IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(l i REPORTABLE: NO{2} ~~ERES TO OTHERJUDGES: Q

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SIGNATURE OATE

CASE NUMBER: A172/19

ABNER MOTHEALE MOETI Applicant

vs

REGIONAL COURT MAGISTRATE:

REGIONAAL COURT I, PRETORIA NORTH First Respondent

THE DIRECTOR OF PUBLIC PROSECUTIONS Second Respondent

THE SENIOR PROSECUTOR: PRETORIA NORTH Third Respondent

JUDGMENT: REVIEW APPLICATION

BAM, J

1. The applicant is accused 3 {there are 8 accused} in a trial before the

Regional Court, Pretoria North. The applicant and his eo-accused are

arraigned on several charges. On 20 February 2018 the applicant lodged

an application to the trial court, in terms of the provisions of Section

157{2} of the Criminal Procedure Act, that his trial should be separated

from the trial of his eo-accused. The application was refused. Theapplicant, aggrieved by the ruling of the trial court, lodged this specialreview application praying that the Magistrate's refusal to grant theseparation should be reviewed set aside, and substituted by an orderthat the trials should be separated. The application is opposed by therespondents.

2. Although the record filed on behalf on the applicant is incomplete,concerning the State's first point in limine, it was suggested by the Statethat there is, nevertheless, sufficient information available before thiscourt to enable us to deal with the matter, and that it would be in theinterests of justice to dispose of it. We are in agreement.

3. The salient facts are common cause. The eight accused are facing seriouscharges, including conspiracy to commit armed robbery, impersonatingpolice, armed robbery, attempted murder, theft of a motor vehicle, theftof police uniforms, and the unlawful possession of a firearm andammunition, allegedly committed in September 2010. The trialcommenced on 7 November 2012. All the accused pleaded not guilty.After the trial had proceeded for a long time, accused 1, on 27 July 2016,made certain formal admissions. The admissions concerned thecommission of the alleged crimes and the involvement of the respectiveaccused, including the applicant. On 20 February 2018, the applicant,represented by his present legal advisor, lodged the application for theseparation.

4. In his founding affidavit to the review, the applicant's basis for thisapplication seems to be two fold.In the first place, that the admissions made by accused 1 now constituteproof of the alleged acts, against all the accused. (In this regard theapplicant's legal representative, before this court, relied on the dictum in5 v Mo/epa & Another 1979(2) SA 636 (A) (Wrong reference: should be 5

v Ma/eb en Andere 1979(2) SA 636(BH)), and 5 v ~iEG~A~",,~9o~_,~~;o~~~~JrENGl(Wrong reierence )) I H;C,H COURT, PRETOR!A I

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Secondly, that the mind of the trial court is now contaminated by thedetailed admissions concerning the involvement of the applicant. (In thelatter regard the applicant relies on the dictum in 5 v Witbooi & Others1994(1) SACR44 (CK}).The applicant contends that there is a clear likelihood that thecomplained about admissions of accused 1 will be prejudicial to him.

S. The applicant's legal representative, (who also appeared on behalf of theapplicant in the Regional Court, in his written heads of argument,repeated the applicant's contentions concerning the admissions madeby accused 1, including that the said admissions also include hearsayevidence, and submitted that a separation of trial should have beengranted by the presiding Regional Magistrate in accordance with theapplicant's request.

6. The applicant's case is that the presiding Regional Magistrate actedirregularly in not granting the applicant's application for separation.

7. It is trite principle in the Law of Evidence that the admissions of anyaccused, made during the trial, have no evidential value against any eo-accused, and cannot be held as admissible evidence constituting proof ofany of the allegations against the other accused. The only time suchadmission may have evidential value against eo-accused is when theadmission is confirmed under oath by the accused which made theadmission, if and when the specific accused testifies during the trial.

8. The fact that one or more accused may implicate eo-accused by way ofadmissions during the trial is a common occurrence. Experiencedpresiding judicial officers, like Regional Magistrates, are surely verymuch aware of the applicable law, and to distance him/her-self fromconsidering any inadmissible evidence against any of the accused.

9. The applicant's complaint that the said admissions, which now allegedly ....-,_:;'\"G-;-liTENG

contaminated the trial court's frame of mind, als ,ffie;J,~~e:aT·.~~~¥~)RtA ,R"SQI "'\' (';)UR .' ,_.-~ \

evidence, is unfounded. It seems that this contention -a+s-~:ffiiQ~ft~~~)(67 "IJU'O-';"l:.:

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admissibility of the admissions. It suffices to repeat that the saidadmissions of the eo-accused were irrelevant as far as the applicant'sliability is concerned. The complaint about the hearsay, in any event, isto say the least, ridiculous, and needs no further comment.

1Q.ln considering and evaluating the evidence adduced by the State, anycourt is obliged, taking into consideration the applicable law principles,to determine whether the State succeeded in proving any specificaccused's liability on the admissible evidence. This is done at the end ofthe trial.

11.The applicant will have the opportunity to contest the admissions, if it isconfirmed under oath by the first accused, and to adduce contradictingevidence, if he wishes to do so. There is no presumption of prejudice.

12.Accordingly, we are also in agreement with the State's contention, inrespect of the State's second point in limine, that the question of anypossible prejudice of the applicant can only be adjudicated upon at theend of the trial. See5 v 8ape/a and Another 1985(1} SA236 (A). {The caseof 5 v Witbooi & Others 1994{1} SACR44 {CK}, referred to on behalf ofthe applicant, concerning a factual comparison and the Law of Evidence,differs materially from the present situation, and is not relevant. What isindeed relevant is the dictum in R v 8agas 1952{1} SA 437 {A} at 441E,quoted in Witbooi at 441E, concerning the discretion of the presidingofficer}.

13.ln general, it is not in the interests of justice to separate a joint trialwhere the accused are facing the same charges in circumstances like thepresent. It seems that the only entity that may suffer prejudice is theState if such an order would be granted. A separation will cause afurther, unnecessarily, delay in the matter where numerous witnesseshave already testified.

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14.The applicant failed to persuade us that the contlnul~~~-rr~~~~ffi~:f~~)(67 \present status will cause any prejudice to him. \ J~_~':J~Gq- 2 9 \

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lS.We are satisfied that the Regional Court Magistrate was correct inexercising his discretion in terms of section lS7 of the CPA against theapplicant, refusing the application for separation.

AMENDED ORDER1. The application for the review of the order of the trial court to

separate the applicant's trial from that of his eo-accused is dismissed.

2. The trial Court's dismissing the application for separation of theapplicant's trial from the main trial is confirmed.

~ ...AJ BAM

JUDGE~~E HIGH COURT(/C?/j?;dA/

I1 J MASOPA

JUDGEOFTHE HIGH COURT

29 APRIL2020