CASE NO:  458/96
In the matter between :
MICHAEL FELTHUN
Appellant
and
THE    STATE
Respondent
Coram:
Hefer,   Vivier   JJA   et    Madlanga  AJA
Heard:
22  February  1999
Delivered:
3 March 1999
Criminal Procedure - Special entry - Re-opening of State case
J U D G M E N T
VIVIER  JA

VIVIER JA:
This is an appeal on a special entry in terms of secs 317 and 318 of
the Criminal Procedure Act 51 of l977 (“the Act”).     The appellant and one
Agnew were convicted in the Cape Provincial Division by Foxcroft J and
assessors on a charge of murder and the appellant was, in addition,
convicted of theft.  The appellant was sentenced to  an effective  sixteen
years’ imprisonment.   His application for leave to appeal against his
convictions was refused by the Court a quo and a petition to the Chief
Justice was unsuccessful.
The special entry was made under the following circumstances.
During the trial, after both the State and the defence had closed their cases
but before argument commenced, the State applied to reopen its case so as
to lead the evidence of a pharmacist, one Albert,  relating to the exact time

Denis Marock   (“the deceased”) visited the  pharmacy on  the day he was
killed which was  Tuesday 4 October 1994.    Despite objection by the
defence the State was allowed to lead the evidence.    Immediately after
Albert had testified the presiding Judge made the following special entry on
application by the defence -
“Whether or not the order allowing the State to reopen its case,
withdraw an admission and to lead evidence as to the time the
State witness Albert saw the deceased on  4 October 1994
after the close of the defence case was irregular or not
according to law.”
The State case was that the deceased was killed during the late
afternoon of  4 October 1994  in the warehouse of a firm called  Bi-Lo
Wholesalers in Albert Road,  Woodstock, by a hired killer or killers acting
for reward at the instigation of the appellant and Agnew.     The deceased
was  killed   with  a  pickaxe  handle or similar  blunt  object.         There

was no direct evidence as to what happened in the warehouse or how
exactly the deceased met his death.    It was not in issue that the deceased
was seen alive in the warehouse at about 17h00 that afternoon.   The
appellant’s evidence was that he met the deceased and Agnew at the
warehouse at about 16h30 that afternoon and that he left the warehouse
together with the deceased at ten minutes to five.     Thornhill-Fisher, who
testified on behalf of Agnew and whose evidence was accepted as reliable
by the trial Court,   said that he saw the appellant talking to the deceased in
the warehouse at about 17h00.    The State witness  Sharon Reynolds, who
lived with the deceased, said that the deceased left  their house at half past
two that afternoon for an  appointment with his attorney at three o’clock
after which he intended calling  at a pharmacy to get his medication for his
eczema before attending a meeting with the appellant and Agnew at the
warehouse.   She never saw him alive again.   His body was discovered a

week later in the boot of his car in an open field some distance from the
warehouse.
Albert is the owner of a pharmacy near the warehouse and did not
originally testify during  the State case.      In an affidavit deposed to by him
on 10 March 1995 and  handed in by consent as part of the State case, he
said that the deceased arrived at the pharmacy at five minutes to five that
afternoon, that he purchased his normal monthly medication on a repeat
prescription  and that he left the pharmacy at about  five minutes past five.
Albert was able to determine the time of the deceased’s visit to the
pharmacy from the computer clock time  printed on the invoice of the sale,
which shows the time of the sale as 17h12.   Albert stated in his affidavit
that when he made the affidavit on 10 March 1995 he checked the accuracy
of the computer clock and found it to be ten minutes out.   He thus
calculated that the real time he attended to the deceased was 17h02  and not

17h12  as indicated on the invoice.
Albert’s  time conflicted with the evidence I have referred to above.
It was for that reason that the State applied to reopen its case and to  lead
Albert’s evidence in order to show that the times stated in his affidavit could
be wrong.   Albert then testified that when he was first approached by the
police he had no independent recollection of the time of the deceased’s visit
to the pharmacy and that he was only able to fix the time from the computer
clock time printed on the invoice.   During the week before he testified  he
was again approached by the police who wanted to know whether it was
possible that the deceased’s visit to his pharmacy was  earlier than what he
had stated in his affidavit.   He then re-examined  his computer records and
found the so-called audit trail in respect of the day in question.  This is a
computer print out reflecting the day’s entire  transactions and the times
thereof.   This document, which was handed in at the trial, shows the last

