Brief Summary

Criminal Procedure — Appeal — Application for leave to appeal — State's application for leave to appeal against acquittal of respondents — Respondents contending application filed out of time — Court finding that application was filed within a reasonable time despite delay — Condonation not required as no time limit prescribed by section 319 of the Criminal Procedure Act. The State sought to appeal against the acquittal of several respondents on charges of fraud and contraventions of the Public Finance Management Act. The respondents argued that the State's application was filed out of time and should be dismissed. The court held that the application was not out of time as it was filed within a reasonable period following the judgment, and thus the application for leave to appeal was permitted to proceed.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an application by the State in terms of section 319 of the Criminal Procedure Act 51 of 1977 for the reservation of alleged questions of law for consideration by the Supreme Court of Appeal. The application followed the conclusion of a lengthy criminal trial in the High Court, Free State Division, Bloemfontein, in which most accused were discharged under section 174 at the close of the State’s case and the remaining accused was acquitted after the court found the State had not discharged the onus.

The applicant was the State. The respondents were eight accused persons/entities who had been arraigned on charges including an alleged contravention of section 86(1) of the Public Finance Management Act 1 of 1999, fraud, and money laundering-related charges (as framed with reference to Act 121 of 1998 and section 51(2) of Act 105 of 1997, on particular counts against certain accused).

Procedurally, the trial ran for approximately six weeks and was finalised on 21 April 2023. After that judgment, the State initially pursued an application for leave to appeal, which was later withdrawn, and then filed the present section 319 application. The respondents opposed the application and raised a preliminary objection that it had been brought out of time and without condonation. The dispute in the present proceedings was therefore not the merits of the criminal charges as such, but whether the State had properly invoked section 319 by identifying genuine questions of law arising on the trial, framed against clear factual findings made by the trial court.

2. Material Facts

The material facts for purposes of the section 319 application were largely procedural and jurisdictional, focusing on the timing of the application, the manner in which it was pursued, and the character of the “questions” the State sought to reserve.

The court recorded that on 21 April 2023 it delivered judgment in the underlying trial. In that judgment, all respondents except the second respondent were discharged in terms of section 174 at the end of the State’s case. The second respondent did not testify, closed her case, and was acquitted because the court was not satisfied that the State had proved its case against her on the counts she faced.

After the 21 April 2023 judgment, the State filed an application for leave to appeal on 8 May 2023, and a hearing date was discussed among the parties. The court set out that the parties ultimately agreed on a date of 28 July 2023 for the leave-to-appeal proceedings, but because the presiding judge’s acting term was due to end, the file was returned for reallocation.

It was common cause in the present application that, on 20 June 2023, the State withdrew the leave-to-appeal application and simultaneously filed the present section 319 application seeking the reservation of questions of law. The respondents contended that the section 319 application had been brought after an excessive delay and without a condonation application. The State contended that section 319 prescribes no fixed time limit and requires only that the application be brought within a reasonable time.

A further factual feature relevant to the section 319 enquiry was the State’s stance that the trial court’s factual findings were unclear, and that it was therefore necessary for the State to request clarification of which facts the trial court accepted as proved. The court dealt with the State’s reliance on correspondence requesting such clarification and expressed concern about the manner in which the issue was handled, including the court’s account that it had not been aware of certain correspondence at the relevant time.

The court also considered, as part of the State’s proposed reserved questions, an earlier ruling during the trial on 23 February 2023 regarding the admissibility of certain documentary exhibits (including items referred to as TJM11, TJM12, and TJM13). The trial court’s position in the section 319 judgment was that the earlier ruling had been provisional, and that the later treatment of the documents did not amount to contradictory rulings but reflected the later evaluation of admissibility and weight in context.

3. Legal Issues

The central legal question was whether the State’s proposed questions complied with the peremptory requirements of section 319 for the reservation of a question of law that “arises on the trial” in a superior court.

This included subsidiary issues. One was whether the application had been brought within a reasonable time, given that section 319 contains no express time bar but requires promptness measured from finalisation of the case to the filing of the reservation application. Another was whether the proposed questions were genuinely questions of law, as opposed to questions of fact, or the application of law to disputed/uncertain facts, or mere challenges to the trial court’s evaluation of evidence and discretionary decisions such as a discharge under section 174.

In character, the dispute was primarily about the classification of issues as “law” or “fact” and about strict compliance with section 319’s procedural and substantive prerequisites. The court treated the State’s proposed questions as, in substance, attempts to re-open factual evaluations and evidential assessments rather than the articulation of discrete legal points anchored in settled factual findings.

