Both the State and the defence have closed their cases. After the State had closed its case, Miss Alexander, who at that stage appeared on behalf of the accused, applied for his discharge. The basis of the application was that the State had not proved that the objects found by the police and security officers in the possession of the accused were rough and uncut diamonds. The basis of the Court's judgment on that application was that the link between the objects which were found in possession of the accused, and which were ultimately valued and identified by Mr Oliver as rough and uncut diamonds, did not exist. However, the Court did not grant the discharge, for there is an alternative charge in this case, namely that of possession of rough and uncut diamonds and, in terms of the provisions of Proc 17 of 1939, the Court held that there was a presumption with regard to the alternative charge, at least that the objects that were found were rough and uncut diamonds. As I have already mentioned, the case for the defence has also been closed and on behalf of the State Mr Snyders has applied in terms of s 167 of the Criminal Procedure Act 51 of 1977 to recall certain State witnesses to E prove this link. Mr Snyders submitted that this evidence was necessary for the fair adjudication of the case. The Court is accordingly obliged to recall these witnesses in terms of the section. Regarding the question as to what is in fact necessary, counsel submits that such evidence would satisfy this requirement if it would prevent a guilty person from being acquitted or an innocent person being found guilty. On behalf of the accused, Miss Alexander pointed out that the evidence should be necessary in the sense submitted by Mr Snyders. She goes on to point out that there is no reasonable explanation for the failure by the State to adduce this evidence in the first place, that the State did in fact adduce evidence but that this evidence was insufficient. The State now seeks a second opportunity to cure the defect. Where the Court comes to the conclusion that the evidence of a witness is necessary for the fair adjudication of the case, the Court is obliged in terms of s 167 to recall that witness or those witnesses. The objective is to ensure equity between the State and the accused in the sense as stated above. Failure to recall a witness in such circumstances would H amount to an irregularity. See, for example, S v B and Another 1980 (2) SA 946 (A). This was a judgment in respect of s 186. Whether such evidence is necessary will, in my opinion, depend on the nature of the charge, the evidence which has been given and the nature of the evidence yet to be adduced. In the present case the accused has been charged on the main count with the theft of diamonds from CDM, alternatively with possession of diamonds in contravention of the proclamation. The Court has already found on the main count that the link establishing that the objects found on the accused were rough and uncut diamonds was missing. Regarding the alternative charge, the Court found that the problem can be overcome by J the presumption created in s 35(a) of Proc 17 of 1939. On the main count the evidence was that the accused had been found in possession of 676 objects. The State now requests the Court to recall witnesses to prove that these objects were in fact rough and uncut diamonds. The strange situation has arisen that what are presumed to be rough and uncut diamonds on the alternative count have not been proved to B be diamonds on the main count. If the evidence is not adduced on the main count, it must lead to the discharge of the accused on that count, but the accused can still be found guilty of possession of rough and uncut diamonds on the alternative count. It cannot therefore be denied that this evidence is essential with regard to the main count and in my opinion there can be no dispute that the evidence is necessary for the fair adjudication of the case between the State and the accused, in the sense that a person who is guilty on this charge might be acquitted. The giving of such evidence will not lead to an innocent person possibly being found guilty. The accused's defence was D that he did not have these objects in his possession, but that the police had planted them. The witnesses whom the State asks the Court to recall do not take issue with this defence. The cases to which I was referred and those which I could find deal mostly with the failure by the State to adduce evidence. It does not appear to me that the fact that the State E completely failed to adduce evidence or the fact that insufficient evidence was adduced is so fatal that the Court should refuse to recall witnesses on this ground alone. There must be compliance with the provisions of the section and once the Court has held that the evidence is essential for the fair adjudication of the case, the Court must grant the application. In the circumstances, the application by the State is granted.
