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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, PRETORIA
Case Number: A117/2016
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: YES
DATE: 08/01/24
SIGNATURE
In the matter between:
SIBUSISO MOKOENA Appellant
and
THE STATE Respondent
JUDGMENT
Summary: In the last two appeal hearings, all the appellant's convictions and
sentences were set aside. There was a concession that the court a quo misdirected
itself on convicting and sentencing the appellant on this appeal. Issues to be
addressed is whether the appeal courts have inherent jurisdiction in terms of section
173 of the Constitution to mero motu release the appellant after reading the record of
the appeal and becoming aware of a miscarriage of justice, even though the
appellant had not lodged the appeal together with his co -accused. Why should the
appeal court hear this appeal when there are two different decisions by the appellant
co-accused? Section 10 of the Judicial Matters Amendment Act is an automatic grant
of leave to appeal and not an appeal. The appeal court has the duty to dispense
Justice in terms of Section 322(1)(a) of the Criminal Procedure Act. The appeal
against conviction and sentence set aside.
KJ MOGALE AJ
Introduction
[1] This is the fifth time this appeal come before the Court of Appeal in the Pretoria
High Court. Initially, it appears that in the Court a quo, there were the six accused
who were charged with twelve counts of raping three female persons and robbery of
items belonging to them. The prosecutor withdrew counts 10,11 and 12 against all
the accused. Before the commencement of the trial, the first accused, Lawrence
Sithole, also known as Happy Sithole, passed away. As the first accused was no
longer involved, the remaining five accused moved one position up as it appears
from the Court a quo record.
[2] Counts 1 to 6 were all robberies with aggravating circumstances, as it was
alleged that a firearm was used during the commission of these offenses. Counts 7
to 9 are rape charges, with the complainants being O[...] M[...], in counts 1 and 7,
S[...] M[...] complainant in counts 2 and 8, and T[...] M[...], a complainant in counts 3
and 9.
[3] The appellant and his co -accused were convicted and sentenced to life
imprisonment for rape (counts 1, 2,3, and 6) and 15 years for robbery with
aggravating circumstances (counts 8 and 9), respectively on 25 September 2012. It
was further ordered that the sentences run concurrently. The accused were declared
unfit to possess a firearm in terms of the provisions of section 103(1) of the Firearms
Control Act 60 of 2000. They were all acquitted on counts 4, 5, and 7. The accused
had an automatic right of appeal in terms of section 10 of the Judicial Matters
Amendment Act 42 of 2013.
ISSUES
[4] There is a concession from both the state and the respondent's legal
representative that there is a misdirection of the law, and the appeal should succeed.
The appellant co -accused's appeals were dealt with by different appeal courts and
there are two different decisions below. The issue of interest raised by the
respondent is that the previous appeal courts failure to mero motu release the
appellant with his co-accused constituted a miscarriage of justice. This court will also
decide whether a judge in a criminal appeal has the power to decide issues related
to co -accused who did not appeal. First, it may be appropriate to consider what
occurred in the appeals that precede the present one relating to the appellant's co -
accused.
The Matter Before van Der Westhuizen J and Lingenfelder AJ
[5] The chronology outlined by the appeal court is significant. Reading from the
Judgment of Van der Westhuizen J dated 10 June 2021, in the same matter that
served before him and Lingenfelder AJ, the history was summarized as follows1:
"The initial appeal came before my brothers Tuchten J and Strydom AJ. The
appeal was removed from the roll, and an order was granted directing that the
record be properly reconstructed as there was missing evidence. At some
stage, the appeal came before the full bench of this division. It was postponed
sine die , and it is not clear for what reason. According to the respondent's
heads of argument, there are four appellants, the first being Collin Mdluli, who
was the third accused in the court a quo. The second appellant is identified as
Njikeni Dingaan Sibambo, who was the accused 2 in the court a quo. The
third appellant is indicated as Wendy Majane, who was the fourth accused. It
is then stated that one Patrick Mokoena, who has accused five before the
court a quo, is also an appellant in the appeal."
