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[2021] ZASCA 55
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Director of Public Prosecutions: Gauteng Division, Pretoria v Pooe (348/2019) [2021] ZASCA 55; [2021] 3 All SA 23 (SCA); 2021 (2) SACR 115 (SCA) (30 April 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 348/2019
In the matter
between:
DIRECTOR OF
PUBLIC PROSECUTIONS,
GAUTENG DIVISION,
PRETORIA
APPLICANT
and
RETHABILE
AMOGELANG
POOE
RESPONDENT
Neutral
citation:
Director
of Public Prosecutions: Gauteng Division, Pretoria v Pooe
(348/2019)
[2021] ZASCA 55
(30 April 2021).
Coram:
SALDULKER, MBHA AND
DLODLO JJA and LEDWABA and MABINDLA-BOQWANA AJJA
Heard:
10
November 2020 and 24 November 2020
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on
the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 10h00 on 30 April 2021.
Summary:
Criminal law and procedure –
application for leave to appeal by the State in terms of
s 17(2)
(b)
of the
Superior Courts Act 10 of 2013
against the refusal by the trial court
to reserve questions of law in terms of
s 319
of the
Criminal
Procedure Act 51 of 1977
– whether correct procedure followed –
whether questions of law properly reserved where facts not fully set
out by
the State – application dismissed.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria
(Hattingh
AJ sitting as court of first instance):
The application for
leave to appeal is dismissed.
JUDGMENT
Saldulker JA
(Dlodlo JA concurring)
Introduction
[1]
This is an application by the Director of Public Prosecutions,
Gauteng (the State)
for leave to appeal, referred for oral argument
in terms of s 17(2)
(d)
of the Superior Courts Act 10 of 2013 (the
Superior Courts Act),
[1]
and, if
successful, the determination of the appeal itself. The State seeks
leave to appeal against the refusal of leave by the
Gauteng Division
of the High Court, Pretoria (Hattingh AJ) (the trial court) to
reserve questions of law for decision by this Court,
in terms of s
319 of the Criminal Procedure Act 51 of 1977 (the CPA), following the
acquittal of the respondent, Mr Rethabile Amogelang
Pooe, at the
conclusion of the trial.
[2]
The respondent, Mr Pooe, was 16 years old when he was charged in the
trial court on
five counts, namely murder, robbery with aggravating
circumstances, kidnapping, unlawful possession of a firearm and the
unlawful
possession of ammunition. The respondent pleaded not guilty
to all counts and made a statement in terms of s 115 of the CPA. On
10 September 2018, the trial court found Mr Pooe not guilty on all
counts.
[3]
Dissatisfied with the outcome of the trial, the State then requested
the trial court
to reserve four questions of law in terms of s 319 of
the CPA for consideration by this Court. The trial court refused the
application.
The State then challenged the decision by applying to
this Court for an order granting it leave to appeal in terms of
s
17(2)
(b)
of the
Superior Courts Act against
the respondent.
This Court ordered that the application for leave to appeal is
referred for oral argument in terms of
s 17(2)
(d)
of the
Superior Courts Act, and
the parties were forewarned that they must
be prepared, if called upon to do so, to address the court on the
merits. This Court
heard argument from both parties on the
application for leave to appeal and on the merits.
Application
for leave to appeal
[4]
Whether the procedure followed by the State results in this Court
lacking jurisdiction
to hear the appeal must be determined at the
outset. The State’s application in terms of
s 17(2)
(b)
of
the
Superior Courts Act was
in line with the process followed in this
Court in
Director
of Public Prosecutions, Limpopo v Mokgotho
[2017] ZASCA 159
(SCA). It does not appear from a reading of that
judgment that the procedure adopted by the State was challenged in
Mokgotho
.
This Court, however, in
Director
of Public Prosecutions, KwaZulu-Natal v Ramdass
[2019] ZASCA 23
;
2019 (2) SACR 1
(SCA), without reference to
Mokgotho,
held that the correct jurisdictional path for the State to follow,
where the trial court refused its application to reserve questions
of
law in terms of
s 319
, was the process prescribed in
s 317(5)
of the
CPA
[2]
(as referred
to in
s 319(3)
of the CPA), dealing with appeals against such
refusal, by way of a petition to the President of the Supreme Court
of Appeal (SCA).
