THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 41/2020
In the matter between:
ALFRED JAN BEZUIDENHOUT
APPELLANT
and
THE STATE
RESPONDENT

Neutral citation: Alfred Jan Bezuidenhout v The State (41/2020) [2021] ZASCA 52
(23 April 2021)
Coram:
SALDULKER, MOCUMIE and NICHOLLS JJA and WEINER and
MABINDLA-BOQWANA AJJA
Heard:
17 March 2021
Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be have been at 12h00 on 23 April 2021.

Summary:
Criminal law and procedure – application of s 309B(5) of the Criminal
Procedure Act 51 of 1977 – appeal against conviction – whether the appellant had a fair
trial – trial to start de novo before a different presiding officer.

______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Gauteng Division of the High Court, Johannesburg (Monama J, and
Thobane AJ):

1 The appeal is upheld.
2 The order of the high court is set aside and replaced with the following order:
‘(a) The appeal is upheld and the conviction and sentence of the appellant are
set aside.
(b) The trial is to start de novo in the regional court, Vosloorus before a
different presiding officer.’

______________________________________________________________________

JUDGMENT
______________________________________________________________________

Nicholls JA (Saldulker, and Mocumie JJA and Weiner and Mabindla-Boqwana AJJA
concurring)

[1] The central question in this appeal is whether the appellant had a fair trial. The
appellant was charged with murder and the unlawful possession of a firearm, in the
Regional Court, Vosloorus. He pleaded not guilty to the charge of murder but guilty to the
charge of the illegal possession of a 38 special calibre revolver. On 1 June 2018, the
appellant was convicted on both counts and sentenced to 15 years’ and 8 years’
imprisonment, respectively. The sentences were ordered to run concurrently, an effective
term of imprisonment of 15 years.

[2] The appellant was refused leave to appeal by the trial court. So too, was an
application in terms of s 309B(5) of the Criminal Procedure Act 51 of 1977 (the CPA) to
adduce further evidence. On petition to the High Court, Gauteng Division, the appellant
was granted leave to appeal against the sentence only. In his application for leave to
appeal the conviction for murder to this Court, he also sought an order that the case be
remitted to the regional court for further evidence to be heard. On 26 November 2019, he
was granted special leave by this Court to appeal the merits of his conviction.

[3] At his first appearance, on 3 July 2017, the appellant appeared in person. His right
to legal representation was explained to him. For the next appearances on 10 July 2017
and 17 July 2017, he remained unrepresented, but on 22 August 2017, it was noted that
he had procured the services of an attorney from Legal Aid, Ms Gqwede. However, she
was not present as she was busy in another court. On 30 August 2017, Ms Gqwede was
present and confirmed that the appellant did not require the court to sit with assessors.
On 3 October 2017, the trial was postponed because Ms Gqwede was ill. When the
matter was next set down on 22 October 2017, Ms Gqwede was ill again.

[4] On this occasion, the appellant addressed the court stating that he did not wish to
have an attorney and had only done so on the court’s advice. He claimed that this was
his 14th court appearance and he did not want to waste the court’s time. He stated:
‘. . . I believe the Court wants to determine the truth, and I think that for the truth I do not need
anybody else to speak on my behalf . . . I think my counsel will probably end up sick again when
we have to start the proceedings again, and I would ask the Court to indulge me, that if that
happens, let me rather please speak the truth on my own behalf . . . The truth does not need any
explanation.’

[5] On the strength of his request, the magistrate told the appellant that it was his right
to conduct his own defence, but he should understand that he would have to lead and
cross-examine witnesses. He was further informed that he could change his attorney if
he was dissatisfied. The matter was postponed until 21 November 2017 and then again
to 2 February 2018, when the trial finally commenced. He remained legally unrepresented
throughout.

