Court name
Supreme Court
Case name
S v Malumo
Media neutral citation
[2010] NASC 10













REPORTABLE



CASE NO. P 4/2010


IN
THE SUPREME COURT OF NAMIBIA





In
the matter between:





THE
STATE PETITIONER








and








CALVIN
LISELI MALUMO
FIRST RESPONDENT





CHIKA
ADOUR MUTALIFE
SECOND RESPONDENT





JOSEF
KAMWI SIMAWHEWHE
THIRD RESPONDENT





SYLVESTER
LUSIKU NGALAULE
FOURTH RESPONDENT





KINGSLEY
MWIYA MUSHEBAFI
FIFTH RESPONDENT





JOHN
TEBISO MASAKE
SIXTH RESPONDENT





CHRIS
SITALI MUSHE
SEVENTH RESPONDENT





GEORGE
MASIALETI LISEHO EIGHTH RESPONDENT





DAVIS
CHIOMA MAZYU NINETH RESPONDENT





FRANCIS
BUITIKO PANGALA TENTH RESPONDENT





ROSTER
MUSHE LUKATO ELEVENTH RESPONDENT





KISKO
TWAIMANGO SAKUSHEKA TWELFTH RESPONDENT





TOBIAS
MUSHWABE KANANGA THIRTEENTH RESPONDENT





FREDERICK
KABODONTWA LUTHEHEZI FOURTEENTH RESPONDENT





POSTRICK
MARIO MWIYA FIFTEENTH RESPONDENT





NDALA
SAVIOUR TUTALIFE SIXTEENTH RESPONDENT





ANDREA
PUO MULUPA
SEVENTEENTH RESPONDENT





MICHAEL
MUNDIA MUBYANA
EIGHTEENTH RESPONDENT





O’BRIEN
SINKOLELA MWANANYAMBE
NINETEENTH RESPONDENT





JOSEF
OMO MUFUHI
TWENTIETH RESPONDENT





RODWELL
MWANABWE SIHELA
TWENTY FIRST RESPONDENT





ALBERT
SIKENI MANGALAZI
TWENTY SECOND RESPONDENT





VICTOR
TUMONI LUNYANDILE
TWENTY THIRD RESPONDENT





CHARLES
MUKENA SAMBOMA TWENTY FOURTH RESPONDENT





ZIEZO
AUSTIN LEMUHA
TWENTY FIFTH RESPONDENT








CORAM:
MARITZ, JA, STRYDOM, AJA AND MTAMBANENGWE, AJA.








Heard
on: 08/06/2010







Delivered on: 14/09/2010











APPEAL JUDGMENT










STRYDOM
AJA:
[1] After hearing argument the Court issued the
following order:







Having read the
petition and other documents filed of record and having informed the
petitioner that the Supreme Court declines the invitation to exercise
its review jurisdiction in terms of section 16 of the Supreme Court
Act, 1990 it is ordered:







  1. That
    the petitioner’s petition for leave to appeal against the
    order of the Court a quo made on 1 March 2010 declaring that
    all the statements made by the respondents which had been handed in
    as exhibits during the trial within a trial were inadmissible as
    evidence (on grounds other than the one in respect of which leave to
    appeal has already been granted by the Court a quo on 1 April
    2010) is refused.”








[2] At the time the Court
indicated that it would provide its reasons at a later stage. What
follows are the reasons of the Court.







[3] The petitioner in
this matter (the State) filed a petition in this Court for leave to
appeal against decisions in the Court a quo whereby it was
ruled that certain confessions and/or admissions made by the various
respondents, and which the State tendered in evidence, were
inadmissible. An application for leave to appeal in terms of sec.
316A(1), read with sec. 316(1), of the Criminal Procedure Act, Act
No. 51 of 1977, (the Act) against this ruling, was dismissed by the
Court. The State thereupon petitioned the Chief Justice, in terms of
the provisions of the Act, for leave to appeal.







[4] The parties were then
given notice by letter dated 10 May 2010 that the Judges considering
the petition have directed that the petition be argued before them on
8 June 2010. The letter gave directions as to the procedure to be
followed and requested counsel to specifically address certain issues
in argument as set out in the letter. These were the following:







3.3 In
addition to any argument to be advanced by or on behalf of any of the
litigants, the following questions also be addressed in argument:



  1. Are
    the rulings of the Court a quo on the inadmissibility of the
    confessions/statements which are the subject matter of the petition
    final in effect or are they interlocutory in nature?


  2. Are
    the rulings of the Court a quo which are the subject matter
    of the petition appealable by the State in terms of section 316A of
    the Criminal Procedure Act, 1977 prior to the conclusion of the
    trial-proceedings against the respective accused persons to whom
    those rulings relate and if so, under which circumstances (if any)
    should such an appeal be entertained? Are those circumstances
    present in this case?”