[5]
In
Ramdass
, the State did not apply to this Court in terms of
s 317(5)
of the CPA, but in terms of
s 319(1)
of the CPA read with
s
16(1)
(b)
of the
Superior Courts Act, asking
for special leave
to appeal against the refusal. The question arose as to whether the
State had followed the correct procedure.
This Court in
Ramdass
said, at paras 4 and 5, as follows:
‘
The
starting point in determining the correct jurisdictional path that
should have been followed
by the State,
is
s 319
of the CPA. The relevant provisions of the section are
ss
319(1)
and
319
(3) which provide as follows:
“
(1)
If any question of law arises on the trial in a superior court of any
person for any offence, that court may of its own motion
or at the
request either of the prosecutor or the accused reserve that question
for the consideration of the Appellate Division,
and thereupon the
first-mentioned court shall state the question reserved and shall
direct that it be specially entered in the
record and that a copy
thereof be transmitted to the registrar of the Appellate Division.
(2) . . .
(3) The
provisions of
sections 317(2)
, (4) and (5) and
318
(2) shall
apply
mutatis mutandis
with reference to all
proceedings under this section.”
If the
trial judge refuses the application to reserve questions of law, the
provisions of
s 317(5)
of the CPA (as referred to in
s 319(3))
,
dealing with appeals against such a refusal, are the next step in the
process and provide that:
“
If
an application for condonation or for a special entry is refused, the
accused may, within a period of 21 days of such refusal
or within
such extended period as may on good cause shown, be allowed, by
petition addressed to the President of the Supreme Court
of Appeal,
apply to the Supreme Court of Appeal for condonation or for a special
entry to be made on the record stating in what
respect the
proceedings are alleged to be irregular and not according to law, as
the case may be, and thereupon the provisions
of subsections (11),
(12), (13), (14) and (15) of
section 316
shall
mutatis
mutandis
apply”.’
And
at para 9 stated further:
‘
The
application followed the incorrect procedure and was defective in two
respects:
(a) First,
special leave was not required. The State only required the ordinary
leave of this court and the provisions of s 16(1)
(b)
of
the SC Act were not applicable. That section deals with appeals
against any decision of a division of the high court taken on
appeal
to it, where the special leave of this court is required.
(b)
Second, the definition of “appeal” contained in the SC
Act provides that “appeal” in Chapter 5, which
includes
ss 16 and 17, does not include an appeal in a matter regulated in
terms of the CPA. As the appeal in the present matter
is regulated in
terms of the CPA, it should follow that these sections of the SC Act
do not apply.’
[3]
[6]
Thus, in terms of the decision in
Ramdass
, the present
application should not have been an application for leave to appeal
in terms of
s 17(2)
(b)
of the
Superior Courts Act, but
in fact
a petition in terms of
s 317(5)
of the CPA. However, there appears to
be essentially no difference in the process followed in terms of
s
17(2)
(b)
of the
Superior Courts Act and
that followed in terms
of
s 317(5)
of the CPA. In respect of both, the question for
determination is essentially whether an appeal on the proposed
questions of law
will be justified. In
Ramdass
, this Court, at
para 19, said that the irregularity can be condoned even though such
a procedure was defective. In any event, the
respondent suffered no
prejudice as a result of the State using the incorrect procedure.
This Court condoned the incorrect process
in
Ramdass
and
proceeded to hear the application. Similarly, in the circumstances,
the State’s failure to lodge the appeal in terms
of the correct
procedure is condoned. I turn to consider the merits.
Facts
[7]
The questions of law that the State requested the trial court to
reserve arose out
of the following tragic events, which are common
cause. The respondent and Mr Keorapetse Shabalala (Chabi) were
learners at Rabonni
Christian School (Rabonni) in Brits. They were in
the same class in grade 9 at the time of the incident, having met in
2015 whilst
in grade 8. They were friends (albeit the nature of the
friendship was qualified by the respondent, who claimed to have
befriended
Chabi to stop him from bullying him (the respondent). The
two of them spent a lot of time together at school, sharing food and
used the same transport to and from school, a taxi which was owned by
Chabi’s parents. They were seen in each other’s
company
by others, who also saw them as friends.