[6] The appellant was charged and convicted of the murder of Mr Bisani Tshukela (the
deceased) by shooting him with an unlicensed 38 special calibre Rossi revolver. The
incident took place in a farming area near Dawn Park, within the Boksburg Municipality,
between 08h00 and 09h00 on 26 November 2016.That the appellant shot the deceased
with his unlicensed revolver is not in dispute. Nor is it disputed that the deceased was
unarmed at the time, carrying only a two litre container of milk. The murder conviction of
the appellant turns on the circumstances of the shooting.

[7] On the appellant’s version he had no intention to kill the deceased and was merely
defending his property, his wife and grandchildren. He claims that the shooting occurred
while the deceased was trying to wrestle the firearm from him. In contrast, the version of
the only eyewitness, Mr Muzivukile Dumezweni who was employed as a herdsman by the
deceased, is that the deceased was intentionally shot and killed by the appellant for no
good reason. Mr Dumezweni however did not see the actual shooting.

[8] The appellant owns a small holding on which he grows vegetables. He said that
there had been ongoing arguments for the past two to three years over the fact that
Mr Dumezweni herded cattle on to his property, destroying his vegetable and trampling
his garden. Despite his protestations, this occurrence, he said, took place several times
a week. On that particular day, the deceased and Mr Dumezweni were herding 110 head
of cattle. The appellant was adamant that the cattle were on his property, just as they had
been three or four times the previous week. Mr Dumezweni vehemently denied that the
cattle grazed on the appellant’s property that day, or in the past. He maintained that he
and the deceased were herding the cattle along the tarred road, towards grazing land
further away. He also denied ever having spoken to the appellant previously, although he
acknowledged having seen him on occasion.

[9] Mr Dumezweni described the incident as follows. He was at the back of the herd
while the deceased was guiding the cattle from the front. He heard a firearm going off and
the herd of cattle started running towards him. He herded them back towards the
deceased. Mr Dumezweni saw the appellant on the road next to the herd, holding a
‘pump-action gun’. After Mr Dumezweni had herded the cattle back, he saw the appellant

talking to the deceased at close quarters. He did not see the shooting incident but heard
a firearm go off and he saw the deceased had fallen to the ground on his back. At that
stage the pump gun was on the ground. The appellant then shouted at him in a language
that he did not understand and pointed a small firearm at him and went back into his
house. Mr Dumezweni approached the deceased who told him he had been shot by the
appellant. He saw blood on the T-shirt of the deceased in the chest area. The appellant
returned, placed the deceased into his car and drove off. It is common cause that the
appellant took the deceased to Sunward Park Hospital where he later died. The police
arrived at the scene and Mr Dumezweni explained to them what had happened.

[10] The appellant’s version was that the vegetables grown on his small holding were
regularly being destroyed and trampled by Mr Dumezweni’s herd of cattle. He had also
been the victim of 18 robberies in the past few months and the police had been of no
assistance when he reported them. On the day of the incident, he had the pellet gun in
his possession as he was shooting at Indian Myna birds that were pulling out his thatch.
He saw Mr Dumezweni on the tar road approaching him from the right-hand side and he
told him he would shoot the cattle if they came onto his property. Realising that it would
be pointless to shoot cattle with a pellet gun, he went to get his 38 special calibre revolver
which was in the shed. He fired a warning shot and then noticed a second person (the
deceased) approaching him from plot 105 on the left. He fired two more warning shots
into the air but both men continued towards him. He fired a fourth warning shot into the
ground but this did not deter the men. The deceased then ‘jumped on [him] with both his
hands and grabbed [the appellant’s] hand’. His hand was on the trigger of the revolver.
The appellant, who weighs 53kg and was almost 60 years old, described in detail how
the deceased, who was younger, bigger and stronger than him, tried to wrestle the firearm
from him. They both fell backwards; the deceased fell on top of him. During the skirmish,
the firearm went off and he remembers Mr Dumezweni looking down at him. He shouted
to Mr Dumezweni to call an ambulance and turned his attention to the deceased. He saw
the deceased had no blood at that stage, just a ‘tiny wound’. He tore off the deceased’s
T-shirt and put it under his head, threw his firearm into a ditch and then put the deceased
into his car with the help of a passer-by and rushed to Sunward Park Hospital. The police

fetched him from the hospital and on his return to the property he fetched the firearm from
the ditch and gave it to the police, and his wife also handed over the pellet gun.

