz Kader

Respondent

Procedural Posture

Criminal Appeal / Appeal From the Transvaal Provincial Division Upholding Respondent's Appeal Against Conviction and Sentence in the Regional Court

Legal Issues

  1. 1 Whether the expression 'just excuse' in section 189(1) of the Criminal Procedure Act is limited to legal excuses arising from privilege, admissibility, or compellability of evidence.
  2. 2 Whether the respondent's psychological condition constituted a 'just excuse' for refusing to testify.
  3. 3 Whether the court a quo correctly applied the principles regarding the duty to testify and the balancing of public interest against individual hardship.

Ratio Decidendi

The Supreme Court of Appeal held that the phrase 'just excuse' in section 189(1) of the Criminal Procedure Act is not limited to legal excuses arising from privilege, admissibility, or compellability. Instead, it encompasses broader circumstances, including situations where it would be humanly intolerable for a witness to testify. The court affirmed that the respondent's psychological condition, supported by expert evidence, constituted a 'just excuse' for refusing to testify, as compelling him would likely result in severe psychic pain and a substantial risk of suicide. The court found that the court a quo correctly applied the balancing of public interest in the availability of evidence...

Court Disposition

Appeal dismissed with costs, including costs of applications for condonation and leave to appeal in both courts, and costs of two counsel.

Orders

  • The appeal is dismissed with costs.
  • Costs to include those incurred in respect of the application for condonation of the late filing of the application for leave to appeal in the court a quo, as well as in respect of the application for leave to appeal in the court a quo.