[8]
On the morning of 22 November 2016, after writing exams, they did not
return home
with their usual taxi but simply handed their schoolbags
to the taxi driver and remained on the school premises. Before school
started that morning, Chabi had told the respondent that he had a
firearm and showed him ammunition. They went to the school caretaker,
a Mr van der Walt (who was a State witness) to ask for some masking
tape which he provided. They waited at school for a number
of hours
sitting on the pavilion and later went to sit by the deceased’s
vehicle, a VW Golf. A witness by the name of Mr
Kgodisho Tau, a
fellow learner, approached and asked them what they were waiting for.
They told him that they were waiting for
a lift from the deceased. He
enquired why they did not ask for a lift from another teacher who was
already by the vehicles leaving
and they said that they would rather
wait for the deceased.
[9]
When the deceased arrived at her vehicle the respondent asked for a
lift, to which
she agreed. As they were driving Chabi held a firearm
at her waist and ordered her to drive to the industrial area. Once
they reached
the area where the incident occurred, the hands of the
deceased were tied by the respondent using the masking tape they had
obtained
from Mr van der Walt. The deceased managed to break the
tape. Chabi shot the deceased, following which he and the respondent
left
the scene with the deceased’s vehicle. They first went to
Chabi’s home and spoke to his mother. They then went to the
taxi driver to ask for money which was later used to fill petrol into
the deceased’s vehicle. They then drove to the respondent’s
house where he was dropped off by Chabi. Chabi returned to his house
and asked for permission to leave the vehicle in someone else’s
yard. He took the keys along with him and the deceased’s bag
that contained a laptop and other items. During the evening,
the
respondent’s parents asked him what was wrong and he assured
them that nothing was wrong. The next day they used the
same taxi to
school. During the assembly, the headmaster of the school asked that
any learner who had seen the deceased leaving
school was to come to
the fore. In response, Tau, who had approached the two the previous
day, told Chabi and the respondent that
they needed to reveal that
they had been in the company of the deceased. He then went forward
with them.
[10]
The rest of the evidence is disputed. Perhaps to shed some light, it
would be useful to briefly
outline the defence put forward by the
respondent. The respondent testified that Chabi bullied him while in
grade 8. He befriended
him in order to stop the bullying, which
worked as the two became friends at school. In regard to the day of
the incident, he stated
that he and Chabi had asked for a sellotape
because Chabi said he wanted to fix his books. He allowed the taxi
that he and Chabi
usually used as transport to leave without them and
remained at school with Chabi for many hours because he wanted to
fetch his
textbook at Chabi’s home because they were writing
exams on the subject the following day. The plan was to first
accompany
Chabi to the taxi rank to gamble. Chabi told him he was
going to use the firearm at the taxi rank for protection when
gambling.
Chabi suggested they wait for the deceased to give them a
lift. He (the respondent) asked the deceased to drop them at the taxi
rank to which she agreed. He was scared and confused when he saw
Chabi pointing a firearm at the deceased in the vehicle and knew
nothing of the plan. Chabi instructed him to search the deceased’s
purse. He told Chabi he did not want to be part of what
he was doing,
but was scared and did what he was told. Chabi took the tape they had
gotten from school to tieup the deceased’s
hands. Responding to
a leading question by his counsel that Chabi had instructed him to
tie the deceased’s hands, he mentioned
that Chabi’s
actual words were ‘Hey man. Tie up Madam’s hands there’.
He did as he was instructed by Chabi.
The tape got torn as the
deceased managed to twist her hands around. Chabi instructed him in
harsh terms to do it again. He (the
respondent) rolled the tape four
times. He complied, because he was scared and Chabi had a firearm. He
believed that Chabi would
kill him. He did not run away because he
was scared of being killed by Chabi. Chabi attempted to put the
deceased in the boot of
the vehicle, but she resisted. He tripped her
and she fell down, while he had placed the firearm in his pants.
Chabi took the firearm,
the respondent turned away and he heard two
gun shots. After the deceased was shot at, Chabi instructed him to
take the firearm
to his side, which he did. Although in possession of
the firearm, he did not know how to use it and was scared. The
respondent
repeatedly testified in cross-examination that Chabi
neither threatened to shoot nor kill him. He also never, at any
stage, pointed
a firearm at him during the incident. It was after the
deceased was shot as they drove off in the vehicle, that Chabi warned
him
against telling the police. When the respondent got home he
decided not to tell his parents, nor anyone. He thought Chabi would
kill him if he told the police. His plan was to disclose this
incident after moving house from Brits.
