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South Africa Judgment

Supreme Court of Appeal

S v Nkosi (240/84) [1985] ZASCA 88 (19 September 1985)

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Source document

01

Holding and result

The Supreme Court of Appeal found that the appellant's case was closed by his attorney without his assent and contrary to his wishes, depriving him of the opportunity to give evidence and call witnesses in his defence. The State's concession that the trial should be reopened was considered appropriate in the circumstances. The requirements of justice demanded that the conviction and sentence be set aside and the matter remitted to the trial court for further evidence to be received and considered. If the original judicial officer is unavailable, the Attorney-General may charge the appellant de novo before a newly constituted court.

Court disposition

Conviction and sentence set aside; matter remitted to trial court for further evidence.

Orders

  • The conviction and sentence are set aside.
  • The matter is remitted to the trial court to receive and consider further evidence relevant to the appellant's guilt or otherwise.
  • If the original judicial officer cannot preside, the Attorney-General may charge the appellant de novo before a newly constituted court.

02

Material facts

Parties

Falinsendeleni Msila Nkosi

Appellant

The State

Respondent

03

Procedural history

  1. Posture

    Criminal Appeal / Appeal From Conviction and Sentence; Application to Set Aside and Remit for Further Evidence

04

Questions and positions

Legal issues

Party arguments

Applicant
The appellant argued that his case was closed by his attorney without his consent and against his wishes, preventing him from giving evidence and calling witnesses in his defence. He sought an order to set aside the conviction and sentence so that the trial could be reopened and further evidence presented.
Respondent
The State did not oppose the appellant's motion to have the trial reopened, agreeing that justice required the opportunity for further evidence to be led.

05

Court’s reasoning

  1. 01

    General principles of criminal procedure

    A criminal accused must be afforded a fair opportunity to present evidence in his defence; closure of the defence case without the accused's assent may constitute a miscarriage of justice.

  2. 02

    S v Ndima 1972 (4) SA 535 (A)

    Where justice requires, a conviction and sentence may be set aside and the matter remitted for further evidence to be led.

06

Ratio, limits and disposition

Ratio decidendi

The Supreme Court of Appeal found that the appellant's case was closed by his attorney without his assent and contrary to his wishes, depriving him of the opportunity to give evidence and call witnesses in his defence. The State's concession that the trial should be reopened was considered appropriate in the circumstances. The requirements of justice demanded that the conviction and sentence be set aside and the matter remitted to the trial court for further evidence to be received and considered. If the original judicial officer is unavailable, the Attorney-General may charge the appellant de novo before a newly constituted court.

Obiter and limits

  • The State's attitude in not opposing the reopening of the trial was commended as meeting the requirements of justice.
  • If the original judicial officer cannot preside, a new trial may be instituted before a different court.

Court disposition

Conviction and sentence set aside; matter remitted to trial court for further evidence.

  • The conviction and sentence are set aside.
  • The matter is remitted to the trial court to receive and consider further evidence relevant to the appellant's guilt or otherwise.
  • If the original judicial officer cannot preside, the Attorney-General may charge the appellant de novo before a newly constituted court.

Source and reliance status

Supreme Court of Appeal

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Judgment text

The complete available source text.

Source document

Supreme Court of Appeal

Judgment

[1985] ZASCA 88

240/84

N v H

FALINSENDELINI MSILA NKOSIandTHE

STATE

MILLER, JA :-

240/84 N v H

IN THE SUPREME COURT OF SOUTH

AFRICA

(APPELLATE DIVISION) In the matter between:

FALINSENDELINI MSILA NKOSI Appellant and

THE STATE RespondentCORAM: MILLER, HEFER, et GROSSKOPF, JJAHEARD: 17 SEPTEMBER 1985

DELIVERED: 19 SEPTEMBER 1985

JUDGMENT MILLER , JA :-

The appellant was convicted by a Magistrate

of assault with intent to do grievous bodily harm and wassentenced to imprisonment for two years. His appeal to

the Natal Provincial Division against the conviction

and / 2 and sentence was dismissed, but leave was granted by the Court a quo to appeal to this Court. The main ground upon which such leave was granted was that the appellant, whose intention it was to move this Court for an order setting aside the conviction and sentence to enable further evidence to be led upon re-opening of the trial, was considered by the Court a quo to have a reasonable prospect of success in his quest for such an order. The Court a quo was not at fault in so rating the appellant's prospects; the information placed before us by the appellant shows that at the trial, upon closure of the case for the State, the appellant's case was forthwith closed by the attorney acting for him. This, according to the appellant, was done without his assent

and /

3.and, indeed, against his wishes, for he had intended both to give evidence himself and to lead other evidence in his defence. The State does not oppose the appellant's motion to have the trial re-opened so that further evidence might be led. I consider that the State's attitude in this regard is, in all the circumstances, the proper one for it to adopt; it meets the requirements of justice.In the result, it is ordered that the conviction and sentence are set aside and that the matter be remitted to the trial Court to enable it to receive and consider such further evidence as may be placed before it relevant to the appellant's guilt or otherwise of the offence charged. In the event that the trial cannot possibly be proceeded with by the judicial officer who constituted the Court at.

the /

4

the trial, the Attorney-General may, if he be so advised,

charge the appellant de novo on the said charge beforea newly constituted Court.

S MILLER

JUDGE OF APPEAL

HEFER, JA)) CONCUR GROSSKOPF, JA)

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

S v Ndima 1972 (4) SA 535 (A)

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