[5] Simultaneously a
letter was addressed to the Judge a quo in which he was
requested, in terms of the provisions of sec. 316(8)(a) of the Act,
to provide this Court with the information as set out in the letter.
I will refer to some of this information later, if necessary.







[6] In its petition the
State points out that the trial is of an exceptional nature involving
charges such as High Treason after an attempted coup d’état
in the Caprivi region. There are 278 charges against each of the 122
accused and, from the information given by the Judge a quo,
the docket of the case comprises some 859 witnesses of which 346
have, so far, given testimony in the trial - now in its 9th
year since the accused first appeared in the Court below. From this
information it seems that the events which gave rise to the
prosecution happened during the second half of 1999 and the majority
of the accused persons were arrested during August 1999 with first
appearances in the magistrate’s court on 23 August 1999. Since
the trial started in the High Court various applications,
necessitating the hearing of evidence, have been brought in that
Court. Some of the accused successfully challenged the jurisdiction
of the High Court in terms of s. 106(1)(f) of the Act and the order
became the subject matter of an appeal to this Court. I have
referred to these facts to show the enormity of the task that faced
those involved with it.







[7] The petition
continues to state that the reasons why the confessions and
statements by the respondents have been excluded by the Court are
because the Court was not satisfied that those statements had been
made voluntarily. In most of the instances some coercive actions,
such as, inter alia, assaults by members of the police or
military, were complained of. (The involvement of the military came
about when a state of emergency was declared in the Caprivi at the
time of, and after, the attempted coup.) In these instances
leave to appeal was refused mainly because the learned Judge a quo
was of the opinion that his ruling on the admissibility of the
statements was not final but was interlocutory in nature. In
addition, the Court concluded that leave to appeal should also be
refused because there was no reasonable prospect that another Court
would, on the evidence, come to a different conclusion than that
reached by the Court a quo.







[8] However, in regard to
some of the disallowed statements the Court a quo granted
leave to appeal. Those are instances where the only ground for
rejecting the statements was the failure of the magistrate who
recorded the statement, to properly explain the rights of the accused
in question to apply for legal aid in instances where they could not
afford to appoint legal practitioners of their choice. In this
regard the Trial Judge was of the opinion that the finding
made by him was sufficiently final and unalterable that leave to
appeal could be granted. The Court held that once the magistrates,
who had taken the statements of the respondents, testified that they
had not explained to a respondent his right to apply for legal aid,
that that was the end of the matter. Consequently the learned Judge
granted leave to appeal in those instances.








[9] An aspect of this
case which is out of the ordinary is that a number of the respondents
staged a boycott of the court proceedings and refused to attend
Court. This came about when counsel appointed to defend them refused
their instructions to object to the jurisdiction of the Court a
quo
on the peculiar grounds which those respondents sought to
advance. As a result they terminated the services of their counsel
and their attempts, so far, to obtain other counsel were not
successful. According to a statement, read to us by the twenty fifth
respondent, Mr. Ziezo Austin Lemuha, this happened on 8 March 2007.
According to the statement they will only return to Court after the
close of the State’s case. Statements by these unrepresented
and absent respondents were tendered in evidence by the State and in
the case of those respondents, cited in this petition, were ruled out
by the learned Judge a quo on the grounds as previously set
out herein. None of these respondents either attended or gave
evidence in the trial within a trial proceedings.







[10] We have had the
benefit of full and thorough argument by counsel on both sides and I
would be failing in my duty if I did not express the Court’s
appreciation to counsel, more so where this matter was heard as one
of urgency which inevitably shortened the periods within which heads
of argument were required to be filed. The State was represented by
Mr. Gauntlett, assisted by Mr. Pelser, Mr. Small, Mr. January and Mr.
Julies. Mr. Botes, assisted by Mr. Kruger, Mr. Neves, Mr. Samukange
and Mr. McNally appeared for the 1st, 2nd, 5th,
6th, 7th, 13th, 18th,
19th and 20th respondents. Mr. Kachaka
appeared for the 21stand 22nd
respondents. The following respondents appeared in person, namely
3rd, 4th, 8th, 9th, 10th,
11th, 12th, 14th, 15th,
16th, 17th, 23rd and 24th.








[11] At the outset the
Court informed counsel that it would first of all want to hear
argument on the Prosecution’s asserted right to appeal the
rulings made by the Court a quo. Mr. Gauntlett started off by
stressing that the case was an exceptional one. Counsel pointed out
that there was going to be an intermediate appeal due to the fact
that the Court a quo had granted leave to appeal in those
instances where the respondent’s entitlement to apply for legal
aid (the constitutional point) had not been explained to them when
they made their statements. He submitted that it would be logical
also to hear the appeals in regard to the other, non-constitutional
grounds, where the Court excluded the statements made by respondents.
Because there was going to be an appeal on the constitutional issues
in any event, issues such as convenience and the principle against
piecemeal appeals, should not be allowed to affect the right to
appeal in this instance. The trial in the Court a quo was
already interrupted as a result of the pending appeals and to grant
leave in these cases would therefore not cause further prejudice.








