S v Moshodi and Others (A739/06) [2008] ZAGPHC 189 (20 June 2008)

S v Moshodi and Others (A739/06) [2008] ZAGPHC 189 (20 June 2008)

The trial court committed a serious irregularity by failing to hold a trial within a trial to determine the admissibility and voluntariness of the pointing out evidence, despite repeated and explicit requests from the defence and serious allegations of coercion and assault. This failure deprived the appellants of their right to a fair trial and exposed them to cross-examination on the merits, which would not have occurred had the evidence been excluded. Furthermore, the refusal to discharge appellants 2 and 3 at the close of the State's case under section 174 was unjustified, as there was no evidence implicating them at that stage. The trial court's reliance on the evidence of accused 6,...

Citation
[2008] ZAGPHC 189
Parties
Appellant: Basetse Ben Moshodi; Appellant: Piet Mojaki Phashe; Appellant: David Makapa Motloung; Respondent: The State
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
20 June 2008
Case Number
A739/06
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal upheld; convictions and sentences set aside.
Judges
M F Legodi, T M Makgoka
Legal Topics
Admissibility of Evidence, Trial Within a Trial, Section 174 Discharge, Pointing Out, Voluntariness of Admissions
Criminal Law Admissibility of Evidence Trial Within a Trial Section 174 Discharge Pointing Out Voluntariness of Admissions

Case Brief

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Parties

Basetse Ben Moshodi

Appellant

Piet Mojaki Phashe

Appellant

David Makapa Motloung

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the trial court erred by failing to hold a trial within a trial regarding the admissibility of pointing out evidence.
  2. 2 Whether the refusal to grant a discharge to appellants 2 and 3 at the close of the State's case under section 174 of the Criminal Procedure Act was justified.
  3. 3 Whether the convictions and sentences were sustainable given the procedural irregularities and evidentiary shortcomings.

Ratio Decidendi

The trial court committed a serious irregularity by failing to hold a trial within a trial to determine the admissibility and voluntariness of the pointing out evidence, despite repeated and explicit requests from the defence and serious allegations of coercion and assault. This failure deprived the appellants of their right to a fair trial and exposed them to cross-examination on the merits, which would not have occurred had the evidence been excluded. Furthermore, the refusal to discharge appellants 2 and 3 at the close of the State's case under section 174 was unjustified, as there was no evidence implicating them at that stage. The trial court's reliance on the evidence of accused 6,...

Court Disposition

Appeal upheld; convictions and sentences set aside.

Orders

  • The appeal is upheld.
  • The convictions and sentences imposed on the three appellants are set aside.