[11]
The respondent was called to answer on various charges, namely that
of murder, kidnapping and
joint possession of an illegal firearm and
ammunition, along with his former co-accused Chabi. Chabi pleaded
guilty and was convicted
and sentenced to a period of 25 years’
imprisonment. He testified as a State witness in this case.
[12]
In evaluating the evidence of the respondent and Chabi, the trial
court said that the respondent
had maintained throughout his
testimony that there existed no prior agreement between himself and
Chabi in relation to the hijacking
of the deceased’s vehicle.
Chabi testified that it was the respondent who had come up with the
plan that the deceased’s
motor vehicle must be taken to utilise
its parts to repair a similar vehicle at his house. However, this
testimony stood in contradiction
to Chabi’s guilty plea, where
he had stated that they had agreed on the day before the incident
that they needed a motor
vehicle ‘to drive around with’.
The trial court said further that if the intention was to take the
motor vehicle, and
strip it for parts to repair a similar vehicle at
the respondent’s house, then why would Chabi retain the
deceased’s
vehicle, the keys and other movable assets belonging
to the deceased. The trial court thus rejected Chabi’s version
that
there was an agreement between him and the respondent concerning
the taking of the deceased’s vehicle.
[13]
In assessing the respondent’s case, the trial court did however
note that there were inconsistencies
and contradictions in his
testimony. Most importantly, these related to the respondent not
trying to disassociate himself from
the commission of the crime. The
trial court said that it had taken into cognisance the defence of
necessity in the form of compulsion
and/or coercion raised by the
respondent. He had given some explanation as to why he did not
disassociate from Chabi, that he was
scared of Chabi and feared for
his life and that of his family. Moreover, the trial court held that
the respondent had, in any
event, been of little assistance to Chabi
in the commission of the offences, as the deceased managed to break
free from the tape
around her wrists. The trial court said that it
was Chabi who had shot the deceased, took control of her vehicle,
took possession
of her personal effects and retained everything, with
the respondent not sharing in the spoils of the crime.
[14]
Accordingly, on a conspectus of the evidence, the trial court held
that the State had failed
to prove its case beyond reasonable doubt
against the respondent, concluding, inter alia, as follows: ‘In
the end I find
that the State did not prove its case beyond
reasonable doubt. I reject the version of the State witness,
Keorapetse Shabalala
[Chabi], insofar as he testified about the
existence of an agreement between himself and the accused [the
respondent] to take the
motor vehicle of the deceased. His testimony
was riddled with inconsistencies and contradictions in terms of the
alleged agreement
between himself and the accused [the respondent] on
material aspects. The above coupled with the fact that Keorapetse
Shabalala
was a single witness, that presuppose[s] a cautionary rule
on this court, the court, on the totality of the evidence, finds that
the accused [the respondent] is not guilty, on all the charges
against him’.
[15]
The fact that the trial court acquitted the respondent lies at the
heart of the State’s
complaint. In its application, in terms of
s 319
of the CPA, the State sought to reserve four questions before
Hattingh AJ. These were formulated as follows
:
‘
(i)
Whether the trial court failed to evaluate the evidence in accordance
with accepted legal principles, ie in totality and taking
into
account the probability and improbability of the respective versions.
(ii)
Whether the trial court erred in acquitting the accused without
evaluating his version of alleged duress in light of applicable
case
law and the evidence before court and without finding that his
version may be reasonably possibly true.
(iii)
Whether the trial court erred in effectively disregarding the
corroboration that the objective evidence and probabilities
provided
for the version of the second state witness [Chabi].
(iv)
Whether the court erred in focussing solely on the question of the
existence or not of a prior agreement, failing to consider
that the
accused may be guilty on the proven facts without there having been a
prior agreement.’
[16]
Before the hearing of the matter, the registrar of this Court, on the
instructions of the presiding
judge addressed a letter to the
parties, the contents of which read as follows:
‘
The
Presiding Judge has directed that the parties’ attention be
drawn to this court’s recent judgments in
DPP Limpopo v
Molope
and another (Case no 1109/19
[2022] ZASCA 69
(18 June
2020). And
DPP Western Cape v Schoeman
[2019] ZASCA 158.
The
parties are required to deal comprehensively with these judgments and
make written submissions on or before 31 October
2020.’
Both
parties submitted further heads of argument, and this Court is
grateful for their assistance.
