Indictment and charge — Amendment of — By presiding officer without giving accused opportunity to address court on amendment — Failure constituting fundamental irregularity destroying validity of amendment

S v THAKELI AND ANOTHER 2018 (1) SACR 621 (SCA)

 

Indictment and charge — Amendment of — By presiding officer without giving accused opportunity to address court on amendment — Failure constituting fundamental irregularity destroying validity of amendment.

 

The appellants were indicted in a regional court on a charge of murder subject to the provisions of s 51(2) of the Criminal Law Amendment Act 105 of 1997. After they had pleaded and testified in their defence, the court amended the charge by deleting the reference to s 51(2), without giving them an opportunity to address the court in respect of the amendment, and then convicted them of murder under s 51(1). They were sentenced to 28 years’ imprisonment each. On appeal,

Held, that the failure to afford the appellants a full and proper opportunity to address the issue of the amendment to the indictment constituted a fundamental irregularity that infringed their fair-trial rights, and destroyed the validity of the amendment. It was not possible to say with certainty that they suffered no prejudice as a result of the amendment, and that they should have been sentenced in terms of s 51(2). (See [7].) The appeal against sentence was upheld and the sentences were altered to sentences of 15 years’ imprisonment.

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