1. The Court’s
power of review in terms of sec 16 of the Supreme Court Act, Act 15
of 1990



[12] Counsel’s
argument further addressed the various questions as they appear in
the letters of 10 May 2010 and 28 April 2010, and whereby counsel
were requested to address certain specific issues. Mr. Gauntlett has
conveniently set out these questions as follows:



(a) whether
section 20 of the Supreme Court Act, 1990













            1. confers authority
              to this Court to review the proceedings of the High Court mero
              motu
              , and



















            1. provides a basis
              for this Court to exercise its discretion, if any, in favour of
              the State;













(b) whether the rulings
of the Court a quo on the inadmissibility of the statements
forming the subject-matter of the petition are final in effect or
interlocutory in nature; and







(c) whether these rulings
are







(i) appealable in terms
of section 316A of the Criminal procedure Act,1977 prior to the
conclusion of the trial proceedings, and




(ii) if so, under what
circumstances; and further,







(iii) whether such
circumstances are present in this case.”











[13] Mr. Gauntlett
pointed out that the State in its petition invoked the provisions of
sec. 20 of Act 15 of 1990 as an alternative to its main argument
based on the interpretation of sec 316A of the Act. Counsel further
stressed the fact that sec. 20 must be read with sec. 16 of the
Supreme Court Act. This is correct for sec. 20 only defines the
powers of the Court “in cases where it is sitting as court of
first instance or on review.” It follows therefore that the
powers provided for in sec. 20 only become available once the Court
sits as a Court of first instance in terms of sec. 15 of the Act,
which concerns constitutional matters brought before it by the
Attorney-General in terms of Art. 79(2) read with Art. 87(c) of the
Namibian Constitution, or where it exercises its review jurisdiction
in terms of sec. 16 of the Supreme Court Act. Sec. 16 is therefore
the relevant provision and it reads as follows:







(1) In addition
to any jurisdiction conferred upon it by this Act, the Supreme Court
shall, subject to the provisions of this section and section 20 have
the jurisdiction to review the proceedings of the High Court or any
lower court, or any administrative tribunal or authority established
or instituted by or under any law.







(2) The jurisdiction
referred to in subsection (1) may be exercised by the Supreme Court
mero motu whenever it comes to the notice of the Supreme Court
or any judge of that court that an irregularity has occurred in any
proceedings referred to in that subsection, notwithstanding that such
proceedings are not subject to an appeal or other proceedings before
the Supreme Court: Provided that nothing in this section contained
shall be construed as conferring upon any person any right to
institute any such review proceedings in the Supreme Court as a court
of first instance.







(3) The Chief Justice or
any other judge of the Supreme Court designated for that purpose by
the Chief Justice, may give directions as may appear to him or her to
be just and expedient in any particular case where the Supreme Court
exercises its jurisdiction in terms of this section, and provision
may, subject to any such direction, be made in the rules of court for
any procedures to be followed in such cases.







(4) The provisions of
this section shall not be construed as in any way limiting the powers
of the High Court as existing at the commencement of this Act or as
depriving that court of any review jurisdiction which could lawfully
be exercised by it at such commencement.”








[14] Mr. Gauntlett
submitted that on a proper construction of the section the power
vested in the Supreme Court would include the present proceedings and
that the matter was indeed one capable of being dealt with by this
Court under sec. 16. The powers granted to the Court in terms of sec
20 are wide enough to deal with the petition and to grant to the
State the orders set out in its petition.







[15] Section 16 is an
extra-ordinary provision which allows this Court, as a Court of first
instance, to correct irregularities in proceedings before the High
Court and any other tribunal or authority established by law. This
power can only be exercised by this Court once it takes cognizance of
such irregularity and assumes jurisdiction. Sub-sec. (2) specifically
prohibits any party to bring review proceedings in the Supreme Court
as a Court of first instance. The existence of an irregularity in
proceedings may come to the notice of the Court or any of its Judges,
in which case it may mero motu assume jurisdiction and give
directions in terms of its Rules to deal with the matter. Perhaps the
most likely manner in which an irregularity of that nature would be
brought to the attention of the Court or any of its Judges, is by
means of a complaint by an aggrieved party involved in the
proceedings or through a third party with an interest therein. In
the case of Schroeder and Another v Solomon and 48 Others,
2009 (1) NR 1 (SC) this Court gave detailed directions of what was
required of a party who wanted to bring an irregularity in
proceedings to the notice of the Supreme Court or to one of its
Judges.








