Tshabangu v S

CONSTITUTIONAL COURT OF SOUTH AFRICA In the matter between: Case CCT 281/23 GOODMAN TSHABANGU Applicant and THE STATE and Respondent TSHWANE SOCIETY OF ADVOCATES Amicus Curiae Neutral citation: Tshabangu v S [2026] ZACC 32 Coram: Mlambo DCJ, Dambuza J, Kollapen J, Mathopo J, Mhlantla J, Nuku AJ, Opperman AJ, Savage J and Tshiqi J Judgment: Nuku AJ (unanimous) Heard on: 26 February 2026 Decided on: 27 July 2026 Summary: Criminal Procedure Act 51 of 1977 — sections 167 and 186 — exercise of discretion — essential to the just decision of the case ORDER On appeal from the High Court of South Africa, Circuit Local Division for the Vereeniging Circuit District: 1. 2. 3. Leave to appeal is granted. The appeal succeeds. The order of the High Court of South Africa, Circuit Local Division for the Vereeniging Circuit District, insofar as it relates to the applicant, is set aside and replaced with the following: “Accused 3 is found not guilty and acquitted on all counts.” 4. If the applicant is not serving any sentences other than those that are the subject of this application, the Head of the Groenpunt Medium Correctional Centre, Free State, or the Head of the relevant facility where the applicant is incarcerated, is directed to release him from prison immediately. JUDGMENT NUKU AJ Opperman AJ, Savage J and Tshiqi J concurring): (Mlambo DCJ, Dambuza J, Kollapen J, Mathopo J, Mhlantla J, Introduction [1] The applicant, Mr Goodman Tshabangu,1 seeks leave to appeal a decision of the High Court of South Africa, Circuit Local Division for the Vereeniging Circuit District (High Court), in which he was tried alongside two co-accused and convicted of one 1 Throughout the High Court proceedings, the Supreme Court of Appeal proceedings and initially in this Court, the applicant’s name appeared as “Goodman Shabangu”. On 12 February 2026, it was reported to this Court by the applicant that the correct spelling of his surname is “Tshabangu”. See in this regard the Report of the Amicus Curiae in terms of the Order of this Court dated 5 February 2026 at para 13. 2 NUKU AJ count of murder (count 1), two counts of robbery with aggravating circumstances (counts 2 and 5), one count of unlawful possession of a firearm (count 3) and one count of unlawful possession of ammunition (count 4). It was alleged that all these offences were committed on 28 April 2006. The High Court imposed an effective sentence of 22 years’ imprisonment on the applicant, comprising 22 years for murder and shorter sentences for the other charges. The shorter sentences were ordered to run concurrently with the sentence imposed for murder. The applicant seeks an order setting aside these convictions and sentences. [2] The High Court granted the applicant leave to appeal to the Full Court on the two robbery convictions. The applicant, however, withdrew that appeal and instead applied to the Supreme Court of Appeal for leave to appeal against all the convictions and sentences, which the Supreme Court of Appeal refused on 24 May 2017. Thereafter, the applicant brought this application on 18 March 2023, followed by an application for condonation of the late filing of this application for leave to appeal on 11 October 2023. [3] The applicant pleaded the following grounds in support of his application: first, the High Court improperly recalled state witnesses, acting in terms of sections 167 and 186 of the Criminal Procedure Act 2 (Act), in circumstances where there was no evidence that he had committed any of the offences referred to in the indictment. Second, the High Court’s finding that he possessed a firearm used in the commission of a murder 13 days later was insufficient to ground a reasonable inference that he either killed the deceased or conspired or acted in common purpose with the killer(s). Third, the High Court failed to invoke the provisions of sections 167 and 186 of the Act in circumstances where it was concerned that the applicant might already have been convicted in prior criminal proceedings for the possession of the unlicensed firearm and ammunition. 2 51 of 1977. 3 NUKU AJ [4] Having regard to all the above grounds, the applicant submits that his constitutional rights have been violated, in particular his right to a fair trial3 and his right to freedom and security of the person, which includes the right not to be arbitrarily deprived of freedom.4 The applicant submits that the violation of his constitutional rights engages this Court’s jurisdiction and that it is in the interests of justice to grant him leave to appeal. [5] The State opposes the application for leave to appeal on the ground that the applicant fails to raise any constitutional issues and instead merely argues that he did not receive a fair trial based on the merits. It submits further that all the issues raised by the applicant have already been considered by the High Court and the Supreme Court of Appeal. [6] Before discussing the details of this application, this Court expresses its gratitude towards the amicus curiae (friend of the court) and the applicant’s pro bono counsel for their assistance. Background [7] On 28 April 2006, Mrs Rukhsana Sidat and her husband, Mr Fayaz Ahmed Suliman (the deceased), were robbed while driving home from their wholesale business. 5 Tragically, the deceased was shot during the robbery and died shortly thereafter. [8] Thirteen days later, on 11 May 2006, the applicant was arrested by Inspector Lucas Thabiso Phosa. Inspector Phosa was not working on the case involving the armed robbery and the murder of the deceased (the present matter) at the time of the 3 Section 35(3) of the Constitution. 4 Section 12(1)(a) of the Constitution. 5 S v Makholo, unreported judgment of the High Court of South Africa, Circuit Local Division for the Vereeniging Circuit District, Case No CC 68/07 (11 June 2009) (High Court judgment) at 12. 4 NUKU AJ arrest.6 Instead, he pursued the applicant in connection with the hijacking of a Telkom- owned vehicle.7 When Inspector Phosa apprehended the applicant, the applicant was lying on top of a firearm,8 which became the central piece of evidence in the present matter. Upon his arrest, the applicant did not produce a licence for the firearm, and its serial number had been erased. Inspector Phosa took the applicant to the Moroka Police Station (station), where he also handed in the firearm, which was booked in the SAP 13 register. Litigation history High Court trial [9] The applicant and his two co-accused were charged with the five counts referred to above, as well as an additional robbery charge.9 The indictment described the calibre of the firearm in question as 9 millimetres. [10] At trial, the High Court recognised that the only evidence against the applicant was the firearm found in his possession.10 In this regard, the State called two witnesses: Inspector Phosa and Inspector Lucky Maloma, the investigating officer, both of whom were not cross-examined by the applicant’s legal representative. [11] Inspector Phosa testified to the applicant’s arrest and the booking of the firearm. He confirmed that he deemed the calibre of the firearm to be 7.65 millimetres and that he had found one round of ammunition in the firearm’s magazine. Inspector Maloma testified that, on 27 June 2006, he went to the station and retrieved a firearm which had been booked into the SAP 13 register. He further testified that the calibre of the firearm was 9 millimetres and that the firearm’s serial number had been erased. He sent the 6 Id at 27. 7 Id. 8 Id. 9 The additional charge related to the alleged robbery of Mr Mahommed Kemal on a different date. The High Court acquitted the applicant of this charge (charge 6). 10 High Court judgment above n 5 at 33. 5 NUKU AJ firearm, as well as the bullet that had been retrieved from the body of the deceased, to the Forensic Science Laboratory in Pretoria for ballistics testing. The ballistics report matched that firearm with the bullet that killed the deceased.11 [12] At the close of the State’s case, the High Court raised the issue of the discrepancy between the evidence of Inspector Phosa, who described the calibre of the firearm as 7.65 millimetres, and the evidence of Inspector Maloma, who described the calibre as 9 millimetres. The Judge remarked that she did not believe that the State had proven that the firearm found by Inspector Phosa in the possession of the applicant was necessarily the firearm that was sent for ballistics testing.12 To that extent, the Judge stated in an exchange with the applicant’s legal representative: “I agree with you, I have no evidence in respect of the other counts [of murder and robbery]”. The Judge was also concerned about the possibility that the applicant might have previously been convicted and sentenced for the unlawful possession of the same firearm and ammunition. At that point, however, no relevant evidence had been placed before the High Court regarding that conviction. [13] The accused closed their cases without testifying or calling witnesses. Thereafter, one of the applicant’s co-accused (accused 1), who at that stage was self-represented, presented his closing argument. In his address, accused 1 alleged that documents related to the firearm had been tampered with.13 Specifically, he alleged that the relevant entry at the station initially described the calibre of the firearm as 9 millimetres and that this entry was subsequently changed to describe the calibre as 7.65 millimetres. He further submitted that in the statements of both Inspector Maloma and Sergeant Kazamula Thomas Ndlovu, who handed the firearm to Inspector Maloma at the station, the description of the calibre of the firearm was changed without explanation. 