[11] Mr Dumezweni denied having seen the appellant wrestling with the deceased for
the firearm; denied that they both fell; denied that the fatal shot went off during the
altercation as they fell; and denied seeing the appellant lying flat on his back. Mr
Dumezweni was insistent that both the appellant and the deceased were standing when
the deceased was shot. Any suggestion that the incident took place on the appellant’s
property was vehemently rejected. When this was put to Mr Dumezweni his response
was that the appellant’s property was ‘far away from the spot where [the appellant] shot
[the deceased]’. He maintained that the deceased had fallen on the road.

[12] It is difficult to understand, on his own version, exactly what was visible to
Mr Dumezweni and what he actually saw of the shooting incident. He said the reason why
he did not see the shooting was because the cattle were in front of him and he was
approaching from behind. Even though he did not see the shooting, he heard the sound
of a gunshot and saw the deceased falling down. In his evidence in chief Mr Dumezweni
said that he heard only one shot. Later he confirmed to the appellant that he had heard
three shots being fired but maintained that these were from the pellet gun and not the
revolver.

[13] Constable Phoshoko and Constable Chepape were the police officers who
arrested the appellant soon after the shooting. They testified that they were called to the
scene of the shooting where they found the deceased’s jersey, jacket and a two litre bottle
of milk lying on the ground. Mr Dumezweni told them that the deceased had gotten into
an argument with the appellant, who had then shot him. The appellant had taken the
deceased to hospital immediately afterwards. The police fetched the appellant from the
hospital and brought him back to the scene. As requested, the appellant went into the
house and fetched two guns, a revolver and a pellet gun. The revolver had no ammunition
in it and there were no spent cartridges on the scene. Both constables said there was no
blood on the clothing of the appellant and no blood on the scene. They saw no fencing

around either of the properties, the appellant’s and the neighbouring plot 104, although
Constable Chepape made reference to a fence around the appellant’s house.

[14] Warrant Officer Shadung, working with the forensic unit confirmed that the revolver
and air gun were in working order. The revolver had a chamber for 5 rounds of ammunition
in the cylinder. He testified that the revolver could not go off accidentally.

[15] What took on great significance in the course of the trial was whether there was
gunshot residue around the wound sustained by the deceased. If a bullet were to be fired
at close range, as in a struggle, one would expect to find ‘tattooing’ or ‘starring’ on the
skin. This is the presence of small puncture-like wounds on the skin in a regular pattern.
Warrant Officer Shadung said that a gunshot from up to 50 cm away would cause
tattooing from the gun powder residue. The skin would tear apart into a star shape or
cross sign and that is where you would find the powder tattooing. Dr Alverez, the trauma
surgeon at Sunward Park said that the deceased was bleeding profusely from a
gunshot wound on the right side of chest, under the arm. Although not a ballistics expert,
he saw no tattooing, no starring, and no stellated lesions (these are lesions normally seen
with close proximity contact or high velocity ballistic penetration).

[16] Dr E Apatu, the forensic pathologist who conducted the post mortem testified that
the bullet went into the right hand side of the chest, then upwards and back into the left
chest cavity. There was blood in the right chest cavity, a partially collapsed right lung with
a perforating wound in the lower lobe of the right lung. The left lung was intact. As to the
position of the shooter when the revolver was fired, she vacillated between saying that
the gun was shot at a ninety degree angle which she then changed to forty five degrees,
and then again, changed to somewhere in between. On whether the shot was at close
range Dr Apatu said that she did not note any gunshot residue around the wound but
because it was a regular circular wound it was not a distant shot. She then said it was
‘maybe at the end of close range, the beginning of intermediate range’. She said if she
were to make, what she described as a very rough guess, the gun would have been
perhaps 30 cm or more from the deceased when it went off. She concluded that the
autopsy was not suggestive of a close contact wound, based on her findings. This was

because one would have found imprints of the muzzle, either partial or complete, and a
stellate wound. If a little further away one would expect tattooing which was also not
present.