"From the five accused convicted and sentenced, it appears that four contest
their convictions and sentences. The first accused in the court a quo has not
taken the matter further and presumably accepts his conviction and sentence.
1 See caselines page 0001-07(Judgment of 10 June 2021)
Mr. More, who appears on behalf of the respondent, conceded that in respect
of the third appellant, who was the accused 4 in the court a quo, there is no
evidence linking him to the crimes perpetrated. Hence, he should not have
been convicted nor sentenced."
"In respect of the third appellant, Wendy Majane, being the fourth accused in
the court a quo, the complainants did not identify him at all. The court
concluded that they should interfere with the conviction of the third appellant
on both his conviction and sentence as he already has been incarcerated for
several years and, in view of the court, wrongly so. With regard to the first
appellant, Collin Moluli, who was designated as accused 3 in the court a quo,
his appeal should also succeed as he was not implicated at all by any of the
complainants."
[6] The judgment continues:
"The reconstructed record is still incomplete, particularly regarding evidence
that led to an identity parade. It is not transcribed, albeit the court held that the
identity parade, or the evidence in respect thereof, would not be accepted in
evidence. However, the court relied on certain photographs taken during the
identity parade. There is no indication why that aspect was not transcribed
initially or during the reconstruction process. Mr Kgagara submitted, and Mr
More confirmed that it appears that some of the evidence was never
recorded."
The court hearing the appeal upheld the appeals of both Collin Mdluli and
Wendy Majane."
The Proceedings Before De Vos J And Matshitse AJ
[7] Reading from the Judgment of De Vos J, in the same matter that served
before him and Matshitse AJ dated 17 May 2023, the judgment is summarized as
follows2:
"The main issue in this appeal is whether the identity of the first appellant,
Sibusiso Sibambo, and Patrick Mokoena, the second appellant, has been
proved beyond a reasonable doubt. The appellant contends that the court of
first instance erred in convicting and sentencing them on all the counts as
there is no evidence linking them to the commission of the offenses. The court
a quo relied on common purpose and circumstantial evidence convicting
them. The complainant, T[...] M[...], gave a statement after the incident that
she could not identify the suspect. She only identified Sibusiso Sibambo as
Shimbondyane during identity parade and didn't know any other assailants".
"It is further contended that regarding counts 1, 2, 7, and 8, the State has not
proved the quilt of the appellant beyond reasonable doubt. O[...] M[...] and
S[...] M[...] testified about these counts. Both made a statement to the police
on the sameday of the incident. In the statement, they mentioned that they do
not know the four rapists."
"Constable Violet Dikeledi Motseo testified that she took statements from the
complainants. She testified that the victims told her that they could not identify
the assailants on the day of the incident because when they were raped their
faces were covered with their clothes. She further testified that if indeed what
she reduced to writing might have been incorrect, the victims could have
informed the doctor who assisted them. She was present in the consultation
room and that did not happen."
"The DNA were obtained in the investigation of the commission of the crimes.
The complainant's swabs were compared with the accused's blood samples
and that the results were negative. The so -called reconstructed record is
further incomplete in respect of evidence relating to an identity parade. It is
2 See caselines pages 0001-18 (Judgment dated 18 May 2023)
not transcribed. The court relied on certain photographs taken during the
identity parade. These photographs were used to confirm the evidence of the
three complainants regarding the identity of the accused. In my view this is
inadmissible. If part of the identity parade is inadmissible all the evidence
relating to that fact follows suit and cannot be referred to at all.
[8] The judgment continues.
"The evidence of Dudu Mokoena and T[...] M[...], Dingaan Masuku, Captain
Davis Motseo, Lydia Moreni, and Constable Morenu is not transcribed, the
records cannot be traced. The matter was heard in 2012 and it appears that
both the prosecutor and the defence counsel have lost their notes, the
magistrate had incomplete notes. Having further regard to the time lapse
since the appellants were convicted and sentenced, and the failure of one's
memory over a long period I must consider the Respondent's request that we
dispose of this appeal."