11 Id at 28. 12 Id. 13 Id. 6 NUKU AJ [14] At that point, none of the documents referred to by accused 1 had been tendered as evidence,14 and this caused the applicant’s legal representative to object to what appeared to be an improper introduction of new evidence. In response, the Judge acknowledged that accused 1’s address would not form part of the record, but said that she would allow him to address the Court without interruption to avoid getting embroiled in a lengthy debate with him. [15] At the conclusion of the address by accused 1, the Judge voiced her discomfort about what she considered as possibly “a great deal of misconduct [by the prosecution]”, as “the indictment specifies a 9-millimetre weapon and the evidence is a 7.65-millimetre weapon”. She stated her intention “to know [if] there has been an attempt to wrongly procure a conviction [or] . . . to falsify evidence”. Accordingly, she decided to call a number of witnesses, in the purported exercise of the discretion conferred on her by section 186 of the Act, to “ascertain exactly what was found in possession of [the applicant], how it was recorded, what it was that was sent to Pretoria for ballistic checking [and] what has happened to the item that was sent to Pretoria for ballistics checking”. [16] Initially, the Judge identified the following witnesses that were to be called: Inspector Phosa, Inspector Maloma, “Mr S. Mohlasi” and “an unknown person named Mokoena”, the latter two having been responsible for the SAP 13 register. Later that same day, for reasons not apparent from the record, the Judge amended the list of witnesses by excluding Mr Mohlasi and Mokoena and adding Sergeant Phuti Samuel Mojela, who was employed as an assistant forensic analyst and completed the ballistics report. The applicant’s legal representative did not object to this change of the list of witnesses identified by the court. Instead, he requested that the Judge include Inspector Patrick Sithole as a witness to testify regarding the applicant’s possible prior conviction for unlawful possession of a firearm and ammunition. Alongside these 14 Id. 7 NUKU AJ witnesses, the Judge directed that the firearm and the relevant SAP 13 register be brought to court. [17] Of note, the Judge also informed the applicant’s legal representative that the calling of these witnesses “may well result in there being additional evidence . . . which implicates [the applicant]”. She added: “[T]he answer to any objection that I invite you to make is that I am entitled to call witnesses where the administration of justice so requires. At the present time, there is not only a vast lacuna which it is not my job to sort out in the State’s case, if the State’s case chooses to leave gaps in its prosecution, well, but where what is drawn to my attention is apparently more than that, it is a change in records. Then that must be sorted out, and if it results in evidence implicating [the applicant], well then the administration of justice has required a proper investigation.” Following this, the applicant’s legal representative did not object to the calling of the witnesses. [18] Of the four witnesses identified and called by the Judge, only Inspectors Phosa and Maloma testified. The State’s advocate explained that the other two witnesses were not available, as Inspector Sithole was on leave and Sergeant Mojela was no longer working in the ballistics department. [19] In his evidence this time, Inspector Phosa confirmed most of his earlier testimony, while stating that two, rather than one, rounds of ammunition were found in the firearm. After examining the firearm in court, he stated that it was a 9-millimetre calibre firearm and not a 7.65-millimetre calibre firearm as he had previously testified. He explained that he had initially thought that the firearm was a 7.65-millimetre calibre firearm because of the bullet he had found in its magazine, which was capable of being fired from a 7.65-millimetre calibre firearm. He explained further that he realised his mistake when he examined the firearm outside the court after his initial testimony but did not inform the State’s advocate of his changed view of the firearm’s calibre. 8 NUKU AJ [20] The Judge expressed her dissatisfaction with this change in testimony, stating that “so far in this trial I know that you arrested [the applicant] with a 7.65 gun . . . There is no connection between the murder that I am concerned with and the 7.65 gun. Thanks to you.” She directed Inspector Phosa to the SAP 13 register, which showed that the description of the firearm had been altered by deleting the reference to “a 9-millimetre” and replacing it with a reference to “a 7.65-millimetre”. Inspector Phosa explained that he was not involved in recording the firearm description in the SAP 13 register. [21] Inspector Maloma was also presented with the SAP 13 register. His evidence was that when he collected the firearm for ballistics testing, he was not sure if it was a 9-millimetre or a 7.65-millimetre calibre firearm, as he is not a firearm expert. He believed that the change of the firearm’s calibre on the SAP 13 register was due to the uncertainty of the person who was responsible for recording the firearm in the SAP 13 register. However, he did not know who that person was. After hearing his testimony, the Judge again remarked that “[a]t the moment I have a firearm that is connected to nothing. So thanks to you, [the applicant] must walk home.” [22] Inspector Maloma also testified about the documentation accompanying the firearm for ballistics testing. He explained that when he took the firearm to Pretoria for testing, he prepared a covering letter describing it as a “9-millimetre short pistol”. Inspector Maloma stated that he had ascertained the firearm’s calibre after enquiring from his colleagues and noting that it bore a Star trademark, a characteristic indicative of 9-millimetre firearms. The Judge asked Inspector Maloma why the letter was dated 27 July 2006, when, according to his earlier testimony, he took the firearm to Pretoria on 27 June 2006. Inspector Maloma answered that the discrepancy was probably a typographical error. [23] The Judge also asked Inspector Maloma about his statement, which was referenced in the address of accused 1. After Inspector Maloma confirmed that his 9 NUKU AJ statement was dated 15 August 2006 and that he had “initially written 7.65” before “cross[ing] it out and [writing] 9-millimetre”, the Judge asked how he could record 7.65-millimetre as the firearm’s calibre about a month after ascertaining it as a 9-millimetre weapon. His response was that he could not recall and that sometimes the writing of statements and their commissioning occurred at different times. [24] After the Judge concluded her examination of Inspector Maloma, accused 1 also questioned him. In one of his questions, accused 1 stated that he “voluntarily inform[ed] [Inspector Maloma] that the firearm used in the commission of murder and robbery was recovered or found by the Moroka police in possession of Goodman [Ts]habangu”. Inspector Maloma agreed with this statement. [25] Toward the end of the examination, the Judge stated: “I must place on the record that . . . this is not a matter that needs to be investigated further. . . . [T]o the extent that it may have appeared that I was suggesting any wrongdoing on the part of anyone in the office of the Director of Public Prosecution[s], I must unreservedly withdraw any such imputation. Finally I am satisfied that Inspector Maloma and Inspector Phosa, through their presence in court and their questioning have resolved those matters with which I was concerned. It does not concern me that Mr Mohlasi is not available. It does not concern me that the person who compiled the ballistics report is not available. Accordingly my inquiry or recalling of witnesses for the purposes of attaining the truth in the interest of justice is, as far as I am concerned, concluded.” [26] Thereafter, the Judge enquired from the applicant’s legal representative whether he still wished her to call Inspector Sithole about the applicant’s possible prior convictions for the same charge of unlawful possession of a firearm. The Judge, however, stated that she was “not taking the view that there are two weapons” and that, in her view, calling Inspector Sithole was unnecessary. The applicant’s legal representative did not insist on calling Inspector Sithole. 10 NUKU AJ High Court judgment [27] The High Court handed down judgment on 11 June 2009. 