S v Gabaatlholwe and Another (96/2002) [2002] ZASCA 149; [2003] 1 All SA 1 (SCA); 2003 (1) SACR 313 (SCA) (28 November 2002)

S v Gabaatlholwe and Another (96/2002) [2002] ZASCA 149; [2003] 1 All SA 1 (SCA); 2003 (1) SACR 313 (SCA) (28 November 2002)

The Supreme Court of Appeal held that the trial judge did not err in refusing to subpoena Van der Westhuizen under section 186 of the Criminal Procedure Act. The evidence available to the trial court did not establish that Van der Westhuizen's testimony was essential to a just decision. The complainant's sobriety and movements were sufficiently canvassed, and the probabilities opposed the defence's version of consent even if some degree of intoxication was accepted. The trial court's discretion was properly exercised, and there was no basis for appellate interference. The absence of Van der Westhuizen's evidence did not render the trial unfair or the conviction unsafe.

Citation
[2002] ZASCA 149
Parties
Appellant: E Gabaatlholwe; Appellant: N Rammutle; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 November 2002
Case Number
96/2002
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence; Special Entry Under S 317 Criminal Procedure Act
Outcome
Appeal dismissed.
Judges
Scott JA, Farlam JA, Heher AJA
Legal Topics
Criminal Procedure Act Section 186, Rape, Kidnapping, Judicial Discretion, Calling of Witnesses
Criminal Law Criminal Procedure Act Section 186 Rape Kidnapping Judicial Discretion Calling of Witnesses

Case Brief

Summary, issues, holding and outcome

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Parties

E Gabaatlholwe

Appellant

N Rammutle

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence; Special Entry Under S 317 Criminal Procedure Act

Legal Issues

  1. 1 Whether the trial court erred in refusing to subpoena a witness under section 186 of the Criminal Procedure Act.
  2. 2 Whether the absence of the witness's evidence rendered the trial unfair or the conviction unsafe.

Ratio Decidendi

The Supreme Court of Appeal held that the trial judge did not err in refusing to subpoena Van der Westhuizen under section 186 of the Criminal Procedure Act. The evidence available to the trial court did not establish that Van der Westhuizen's testimony was essential to a just decision. The complainant's sobriety and movements were sufficiently canvassed, and the probabilities opposed the defence's version of consent even if some degree of intoxication was accepted. The trial court's discretion was properly exercised, and there was no basis for appellate interference. The absence of Van der Westhuizen's evidence did not render the trial unfair or the conviction unsafe.

Court Disposition

Appeal dismissed.

Orders

  • The appeal is dismissed.