[16] A reading of sec. 16
further shows that the Court’s jurisdiction to deal with
irregularities by way of review is limited to irregularities in the
proceedings and that only in such instances may the Court exercise
the powers granted to it by the section read with sec. 20 of Act 15
of 1990. What constitutes an irregularity in the proceedings was
considered by this Court in the matter of S v Bushebi, 1998 NR
239 (SC) where the following was stated by Leon, AJA, at p. 241F,
namely:



The phrase
‘irregularity in the proceedings’ as a ground for review
relates to the conduct of the proceedings and not the result thereof.
In Ellis v Morgan, Ellis v Dessai 1909 TS 576 Mason J said
this at 581:




But an
irregularity in the proceedings does not mean an incorrect judgment;
it refers not to the result but the method of a trial, such as, for
example, some high-handed or mistaken action which has prevented the
aggrieved party, from having his case fully and fairly determined.’”







Further at p. 241I the
Court pointed out:







However, where the
error is fundamental in the sense that the lower court has declined
to exercise the function entrusted to it by the statute the result of
which is to deny a party the right to a fair hearing, the matter is
reviewable.”







[17] As previously stated
the various statements by the respondents were confessions or
admissions made by them and which the State tendered in evidence.
Because of objections raised by the respondents, evidence was
presented in a trial within a trial to determine the admissibility of
the statements. This is the usual method by which statements,
amounting to confessions or admissions, are dealt with where
objections are raised concerning their admissibility. (See S v W,
1963 (3) SA 516(AD) at 521). Consequently there is no objection
raised against the method of the proceedings adopted by the learned
Judge a quo in coming to the conclusion that the statements
should be excluded. There is also no complaint about some
high-handed or mistaken action by the learned Judge whereby the State
was prevented from a full and fair hearing of its case and nor is
there complaint about a fundamental error committed by the learned
Judge which prevented the State from having a fair hearing. It is
clear from the judgment that the learned Judge considered the
evidence and excluded the statements on grounds relevant in deciding
the issue of admissibility of such statements. Whether he was right
or wrong in doing so is not relevant for purposes of deciding whether
sec 16 should apply. In fact, as was pointed out in the Bushebi
case, a review on the bases of an irregularity in the proceedings
does not concern itself with an incorrect judgment. That, so it seems
to me, is what the State wants this Court to do, namely to find that
the learned Judge a quo wrongly decided to exclude the various
statements. The petition, in each instance, starts by alleging that
the Court ‘wrongly’ ruled that a particular statement was
inadmissible or that the Court ‘misdirected’ itself.
These are generally grounds for an appeal and although, in deciding
whether an irregularity was committed in the proceedings, a Court
would not slavishly bind itself to the allegations made by a party in
deciding whether sec 16 applies, it is nevertheless relevant in the
present proceedings given the total lack of grounds for a review and
the fact that the litigant, in these proceedings, being the
Prosecutor-General, is well acquainted with what the law requires in
such an instance.







[18] In the case of.
Schroeder,
supra, where this Court gave directions
as to how an irregularity in proceedings should be brought to the
attention of the Supreme Court by a third party, it was stated that
the fact that the irregularity complained of was alterable by the
Court, or tribunal committing it, was a factor to be considered in
deciding whether the Supreme Court should accept jurisdiction or not.
It is trite law that as far as the admissibility of evidence is
concerned the trial Court can at any stage during the proceedings,
and as evidence may become available, change its previous ruling and
admit evidence previously excluded or exclude evidence previously
admitted. (See S v Steyn, 1981 (3) SA 1050 (CPD) and S v
Mkwanazi,
1966 (1) SA 736(AD) at 743.)








[19] In regard to its
application for leave to appeal, which was rejected by the Court a
quo
, the State submits in its petition that the only issue which
the Court should have decided was whether there were reasonable
grounds on which another Court might come to a different finding.
Instead, it submits, the Court dealt with the State’s right to
appeal in regard to the issues raised - which it should not have done
- and did not consider the prospects of the appeal – which it
should have done. In so far as this allegation may be seen as a
ground for review, I am of the opinion that it is without any merit.
The right of a party to appeal is always an issue, more so in this
instance given the time the application was made and the nature of
the intended appeal. It was the duty of the Court to consider this
issue and once it came to the conclusion that the matter was not
appealable in law at that stage the prospects of the appeal on the
merits became irrelevant.







[20] For the reasons set
out above I have come to the conclusion that this is not a matter
where this Court can or should accept jurisdiction in terms of the
provisions of sec. 16 of Act No. 15 of 1990.