"It is incumbent on the appeal court to ensure that the values set out in the
constitution be upheld. The most important function of the Court of Appeal is
required to perform is to dispense justice. Justice is dispensed through the
mechanism of a fair trial. In as much as the appeal is part of the fair trial and
cannot be properly adjudicated with an original record or at least a properly
reconstructed record, it stands to reason that as far as the appeal against
sentence is concerned the appellants cannot be given a fair trial. In these
circumstances, justice would be best served if the sentences were to be set
aside and the matter referred to the trial court to sentence the appellants
afresh.
[9] The judgment continues.
"Furthermore, to use of photographs taken during the ID parade which is
inadmissible creates the impression that reasons were sought as to why the
evidence of the complainants should be accepted. In my view, these
irregularities are of such a nature that it can be said that the two appellants
before us did not receive a fair trial"
"Perusing the original record, I also could not find the doctor's original report
when they were examined. The absence of these medical reports is of
significance. In my view, the absence of these documents negates the state's
argument. If the doctor's report was available, it could have clarified this
issue."
"Due to the weakness in the state's case, no negative inference can be drawn
against the appellant's failure to testify. The inability to reconstruct the record
makes it impossible to dispense fair justice as required by the Constitution.
The record of the trial is incomplete and cannot be rectified. Therefore, the
appellant did not receive a fair trial, the available record shows that. It is my
conclusion that the state has failed to prove the guilt of the accused on all
counts beyond a reasonable doubt."
[10] The court hearing the appeal upheld the appeals of Mjikeni Dingaan Sibambo
and Patrick Mokoena. The conviction and sentences of life imprisonment for the
counts of rape and 15 years for the counts of robbery with aggravating
circumstances imposed are set aside.
The Present Appeal
[11] Once again, the matter is on the roll on the same issue, whether the identity of
the appellant, Sibusiso Mokoena has been proved beyond a reasonable doubt.
[12] The appeal of the appellant is brought after the appeals against the
convictions of all his co -accused have succeeded, having their convictions and
sentences set aside. Both Mr. Kgagara of Pretoria Justice Centre and Mr. More of
the Director of Public Prosecutions Pretoria once again appeared before this court.
Mr. Kgagara informed the court that, the appellant's application was not brought with
his co accused because the appellant had not made an application with the Legal
Aid Board, as a result, he did not have a mandate to act on his behalf.
[13] Both counsels made submissions that this appeal emanates from the same
facts, of the same complainants, and was committed on the same day. That the court
a quo misdirected itself on convicting and sentencing the appellant.
[14] The State conceded that the appeal against conviction imposed on all the
counts should succeed and the appellant should be found not guilty and discharged.
The sentences imposed on all counts should also be set aside.
[15] The stakes are always incredibly high when dealing with criminal cases. One
always seeks to ensure that those convicted of crimes are those who truly deserve it.
After, the costs of incarceration on the person are so vast even on the guilty, that it is
unthinkable to impose the severe trauma of the carceral system on those who are
innocent. However, once the court of first instance has determined that guilt has
been proven, the appeal court does not easily interfere with it unless it can see that
there is on balance, a miscarriage of justice or a misdirection.
[16] I find that the court a quo misdirected itself on convicting and sentencing the
appellant. I also concur with the other court's findings that heard this matter as stated
supra. The identification of the appellant was not proven beyond a reasonable doubt,
the identification parade was flawed, and the DNA results were negative. The record
of the trial court is incomplete and the inability to reconstruct the record makes it
impossible to dispense a fair trial as envisaged by the Constitution
[17] I find that the State has failed to prove the guilt of the appellant on all counts
beyond a reasonable doubt and the appeal should succed. Having decided this,
there was a subsequent issue that needs addressing.