15 The judgment records the Judge’s initial concern regarding the firearm’s identity,16 which she found to be satisfactorily dealt with by the evidence of Inspectors Phosa and Maloma when the Court recalled them. According to the Judge, she was “satisfied that the weapon which Inspector Phosa took from [the applicant] is the weapon which was sent to ballistics . . . for testing” 17 and said that it “probably matters little whether or not Inspector Phosa first thought this was a 7.65[-millimetre] firearm and whether or not the person who completed the SAP 13 register initially thought it was a 9[-millimetre] firearm and then a 7.65[-millimetre] firearm”. 18 The Judge also stated that Inspector Maloma probably retrieved the firearm from the station in July 2006 rather than in June, as the firearm had been booked out between 22 May 2006 and 24 July 2006.19 In conclusion, the Judge found that the applicant was arrested while in possession of the weapon used to kill the deceased.20 [28] Next, because the firearm was the only admissible evidence linking the applicant to the murder and robbery charges, the Judge resorted to inferential reasoning. According to her, the totality of the evidence was that the applicant was found in possession of the murder weapon within two weeks of the murder and he did not testify in his own defence.21 [29] The Judge reasoned that from the applicant’s possession of the firearm on 11 May 2006, which had been found to have been used to commit murder on 28 April 2006, the inference that he was also in possession of it on 28 April 2006 15 High Court judgment above n 5 at 1. 16 Id at 28. 17 Id at 32. 18 Id at 30. 19 Id at 31-2. 20 Id at 32. 21 Id at 33. 11 NUKU AJ satisfied the test in Blom.22 The test is that when a court seeks to draw an inference from the facts, the inference must be consistent with all proven facts, and those facts must exclude all other reasonable inferences.23 While the Judge acknowledged the possibility that the applicant could have acquired the murder weapon from another person after 28 April 2006, she found that possibility akin to pure speculation or conjecture, which was improper for a court to embark upon.24 [30] Regarding the applicant’s failure to testify, the Judge stated that it is trite that while an accused’s failure to testify may be a factor in determining whether the State has proved the accused’s guilt beyond a reasonable doubt, such failure will not remedy a deficiency in the State’s case.25 However, the Judge noted that where there is evidence calling for an answer, an accused’s choice to remain silent may entitle a court to conclude that the evidence is sufficient.26 Because the applicant offered no explanation and gave no evidence regarding his possession of the murder weapon, the Judge found that he was in possession of the murder weapon at the time of the armed robbery and murder.27 [31] Finally, the Judge held that the applicant must have been one of the perpetrators because the murder weapon found in his possession was used during the armed robbery and murder. 28 Applying the doctrine of common purpose and dolus eventualis (constructive intention), the Judge held that, as a participant in the robbery, the applicant must have known that a firearm could cause harm and was reckless as to whether harm actually resulted.29 Therefore, the Judge convicted the applicant of all five counts and imposed an effective sentence of 22 years’ imprisonment. Accused 1 was convicted of 22 R v Blom 1939 AD 188 at 202-3. 23 Id. 24 High Court judgment above n 5 at 36. 25 Id at 33. 26 Id at 34. 27 Id at 36-7. 28 Id at 37. 29 Id at 39. 12 NUKU AJ murder and the two robbery charges based on his confession. He was acquitted of unlawful possession of a firearm and ammunition because the evidence did not establish that he intended to possess the firearm and ammunition jointly. Accused 2 was discharged in terms of section 174 of the Act as his confession, the only evidence implicating him in the commission of the offences, was ruled inadmissible. Applications for leave to appeal in the High Court and the Supreme Court of Appeal [32] The High Court granted the applicant leave to appeal his two robbery convictions, each carrying a nine-year term of imprisonment, to the Full Court, because it was of the view that they were a duplication.30 The Full Court appeal was enrolled for hearing on 12 March 2014. Before the hearing, the applicant’s legal representative withdrew the appeal, reasoning that the applicant intended to petition the Supreme Court of Appeal on all the charges he was convicted of and that even if the applicant was successful at the Full Court, it would not affect his sentence. The applicant’s petition to the Supreme Court of Appeal for leave to appeal was dismissed on 24 May 2017. Almost six years later, on 18 March 2023, the applicant, who was unrepresented, filed an application for leave to appeal to this Court. Issues for determination [33] The following issues are to be determined— (a) whether condonation should be granted; (b) whether this Court’s jurisdiction is engaged and, if so, whether it is in the interests of justice for leave to appeal to be granted; if leave is granted, whether there is any merit in the issues on appeal; and the appropriate remedy, if any. (c) (d) 30 Shabangu v S, unreported judgment of the High Court of South Africa, Gauteng Division, Johannesburg, Case No CC 68/07 (16 September 2010). 13 NUKU AJ Condonation [34] The applicant filed the present application for leave to appeal on 18 March 2023, almost six years after the Supreme Court of Appeal dismissed his petition. Further, he did not file an application for condonation for this delay until 11 October 2023. This Court must first determine whether condonation should be granted for this combined delay. Parties’ submissions [35] The applicant lists the following reasons for his delay: first, he submits that he could not afford legal representation. He had not been represented after his unsuccessful Supreme Court of Appeal petition until this Court facilitated the appointment of his current pro bono counsel in 2026. While he had sought the representation of Legal Aid South Africa, he was not successful. Second, the applicant submits that his mother was unable to assist with the continued funding of his legal representation, as her health deteriorated from 2017 until she passed away in 2021. Third, the applicant submits that he has been incarcerated since 11 May 2006 and has had limited interactions with the outside world for almost 20 years, limiting his ability to gain meaningful insight into the law. Finally, as a lay litigant, the applicant submits that he has relied on the advice of fellow prisoners to navigate the legal system. Specifically, he alleges that he was not aware that he could approach this Court until late 2021, and that he did not know of the requirement to seek condonation when he first filed the present application for leave to appeal. [36] In addition, the applicant submits that the legal issues in his application raise profound questions about the fairness of his trial and the administration of justice. Although the applicant concedes that the State is prejudiced by the delay, he argues that the facts underlying the present appeal and the pertinent legal points are drawn directly from the record, with no additional evidence necessary. The adjudication of the legal issues in the present matter, the applicant further submits, would provide the State with 14 NUKU AJ beneficial legal clarity. Finally, the applicant submits that the present appeal enjoys good prospects of success. [37] The State’s position on the condonation application is unclear because it initially stated under oath that it was not opposing the application in the interests of justice. In its written submissions, however, it argues against condonation on the grounds that the applicant’s explanation for the delay is unreasonable, that he has repeatedly failed to comply with the time limits prescribed by the court rules and that there are no prospects of success on appeal. The State’s position, however, is not dispositive of the condonation application, as the delay affects this Court’s processes, and even if it were unopposed, this Court retains the final decision on the issue. Analysis [38] This Court has stated that condonation is not there for the taking. 31 The applicable test is whether it is in the interests of justice for this Court to exercise its discretion in favour of granting condonation. 32 Under this test, the Court must holistically consider, among other factors, the nature of the relief sought, the extent and cause of the delay, the effect of the delay on the administration of justice and other litigants, the reasonableness of the explanation for the delay, the importance of the issues to be raised in the intended appeal and the prospects of success.33 [39] Regarding the extent of the delay, there is no doubt that it is excessive. A nearly six-year delay, coupled with the additional seven-month delay in the filing of the condonation application, weighs heavily against the granting of condonation. 