2. The
interpretation of section 316A of Act No. 51 of 1977.



[21] Prior to the
enactment of sec. 316A the State, as represented by firstly the
Attorney-General, and after Independence by the Prosecutor-General,
could only appeal on a question or point of law. (See sec 311 of Act
51 of 1977 prior to its amendment by sec. 2 of Act 26 of 1993.).
There was no general right of appeal as provided for an accused who
is convicted and sentenced. (see sec. 316 of the Act.) This
situation was completely changed with the advent of sec. 316A and
this section, which is of wide application, now affords the State in
criminal proceedings a general right of appeal in regard to any
decision by the Court in favour of an accused. As the provisions of
sec 316 were applied mutatis mutandis to the provisions of sec
316A, it is necessary to look at both these enactments where the
Court is called upon to interpret sec. 316A in regard to the right of
the State to appeal in interlocutory proceedings where the
prosecution of the respondents has still not been completed. The
relevant part of sec. 316 provides as follows:







316. Applications
for condonation, for leave to appeal and for leave to lead further
evidence-







(1) An accused convicted
of any offence before the High Court of Namibia may, within a period
of fourteen days of the passing of any sentence as a result of such
conviction or within such extended period as may on application (in
this section referred to as an application for condonation) on good
cause be allowed, apply to the judge at the trial or, if that judge
is not available, to any other judge of that court for leave to
appeal against his or her conviction or against any sentence or order
following thereon (in this section referred to as an application for
leave to appeal), and an accused convicted of any offence before such
court on a plea of guilty may, within the same period, apply for
leave to appeal against any sentence or any order following thereon.”







The relevant part of sec
316A reads as follows:



316A. Appeal
from High Court by Prosecutor-General or other prosecutor.







(1) The
Prosecutor-General or, if a body or person other than the
Prosecutor-General or his or her representative, was the prosecutor
in the proceedings, then such other prosecutor, may appeal against
any decision given in favour of an accused in a criminal case in the
High Court, including –



(a) any resultant
sentence imposed or order made by such court;



(b) any such order made
under section 85(2) by such court, to the Supreme Court.







(2) The provisions of
section 316 in respect of an application or appeal by an accused
referred to in that section, shall apply mutatis mutandis with
reference to an appeal in terms of subsection (1)”







[22] It was common cause
between the parties that the ruling of a Court on the admissibility
of evidence was interlocutory. There can be no doubt that that is so.
(See, inter alia, S v Melozani, 1952 (3) SA 639 (AD) at
644D-G; R v Musekiwa and Others, 1965 (3) SA 529(SR) at 530H
-531A and Priday t/a Pride Paving v Rubin 1992 (3) SA 542 (C)
at 544H-545B, 547H-I.) From this it follows that the answer to
question (b) of the letter dated 10 May 2010 is that the issue before
the Court concerning the confessions and admission statements by the
respondents is interlocutory and not of final effect.







[23] With reference to
cases such as Van Streepen & Germs (Pty) Ltd v Transvaal
Provincial Administrator,
1987 (4) SA 569 (AD), Marsey v
Dilley,
1992 (3) SA 944 (AD) and Moch v Nedtravel (Pty) Ltd.
t/a American Express Travel Service,
1996 (3) SA 1 (AD), Mr.
Gauntlett submitted that the important distinction which formerly
existed between simple interlocutory orders, and orders with a final
effect, was now of lesser importance in the context of appeals from
the High Court and that, under the currently operative statutory
provisions, an increasingly flexible approach to a right of appeal
has been adopted. Counsel submitted therefore that the
classification of the trial Court’s rulings as “interlocutory”
was of limited assistance when determining whether or not to grant
the petition.







[24] I must however point
out that, as was stated in the Van Streepen-case, supra,
at p. 584A-D, that the distinction between simple
interlocutory orders and orders having a final and definitive effect
was of less importance, was brought about by amendments to the
relevant sections of Act 59 of 1959 by the Appeals Amendment Act 105
of 1982, which now requires that in all appeals in civil proceedings
from Provincial Divisions or Local Divisions to the Appeal Court,
leave to appeal is necessary. The amendment brought about by Act 105
of 1982 is not part of our law and in terms of the provisions of Act
16 of 1990 the distinction between simple interlocutory orders and
orders with a final and definitive effect remains important, not only
to determine which orders are appealable, but also in which instances
leave to appeal is necessary or not necessary.







[25] However, I agree
with counsel that the answer to the question, as posed in para. (c)
of the question set out by counsel, will determine whether the
rulings of the Court a quo are appealable in terms of sec.
316A of the Act prior to the conclusion of the trial proceedings, and
if so, under what circumstances. In this regard the fact that the
statements are interlocutory may be relevant to their admissibility.







[25] Mr. Gauntlett
referred to the wording of sub-sec (1) of sec. 316A and submitted
that the section allows the Prosecutor-General to appeal against “any
decision” given in favour of an accused person. Counsel
submitted that the words used were of the widest import and included
any decision in favour of an accused person. If I understood counsel
correctly the meaning of the word “decision” in the
sub-section should be construed “to include judicial
pronouncements in criminal proceedings that is not appealable on the
Zweni test but one which the interests of justice require
should nevertheless be subject to an appeal before termination of
such proceedings.” (See S v Western Areas Ltd., 2005 (5)
SA 214 (SCA) at pa. 28) The Court in this instance held that it was
in accordance with the South African Constitution to construe
“decision” as used in sec. 21(1) of Act 59 of 1959 of
South Africa, as set out above. Counsel commended this interpretation
and submitted that, seen against the legislative background and
statutory interpretation by the Courts it had to be presumed to have
been the intention of the legislature to return to a position where
interlocutory appeals were allowed in criminal proceedings at the
instance of the Prosecutor-General, subject only to leave to appeal
being granted in certain instances. That then was the true meaning of
the words “any decision” where it appeared in sec. 316A
(1) of the Act. The requirements to be appealable in terms of sec
316A(1) are therefore threefold, namely (1) a decision of any nature
(whether final, dispositive and definitive or otherwise); (2) given
in favour of an accused; and (3) given by a High Court.