4. Court’s Reasoning

The court first addressed the in limine objection concerning lateness. It held that section 319 does not prescribe a fixed deadline, but the application must be brought within a reasonable time, assessed by measuring the time between finalisation of the case and the filing of the section 319 application. Applying that approach, the court calculated the relevant period from 21 April 2023 to 20 June 2023, amounting to 39 court days. Taking into account finality, the absence of alleged prejudice to the respondents, and the interests of justice, the court concluded that the application was brought within a reasonable time. At the same time, the court criticised the State’s post-judgment approach, emphasising that it is established that section 317 is not available to the State, and expressing disapproval of how the matter was pursued.

The court then set out the governing principles on section 319. It emphasised that the State has a right of appeal only against mistakes of law, not mistakes of fact, and that the boundary between law and fact can be difficult. Nonetheless, the court treated section 319 as a restrictive mechanism that must be strictly complied with because its purpose is to limit State appeals.

Relying on appellate authority, the court identified jurisdictional requirements for a valid reservation of a question of law. It stressed that merely articulating a question in legal language is insufficient. The question must be framed accurately to express the legal point, there must be certainty about the factual findings upon which the legal point depends, and the relevant facts should be set out fully in the record as part of the question. Where it is unclear what facts the trial court found proved, it is necessary to request clarification; absent that, the point is not properly reserved. The court, however, rejected the State’s suggestion that the judgment contained no factual findings, stating that factual findings were indeed contained in the judgment even if not presented in a tabulated format or under specific headings.

A major theme in the court’s reasoning was that the State’s formulation of the proposed questions rested on a re-statement of evidence led, rather than the facts found proved by the trial court. The court held that section 319 requires the question to pivot on the trial court’s proven facts, and that where the State claimed it did not know what the proven facts were, the section 319 requirements were not met. The court characterised the State’s approach as effectively inviting an appellate court to read and re-evaluate an extensive record and to decide for itself what facts were established, which the court viewed as inconsistent with the purpose and limits of section 319.

The court proceeded to consider each proposed question and concluded, in substance, that they were not true questions of law but rather challenges to the trial court’s factual evaluation, evidentiary rulings in context, and the discretionary decision to discharge under section 174.

In respect of the proposed question asking whether, “on the proven facts”, the respondents’ conduct fell within the ambit of the charged offences, the court held that the question assumed uncertainty about the factual foundation and, as framed, sought an appellate re-assessment of whether a prima facie case existed. That was treated as a factual enquiry rather than a legal one.

As to the questions alleging that the discharge under section 174 was contrary to precedent and constituted a gross irregularity, the court reasoned that a section 174 decision involves the trial court’s assessment of the evidence and an exercise of discretion, and that whether there is evidence on which a reasonable court might convict is essentially factual in nature. The court noted that it had applied established section 174 principles (including authority referenced in the judgment) and considered that the State was attempting to reframe factual disagreement as legal error.

Regarding the question framed around section 174 in a multi-accused context where co-accused might implicate each other, the court referred to the principle that whether discharge is appropriate in such circumstances depends on the particular circumstances of the case. The court’s approach was that identifying whether such circumstances existed in the present matter was a fact-based enquiry, and thus the proposed question could not properly be reserved as a question of law.

In relation to the documentary evidence questions, the court held that the complaint about inconsistent findings (originals versus inadmissibility) misconstrued the earlier ruling as final when it had been provisional, and in any event amounted to contesting evidentiary evaluation rather than raising a legal point. Similarly, whether the best evidence rule was satisfied and whether discretion on admissibility was properly exercised were treated as factual or discretionary matters that did not constitute reservable questions of law for section 319 purposes.

The proposed questions on common purpose and the State’s alleged burden to prove prior agreement or acquaintance were rejected on the basis that the existence of common purpose is determined on the facts, and the judgment did not adopt the restrictive proposition the State attributed to it. The court described the relevant findings as factual: the State had not proved common purpose on the proven facts.

The questions concerning section 204(2) were also rejected as either inconsistent with the State’s own position at trial (as described in the judgment) or as depending on credibility findings about whether the witness answered frankly and honestly. The court reasoned that those determinations are factual and credibility-based. It also held that, even if an error were assumed, it would not affect the acquittals/discharges in the manner suggested because the indemnity question did not bear on whether the discharges were correct in law.

