SPECIAL ENTRY SHOULD BE BONA FIDE, NOT FRIVOLOUS OR ABUSE OF PROCESS

S v NKABINDE AND OTHERS 2017 (2) SACR 431 (SCA)

Appeal — Special entry in terms of s 317(1) of Criminal Procedure Act 51 of 1977 — Requirements of — Application not there for asking — Court to ensure that application bona fide and not frivolous, absurd or abuse of process.

 

The four appellants were part of a gang of 20 armed robbers who attacked a cash-in-transit vehicle and its escort vehicle with automatic firearms. They held up traffic on the N8 at the same time as robbing the occupants of those vehicles of their possessions. Whilst they attempted to open the doors of the safe of the vehicle (which they had forced off the road) with explosives and an angle grinder powered by a generator, they shot and killed a man who was attempting to escape from the scene.

The appellants were convicted of numerous offences and sentenced to terms of imprisonment that were ordered to run concurrently with the sentence of life imprisonment that was imposed upon them for the conviction of murder. They applied for special entries to be made on the record, contending that their trial was irregular and not according to law. The items they listed as special entries ranged from a complaint that the judge was a white Afrikaans-speaking farmer (like the deceased), which strongly suggested bias, to suggestions that the judge had fallen asleep during the trial, ignored and misdirected himself in assessing the evidence, and allowed the state to put leading questions to witnesses.

The court held that the suggestion of racial bias was untenable and offensive (see[33]); the allegation that the judge had fallen asleep had been raised for the first time three years after the trial and was not borne out by the record (see [34]); and the other allegations were not bona fide and were frivolous and absurd (see [35] – [38]). It held furthermore that none of the so-called special entries were true special entries as contemplated in s 317(1) of the Criminal Procedure Act 51 of 1977 (the CPA). They were more properly grounds of appeal. The court also stressed that an application for a special entry was not there for the asking. The requirements of s 317(1) of the CPA had to be met and the court had to satisfy itself that the application was bona fide and not frivolous, absurd or an abuse of process. The court a quo had failed to do so and should not have made them special entries on the record. The appeal was dismissed.

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