[17] The trial court identified 5 issues for determination: whether the appellant
intentionally shot the deceased; whether the deceased and the appellant were a distance
away from each other when the shot went off, or struggling for the firearm; whether
Mr Dumezweni and the deceased threatened the appellant; whether the cattle were on
the appellant’s property; and whether the firearm was recovered from inside the
appellant’s house or from a trench on his property.

[18] The trial court accepted the testimony of Mr Dumezweni describing him as a
consistent and honest witness who withstood ‘lengthy and gruelling’ cross examination
by an unrepresented accused. The court appeared to accept that the evidence of
Mr Dumezweni as a single witness, who on his own admission did not see the firearm go
off, would have been insufficient to prove that the version of the appellant could not be
reasonably possibly true. It held that the cautionary rule in respect of single witnesses
required further ‘guarantees’.

[19] These took the form of corroboration for Mr Dumezweni’s version in the evidence
of the other state witnesses, particularly Dr Apatu, Warrant Officer Shadung and
Dr Alverez. The trial court said that ‘all three experts testified the firearm was not in close
proximity to the deceased when he was shot. There was no starring or tattooing to show
the firearm was close to the deceased’s chest when the deceased was shot’. Therefore,
it was concluded that there was no close contact at the time and the appellant’s version
that he was in a skirmish over the firearm with the deceased when the shot went off could
not be believed.

[20] It is against this evidence that one must assess whether the appellant had a fair
trial. While the trial court had been cognisant of the need to explain fully to the appellant
the consequences of declining legal representation at the outset of the trial, at the end of
the state’s case, the court merely reminded the appellant that he had the right to testify

and to call witnesses and that they would be cross-examined by the prosecutor.
Notwithstanding the technical nature of some of the state’s evidence, it was not drawn to
the attention of the appellant that the expert evidence may need to be rebutted by an
expert witness. Nor was it suggested to him that in light of the evidence led by the state
he should reconsider whether he required legal representation.

[21] Even during sentencing, on 1 June 2018, the magistrate remarked that the
appellant believed that his conviction ‘was based on perceptions, and that the expert
evidence should be reconsidered.’ This could have been remedied when the appellant
procured the services of an attorney to argue his leave to appeal. Together with the
application for leave to appeal, the appellant’s legal representative brought an application
to adduce further evidence in terms of s 309B(5) of the Criminal Procedure Act 51 of 1977
(the CPA). This section provides:
‘(5) (a) An application for leave to appeal may be accompanied by an application to adduce
further evidence (hereafter referred to as an application for further evidence) relating to the
conviction, sentence or order in respect of which the appeal is sought to be noted.
(b) An application for further evidence must be supported by an affidavit stating that—
(i)
further evidence which would presumably be accepted as true, is available;
(ii)
if accepted the evidence could reasonably lead to a different decision or order; and
(iii)
there is a reasonably acceptable explanation for the failure to produce the evidence
before the close of the trial.
(c) The court granting an application for further evidence must—
(i)
receive that evidence and further evidence rendered necessary thereby, including
evidence in rebuttal called by the prosecutor and evidence called by the court; and
(ii)
record its findings or views with regard to that evidence, including the cogency and the
sufficiency of the evidence, and the demeanour and credibility of any witness.
(6) Any evidence received under subsection (5) shall for the purposes of an appeal be deemed
to be evidence taken or admitted at the trial in question.’

[22] An application was made by the appellant to call the evidence of a land surveyor,
Mr Muller, and Mr Wolmarans, a forensic and ballistic expert, formerly employed by the
South African police for more than 20 years. Mr Muller, using the police photographs,
identified the spot where the deceased was shot by establishing where the clothing was

photographed by the police immediately after the shooting. He concluded that this point
was on the appellant’s property, not on the road or the neighbouring plot. This contradicts
the evidence of Mr Dumezweni.