[26] Mr. Botes referred
the Court to sec. 14(1) of the Supreme Court Act, Act 15 of 1990, and
submitted that only a ‘judgment or order” was appealable
and that would exclude interlocutory orders which did not have a
final and definitive effect. Counsel pointed out that a ruling by a
Court concerning the admissibility of evidence was purely
interlocutory and could be altered by the Court during the trial.
Counsel further pointed out that during a lengthy trial a host of
rulings and decisions were made by the Judge. On the interpretation
of the petitioner it has an unfettered right to appeal any decision
at any time. This not only puts the State in a much more favourable
position than the accused, who must patiently wait until there was a
conviction and sentence, but can also lead to an abuse of the process
of the Court. Such interpretation would also mean that the words
“any decision” would carry a more extended meaning than
the requirement laid down by sec. 14(1) which only allows appeals
against a “judgment or order”. Counsel referred the
Court to the Full Bench decision of the High Court in S v
Strowitzki,
1995 (2) SA 535 (Nm) (1994 NR 265 (HC)) where the
Court, at p 271, stated that sec. 316A did not place the
Prosecutor-General in a more advantageous position than an accused
person. This is so because of the application of the provisions of
sec. 316 mutatis mutandis to that of sec. 316A. Counsel
further referred to the rule against piece-meal appeals and submitted
that the interpretation of the petitioner will not lead to a more
speedy and cost effective completion of a trial.








[27] Mr. Kachaka, on
behalf of the 21st and 22nd respondents,
stressed the fact that the proceedings in the Court a quo,
concerning the admissibility of the statements of the respondents,
were incomplete and interlocutory and should therefore not be
entertained on appeal unless there were special circumstances, which
were not present in this instance. Counsel also submitted that the
interpretation put on sec 316A by the petitioner would only cause
further delays and costs.








[28] Because of the
conclusion to which I have come I do not find it necessary, at this
stage, to decide the meaning of the words “any decision”
in sec. 316A of the Act. The contention that sec 316A (1) creates
for the Prosecutor-General an unlimited right of appeal where a
decision is given by the High Court in favour of an accused is, on
the argument by Mr. Gauntlett, not subject to the application of the
provisions of sec. 316 where that provision would put any constraint
on the wide meaning of the words. Consequently Counsel argued that
the provision, that an accused person could only appeal after
sentence was pronounced by the Court, should not be read into the
section by application of the words mutatis mutandis.







[29] Counsel submitted
that because the words “any decision” appear in the
section without any limitation the Legislator did not intend that the
wide meaning of the words should be narrowed down. This must
further be seen against the role played by the prosecutor in a
criminal trial and the interest of the Prosecutor-General in criminal
prosecutions in general. Counsel submitted that sec. 316A(3), which
provided for a cost order against the State in appropriate
circumstances, would put a curb on any notion to abuse the process
of the Court. Counsel further found support for this interpretation
in the case of S v Delie (1) 2001 NR 178 (HC).







[30] I do not agree with
Counsel that the words “any decision” stand to be read
without any qualification. In my opinion the Legislator has clearly
laid down the procedure in terms of which also the Prosecutor-General
must act in bringing an appeal before this Court. This was done by
applying the provisions of sec 316 mutatis mutandis, that is
with the necessary changes, (in points of detail) to the provisions
of sec 316A. (See Touriel v Minister of Internal Affairs,
Southern Rhodesia,
1946 AD 535). So applied, the words
“convicted” or “conviction” or “sentence”,
where they appear in sec. 316 (1), must be changed as far as sec
316A(1) is concerned, to reflect the position of the State vis-à-vis
appeals. The State’s interest in appeals will arise when
there is an acquittal of an accused and for purposes of sec. 316A(1)
the above words are to be replaced by the word “acquittal”.
This means that the State’s right of appeal against any
decision given in favour of an accused must be launched within
fourteen days after the acquittal of an accused. In my opinion this
change is not in conflict with any of the provisions of sec.316A.
Nor is there anything repugnant or arbitrary in such change and the
change brought about by the words mutatis mutandis find
effectual application in the provisions of sec 316A.