Issue Of Interest
[18] Mr. Kgagara submitted Supplementary Heads of Arguments raising the
following issues:
[19] The previous appeal courts had inherent jurisdiction in terms of section 173 of
the Constitution to mero motu release the appellant even though he had not lodged
the appeal together with his co -accused. This is the third time this matter has been
brought on appeal on a similar fact of issues. It is undesirable that three sets of
Judges with the workload in the Division had to spend hours reading the same
record of proceedings and having to write judgments on the issue of identity raised
by the same appellants, facts emanating from the same complainants about the
offenses committed on the same day and only dealt with the matter in piecemeal. In
the last two appeal hearings, all the appellant's convictions and sentences were set
aside.
[20] The court's failure to mero motu release the appellant with his co -accused
constituted a miscarriage of justice.
[21] The appellant has an automatic right of appeal in terms of section 10 of the
Judicial Matters Amendment Act 42 of 2013.
Legal Questions
[22] Based on the issues raised by Mr. Kgagara on his supplementary Heads of
Arguments, this court will consider the three legal questions:
[23] What are the confines of a judge's law-making power in terms of section 173
of the Constitution?
[24] Can a judge in a criminal appeal decide issues related to co-accused who did
not appeal?
[25] Given section 10 of the Judicial Matters Amendment Act, does an accused still
need to appeal?
What are the confines of a judge's law -making power in terms of section 173 of the
Constitution?
[26] The exercise of judicial power is an exercise of public power. Out of the
tripartite powers, the others being executive and legislative, it is the only power
which is exercised by an unelected entity. However, its centrality to democracy and
public accountability is beyond doubt. What being unelected does mean though, as it
exercises its powers, the courts need to be very wary that they do so in a way that
does not strip the elected branches of government of their powers thereby keeping a
healthy respect for the separation of powers. 3
[27] In the pre -democratic era, South Africa had parliamentary sovereignty. This
meant that the powers of the judiciary were subservient to those of parliament.
However, this is no longer the case as the Constitution is supreme.4 The Constitution
has now given judicial authority specifically to the courts to allow them to resolve
disputes.5 Further, the Constitution gives the courts the powers to declare any
conduct or legislation that is inconsistent with the Constitution invalid and make any
consequential orders thereto. 6 In this way, courts are the protectors of the
constitution and democracy.
[28] Section 173 of the Constitution also gives the superior courts inherent powers
limited by what the interest of justice may require, which reads as follows:
"The Constitutional Court, the Supreme Court of Appeal, and the High Court
of South Africa each has the inherent power to protect and regulate their own
process, and to develop the common law, taking into account the interests of
justice."
[29] There are three features to this section to be considered. The first is that it is a
broad power vesting in these courts in any issue relating to their own process and
the development of the common law, the second is the power of a court to regulate
its own proceedings. The third feature is the overriding criterion of the interests of
justice.
3 Section 165 of the Constitution of the Republic of South Africa, 1996
4 Section 2 of the Constitution.
5 Section 165 of the Constitution.
6 Section 172 of the Constitution.
a. The power to develop the common law
[30] The power to develop the common law is not newly granted by the
Constitution and section 173. It was a power that courts had always possessed as
the law was developed and refined by the courts. The Supreme Court of Canada in
R v Salituro7 explained this as follows:
"Judges can and should adapt the common law to reflect the country's
changing social, moral, and economic fabric. Judges should not be quick to
perpetuate rules whose social foundation has long since disappeared.
Nonetheless, there are significant constraints on the power of the judiciary to
change the law... In a constitutional democracy such as ours, it is the
Legislature and not the courts that has the major responsibility for law
reform... The judiciary should confine itself to those incremental changes
which are necessary to keep the common law in step with the dynamic and
evolving fabric of our society."
[31] This is thus a power exercised with deference and in an incremental manner.