sale for the day in question to have taken place at 18h53.    Albert testified
that this time was without a doubt  wrong as it is his invariable practice to
close the pharmacy at 18h00 every weekday.   This meant that on the day
in question his computer clock was at least 53 minutes  and not 10 minutes
out as he had previously thought so that the sale to the deceased had taken
place at 16h19 instead of  17h02  as stated in his affidavit.   Albert said that
he again checked his computer clock on the day he testified in Court (2 April
1996) when it was 23 minutes out.  The State thereafter called Wayne
Bouwer from the computer firm who services Albert’s computer clock.
His evidence was that the computer is a very old one with a very old battery
and that it was last serviced on 23 November 1994.   He said that as the
battery gets older the clock would lose time, as much as 24 hours.
After the State had lead the evidence of Albert and Bouwer, the
defence was afforded an opportunity to lead further evidence.  Counsel for

the appellant then recalled the investigating officer for further cross-
examination,  successfully applied for Agnew to be recalled in terms of sec
167 of the Act and also recalled the appellant.    The latter merely confirmed
what had taken place at the inspection in loco.
It is quite clear that Albert’s evidence as to the time of the deceased’s
visit to his pharmacy  is completely unreliable and should be ignored.    In
its judgment on the merits the trial Court found it to be so and had no regard
to it.
Sec 317(1) of the Act provides that if an accused person considers
that any of the proceedings in connection with or during his trial before a
superior Court are irregular or not according to law, he may apply for a
special entry to be made on the record.   Sec 318(1) provides that if a special
entry is made on the record,  the person convicted may appeal to this Court
against his conviction on the ground of the irregularity or illegality stated in

the special entry.    In considering the appeal regard must be had to the
proviso to sec 322(1) of the Act, in terms of which the accused’s conviction
and sentence are not to be set aside by reason of any irregularity or defect
in the record or proceedings, unless it appears to this Court  that a failure of
justice has in fact resulted from such irregularity or defect.
Generally speaking, an irregularity or illegality in the proceedings at
a criminal  trial occurs whenever there is a departure from those formalities,
rules and principles of procedure with which the law requires such a trial to
be initiated and conducted.    The basic concept underlying sec 317(1) is that
an accused must be fairly tried (per   Botha JA   in  S v Xaba 1983(3) SA
717 (A) at 728 D).
As to the question whether there has been a failure of justice, this
Court has in a number of decisions recognised that in an exceptional case the
irregularity may be of such a kind that it  per se  results in a failure of justice

vitiating the proceedings,   as in   S v Moodie 1961(4) SA 752 (A) and  S v
Mushimba en Andere 1977(2) SA 829 (A).    Where the irregularity is not
of such a nature that it  per se  results in a failure of justice, the test to be
applied to determine whether there has been a failure of justice is simply
whether the Court hearing the appeal considers, on the evidence (and
credibility findings, if any)  unaffected by the irregularity or defect, that there
is proof of guilt beyond reasonable doubt.   If it does so consider, there was
no resultant failure of justice   (per Holmes JA  in  S v Tuge 1966(4) SA
565 (A) at 568 F-G;   and see also S v Xaba, supra,  at 736 A-B and  S v
Nkata and Others 1990(4) SA 250 (A) at 257 E-F.)
The first question which thus arises for decision in the present case
is whether the trial Court’s ruling allowing the reopening of the State case
constituted an irregularity within the meaning of sec 317(1) of the Act.
Counsel for the appellant submitted that it did so and that it was, moreover,

an irregularity of the kind which per se vitiated the proceedings.
That a trial Court has a general discretion in both civil and criminal
cases to allow a party who has closed his case to reopen it and to lead
evidence at any time up to judgment is beyond doubt.   The proper approach
is that the Court’s discretion should be exercised judicially upon a
consideration of all the facts of each particular case, having due regard to the
considerations mentioned in the cases and applying them as guidelines and
not as inflexible rules.    In  Mkwanazi  v  Van der Merwe and Another
1970(1) SA 609 (A)   Holmes JA   stated the correct approach thus at 616
B-D :
“It is inappropriate for judicial decisions to lay down
immutable conditions which have to be satisfied before the
relief sought can be granted.    Over the years the Courts have
indicated certain guiding considerations or factors, but they
must not be regarded as inflexible requirements, or as being