[23] Mr Wolmarans reconstructed the scene. His report details various inconsistencies
in the evidence of Mr Dumezweni. Significantly, he stated that because the deceased was
wearing a T-shirt, any gunshot residue would be found on the clothing rather than the
skin. As the clothing was not sent to the forensic unit, Warrant Officer Shadung was not
aware that it could provide a filter effect for the gun shot residue. Similarly, the pathologist
never received the T-shirt, nor was this fact put to her during her testimony. In
Mr Wolmarans’ view, because the shot was fired upwards, the possibility of the shot going
off in a struggle could not be excluded. As regards the pressure required to fire the
revolver, he stated that Warrant Officer Shadung was correct that the firearm can only fire
with the correct pressure and double action requires more pressure than single pressure
but the pressure was not tested.

[24] In his judgment on the application to adduce further evidence, the magistrate
dismissed the application on the grounds that he had already found that the appellant’s
evidence on how the deceased had obtained the gunshot wound to be a fabrication.
Therefore, the evidence of the proposed witnesses would not materially change the
outcome of the trial. As regards the fact that the appellant had conducted his own defence,
quoting S v Petzer and Another,1 the magistrate found this to constitute insufficient
grounds to allow further evidence. This was particularly so, the magistrate found, in
circumstances where he had explained to the appellant that he was entitled to call
witnesses to support his case.

[25] The locus classicus on the test to be applied for a successful application to adduce
further evidence is S v de Jager.2 This decision was before the enactment of s 309B3 but
the basic principles remain unchanged, now subject to the Constitution. Holmes JA said:

1 S v Petzer and Another [1992] 1 All SA 99 (A); 1992(1) SACR 633 (A).
2 S v de Jager [1965] 2 All SA 490 (A); 1965 (2) SA 612 (A) at 613c-d.
3 This section was inserted by s3 of The Criminal Procedure Amendment Act 76 of 1997, which came into
effect on 28 May 1997.

‘This Court, can, in a proper case, hear evidence on appeal; see R v Carr 1949 (2) 693 (AD); but
the usual course, if a sufficient case has been made out, is to set aside the conviction and
sentence and send the case back for the hearing of the further evidence, as was done, for
example, in R v Mhlongo and Another 1935 AD 133. However, it is well settled that it is only in an
exceptional case that the Court will adopt either of the foregoing courses. It is clearly not in the
interests of the administration of justice that issues of fact, once judicially investigated and
pronounced upon, should lightly be re-opened and amplified. And there is always the possibility,
such is human frailty, that an accused, having seen where the shoe pinches, might tend to shape
evidence to meet the difficulty. Accordingly, this Court has, over a series of decisions, worked out
certain basic requirements. They have not always been formulated in the same words, but their
tenor throughout has been to emphasise the Court’s reluctance to re-open a trial. They may be
summarised as follows:
(a)
There should be some reasonably sufficient explanation, based on allegations which
may be true, why the evidence which is sought to lead, was not led at the trial.
(b)
There should be a prima facie likelihood of the truth of the evidence.
(c)
The evidence should be materially relevant to the outcome of the trial.’
Non-fulfilment of any one of these requirements would ordinarily be fatal to the
application.4

[26] It has been held that the exercise of the court’s discretion to receive further
evidence will be reserved for only exceptional circumstances.5 There can be no doubt
that there is a general need in the public interest for finality in duly concluded litigation.6
This must be seen in the light of every person’s right to a fair trial as set out in s 35(3)7 of
the Constitution, which is now the overarching consideration in all trials.