[31] I am, for the
following reasons, also satisfied that it is necessary to bring about
this change. It must firstly be accepted that the Legislator was
aware of the principle against piece-meal appeals and wanted to give
effect thereto. If that was not the intention one would have
expected the Legislator to say so in clear language and not to leave
it to some extended interpretation of the words “any decision”.
This principle is of longstanding and is a salutary one and was
expressed by Innes, CJ, more than a hundred years ago in the matter
of Smith v James, 1907 TS 447 as follows on p. 448:



It appears to me
that the magistrate’s decision is not a ‘final order’
from which an appeal will lie to this court. It only disposed of the
first exception, and the magistrate ought to have gone on and decided
the matter on the merits. Otherwise, there might be two or three
appeals from a magistrate’s decision in the same matter. The
defendant might file several special pleas and might appeal seriatim
from the decision of each of them leaving the merits still open.
But such decisions are really not final orders. A ‘final
order’ is one settling the dispute between the parties. “








[32] Mr. Gauntlett is
confident that allowing an appeal before the proceedings are
terminated will not cause undue delay and will be cost effective.
This argument is at best speculative. If the State must apply for
leave to appeal within fourteen days after a decision was given in
favour of an accused it will, especially in long protracted cases,
inevitably lead to delays, as has happened in the present case, to
allow the State to bring its application, and, if unsuccessful, to
petition the Chief Justice. Furthermore, where the State is of the
opinion that a matter will detrimentally affect its case it may ask
for a postponement of the case until a decision is obtained from this
Court.








[33] A second reason why
the words mutatis mutandis must apply to the provisions of sec
316A in the way as set out above, is because to allow an appeal in
unterminated proceedings might have been unnecessary and in the end
only of academic interest. This is so where the accused is in any
event convicted notwithstanding any decision in his or her favour by
the Court and against which an appeal is pending or was decided in
favour of an accused. It is trite law that a Court of law will not
involve itself in issues which are moot or only of academic interest.
(See, inter alia, Attorney-General, Transvaal v Flats Milling Co
(Pty) Ltd,
1958 (3) SA 360(AD) p.370B-374 and Attorney-General,
Transvaal v Raphaely,
1958 (1) SA 309 (AD). It seems to
me that the only occasion on which the State will be able to appeal
where it has secured a conviction is when the accused has been
acquitted on a main charge but convicted of a lesser charge. (See S
v Zoko,
1983 (1) SA 871(NPD)). However, I need not decide this
issue in this matter.








[34] The third reason
concerns the issue that there is not a final order by the Court a quo
and that the rulings by the Court in connection with the
admissibility of the confessions and admissions by the respondents
are alterable by the Court itself. Any cogent evidence now placed
before the Court a quo may have a result different from that
when the learned Judge decided to exclude the evidence in the
statements. With the majority of the respondents not having
testified before the Court, this is not merely a vague possibility
but is a very real one. The question then arises, if this Court
should decide to hear the appeals, whether any decision that this
Court may come to, in regard to the admissibility of the statements
on appeal, is or is not final, and may be altered by the Court a quo
as evidence emerges which causes the learned Judge to change his
mind. The answer to such a problem may not be so clear cut and may
give rise to issues concerning jurisdiction and competency of the
various Courts. I agree with Mr. Botes that in view of the
provisions of sec. 14 of Act 15 of 1990 no appeal lies against
rulings which are alterable by the Court a quo itself. In my
opinion this was also not sanctioned by the provisions of sec. 316A.








[35] However, the general
rule that an accused may not launch an appeal before sentence, as set
out in sec. 316(1), is not immutable. In S v Majola, 1982
(1) SA 125 (AD) at 132F, G and 133A the following is stated, namely:








That provision
reflects, of course, the general rule that a convicted accused cannot
appeal against his conviction until he has also been sentenced.
That rule is enforced to avoid piecemeal appeals and to induce
expeditious finality in criminal litigation.”








Page 132G:








But, that
notwithstanding, it will be immediately observed that the provision
merely regulates the time limits within the application for leave to
appeal is to be made. It does not expressly and absolutely prohibit
the convicted accused from applying for leave to appeal, or the trial
Court from granting it, before he is sentenced.”



Page 133A:








Of course, the
general rule that no appeal should lie to this Court, whether by
means of a special entry, reserved law question or in the ordinary
way unless the accused is first sentenced, should only be departed
from in exceptional circumstances for the reasons already given.”








(See further Wahlhaus
and Others v Judicial Magistrate Johannesburg and Another,
1959
(3) SA 113 (AD) and S v. Harman, 1978 (3) SA 767 (AD)).







[36] A reading of the
cases shows that in exceptional circumstances leave to appeal can be
given before sentence is passed on an accused. If that is true of
sec 316(1) then I can see no reason why that should not also be true
of section 316A(1). After all sec. 316A(1) is a reflection of
316(1) and what 316(1), in relation to an appeal, is for an accused
person, sec. 316A(1) is such for the State, in matters where the
State wishes to appeal.