Legal
Principles
[17]
Section 319
of the CPA provides as follows:
‘
(1)
If any question of law arises on the trial in a superior court of any
person for any offence, that court may of its own motion
or at the
request either of the prosecutor or the accused reserve that question
for the consideration of the Appellate Division,
and thereupon the
first-mentioned court shall state the question reserved and shall
direct that it be specially entered in the
record and that a copy
thereof be transmitted to the registrar of the Appellate Division.
(2)
The grounds upon which any objection to an indictment is taken shall,
for the purposes of this section, be deemed to be questions
of law.
(3)
The provisions of
sections 317(2)
, (4) and (5) and
318
(2) shall apply
mutatis mutandis
with reference to all proceedings under this
section.’
[18]
This Court in a recent judgment,
Director of Public Prosecutions:
Limpopo v Molope and Another
[2020] ZASCA 69
;
2020 (2) SACR 343
(SCA);
[2020] 3 All SA 633
(SCA), said at paras 39-41:
‘
The
provisions of
s 319
of the CPA are peremptory and require strict
compliance, as its purpose is to limit appeals by the State. It
should be mentioned
that
s 319
has been subjected to a detailed
analysis in a number of judgments, both by this Court and the
Constitutional Court. Its principles
have accordingly been firmly
established in our law.
Two
decades ago, in
Director of Public Prosecutions, Natal v
Magidela and
Others
this Court eloquently and
commendably set out the position of the relevant law stating that:
“
The
provisions of
section 319
and its predecessors have been the subject
of judicial interpretation over the years and in order to see whether
the requirements
of the section were complied with in this case it is
important to consider how the section has been construed.
The
first requirement is not complied with simply by stating a question
of law. At least two other requisites must be met. The first
is that
the question must be framed by the Judge “so as accurately to
express the legal point which he had in mind”
(R v
Kewelram
1922
AD 1
at
3).
Secondly,
there must be certainty concerning the facts on which the legal point
is intended to hinge. This requires the court to
record the factual
findings on which the point of law is dependent (S v Nkwenja en ‘n
Ander
1985
(2) SA 560
(A)
at 567B-G).
What
is more, the relevant facts should be set out fully in the record as
part of the question of law (S v Goliath
1972
(3) SA 1
(A)
at 9H-10A).
These
requirements have been repeatedly emphasised in this Court and are
firmly established (see, for example, S v Khoza en
Andere
[1990] ZASCA 142
;
1991
(1) SA 793
(A)
at 796E-I).
The
point of law, moreover, should be readily apparent from the record
for
if
it is not, the question cannot be said to arise ‘on the trial’
of a person
(
S
v Mulayo
1962
(2) SA 522
(A)
at 526-527).
Non
constat
that
the point should be formally raised at the trial: it is sufficient if
it “comes into existence” during the
hearing (
R
v Laubscher
1926
AD 276
at
280;
R
v Tucker
1953
(3) SA 150
(A)
at 158H-159H). It follows from these requirements that there should
be certainty not only on the factual issues on which the
point of law
is based but also regarding the law point that was in issue at the
trial.” [Original emphasis.]
Furthermore
the authors Du Toit et al in the
Commentary
on the
Criminal Procedure Act
>
state: “The
trial court must refer to those facts in its judgment as part of the
reserved question of law (
S
v Nkwenja en 'n Ander
1985
(2) SA 560 (A) 567B). Furthermore, whenever the State has a
question of law reserved which rests on particular facts,
the
State must have those facts fully placed on record and in particular
as part of the setting out of the question of law”
.’
(My emphasis.)
(Footnotes omitted.)
[19]
The approach in
Magidela
has been endorsed by this Court in
Director of Public Prosecutions: Western Cape v Schoeman and
Another
[2019] ZASCA 158; 2020 (1) SACR 449 (SCA), where this
Court said at para 39:
‘
The
State has a right of appeal only against a trial court’s
mistakes of law, not its mistakes of fact. Indeed, Du Toit, De
Jager,
Paizes, Skeen and Van der Merwe stress that this “restriction
will not be relaxed by the fact that the trial judge
considered the
facts incorrectly”.
Before
a question of law may be reserved under
s
319
three
requisites must be met. First, it is essential that the question is
framed accurately leaving no doubt what the legal point
is. Secondly,
the facts upon which the point hinges must be clear. Thirdly, they
should be set out fully in the record together
with the question of
law
.’ (My emphasis.)