4 S v de Jager fn 2 above at 613E.
5 Colman v Dunbar 1933 AD 141 at 161-3; R v Carr 1949 (2) SA 693 (A) at 699; S v Louw [1990] 4 All SA
703 (AD);1990 (3) SA 116 (A) at 123H; Rail Commuters Action Group and Others v Transnet Ltd t/a Metro
Rail and Others [2004] ZACC 20 (CC); 2005 (4) BCLR 301 (CC);2005 (2) SA 359 (CC) para 41; Bo-Kaap
Civic and Ratepayers Association and Others v City of Cape Town and Others [2020] 2 All SA 330 (SCA);
[2020] ZASCA 15 para 64.
6 S v Sterrenberg 1980 (2) SA 888 (A) at 893F-G.
7 Section 35 (3) of the Constitution provides:
‘(3) Every accused person has a right to a fair trial, which includes the right –
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable delay;
(e) to be present, when being tried;
(f) to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;

[27] This Court in Hanuman v S8 found that the affidavit of an 11 year old complainant
who sought to retract her allegations of sexual impropriety against her step-father, could
not reasonably be true. The application to adduce further evidence was refused. So too,
in S v Romer,9 where an appellant sought to lead further medical evidence on the
appellant’s defence of sane automatism. This Court held that the medical evidence was
controversial and related to conviction rather than sentence which was the subject of the
appeal.

[28] The question of adducing further evidence has been dealt with in several high court
decisions. In Munyai v S,10 the complainant sought to recant her evidence that the
appellant raped her. The court was not entirely convinced that the second requirement,
namely the truth of the complainant’s allegations, had been met. However, it was not
disputed that the complainant and the appellant had had consensual sex encounters
when he was out on bail. While this did not necessarily mean that the earlier rape had not
occurred, the court held that there was the very real danger of a miscarriage of justice.
The conviction and sentence were set aside and the matter referred back to the trial court
for the hearing of further evidence, on the truth or falsity of the rape allegations, subject
to certain directives, including making provision for legal representation for the
complainant.

(g) to have a legal practitioner assigned to the accused person by the state and at state expense, if
substantial injustice would otherwise result, and to be informed of this right promptly;
(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person understands or, if that is not practicable, to have the
proceedings interpreted in that language;
(I) not to be convicted for an act or omission that was not an offence under either national or international
law at the time it was committed or omitted;
(m) not to be tried for an offence in respect of an act or omission for which that person has previously been
either acquitted or convicted;
(n) to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the
offence has been changed between the time that the offence was committed and the time of sentencing;
and
(0) of appeal to, or review by, a higher court.’
8 S v Hanuman [1998] 1 All SA 254 (A); 1998 (1) SACR 260 (SCA).
9 S v Romer [2011] ZASCA 46; 2011 (2) SACR 153 (SCA).
10 Munyai v S 2017 (2) SACR 168 (GJ); [2017] 3 All SA 23 (GJ); [2017] ZAGPJC 121.

[29] In Sebofi v S,11 the court mero motu remitted the matter for further evidence and
directed that the magistrate call for evidence relating to the specimens taken at the
medical examination and the laboratory results, as well as any cell phone records that
may exist. In that matter, another rape case, the court decried the paucity of evidence
which was not commensurate with the seriousness of the charges and the resultant life
sentence. The calibre of the case presentation by both the defence and the prosecution,
and the lack of proper forensic investigation was deprecated. It was found the magistrate,
despite her best endeavours, had not done enough to ensure that there was a fair trial.

[30] In War v S12, another instance of the recantation of a rape allegation by a child
whose father allegedly raped her, the court granted an application to the trial court to lead
further evidence. In this instance, the child herself had given conflicting versions even
before the trial began. The court found that there was no reason to prefer the one version
over the other and as the appellant was facing life in prison, it would be an affront to
justice to deny the appellant the opportunity to investigate the evidence foreshadowed in
the application.