31 Director of Public Prosecutions, Johannesburg v Schultz; Director of Public Prosecutions, Bloemfontein v Cholota [2026] ZACC 3; 2026 (3) BCLR 175 (CC) (Schultz) at para 106. 32 Id at para 105. 33 Grootboom v National Prosecuting Authority [2013] ZACC 37; 2014 (1) BCLR 65 (CC); 2014 (2) SA 68 (CC) at para 22. 15 NUKU AJ [40] The applicant has proffered some explanations for his delay, including financial hardships, unfortunate familial circumstances, a lack of legal representation and incarceration, resulting in his inability to access outside resources. In Sithole, this Court granted condonation for a delay of similar length.34 There, the Court considered the applicant’s incarceration as “a significant obstacle for timeous filing”.35 Similarly, this Court in Ramabele granted condonation in part because of the applicants’ “incarceration in different correctional centres”, “financial constraints”, difficulties with “outside communication and consultations” and reliance on family and friends.36 These cases show this Court’s willingness to consider an incarcerated applicant’s financial strain, lack of access to the outside society and difficulty in obtaining legal representation as genuine factors that hamper their ability to file timeously. [41] It does not, however, follow automatically that the delay in this case should be excused on these considerations alone, as each case must be decided on its own merits. The applicant’s explanations do not cover the entire period of the delay, but an excessive delay and an imperfect explanation might be overlooked where it is in the interests of justice to do so.37 While the applicant concedes that the lengthy delay is prejudicial to the State, the State has not complained of any prejudice should condonation be granted. Instead, the availability of most, if not all, materials necessary for the adjudication of this matter in the record reduces the adverse effects of the lengthy delay on the State and the administration of justice. On the other hand, a refusal of condonation could carry significant prejudice against the applicant, as he will likely spend much time serving a lengthy sentence. [42] Additionally, as will become apparent, the issues raised in this matter concern fundamental rights in the Bill of Rights, such as the right to freedom and security of the person and the right to a fair trial, as well as the fundamental tenet of fairness in the 34 S v Sithole [2024] ZACC 31; 2025 (1) SACR 349 (CC); 2025 (6) BCLR 693 (CC) at para 21. 35 Id. 36 S v Ramabele [2020] ZACC 22; 2020 (2) SACR 604 (CC); 2020 (11) BCLR 1312 (CC) at para 27. 37 Schultz above n 31 at para 109. 16 NUKU AJ administration of justice. For the reasons set out in the section dealing with the merits of the appeal, the appeal has good prospects of success. Considering all these factors together, I conclude that, although the excessive delay is troubling, it is in the interests of justice to grant condonation. Therefore, condonation is granted. Jurisdiction and leave to appeal [43] This Court must next determine whether it has jurisdiction to decide the issues raised in this application, and it must do so in light of the applicant’s pleaded case.38 [44] In his founding affidavit, the applicant grounds his case on an alleged violation of his right to a fair trial under section 35 of the Constitution. He also relies on his specific right to remain silent (section 35(3)(h)) and his right not to be deprived of freedom and security arbitrarily or without just cause (section 12(1)(a)). [45] He bases his claim of the violation of his constitutional rights on the allegation that the High Court improperly recalled multiple state witnesses after the closure of the State’s and the defence’s cases, in circumstances where there was no evidence that he had committed any of the offences referred to in the indictment. This, he argues, engendered a distinct impression that the Court was taking over the prosecution’s case, that its sole purpose was to fill in the gaps in the State’s case and that it descended into the arena to the extent that its objectivity was clouded. The applicant submits that, without the High Court’s intervention, he would not have been convicted. [46] The applicant also argues that, given the lack of any other evidence proving that he was at the crime scene, the High Court could not reasonably draw the inference that, because he was in possession of the weapon used to commit the offences 13 days later, he was in fact the person who committed the crimes he was charged with. This, the 38 Gcaba v Minister for Safety and Security [2009] ZACC 26; 2010 (1) BCLR 35 (CC); 2010 (1) SA 238 (CC) at para 75. 17 NUKU AJ applicant submits, is because other reasonable inferences could have been drawn from the same facts. [47] Regarding his conviction for unlawful possession of a firearm and ammunition, the applicant argues that the High Court was aware of and raised concerns about whether he had already been convicted of possessing the same firearm and ammunition. Despite this issue, it did not exercise its powers under section 186 of the Act to call any witnesses for clarification. In this respect, he contends, the High Court erred in convicting him again for the unlawful possession of the same firearm and ammunition. [48] The question then arises whether this Court has jurisdiction over each of these complaints. I deal with the first and third aspects in tandem, as both relate to the High Court’s exercise of its powers under sections 167 and 186 of the Act. Exercise of powers under sections 167 and 186 [49] Irregularities in criminal proceedings, depending on their seriousness, may raise constitutional issues. As this Court stated in Van der Walt,39 which concerned the admissibility of evidence at the conviction stage, where such irregularities are alleged— “[t]he question is: is the irregularity sufficiently serious as to undermine basic notions of trial fairness and justice? Based on this jurisprudence, the irregularities alleged by the applicant in this matter appear to be of a nature that – in a constitutionally impermissible manner – vitiated the fairness of the trial. That engages our jurisdiction.”40 [50] We thus need to determine whether the irregularities alleged by the applicant are sufficiently serious to undermine basic notions of trial fairness and justice. 39 S v Van der Walt [2020] ZACC 19; 2020 (2) SACR 371 (CC); 2020 (11) BCLR 1337 (CC). 40 Id at para 15. 18 NUKU AJ [51] It is accepted that the role of a judge in a criminal trial is not simply one of an umpire, but an administrator of justice, who “has not only to direct and control the proceedings according to recognised rules of procedure but to see that justice is done”.41 Sections 167 and 186 of the Act facilitate this “inquisitorial” role that a judge in a criminal trial is required to play. But our courts have, at the same time, recognised that this interference by a judge with what is normally an adversarial system of proceedings has the potential to compromise the even-handedness and impartiality of criminal proceedings.42 That is why there is a need for a court exercising such a discretion to maintain impartiality, open-mindedness and fairness.43 There is thus always a tension between a court’s exercise of this power and “the obligation of the state to prove its case beyond a reasonable doubt and with the presumption of innocence”.44 [52] It is true that a court on appeal will interfere with the trial court’s exercise of discretion on very limited grounds.45 But insofar as the question of jurisdiction is concerned, this Court has recognised that considerations of fairness, implicating the right to a fair trial, also come into play when a trial court exercises its discretion to admit evidence or not. 46 The exercise of discretion under sections 167 and 186 has the potential to implicate the right to a fair trial in a similar fashion. [53] Thus, when a trial court exercises its discretion under sections 167 and 186, such an exercise already treads the tenuous line between seeing justice done and creating the impression that it is overstepping in support of the State’s case. For this reason, a court has a heightened obligation to ensure impartiality and fairness both when recalling or subpoenaing witnesses under sections 167 and 186, and during the questioning of such witnesses. 41 R v Hepworth 1928 AD 265 (Hepworth) at 277. 42 S v Gerbers [1997] ZASCA 48; 1997 (2) SACR 601 (SCA) (Gerbers) at 607B-C. 43 S v Masooa [2016] ZAGPJHC 27; 2016 (2) SACR 224 (GJ) (Masooa) at para 19. 44 Id at para 25. 45 S v Gabaatlholwe [2002] ZASCA 149; 2003 (1) SACR 313 (SCA) at para 8. 46 S v Basson [2005] ZACC 10; 2005 (12) BCLR 1192 (CC); 2007 (1) SACR 566 (CC) at para 26. 