Finally, the court rejected the allegation that the trial was unfair due to a failure to make findings of fact under section 146(a) and the Code of Judicial Conduct. It held that findings of fact and law were contained in the judgment itself and that no additional reasons were required beyond the judgment’s treatment of evidence and evaluation.

As an additional consideration, the court stated that even if the proposed questions could be treated as questions of law, it remained necessary to consider the practical effect of any answer. It emphasised the principle that courts do not ordinarily decide academic questions lacking practical effect.

5. Outcome and Relief

The court dismissed the State’s application in terms of section 319 to reserve questions of law.

No separate costs order was recorded in the order made.

Cases Cited

Director of Public Prosecutions: Limpopo v Molope and Another [2020] ZASCA 69.

Director of Public Prosecutions, Natal v Magidela and Others [2000] ZASCA 4; [2000] 2 All SA 337 (A) (SCA).

R v Kewelram 1922 AD 1.

S v Nkwenja en ‘n Ander 1985 (2) SA 560 (A).

S v Goliath 1972 (3) SA 1 (A).

S v Khoza en Andere [1990] ZASCA 142; 1991 (1) SA 793 (A).

S v Mulayo 1962 (2) SA 522 (A).

R v Laubscher 1926 AD 276.

R v Tucker 1953 (3) SA 150 (A).

S v Lubaxa 2001 (2) SACR 703 (SCA).

S v Dewani (CC15/2012) [2014] ZAWCHC 188 (8 December 2014).

S v Legote en ‘n Ander 1999 (1) SACR 269 (O).

Director of Public Prosecutions, Western Cape v Schoeman & another (904/2017) [2019] ZASCA 158 (28 November 2019).

Director–General Department of Home Affairs and Another v Mukhamadiva (Case CCT 61/13) [2013] ZACC 47.

Attorney-General, Transvaal v Flats Milling Co (Pty) Ltd and Others 1958 (3) SA 360 (A).

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 217(1).

Public Finance Management Act 1 of 1999, section 86(1) read with sections 1, 36, 38, 39, 44(2) and 76(4)(c).

Criminal Procedure Act 51 of 1977, sections 146(a), 174, 204(2), 317, 318 and 319.

Judicial Service Commission Act 9 of 1994, section 12.

Prevention of Organised Crime Act 121 of 1998, sections 1, 4 and 8(1).

Criminal Law Amendment Act 105 of 1997, section 51(2).

Rules of Court Cited

No rules of court were expressly cited in the judgment.

Held

The court held that the State’s section 319 application was brought within a reasonable time, but that the proposed reserved questions did not satisfy the strict requirements of section 319 because they were, in substance, questions of fact or challenges to the evaluation of evidence and the exercise of discretion (including under section 174), rather than discrete questions of law arising on the trial and framed against clear factual findings.

The court further held that the judgment already contained the necessary factual findings, and that section 319 could not be used to require an appellate court to re-read and re-evaluate the entire record to establish facts and then determine whether a prima facie case existed. The application to reserve questions of law was therefore dismissed.

LEGAL PRINCIPLES

Section 319 of the Criminal Procedure Act 51 of 1977 is a restrictive mechanism intended to limit State appeals, and it requires strict compliance. A valid reservation depends not only on the articulation of a legal question but also on the proper framing of the point and the provision of certainty as to the factual findings upon which it hinges.

A question is not a “question of law” for section 319 purposes merely because it is phrased in legal terms. Where the proposed point requires an appellate court to determine what facts were proved, to reassess evidence, or to second-guess credibility and factual findings, it is properly characterised as a question of fact (or an impermissible attempt to convert factual misdirection into a legal question).

The decision whether to discharge an accused at the close of the State’s case under section 174 involves the trial court’s assessment of evidence and an exercise of discretion; disputes about whether evidence is sufficient to establish a prima facie case are generally factual and not reservable as questions of law under section 319.

Whether evidentiary requirements such as the best evidence rule are satisfied, and whether related evidentiary discretions were appropriately exercised, are treated as matters dependent on the factual context and evaluation of evidence, and do not ordinarily constitute reservable questions of law under section 319.

Courts do not ordinarily determine academic questions of law lacking practical effect; even where a legal issue might be formulated, the court considers whether determining it would have a practical impact given the evidentiary foundation and the posture of the case.

S v Thabethe and Others (Appeal) (08/2022) [2023] ZAFSHC 306 (3 August 2023)