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

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

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.

Citation
[1985] ZASCA 88
Parties
Appellant: Falinsendeleni Msila Nkosi; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
19 September 1985
Case Number
240/84
Procedural Posture
Criminal Appeal / Appeal From Conviction and Sentence; Application to Set Aside and Remit for Further Evidence
Outcome
Conviction and sentence set aside; matter remitted to trial court for further evidence.
Judges
Miller, Hefer, Grosskopf
Legal Topics
Assault With Intent to Do Grievous Bodily Harm, Reopening of Trial, Right to Present Defence Evidence
Criminal Law Assault With Intent to Do Grievous Bodily Harm Reopening of Trial Right to Present Defence Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

Falinsendeleni Msila Nkosi

Appellant

The State

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the appellant's conviction and sentence should be set aside to allow further evidence to be led.
  2. 2 Whether the closure of the appellant's case without his assent constituted a miscarriage of justice.

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.

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.