Sithole v S (A149/2010) [2012] ZAGPJHC 158 (12 September 2012)

Sithole v S (A149/2010) [2012] ZAGPJHC 158 (12 September 2012)

The court held that the special entry procedure under section 317 of the Criminal Procedure Act is inappropriate where the alleged irregularity—the failure to call Vusi Xaba as a witness—is apparent from the record and the matter is already on appeal. Both the prosecution and defence had access to Xaba and his statement, and both chose not to call him, indicating that neither considered his evidence beneficial. If Xaba had been called, both parties would likely have challenged his credibility and reliability, leaving the court with no reliable evidence. The court found that granting a special entry in these circumstances would lead to an absurd and frivolous result, as contemplated by...

Citation
[2012] ZAGPJHC 158
Parties
Applicant: Amon Mageba Sithole; Respondent: The State
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
12 September 2012
Case Number
A149/2010
Procedural Posture
Criminal Appeal / Application for Special Entry Following Referral by Appeal Court
Outcome
Application for special entry dismissed with costs.
Judges
Satchwell
Legal Topics
Special Entry Procedure, Irregularity on Record, Section 317 Cpa, Calling of Witnesses, Section 186 Cpa
Criminal Law Civil Procedure Special Entry Procedure Irregularity on Record Section 317 Cpa Calling of Witnesses Section 186 Cpa

Case Brief

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Parties

Amon Mageba Sithole

Applicant

The State

Respondent

Procedural Posture

Criminal Appeal / Application for Special Entry Following Referral by Appeal Court

Legal Issues

  1. 1 Whether the failure of the trial court to call Vusi Xaba as a witness in terms of section 186 of the Criminal Procedure Act constitutes an irregularity justifying a special entry under section 317 of the CPA.
  2. 2 Whether the special entry procedure is appropriate where the alleged irregularity appears from the record and the matter is already on appeal.
  3. 3 Whether granting the special entry would lead to an absurd or frivolous result as contemplated by section 317.

Ratio Decidendi

The court held that the special entry procedure under section 317 of the Criminal Procedure Act is inappropriate where the alleged irregularity—the failure to call Vusi Xaba as a witness—is apparent from the record and the matter is already on appeal. Both the prosecution and defence had access to Xaba and his statement, and both chose not to call him, indicating that neither considered his evidence beneficial. If Xaba had been called, both parties would likely have challenged his credibility and reliability, leaving the court with no reliable evidence. The court found that granting a special entry in these circumstances would lead to an absurd and frivolous result, as contemplated by...

Court Disposition

Application for special entry dismissed with costs.

Orders

  • The application for a special entry is dismissed with costs.