[37] The question is then
whether there are exceptional circumstances present in this matter
which will enable this Court to grant leave to appeal at this stage
of the proceedings. I agree that this is not the ordinary run of the
mill case which more frequently takes up the time of Judges. Its
sheer magnitude in the number of accused persons, the number of
witnesses and charges, puts it on a different level from cases
normally prosecuted. I do, however, not think that that factor is
sufficient to warrant a departure by this Court from the general rule
set out herein before. The complaint by the State is basically that
the learned Judge a quo excluded evidence which, according to
the opinion of the State, should have been allowed. This is no
exceptional matter. It is one which Judges and magistrates face
almost daily in dispensing justice in our criminal courts. I
therefore agree with Mr. Botes and Mr. Kachaka that there are no
exceptional circumstances which would warrant a departure from the
provisions of sec.316A(1).







[38] Mr. Gauntlett also
referred to sec 316A(1)(b) which provides for an appeal to the
Supreme Court in regard to any orders made under sec. 85(2) of the
Act. This section deals with objections by an accused person to the
charge. Sub-sec. (2)(a) provides that where an objection is
well-founded the court may order the prosecution to amend the charge
accordingly or to provide further particulars. Sub-sec. (2)(b)
contains a sanction, namely, if the prosecution fails to comply with
the court order it may quash the charge. It seems to me that the
operative part of the section is sub-sec. (2)(b) because if the
prosecution is not able to amend the charge or to provide the further
particulars ordered it would lead to a quashing of the charge which
in my opinion is a final order and therefore appealable at that
stage.







[39] The reliance placed
by counsel on S v Delie, supra, is in my opinion not
supportive of counsel’s submissions in relation to the
interpretation of sec. 316(1)A. The accused in that matter pleaded
guilty to a charge of failing to pay maintenance. When the matter
came on review two Judges of the High Court were of the opinion that
the questioning by the magistrate in terms of sec 112 of the Act
revealed a valid defence to the charge. Instead of referring the
matter back to the magistrate for further questioning, as they were
required to do in terms of sec. 312 of the Act, they set aside the
conviction and sentence and ordered the release of the accused from
prison. That, in my opinion, was the end to that particular
proceedings, and even if the State could have recharged the accused,
they would have had to do so afresh. The appeal by the State was
therefore at the completion of the proceedings and in accordance with
the interpretation of sec. 316A(1) as set out herein before.







[40] These then are the
reasons for the orders made by the Court.







[41] As is evident from
the reasons for the orders made, the issues raised in this appeal are
both novel and complex. By making its order soon after the conclusion
of argument, the Court intended no disrespect to the cogent and well
reasoned submissions advanced by both counsel but, rather, to
facilitate continuance of the trial in the Court a quo. It is
difficult to understand why the trial has been postponed pending the
outcome of this petition and the appeal. If the issues raised in the
petition and the appeal were the only ones relevant to the remainder
of the trial, the postponement – apparently granted at the
instance of counsel for the defence – might have been
justified. However, the Court has been assured that many of the few
hundred remaining witnesses which the Prosecution intends to call
will testify on matters wholly unrelated to those issues.







The Court is not
presently in a position to comment on the Prosecutor-General’s
decision to saddle the trial Court with - what must have been
anticipated, would be – an unwieldy and colossal trial by
indicting so many accused persons in the same proceedings, each
facing more than a hundred charges and the evidence of close to a
thousand witnesses. It is also understandable that a case, with the
dimensions here involved, will inevitably lead to stoppages resulting
in delays during the trial due to number of people involved and the
issues raised during the trial. The Court has considered the reasons
for many of the postponements noted in the Trial Judge’s



report and, without
commenting on each of them or apportioning any blame at this stage, I
must note the concern of all the Judges that this trial is not being
driven forward with the urgency it deserves to bring it to finality.
It is in the interest of everybody, also in regard to the principle
on which our State is constituted, namely the rule of law, and the
right of the accused persons to a speedy trial, that this case be
brought to finality as soon as possible.













________________



STRYDOM, AJA.










I
agree.






_________________


MARITZ,
JA.


















I
agree.










_______________________


MTAMBANENGWE,
AJA.














Counsel
on behalf of the Petitioner/Applicant: Mr. Gauntlett


Assisted
By: Mr. Pelser


Mr.
D. F. Small


Mr.
January


Mr.
T. July


Instructed
By: Prosecutor-General






Counsel
on behalf of 1st, 2nd, 5th, 6th,
7th, 13th, 18th,


19th
and 20th Respondents: Mr. L. C. Botes


Assisted
By: Mr. Kruger


Mr.
J. M. B. Neves


Mr.
Samukange


Instructed
by: Directorate of Legal Aid






On
behalf of 3rd, 4th, 8th, 9th,
10th, 11th, 12th, 14th,
15th,


16th,
17th, 23rd and 24th
Respondents: In Person