This means that it does not involve making wholesale changes to the law but rather
small changes in line with changing societal mores. The power to develop the
common law is the power to make incremental developments in a way that accords
with the developing boni mores of the society. It is not a blank cheque to make law.
That is why developments to the common law have always been very small scale.
The power to make law is the power vested in Parliament.
However, the South African developments since the Constitution mean that this
power, read with section 39(2) of the Constitution may require more drastic
interventions into the common law.8 While section 39(2) of the Constitution develops
the common law to promote the spirit, purport, and objects in line with the Bill of
Rights.
7 (1992) 8 CRR (2d) 173.
8 Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) at paragraph 36.
[32] The Supreme Court of Appeal and High Court have "always had an inherent
jurisdiction to develop the common law to meet the needs of a changing society". If
section 39(2) were to be read to have removed the power of courts to develop the
common law where its shortcomings do not implicate the Constitution, that would be
a retrograde step and absurd. That would mean, that even if it were clear that the
common law needed to be developed on a non-constitutional basis, courts would not
be able to do anything. That, even though for centuries in the era before the advent
of our constitutional democracy - courts have always been able to develop the
common law.
b. The power of a court to regulate its own proceeding
The power in section 173 of the Constitution must be understood in the context of
the full scope of judicial authority in the Constitution. This section allows for a court to
regulate its own processes to ensure proper functioning and independence. 9
Understood in context then, the power is an exceptional one rather than one that can
be leveraged in the day-to-day running of the courts.
[33] In South African Broadcasting Corporation Limited v National Director of
Public Prosecutions (SABC10), the court described this as
"The power in section 173 vests in the judiciary the authority to uphold, to
protect, and to fulfill the judicial function of administering justice in a regular,
orderly, and effective manner. Said otherwise it is the authority to prevent any
possible abuse of process and to allow a court to act effectively within its
jurisdiction."11
[34] Having considered the extent of the powers, I will turn to consider whether a
judge in the criminal appeal may mero motu consider or decide issues related to the
co-accused who did not lodge the appeal while relying on these powers.
9 Parbhoo v Getz NO1997 (4) SA 1095 (CC) at paragraph 4; S v Pennington 1997 (4) SA 1076 (CC)
at paragraph 22.
10 2007 (1) SA 523 (CC); 2007 (2) BCLR 167 (CC).
11 Id at paragraph 90.
[35] The question of what process a court may follow in determining who is a
beneficiary of an appeal before it is a question of procedure and not one found in the
common law. At best, a court may invoke section 39(2), rather than section 173, to
interpret the rules and legislation relating to appeals in a way that is consistent with
the purport and objects of the Bill of Rights. It is trite that wrongful imprisonment
impacts rights to dignity, freedom, and security amongst others. Thus, the purports
and objects in these instances would require that the correct person be detained. An
interpretation of any rules and legislation that favours this would be preferable.
[36] However, the difficulty with this is that section 39(2) is an interpretive exercise.
Interpretation is constrained by what appears in the text. There is no rule either in
terms of the Superior Courts Act, the Criminal Procedure Act, or the Uniform Rules of
Court that can be interpreted to mean that an appeal court can make an order
bringing a party to court if they fail to do so. If the court does that, this would be
doing more than interpreting but modifying, mero motu, those provisions. Therefore,
section 39(2) is interpretive and thus cannot perform this purpose.
[37] In considering whether this is something a court can do in line with its power
to regulate its own processes, a discussion of S v van der Merwe 12 is apposite. The
appellant in this case had been convicted and sentenced in the regional court. When
leave to appeal was considered, it was granted only in relation to the sentence.
When the matter went on the appeal, the appeal court was not persuaded that the
convictions should stand either. Thus, a part of what the court had to consider was
whether the power in section 173 to regulate its own processes extended to the
power to interfere with the conviction which was not before them as well.