individually decisive.    Some are more cogent than others; but
they should all be weighed in the scales, the pros against the
cons.”
Mkwanazi’s   case was concerned with Rule 28 (1) of the
Magistrates’ Court Act 32 of 1944 but, as Holmes JA pointed out at 616 D
in his majority judgment, the Supreme Court has, inherently, much the same
discretion to allow evidence before judgment.    The majority of this Court
held on the facts of that case that fresh evidence should have been admitted
by the magistrate after both sides had closed their cases even though there
was no satisfactory explanation as to why the evidence had not been led
before.   The omission to lead the evidence was, however, not deliberate and
there was no prejudice to the other side.
In Hladhla v President Insurance Co Ltd 1965 (1) SA 614 (A) this
Court held that new evidence in that case should have been allowed after the

argument stage.     In his judgment (at 621 E-G)   Van Blerk JA referred to
the danger mentioned by Wigmore, para 1878 that to make a general
practice of introducing new evidence when, after argument, it is found where
the shoe pinches, may lead to perjury.     Van Blerk JA then pointed out,
however, that Wigmore in the same passage goes on to say that :
“Nevertheless, situations might easily arise in which an honest
purpose may justly be served, without unfair disadvantage, by
admitting evidence at this stage, and it has always been
conceded that the trial Court’s discretion should not be
hampered by an inflexible rule.”
With regard to the test to be applied to an application to reopen see
further :   Oosthuizen v Stanley 1938 AD 322 at 333 and Barclays Western
Bank Ltd v Gunas and Another 1981(3) SA 91 (N) at 95 C - 96 H.
The considerations mentioned by the Courts include the following:
the reason why the evidence was not led timeously, the degree of materiality

of the evidence, the possibility that it may have been shaped to relieve the
pinch of the shoe, the possible prejudice to the other side, including such
factors as the fact that a witness who could testify in rebuttal may no longer
be available, the stage which the proceedings have reached and the general
need for finality.
In the present case Albert’s evidence that the error in his computer
clock was greater than that mentioned in his affidavit was clearly material
to the case as it affected the time of the deceased’s visit to the pharmacy.
When the police first approached Albert for a statement on   10 March 1995
there was no reason for him to doubt the ten minute discrepancy which he
then discovered in the computer clock and it was accordingly unnecessary
for him to investigate the matter any further.    It was only when Albert’s
time was considered in the light of the other evidence that a doubt arose as
to its accuracy.    In my view, accordingly, there was a satisfactory

explanation before the trial Court as to why Albert’s evidence that the
computer clock was 53 minutes instead of 10 minutes out was not led in the
first place.
In the light of the above decisions there is no room for the absolute
rule contended for by counsel for the appellant namely that the trial Court’s
discretion to admit evidence for the State after the close of the defence case
should be limited to where new matter is introduced which the State could
not foresee.        An inflexible rule of this kind hampers the trial judge’s
discretion and cannot be supported.    In each case it is a matter for the trial
judge’s discretion whether, on the facts of that case and applying as
guidelines the considerations mentioned in the cases,   the new evidence
could be allowed without injustice to the accused.
With regard to the question of possible prejudice counsel for the
appellant submitted that an accused is inevitably prejudiced when the State

case is reopened since he may then be compelled to testify to answer the
new evidence.   I do not agree.     An accused is never compelled to testify.
His right to remain silent remains unaffected.  In the present case the
defence was given the opportunity to lead further evidence but the appellant
was not compelled to testify.   Counsel for the appellant further submitted
that in a trial of more than one accused, prejudice to any accused will
inevitably result if a co-accused is recalled by the court under sec 167 of the
Act, as happened in the present case.    Again I am unable to agree.    Apart
from the fact that his co-accused was recalled by the trial Court at the
request of the appellant’s counsel so that the appellant could not have been
prejudiced, his right to remain silent was unaffected by the recall of his co-
accused.      He himself  elected to testify again.
In considering the question of possible prejudice to the appellant it is
necessary to refer to the facts of the case.  These may be briefly stated as