19 NUKU AJ [54] Accordingly, the question whether a court commits an irregularity in the manner in which it exercises its powers under sections 167 and 186 is closely connected to the fairness of an applicant’s trial. The irregularities raised by the applicant point to the High Court exercising its discretion to fill gaps in the prosecution’s case in circumstances where, at the close of the State’s case, no other evidence had been led implicating the applicant. This is a serious irregularity that undermines the basic notions of trial fairness and justice. [55] Another issue is the High Court’s alleged failure to exercise its powers under sections 167 and 186 to clear up the matter regarding the applicant’s possible prior conviction in respect of the unlawful possession of the same firearm and ammunition. This alleged irregularity touches on the question of the High Court’s perceived impartiality and is sufficiently serious to implicate the applicant’s right to a fair trial. On the standard set by Van der Walt, this Court’s constitutional jurisdiction is engaged in relation to the High Court’s recalling and questioning of the witnesses. Drawing of inferences from the applicant’s possession of the murder weapon [56] Does this Court have jurisdiction to decide the question of whether the High Court misdirected itself in drawing inferences from the applicant’s possession of the weapon? [57] Although not so framed by the applicant in his pleadings, the submissions filed by the parties formulated the question as concerning the so-called “doctrine of recent possession”. Additionally, this Court requested the Tshwane Society of Advocates, as amicus curiae, to address the following two questions in its written submissions: “(a) Whether the trial court correctly applied the doctrine of recent possession? (b) Whether condonation for the applicant’s application for leave to appeal must be granted, in particular, whether the explanation provided for the lengthy delay is adequate?” 20 NUKU AJ [58] The doctrine of recent possession permits a court to draw an inference that the possessor of stolen property had knowledge that the property was obtained in the commission of an offence, and in certain instances was also a party to the initial offence.47 To utilise the doctrine, a court must be satisfied that the accused was found in possession of the property and that the property was recently stolen. 48 When considering whether to draw such an inference, a court must have regard to factors such as the length of time that passed between the possession and the actual offence, the rarity of the property and the readiness with which the property can or is likely to pass to another person.49 [59] As the above discussion makes clear, the doctrine is closely tied to the crime of theft, in which the object possessed is the stolen property. Indeed, one of the issues the parties address is whether the doctrine could be applied to murder weapons at all. The applicant’s counsel argues that the High Court impermissibly developed the common law by applying the doctrine in a case that does not involve theft. [60] Before this Court enquires into whether the High Court misapplied or improperly developed the doctrine of recent possession, a preliminary question arises: did the High Court, in fact, apply the doctrine of recent possession? If it did not apply the doctrine, it could not have misapplied or improperly developed it. [61] The starting point is the High Court’s finding that the applicant was, in fact, arrested on 11 May 2006 in possession of the weapon used to kill the deceased.50 The High Court stated on record that this was the only evidence against the applicant.51 It 47 S v Mothwa [2015] ZASCA 143; 2016 (2) SACR 489 (SCA) at para 8. 48 Id. 49 Id. 50 High Court judgment above n 5 at 32. 51 Id at 33. 21 invoked the locus classicus (classic or leading authority) on inferential reasoning, Blom, for the following proposition: NUKU AJ “In R v Blom 1939 AD 188 at 202 two rules of logic were set out for the benefit of courts. The inference sought to be drawn must be consistent with all the proved facts. Secondly the proved facts should be such that they exclude every reasonable inference from them, save the one to be drawn.”52 [62] The High Court then applied the principles to the applicant’s case as follows: “In the present case I do not speculate on behalf of [the applicant]. Within 2 weeks of the murder of Mr Suliman and the robbery of those persons he is in possession of the murder weapon. He offers no explanation. He does not give evidence. The Constitutional Court has already indicated that he bears the burden of having an adverse inference drawn against him. The consequence in this case is that this court is not free to speculate on his behalf as to other inferences that might perhaps be drawn from the facts before the court. Accordingly, I find that [the applicant] was in possession of the murder weapon on 28 April 2006. He was therefore part of the robbery because the murder weapon was used at the time of the robbery. I cannot say that he fired the shot but as a robber, as a participant in this common purpose he bears legal responsibility for what he must have known might happen but where he reconciled himself to what did happen. A robber must know that a firearm can cause harm. He was reckless as to whether harm would actually be caused. He participated in the robbery, harm was caused and therefore on the basis of dolus eventualis, he must be found guilty of murder.”53 [63] The High Court did not refer to the doctrine of recent possession, nor did it refer to any of the cases in which the doctrine has been expounded, nor did it discuss the individual requirements for drawing an inference under the doctrine. Instead, it applied, rightly or wrongly, the principles that ordinarily govern the drawing of inferences from circumstantial evidence, as articulated in Blom. I can find no indication that the 52 Id at 35. 53 Id at 36-7. 22 NUKU AJ High Court in fact meant to apply, or “in substance” applied, the doctrine of recent possession in the applicant’s case.54 [64] In fact, the applicant makes no reference to the doctrine of recent possession in his founding affidavit. His allegation regarding the drawing of inferences is that the High Court incorrectly drew an inference that he was in possession of the murder weapon on 28 April 2006, when there were other reasonable inferences that could be drawn from the evidence. He argues that this inference contravenes the principles articulated in Blom. In other words, the applicant takes no issue with the content of the Blom principles themselves, but rather with how they were applied in his specific case. On the classification between errors of law and misapplications of law set out by this Court in Villa Crop55 and Tuta,56 the applicant’s argument is not that there was an error of law but there was a misapplication of the law. What we thus need to answer is whether this Court has the jurisdiction to decide a matter arising from a misapplication of the Blom principles. [65] A number of cases have reiterated that the misapplication of settled legal principles, without more, does not raise a constitutional matter and thus does not engage this Court’s jurisdiction.57 What this means in a criminal context is that a complaint about how the High Court weighed up the evidence and whether there was sufficient evidence to justify a finding of guilt does not, on its own, engage this Court’s jurisdiction, as more is required. As this Court held in Boesak: 54 I note that the Appellate Division, in S v Parrow 1973 (1) SA 603 (A) at 604E, found that the doctrine was in fact “simply a common-sense observation on the proof of facts by inference”. On that reasoning, the argument that the trial court applied the doctrine instead of the principles of inferential reasoning also seems to fall flat. Whether the doctrine is in fact a distinct principle is not the subject of this judgment and I refrain from venturing into that terrain as it is unnecessary for the conclusion which I reach. 55 Villa Crop Protection (Pty) Ltd v Bayer Intellectual Property GMBH [2022] ZACC 42; 2023 (4) BCLR 461 (CC); 2024 (1) SA 331 (CC) at paras 62-4. 56 S v Tuta [2022] ZACC 19; 2023 (2) BCLR 179 (CC); 2024 (1) SACR 242 (CC) at para 50. 57 For example, General Council of the Bar of South Africa v Jiba [2019] ZACC 23; 2019 (8) BCLR 919 (CC) at para 44; Booysen v Minister of Safety and Security [2018] ZACC 18; 2018 (2) SACR 607 (CC); 2018 (9) BCLR 1029 (CC) at para 50; and Loureiro v Imvula Quality Protection (Pty) Ltd [2014] ZACC 4; 2014 (3) SA 394 (CC); 2014 (5) BCLR 511 (CC) at para 33. 