[31] More recently in Lottering v S,13 an application in terms of s 309B(5) by the
appellant, who was a policeman convicted of armed robbery, was declined. The appellant
sought to call his wife as witness and laid his failure to do so during the trial at the door
of his legal representative. The court held that the appellant’s wife clearly had an interest
in her husband’s acquittal and, in any event, the complainant’s identification of the
appellant was overwhelmingly convincing. The court noted the different considerations in
criminal and civil trials14 and stressed the importance of finality in litigation, which had
been enunciated in a long line of decisions. It was held that such applications should not
be granted where there is but a token compliance with s 309B(5)(b).

11 Sebofi v S [2016] ZAGPJHC 290.
12 War v S 2015(1) SACR 571 (GP).
13 Lottering v S 2020 (2) SACR 629 (WCC).
14 Ibid para 28, where reference is made to S v Carr.

[32] While finality in litigation is an important consideration, this should not be at the
expense of an accused person’s fair trial rights. In this instance, it was not enough for the
magistrate, at the end of the State’s case, to have merely informed the appellant, an
unrepresented accused, that he could call witnesses in his defence. The importance of
the forensic evidence, and its possible impact on the eventual outcome of the trial, should
have been fully explained to the appellant. As a layperson, and from a perusal of the
record, it is clear that he did not have sufficient skill and expertise to understand what
countervailing evidence was required and, indeed, where he may procure evidence of
such a specialised nature. The magistrate, after explaining the consequences of the
evidence, should have asked the appellant whether he wished to call expert witnesses in
rebuttal, and if necessary, assisted him in doing so. It would also have been apt at this
stage to suggest to the appellant that he reconsider his stance on legal representation,
once faced with evidence of a technical nature. The magistrate’s failure to adopt either
course of action, in my view, rendered the trial unfair.

[33] Where an appeal court has found the trial to be unfair, various options are open to
it. Section 19 of the Superior Courts Act15 empowers a court hearing an appeal to remit a
case to the court of first instance or ‘confirm, amend or set aside the decision which is the
subject of the appeal and render any decision which the circumstances may require’.16
Generally, courts have looked favourably upon remittal to the trial court for the hearing of
further evidence, which is primarily of a formal and technical nature.17 But this is not
necessarily so. The overriding principle must always be the interest of justice.

[34] The question then arises whether to remit the matter back to the trial court or direct
that the matter commences de novo. In Sebofi the court declined an invitation by the State
to order that the trial start de novo in terms of ss 313 and 324 of the CPA.18 It found that
this was not an option open to it, as there was no question of invalidity in the sense
contemplated in those sections, which are confined to technical failures.

15 Superior Courts Act 10 of 2013.
16 Ibid, section 19(d).
17  Mathikinca v S [2015] ZAWCHC 134; 2016 (1) SACR 240 (WCC) para 17; S v Ross [2012] ZAWCHC
171; 2013 (1) SACR 77 (WCC) para 13.
18 Sebofi v S fn 11 above.

[35] In Mokoena v S19 this Court dealt with a technical irregularity in terms of s 324A
which resulted in the failure of justice. The high court had remitted the matter back to the
same magistrate for the re-opening of the case to allow the leading of further evidence.
This Court found that because the magistrate had already made strong credibility findings
against the appellant it was not in the interests of justice that the same magistrate
adjudicate the case.

[36] Here too, the magistrate has made an adverse credibility finding against the
appellant. More importantly, he has decided that the proposed evidence would make no
material difference to the outcome of the case. In circumstances where a judicial officer
has pre-determined an issue, remittal on the very same issue would amount to a
miscarriage of justice. To remit this matter to the trial court under these circumstances for
the adjudication of further evidence would not be fair to the appellant. Once this is so, the
only alternative is for the matter to start de novo before a different magistrate.

[37] In the result the following order is made:

The appeal is upheld.
The order of the high court is set aside and replaced with the following
order:
‘(a) The appeal is upheld and the conviction and sentence of the appellant
are set aside.
(b) The trial is to start de novo in the regional court, Vosloorus before a
different presiding officer.’

19Mokoena v S [2019] ZASCA 74; 2019 (2) SACR 355 (SCA).

