E Gabaatlholwe and N Rammutle v The State

The two appellants were police officers convicted, along with a third accused, of rape and kidnapping by the trial court. The complainant, a 21-year-old hairdresser, had been at a dance hall and bar with a friend, Stanley van der Westhuizen, on the night of 26 March 1999. After Van der Westhuizen refused to take her home as arranged, she walked to a Shell garage to phone her mother. Two uniformed policemen (the accused) were at the garage and offered her a lift home. After she got into their vehicle and fell asleep, she awoke to find they were not heading to her home. She was assaulted, threatened with a knife, had a jacket thrown over her head, and was raped three times in the back of the vehicle. Her rings were removed, and she was then pushed out of the car. She arrived home around 06h00 in a hysterical state. The defence claimed consensual sexual activity and that the complainant was intoxicated. After the State closed its case, the defence applied under section 186 of the Criminal Procedure Act to have Van der Westhuizen subpoenaed as a witness, arguing his evidence about the complainant's alcohol consumption and condition was essential. The trial judge refused the application. The defence later indicated they would call Van der Westhuizen but closed their case when he refused to attend without a subpoena. The appellants were convicted and sentenced to life imprisonment for rape and ten years for kidnapping. Leave to appeal was refused, but a special entry was made under section 317 of the Criminal Procedure Act regarding the refusal to call Van der Westhuizen.

• What is the duty of a court under section 186 of the Criminal Procedure Act 1977 to subpoena a witness?
• When does a witness's evidence become 'essential to the just decision of the case' under section 186?
• At what stage of proceedings should a court assess whether a witness is essential?
• What is the standard of review on appeal of a trial court's discretion under section 186?
• Was the trial court's refusal to subpoena Van der Westhuizen irregular or contrary to law?
• Was Van der Westhuizen's proposed evidence regarding the complainant's alcohol consumption admissible and material?

The appeal was dismissed. The convictions for rape and kidnapping and the sentences of life imprisonment and ten years imprisonment respectively were upheld.

Under section 186 of the Criminal Procedure Act 1977, a court has a duty to subpoena a witness if that witness's evidence 'appears to the court to be essential to the just decision of the case.' 'Essential' means that without hearing the witness, the court is bound to conclude that justice will not be done - that is, a conviction or acquittal will be arrived at without reliance on available evidence that would probably (not merely possibly) affect the result, and there is no justification for the failure to call that witness. If a proposed witness's statement is not unequivocal or is non-specific in relation to relevant issues, it is difficult to justify the witness as essential rather than of potential value. The assessment of essentiality is generally more difficult at the close of the State's case than after all evidence has been heard, as the court does not yet know what the accused will testify or what will be disputed. A court on appeal will only interfere with the trial court's exercise of discretion under section 186 on very limited grounds, affording considerable latitude to the trial court's assessment. The best indication of the importance a party attaches to calling a witness is the assiduity with which that party ensures the witness's availability; failure to subpoena a witness or to renew an application after an initial refusal is relevant to assessing whether the evidence was truly essential.

The Court noted that in a criminal trial, the judicial officer's role as an administrator of justice - open-minded, impartial, and fair in fact and demeanor - informs the exercise of judgment under section 186. The Court also observed that parties often possess insights into a witness's potential contribution not apparent to the judge, and their views should always be canvassed before a decision is taken. The Court commented that Van der Westhuizen's proposed evidence, even if accepted at face value, raised more questions than it answered and warranted skepticism given his own conduct in leaving the complainant alone late at night after she had allegedly been drinking. The Court noted that the sum of the probabilities in the case strongly opposed consent even accepting the complainant was affected to some degree by alcohol, including her determination to get home, the inherent unlikelihood of sudden sexual overtures to strangers, her condition on arrival home, and the medical evidence. While the respondent submitted in limine that evidence of alcohol consumption would be collateral and inadmissible, the Court disagreed, holding it was relevant to consent and the witness's reliability and therefore admissible, citing S v Green and S v Sinkankanka.

This case provides authoritative guidance on the interpretation and application of section 186 of the Criminal Procedure Act 1977, which empowers and obliges courts to subpoena witnesses whose evidence is essential to the just decision of a case. It establishes important principles regarding: (1) the meaning of 'essential' in section 186 - evidence that would probably (not merely possibly) affect the result; (2) the timing of such applications and the greater difficulty in assessing necessity at the close of the State's case versus after all evidence; (3) the wide discretion afforded to trial courts in making this assessment and the limited grounds for appellate interference; (4) the relevance of a party's own diligence (or lack thereof) in securing a witness's attendance; and (5) the court's role as an impartial administrator of justice in criminal proceedings. The judgment reinforces that section 186 is not a substitute for proper trial preparation and that parties bear primary responsibility for calling witnesses they consider important to their case.