23 “In the context of section 167(3) of the Constitution, the question whether evidence is sufficient to justify a finding of guilt beyond a reasonable doubt cannot in itself be a constitutional matter.”58 NUKU AJ [66] This Court held similarly in Tuta: “The written submissions made on behalf of the applicant sought to persuade us that the trial court failed to consider all the evidence, and thus failed properly to draw warranted inferences as to the applicant’s subjective state of mind. That may or may not be so, but the failure by a trial court properly to evaluate the evidence is an error of fact and not one of law. This Court’s jurisdiction does not extend to such issues.”59 [67] More recently, this Court held in Ramabele: “[T]he issues relating to whether there was sufficient evidence, and whether the trial judge properly analysed the evidence of several state witnesses, fall outside the scope of this Court’s jurisdiction. This is because mere factual disputes do not amount to ‘constitutional matters’ as envisaged by section 167(3)(b)(i). Disagreements with other courts as to the assessment of facts are not sufficient to constitute a breach of rights in the Bill of Rights, and no constitutional right is engaged when applicants dispute the findings of fact made by lower courts.”60 [68] It must follow that the applicant’s complaint, which raises nothing more than the manner in which the High Court drew inferences from the evidence, is insufficient to establish this Court’s jurisdiction. Consequently, this Court does not have jurisdiction to consider the complaint regarding the inference drawn that the applicant was in possession of the murder weapon on 28 April 2006. 58 S v Boesak [2000] ZACC 25; 2001 (1) SACR 1 (CC); 2001 (1) BCLR 36 (CC); 2001 (1) SA 912 (CC) at para 15(a). 59 Tuta above n 56 at para 50. 60 Ramabele above n 36 at para 33. 24 NUKU AJ Leave to appeal [69] Having found that this Court has jurisdiction to consider the applicant’s case in respect of the allegation that his right to a fair trial was violated by the manner in which the High Court exercised its powers under sections 167 and 186 of the Act, it is clearly in the interests of justice to grant leave to appeal. As the remainder of this judgment shows, the applicant’s appeal enjoys good prospects of success. The alleged violation of his fair trial rights led to the applicant’s convictions and sentences, and provides the basis for his past and continued incarceration. It is clearly in the interests of justice to determine whether the applicant’s trial was unfair and his conviction unsound. Merits The right to a fair trial and sections 167 and 186 of the Act [70] The essential enquiry here is whether the applicant has established that his right to a fair trial was violated by the manner in which the High Court exercised its powers under sections 167 and 186 of the Act. [71] The right to a fair trial, enshrined in section 35(3) of the Constitution, encapsulates a substantive, rather than a formalistic, notion of fairness. 61 It is not confined to a tick-box exercise of the enumerated rights set out in section 35(3)(a)-(o), but embraces a broader conception of a fair criminal trial. 62 When faced with allegations of irregularities by a trial court that allegedly vitiated the trial’s fairness, this Court must answer the two-fold question crystallised in Van der Walt: “whether the [trial court] committed irregularities or deviated from the rules of procedure aimed at a fair trial, and if so, whether they were of the kind to render the trial unfair”.63 The 61 Van der Walt above n 39 at para 23; S v Molimi [2008] ZACC 2;2008 (3) SA 608 (CC); 2008 (5) BCLR 451 (CC) at para 42; and S v Zuma [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC) (Zuma) at para 16. 62 Van der Walt id at paras 15 and 23 and Zuma id. 63 Van der Walt id at para 23. 25 NUKU AJ second enquiry needs to be answered, having regard to “notions of basic fairness and justice”.64 [72] One of the fundamental aspects of fairness in criminal trials is that the State bears the burden to prove the accused’s guilt beyond a reasonable doubt in order to sustain a conviction. This principle is encapsulated in the right of the accused to be presumed innocent under section 35(3)(h) of the Constitution. This Court has held that the “presumption of innocence protects the fundamental liberty and human dignity of every person accused of criminal conduct” and “is vital to an open and democratic society committed to fairness and social justice”. 65 The evidentiary burden on the State is closely tied to the fundamentally adversarial nature of criminal proceedings. [73] The exercise of a court’s powers under sections 167 and 186 of the Act must be analysed against this backdrop. Section 167 of the Act reads as follows: “The court may at any stage of criminal proceedings examine any person, other than an accused, who has been subpoenaed to attend such proceedings or who is in attendance at such proceedings, and may recall and re-examine any person, including an accused, already examined at the proceedings, and the court shall examine, or recall and re-examine, the person concerned if his evidence appears to the court essential to the just decision of the case.” [74] Section 186 of the Act then reads: “The court may at any stage of criminal proceedings subpoena or cause to be subpoenaed any person as a witness at such proceedings, and the court shall so subpoena a witness or so cause a witness to be subpoenaed if the evidence of such witness appears to the court essential to the just decision of the case.” 64 Id and Zuma above n 61 at para 16. 65 S v Manamela [2000] ZACC 5; 2000 (1) SACR 414 (CC); 2000 (5) BCLR 491 (CC) at para 40 (footnote omitted). 26 NUKU AJ [75] There is clearly some overlap between the scope of these sections, and our courts have often considered and applied them together. Section 167 relates to a trial court’s powers to examine witnesses who have already been called or subpoenaed, or are in attendance, while section 186 provides a trial court with the power to subpoena any person as a witness at criminal proceedings. Exercised together, they essentially allow a court to call (or recall) and examine witnesses. [76] The similarities between the operation of the sections are also clear. Both provide for discretionary powers (“the court may”)66 that can be utilised “at any stage of criminal proceedings”. Despite their discretionary nature, there is also a peremptory aspect to both sections, as they must be utilised when the evidence of the witness in question “appears to the court essential to the just decision of the case”. If the court fails to call a witness whose evidence is essential, it could constitute an irregularity.67 [77] The powers under these sections, granting judicial officers a more interventionist role in criminal trials, represent an inquisitorial element within what is generally an adversarial trial system.68 The justification for this inquisitorial element has been long established, and was described as follows in Hepworth: “A criminal trial is not a game where one side is entitled to claim the benefit of any omission or mistake made by the other side, and a judge’s position in a criminal trial is not merely that of an umpire to see that the rules of the game are observed by both sides. A judge or an administrator of justice, he is not merely a figurehead, he has not only to direct and control the proceedings according to recognised rules of procedure but to see that justice is done.” 69 66 Emphasis added. 67 S v B 1980 (2) SA 946 (A) at 953B-D. See also R v Kubeka 1953 (3) SA 691 (T) at 694B-E and 695E-G and R v Omar 1935 AD 230 at 232. 68 S v Steyn 2018 (1) SACR 410 (KZP) at para 25 (footnotes omitted). 69 Hepworth above n 41 at 277. 27 NUKU AJ [78] That justification notwithstanding, the powers given to the court under sections 167 and 186 are discretionary powers which must be exercised judicially.70 Our courts have time and again recognised that the exercise of this discretion implicates a delicate tension between “seeing that justice is done” and, at the same time, maintaining the impartiality and even-handedness necessary for a fair criminal trial.71 The judicial officer’s intervention, therefore, must always be assessed in light of the basic principles of the administration of justice in the prosecution of crime and any relevant provisions.72 The Supreme Court of Appeal has, in considering sections 167 and 186, commented that a bona fide exercise of the discretion under these sections by a judicial officer may be misconstrued by the parties as undue partisanship.73 It also acknowledged that striking a balance between undue judicial activism and undue judicial passivism is difficult, but judicial officers must always strive to do so.74 The perception, even if mistaken, that the trial court is coming to the State’s rescue and remedying the inadequacies of its case is to be avoided.75 [79] In Lubisi, the Court reaffirmed that a court’s powers to call and recall witnesses must be exercised cautiously and sparingly. 76 It noted that in matters where the presiding officer creates an impression that they are taking over the functions of the investigating authorities, the proceedings are to be set aside.77 [80] In Masooa, the Court stated the following regarding the tension that a trial court must navigate when it exercises its powers under (in that case) section 186: 70 R v Gani 1958 (1) SA 102 (A) at 108A-B. 71 Gerbers above n 42 at 607. 