follows.       The deceased and one Abramowitz were partners in various
business ventures and they took out life policies in excess of  R1 m on each
other’s lives.    Their relationship soured so that when Abramowitz formed
Bi-Lo Wholesalers in  December 1993 he would not give the deceased a
share in the new business but allowed him  to sell franchises for the
business.         Agnew was a manufacturer of household chemicals and was
allowed to process raw materials purchased by Bi-Lo in its  warehouse.
The appellant is an accountant.    His estate was finally sequestrated in
February 1994 and he had no meaningful employment from then until he was
employed by Abramowitz in January 1994 as the general manager of Bi-Lo.
The appellant was aware of  the life policy which Abramowitz had on the
life of the deceased.
It was not disputed that the appellant made various attempts  over a
period of time  to find a hired killer to kill the deceased for reward.     A

number of State witnesses gave evidence to that effect and their evidence
was not challenged.        Renzo Ceccarelli, who  had lost about half a million
rand which he had invested in the appellant’s trust account, before his
sequestration,  testified that during  May and  August 1994   the appellant
more than once  asked him to find someone who would kill the deceased.
Ceccarelli was promised  the sum of  R100 000  if  the deceased was killed.
Ceccarelli contacted Vincent Bracale whom he introduced to the appellant.
A few days later the appellant told him that Bracale’s fee of  R60 000 was
too high.     Ceccarelli thereafter approached  Moggamat  Jordan whose fee
was  R20 000 of which R10 000 had to be paid in advance.           Ceccarelli
obtained the R10 000 from the appellant and handed it to Moggamat who
disappeared with the money.   During October 1994 the appellant came to
Ceccarelli’s flat and told him that the job had been done in a factory.
Ceccarelli’s evidence  was fully corroborated by Bracale and Jordan.

Bracale testified that the appellant told him about the life policies and that
he  would share in the proceeds received by Abramowitz.
Agnew, Willem Adriaan Smit and Philip Lloyd were partners in a
small business.     Smit was originally an accused in this matter but he took
his own life shortly before the start of the trial.    Lloyd testified that he
heard from Agnew that he was looking for a hired killer and that he told
Smit about it.     At about  17h30  on 4 October 1994 Smit arrived at his
home and handed him the sum of R5 000.   Smit asked him for a saw.
When Smit opened the boot of his car he observed the handle of a pickaxe
protruding from a plastic bag in the boot.
A number of employees at the warehouse testified that on 4 October
1994 the appellant told them to go home early as there was to be a meeting
at the warehouse that afternoon.    They all left the warehouse before  three
o’clock.    The next morning they noticed that the  carpet in the office  had

been removed and Agnew explained that chemicals had been spilt on the
carpet.    Agnew testified that he found blood on the office floor on the night
of 4 October 1994.
In his evidence at the trial the appellant admitted the substance of the
evidence given by Ceccarelli,    Bracale and Jordan.    His defence was that
it was Abramowitz and not he who wanted to kill the deceased  and that he
acted under duress from Abramowitz in his attempts to find  a hired killer.
His evidence that he acted under duress was rejected by the trial Court.
As I have already said,   Thornhill-Fisher’s evidence, which was
accepted as reliable by the trial Court, was that he saw the deceased at the
warehouse at 17h00 on the fateful afternoon.     This means that the
deceased could not have been at the pharmacy at five o’clock (which is
about ten minutes by car away from the warehouse), and that the time as
deposed to by Albert in his affidavit was inaccurate and could not be relied

upon to show that the deceased  visited the pharmacy after the meeting at the
warehouse.
Counsel for the appellant submitted that the effect of the reopening of
the State case was that the defence could no longer contend that the
deceased visited the pharmacy after he had been to the warehouse.    As I
have indicated, however, Albert’s oral evidence was no more reliable than
his affidavit and was ignored by the trial Court.    On all the other evidence,
particularly that of Reynolds, supported by  the overwhelming probabilities,
there can be no doubt that the deceased’s  visit to the pharmacy took place
before he arrived at the warehouse.    It was conceded by counsel for the
appellant that the defence did not apply for Reynolds to be recalled.    In the
result Albert’s oral evidence did not in any way affect the State case against
the appellant and no injustice was done by the re-opening of the State case.
For the reasons I have given I am of the view that the re-opening of

the State case did not constitute an irregularity within the meaning of sec
317 (1) of the Act.
The appeal is dismissed.
W.    VIVIER   JA.
HEFER    JA)
Concur.
MADLANGA  AJA)