[38] The court held that a court's inherent power did not include the power to
assume jurisdiction it did not have. The leave to appeal decision denied the court
had that jurisdiction, even though it had serious misgivings about the conviction. 13
The court could further not find that no reasonable procedure exists to protect the
accused's rights to justify taking on an additional regulatory procedure of section
173.
12 2009 (1) SACR 673 (C).
13 Id at para 14- 15.
[39] A court only has jurisdiction to decide the rights of a party before it.14 I find that
deciding the rights of a party not before the court is a rescindable error of law. As
such, the court cannot mero motu assume jurisdiction to decide their matter.
Therefore, the appeal court's failure to mero motu decide or release the appellant
with his co-accused cannot constitute a miscarriage of justice.
c. The Interest of Justice
[40] Section 322(1)(a) of the Criminal Procedure Act empowers the appeal court to
allow the appeal if it thinks that the judgment of the trial court should be set aside on
the ground of a wrong decision of any question of law or that on any ground there
was a failure of justice.
[41] This intention is for a court of appeal to dispense justice. An appeal court
cannot close its eyes to a patent injustice simply because the injustice is not the
subject of the appeal.15
[42] It is my view that in the situation where the appeal court after reading the
records of the proceedings and becoming aware of the miscarriage of justice relating
to the co -accused who is not the subject matter of the appeal, the appeal court
cannot mero motu decide or release the co -accused. In dispensing justice, and
avoiding multiple judgments, the appeal court may make a recommendation to Legal
Aid South Africa to advise the co-accused about their rights to appeal.
The accused right to appeal in terms of section 10 of the Judicial Matters
Amendment Act 42 of 2013.
[43] This section was an amendment to section 309 of the Criminal Procedure Act,
which provides that any person sentenced to life imprisonment by a regional court
automatically has leave to appeal and need not apply for it. Should they wish to
pursue the appeal, they need to note it. What is import is that this is an automatic
grant of leave to appeal and not an appeal. The distinction is that leave to appeal is a
14 See Absa v Dlamini above.
15 S v Toubie 2012 (4) ALL SA 290.
right to lodge an appeal. One still must lodge the appeal before the case can be said
to be before the appeal court. An accused who has not lodged their appeal is not
before the appeal court and the appeal court cannot make decisions relating to them.
Conclusion
[44] The inherent power to regulate a court's own proceedings is the power to
ensure proper functioning over matters within its jurisdiction. This means that it must
be a case before it in the first instance. Secondly, there must be a failure in the
existing architecture legal procedures which means that the party before it is unable
to obtain substantial relief. The Criminal Procedure Act has made it easy for persons
to come before the court by automatically granting leave to appeal to similarly placed
persons. Thus, while it may be sad that the accused remains in prison longer than
they had to, the provision of section 173 is simply not a way to come to their rescue.
This court still had to hear and decide the appeal even though there were already
two different judgments relating to the appellants co-accused.
[45] Consequently, the following order is hereby made:
1. The appeal against the conviction imposed on all the counts is upheld and the
appellant is found not guilty and discharged.
2. The sentences imposed on the counts of Rape and Robbery with Aggravating
Circumstances are set aside.
KJ MOGALE
ACTING JUDGE OF THE HIGH
COURT
PRETORIA
I agree, and it is so ordered.
PD PHAHLANE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
Electronically submitted.
Delivered: This Judgment was prepared and authored by the Judges whose names
are reflected and is handed down electronically by circulation to the parties/their
legal representatives by email and uploading to the electronic file of this matter on
Case Lines. The date for hand-down is deemed to be 08 January 2024
Date of hearing: The matter was heard via video conferencing or otherwise. The
matter may be determined accordingly. The matter was set down for a court date on
23 November 2023
Date of Judgment: 08 January 2024
Appearances:
For the Appellant: Adv. B Kgagare
Instructed by: Legal Aid South Africa, Pretoria
For the Respondent: Adv. L More
The Director of Public Prosecutions,
Pretoria