72 Id at 606A. 73 Id at 607B. 74 Id at 607B-C. 75 Id at 609E-F. 76 S v Lubisi: In re S v Lubisi 2003 (2) SACR 589 (T) at 596F. 77 Id at 597B. 28 NUKU AJ “A court must therefore adopt absolute impartiality when considering whether to receive further evidence or not. And if further evidence is directed then the court must ensure that strict neutrality is maintained in the way questions are asked. The accused must also be afforded an opportunity to call further evidence in rebuttal, should any potentially adverse evidence be produced. A court cannot avoid the consequences of a post facto complaint of bias if the evidence turns out unfavourably for the accused. What it must ensure is that the motive for directing further evidence under section 186 is not partisan and that it is essential to receive it for the just decision of the case.”78 [81] The Court in Masooa suggested that there is a tension between section 186, on the one hand, and the State’s obligation to prove guilt beyond a reasonable doubt, on the other. The Court even questioned, obiter (in passing), the constitutional soundness of those sections.79 I do not go so far. Not every exercise of a trial court’s powers to call and question witnesses will impact the accused’s right to be presumed innocent. There is, however, undoubtedly at least the potential for a court, by exercising its discretion under these sections, to alleviate the burden placed on the State. Given the high premium placed on the right to be presumed innocent in our constitutional dispensation, there is clearly a need for trial courts to be particularly mindful of considerations of fairness and impartiality when calling and questioning witnesses under sections 167 and 186. A trial court must be vigilant not to create the impression that its intervention is prompted by undue partiality designed to assist the State.80 [82] The requirement that the trial court actively and visibly maintain its impartiality and open-mindedness applies not only to its decision to subpoena or recall witnesses, but also to the way it examines those witnesses. The Appellate Division captured this principle correctly in Rall: “[T]he Judge must ensure that ‘justice is done’. It is equally important, I think, that [they] should also ensure that justice is seen to be done. After all, that is a fundamental 78 Masooa above n 43 at para 26. 79 Id at para 27. 80 S v Helms 2015 (1) SACR 550 (WCC) at para 101. 29 NUKU AJ principle of our law and public policy. [They] should therefore so conduct the trial that [their] open-mindedness, [their] impartiality, and [their] fairness are manifest to all those who are concerned in the trial and its outcome, especially the accused. The Judge should consequently refrain from questioning any witnesses or the accused in a way that, because of its frequency, length, timing, form, tone, contents or otherwise, conveys or is likely to convey the opposite impression.” 81 [83] Although it is not desirable to too closely delineate how a court needs to exercise its discretion, several principles emerge from case law regarding the calling and questioning of witnesses by a trial court under sections 167 and 186:82 (a) (b) (c) (d) (e) The purpose of the court’s examination should be related to the trial. The court should not cross-examine the witness. The court must remain impartial, and its impartiality must be evident from the nature and scope of the examination. The presiding officer must not enter the arena of the prosecution. If it is necessary for justice to be done, the court will come to the aid of an accused who is represented by inexperienced counsel. (f) A judicial officer must not only be impartial but must be seen to be impartial. [84] These principles, long-established in our criminal law, are now of heightened significance given their implications for the constitutional right to a fair trial, specifically the presumption of innocence. Did the High Court’s calling and questioning of witnesses violate the applicant’s right to a fair trial? [85] Several aspects of the High Court’s calling and subsequent questioning of witnesses raise the concerns I discuss below. 81 S v Rall 1982 (1) SA 828 (A) at 831H-832B. 82 Kruger “Chapter 22: Conduct of Proceedings” in Kruger (ed) Hiemstra’s Criminal Procedure Issue 16 (2023) at 22-61 to 22-62. See also the useful summary of precedent set out in S v Mseleku 2006 (2) SACR 237 (N) at paras 12-19. 30 NUKU AJ [86] First, the Judge’s decision to call the witnesses stemmed largely from her concern that the prosecution might have engaged in misconduct and falsified records relating to the identification of the firearm. This is especially clear since the Judge acknowledged that no evidence existed linking the accused to the murder weapon after the close of the State’s case. On multiple occasions, she explicitly raised concerns over prosecutorial impropriety. While the Judge initially framed her rationale for calling the witnesses as “to ascertain exactly what was found in possession of [the applicant]” and the factual matrix surrounding the identity of the firearm, she clarified that “it [was] not [her] job to sort out [the vast lacuna] in the State’s case, if the State’s case chooses to leave gaps in its prosecution”. Instead, she intended to investigate “a change in records”. [87] These statements make plain that the adjudication of the case was not the central motivation behind the Judge’s decision to call the witnesses. While she was aware of the possibility that incriminating evidence against the applicant may emerge, the Judge merely treated it as a possible collateral consequence while informing the applicant’s legal representative of her principal intention to “sort out” the seeming change in records. Even though a High Court has a wide discretion under sections 167 and 186, it cannot be regarded as exercising that discretion judiciously when it calls witnesses to address matters unconnected to the determination of the guilt or otherwise of the accused. If the High Court was concerned about professional misconduct by the prosecution, it had other mechanisms at its disposal to address this concern, such as referring the matter to the Director of Public Prosecutions for investigation.83 [88] Second, and related to the first aspect, the Judge’s decision to call the witnesses was not based on admissible evidence but on oral submissions made by accused 1. This was after the Judge herself acknowledged, following an objection by the applicant’s 83 In fact, the Judge considered the option of referring a perjury investigation to the Director of Public Prosecutions but decided against it as she did “not know if [she could] trust the Director of Public Prosecutions in this regard”. The Judge’s subjective opinions of the possible referral mechanisms could not justify undermining the fairness and impartiality of the applicant’s trial. 31 NUKU AJ legal representative, that not everything referred to in accused 1’s address constituted evidence, and that nothing said by accused 1 was put on record. In my view, the High Court committed an irregularity by relying on information that did not constitute evidence against the applicant. As is clear from the Judge’s own statements, she “did not believe the State had proven that the firearm found by Inspector Phosa in the possession of [the applicant] was necessarily the firearm that was subject to [ballistics] tests”, and no evidence adduced by the applicant or the State required elucidation at the close of the cases for both the prosecution and the defence. [89] Accordingly, the High Court’s decision to call the witnesses was both based on inadmissible submissions and for a purpose unrelated to the outcome of the trial. These irregularities are sufficient for this Court to conclude that the High Court exercised its powers under sections 167 and 186 injudiciously. I note that the applicant was represented in the High Court and that his legal representative did not object to the Judge recalling witnesses. The failure to object, however, can neither cure the irregularities committed by the High Court nor render the trial fair. [90] Furthermore, the consequences of the High Court’s decision demonstrate the dangers of these irregularities. After the State closed its case and the applicant chose not to testify, the Judge repeatedly indicated that she did not believe the State had proved the applicant’s guilt beyond a reasonable doubt. She was also aware that by calling and examining witnesses, additional evidence might emerge to incriminate the applicant. In spite of this awareness, the Judge proceeded, ostensibly because the “administration of justice” so required. [91] The Judge’s reference to what the “administration of justice . . . required” misstated the law, as the correct criteria for invoking the powers under sections 167 and 186 are different. These sections confer a general discretion on a trial court to use these powers for purposes related to the conduct of the trial. These discretionary powers become obligatory if it appears to the court that the evidence is “essential to the just decision of the case”. In this case and as already explained, the primary intention behind 32 NUKU AJ the Judge’s resort to these powers was not a trial-related purpose, nor did she consider the evidence of the witnesses she recalled essential to the just decision of the case. Instead, her improper calling of the witnesses led to the presentation of incriminating evidence that should not have been presented, and such