___________________

C NICHOLLS

JUDGE OF APPEAL

APPEARANCES:

For appellant:
F Roets
Instructed by:
Botha-Booysens & Van As Attorneys, Boksburg
Symington & De Kok, Bloemfontein

For respondent:
M Mashego

Instructed by:
The Director of Public Prosecutions, Johannesburg

The Director of Public Prosecutions, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

23 April 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
Alfred Jan Bezuidenhout v The State (41/2020) [2021] ZASCA 52 (23 April 2021)
Today the Supreme Court of Appeal (SCA) upheld the appellant’s appeal against an order of the Gauteng Division
of the High Court, Johannesburg.
This matter has its genesis in the Regional Court, Vosloorus, where the appellant was convicted of murder of one
Bisani Tshukela (the deceased) and the illegal possession of a 38 calibre revolver. The appellant was sentenced to
15 years and 8 years imprisonment, respectively, and the sentences were ordered to run concurrently, an effective
term of 15 years.
The appellant was refused leave to appeal by the trial court. So too, was an application in terms of s 309B(5) of
the Criminal Procedure Act 51 of 1977 (the CPA) to adduce further evidence. On petition to the High Court,
Gauteng Division, the appellant was granted leave to appeal against the sentence only. In his application for leave
to appeal the conviction for murder to the SCA, he also sought an order that the case be remitted to the regional
court for further evidence to be heard. He was granted special leave by the SCA to appeal the merits of his
conviction.
The central question before the SCA was whether the appellant had a fair trial. At his first appearance, the
appellant appeared in person. Although his right to legal representation was explained to him, he elected to appear
in person. At a later stage the appellant appointed a legal representative from Legal Aid however, the attorney did
not appear on behalf of the appellant save on one occasion where she appeared and confirmed that the appellant
did not require the court to sit with assessors. When the matter was set down for trial the attorney remained absent.
The appellant addressed the court stating that he did not wish to have an attorney and had only done so on the
court’s advice, and he wished to finalise the matter. The court then concluded that that it was his right to conduct
his own defence, but informed him that he would have to lead and cross-examine witnesses and was further
advised of his right to appoint an alternative attorney.
The SCA held that while the trial court had been cognisant of the need to explain fully to the appellant the
consequences of declining legal representation at the outset of the trial, at the end of the state’s case, the court
merely reminded the appellant that he had the right to testify and to call witnesses and that they would be cross-
examined by the prosecutor. Notwithstanding the technical nature of some of the state’s evidence, it was not drawn
to the attention of the appellant that the expert evidence may need to be rebutted by an expert witness. Nor was it
suggested to him that in light of the evidence led by the state that he should reconsider whether he required legal

representation. The SCA held further that the importance of the forensic evidence, and its possible impact on the
eventual outcome of the trial, should have been fully explained to the appellant. As a layperson, and from a perusal
of the record, it was clear that the appellant did not have sufficient skill and expertise to understand what
countervailing evidence was required and where he may procure evidence of such a specialised nature. The
magistrate, after explaining the consequences of the evidence, should have asked the appellant whether he wished
to call expert witnesses in rebuttal, and if necessary, assisted him in doing so. It would also have been apt at that
stage to suggest to the appellant that he reconsider his stance on legal representation, once faced with evidence of
a technical nature. The magistrate’s failure to adopt either course of action, said the SCA, rendered the trial unfair.
This could have been remedied when the appellant applied for leave to appeal and made an application to adduce
further evidence in term of s309B(5) of the CPA. The appellant sought to call two expert witnesses who could
have cast doubt on some of the evidence of the state witnesses. The magistrate dismissed the application on the
basis that he had already disbelieved the appellant’s version and therefore the proposed evidence would have no
impact on the outcome of the matter.
In view of the above, the SCA upheld the appeal, set aside the appellant’s conviction and sentence, and ordered
that the trial should start de novo in the Regional Court, Vosloorus, before a different magistrate.
--------oOo--------