Kotze v S (429/2008) [2009] ZASCA 93 (15 September 2009)

Criminal Law and Procedure – murder – deceased shot by unidentified person in shootout with the authorities – accused had dolus indeterminatus to commit murder – unlawful hunting of rhinoceros in state reserve – s 31(3) of Limpopo Environmental Management Act 17 of 2003. 2 s 252A of Criminal Procedure Act 51 of 1977 – entrapment not going further than providing opportunity to commit the offence – evidence of trap automatically admissible – s 35 of Constitution – evidence of cell phone records not disclosed before trial admitted in evidence – belated disclosure not causing trial prejudice. Sentence – imposition of non-parole period – appellants not afforded an opportunity to address the trial court on the issue – not providing reasons for imposing non-parole period – misdirection – cumulative effect of sentence not considered – constitutes misdirection.

Application for condonation of the late filing of notice of appeal – requirements for condonation restated – appellant not satisfying requirements – application refused and appeal struck from the roll

Criminal Procedure – Entrapment –import of s 252A of the Criminal Procedure Act 51 of 1977 (‘CPA’) considered.
Evidence – Exclusionary rule in terms of s 252A of CPA and s 35(5) of the Constitution considered – no basis on the facts of the current case to exclude evidence obtained by entrapment by undercover agent

Application by appellant, in appeal against refusal of High Court to grant petition for leave to appeal in terms of s 309C of CPA against conviction in the magistrates’ court, to adduce further evidence for the purpose of the contemplated appeal to the High Court on the merits –appellant purporting to rely on s 19 of Superior Courts Act 10 of 2013 – s 19 not applicable in respect of appeals regulated by the CPA and any other criminal procedural law – application in any event not satisfying the established test for the introduction of further evidence on appeal