evidence probably altered her verdict. [92] An important consideration is the trite principle that where there is no evidence to support a conviction, the law requires the acquittal of the accused person. This principle stems from the fundamental tenets of criminal justice that an accused is innocent until proven guilty and that the prosecution is required to prove guilt beyond a reasonable doubt. In Kwinika, where neither the State nor the defence had adduced any evidence, the Court held that the accused should have been acquitted and discharged.84 Put differently, in the absence of evidence linking an accused to a crime, the administration of justice calls for the acquittal of the accused, and the court commits an irregularity if it calls a witness in terms of section 167 or 186 of the Act. While this matter is, in some respects, distinguishable from Kwinika, as the State did call some witnesses initially, the key similarity between both matters is that there was no evidence implicating the accused at the close of the cases for the prosecution and the defence. [93] The third irregularity occurred after the witnesses were called. As I have shown above, there was a heightened requirement on the Judge to maintain neutrality and even-handedness when questioning the witnesses. In my assessment, the Judge’s questioning did not maintain the requisite neutrality. She asked leading questions, which appear to have caused Inspector Phosa to radically change his testimony from his original testimony. She then placed reliance on the changed testimony. Our courts have previously held that: “[W]here the proposed witness has heard all the evidence and there is a danger that the witness may have been coached the court would be very reluctant and slow to call such 84 S v Kwinika 1989 (1) SA 896 (W) at 898. 33 a witness. . . . Thus clearly there was a danger that they may well have been coached or that they were merely brought to fill in the gap in the State’s case.”85 NUKU AJ [94] The High Court should, in these circumstances, have been extra cautious to recall the witnesses to testify on the same subject as their original testimony. By then placing reliance on radically changed testimony from one of these witnesses, the High Court gave the impression that it was no longer acting with the requisite impartiality but was, in fact, coming to the aid of the prosecution’s case. [95] The High Court also questioned the two witnesses extensively until, to its satisfaction, a link was established between the firearm found in the applicant’s possession and the one sent for ballistics testing. Thereafter, it indicated that the other witnesses were no longer required. During the questioning of the witnesses, several remarks were made to the effect that, because of the witnesses’ testimony, the applicant might “go free”. This does not accord with the proper role of a judicial officer not only to be impartial, but to be seen as impartial. [96] The High Court also failed to call two witnesses whose testimony would have been critical to establishing the firearm’s identity: Inspector Mohlasi, who was responsible for completing the SAP 13 register, and Mokoena, who handed the firearm to Inspector Phosa. In this regard, the High Court was aware of the changes to the entries in the SAP 13 register, but did not call the witnesses responsible for it. [97] The High Court failed to properly scrutinise whether the testimony of Inspector Phosa and Inspector Maloma established the link that the firearm recovered from the applicant was the same as the one sent for ballistics testing, which matched the bullet found in the deceased’s body. Inspector Maloma insisted that he had retrieved the firearm from the station and sent it for ballistics testing on 27 June 2006, and that the mention of 27 July 2006 in the covering letter was likely a typographical error. The 85 S v Matthys 1999 (1) SACR 117 at 121F-H. 34 NUKU AJ High Court, despite Inspector Maloma’s testimony, ruled that he must be mistaken about the date of 27 June 2006, as the records indicate that the firearm was booked out on 22 May 2006 and returned to the station only on 24 July 2006. [98] This deliberate disregard of Inspector Maloma’s evidence is concerning, as it creates an impression of a court that was prepared to disregard the evidence that was not favourable to the case for the prosecution. In light of the discrepancies in the evidence that was led prior to the close of the State’s case, with regard to the firearm recovered from the applicant and the firearm for which he was charged, the integrity of the chain of evidence from the recovery of the firearm until the ballistics testing was critical. Despite not being provided with an explanation for the changes in the SAP 13 register and lacking evidence from the witnesses responsible for the entries, the High Court was satisfied with the testimonies of the first two witnesses. [99] Finally, the High Court stated that there was no need to recall Inspector Sithole, despite the expressed concern that the applicant might have been previously convicted on the same unlawful possession charges. This serious issue required Inspector Sithole’s evidence to be cleared up. Nothing in the evidence of Inspectors Phosa and Maloma addressed this issue. This, in my view, engendered the distinct impression that the High Court recalled those witnesses it deemed expedient to establish the applicant’s guilt, but did not think it necessary to recall witnesses who could, at least ostensibly, prove that he had already been convicted on certain charges. The Judge, by only recalling witnesses that tended to aid the State’s case, failed to maintain neutrality and impartiality in the exercise of her discretionary powers. The decision to recall only the two witnesses whose testimony was favourable to the State’s case could easily be perceived as undue partisanship in favour of the prosecution. [100] In the absence of any evidence linking the applicant to the weapon used in the robbery and murder on 28 April 2006, the State’s case failed. This was stated by the High Court on record, and the applicant was entitled to be acquitted at that stage. On the other hand, the High Court’s concern about the applicant’s possible prior conviction 35 NUKU AJ for possessing an unlicensed firearm and ammunition required further investigation to ensure a just decision. The effect of the State’s failed case, supported by the recalled witnesses’ testimony, combined with the Court’s failure to subpoena Inspector Sithole to clarify an issue that, in my view, needed clarification for a just decision, violated the applicant’s right to a fair trial. The appropriate remedy [101] As the High Court’s calling and questioning of witnesses constitute a violation of the applicant’s right to a fair trial, the evidence adduced therefrom falls to be disregarded. Consequently, the charges must be reassessed as at the close of the State’s and the defence’s cases, when no evidence linked the applicant to the crimes for which he was charged. On this basis, the accused must be acquitted in the present matter. Not acquitting him under those circumstances would violate his constitutional right to a fair trial. The Judge herself essentially agreed with this conclusion in her remarks to the effect that the applicant would “go free”. [102] I may also mention that the High Court was of the view that the applicant could not escape a conviction of the charges of unlawful possession of a firearm and ammunition, as these were recovered from him. This view, however, was mistaken because he was not charged with possession of a 7.65-millimetre calibre firearm, nor was he charged for being found in possession of that firearm on 11 May 2006, the day it was recovered from him. The charges remained for the possession of a 9-millimetre firearm and ammunition on 28 April 2006, and there was no evidence that was presented that the applicant had been in possession of a 9-millimetre firearm and ammunition on that date. The applicant must, therefore, be acquitted of these charges, and it is unnecessary to consider the argument of autrefois convict (formerly convicted), as, amongst other reasons, the applicant entered no such plea at trial. Order [103] The following order is made: 36 NUKU AJ 1. 2. 3. Leave to appeal is granted. The appeal succeeds. The order of the High Court of South Africa, Circuit Local Division for the Vereeniging Circuit District, insofar as it relates to the applicant, is set aside and replaced with the following: “Accused 3 is found not guilty and acquitted on all counts.” 4. If the applicant is not serving any sentences other than those that are the subject of this application, the Head of the Groenpunt Medium Correctional Centre, Free State, or the Head of the relevant facility where the applicant is incarcerated, is directed to release him from prison immediately. 37 For the Applicant: For the Respondent: SM Tisani instructed by Mbebe-Tisani Attorneys GJC Maritz instructed by the Deputy for Public Prosecutions, Director Gauteng Division, Pretoria For the Amicus Curiae: M Mphaga SC and KD Magano