(Footnotes omitted.)
And
at para 40 the court said:
‘
Unless
the State does this, it may not be possible for a court of appeal to
establish with certainty what the conclusions on the
legal point,
which the trial court arrived at, are. Where it is unclear from the
judgment of the trial court what its findings
of fact are, it is
therefore necessary to request the trial judge to clarify its factual
findings. Where this is not done, the
point of law is not properly
reserved
.
’ (My emphasis.)
(Footnotes
omitted.)
Application
for condonation by the State for not setting out the facts fully in
its
s 319
application
[20]
On the first day of the hearing, the State’s application in
terms of
s 319
for the reservation of the questions of law, which
served before the trial court, was not part of the record. The State
asserted
that it was not necessary for this Court to have sight of
that application, as it was only the petition that had to be
adjudicated
upon. This Court deemed it necessary that the
s 319
application be placed before it, and the matter was then postponed
for 24 November 2020 for that purpose. In my view, the
s 319
application that the State brought before the trial court, ‘the
first-mentioned court’, was of the utmost importance,
as it
would serve to indicate the grounds upon which the State had sought
to reserve the points of law.
[21]
An examination of the
s 319
application before Hattingh AJ revealed
that the grounds upon which the questions of law were sought to be
reserved by the State
were set out in a summary form of the evidence
of the trial court, but the factual basis upon which they supposedly
pivot were
not.
[4]
The State did
not set out the factual findings on which the reserved questions of
law ought to have been considered. Thus, the facts
upon which the
point hinged were not clear, nor were they fully set out by the
State. It is also not certain from the trial court’s
judgment
on the merits which facts it accepted to be the facts proved in this
case. In these circumstances the State ought to have
requested the
trial court to clarify its findings of facts. This the State
regrettably failed to do. As already mentioned, at para
40 of
Schoeman
,
unless the State does this, it may not be possible for a court of
appeal to establish with certainty what the conclusions on the
legal
point which the trial court arrived at, are. There are thus serious
shortcomings in the
s 319
application brought by the State.
[22]
A further problem is that it is also not apparent from the trial
court’s judgment that
it considered the law relating to the
s
319
applications as set out decades ago in
Magidela
. The trial
court, without elaborating whether the requirements as set out above
were complied with by the State, nevertheless concluded
that the
State had failed to successfully raise any questions of law, and
dismissed the
s 319
application, concluding, inter alia, as follows:
‘The court lastly draw[s] attention to the Commentary on the
Criminal Procedure Act, series
48, 2012, page 31-38A where it stated:
“
It is not permissible for a trial judge to reserve, at the
request of the state, questions which are essentially questions of
fact.
This restriction will not be relaxed by the fact that the trial
judge considered the facts incorrectly. Furthermore, if the alleged
question of law is nothing more than the question whether the judge
had correctly considered the facts, this remains a question
of fact
which may not be reserved at the request of the State”
(
S
v Coetzee
1977 (4) SA 539
(A) at 544H–545A)’.
(Emphasis added by trial court.)
[23]
Ms Coetzee, for the State, conceded at the outset that the facts upon
which the points of law
hinged were not set out fully in its
application in terms of
s 319
before the trial court. However, the
State asserted that this Court was in a position to condone this
shortcoming, as the factual
basis had been set out in the application
for leave to appeal before this Court, and that this Court could not
solely rely on the
application before the trial court to adjudicate
the State’s s 319 application.
[24]
In considering an application for the reservations of questions of
law in terms of
s 319
, where the facts upon which the point hinges
are not fully set out in the record, and the trial court has not been
asked to clarify
its factual findings, it will be difficult for an
appeal court to frame the questions of law and set out the facts upon
which the
points of law hinges. Certainty must exist in regard to all
the facts to which the question relates or on which the legal point
hinges.
[5]
Otherwise,
the points of law will not be properly reserved.
[6]
[25]
The State has argued that it would have been a futile exercise to
approach the trial court to
clarify its factual findings, because the
trial court did not make any factual findings in regard to the nature
of the errors complained
of, and neither was the respondent’s
defence assessed, nor was there an evaluation of the evidence in
accordance with accepted
legal principles. It is so that in this case
the trial court’s factual findings do not appear from the
judgment, and thus
it is unclear as to what the factual findings are.
However, if this was indeed a reason why the State was unable to set
out the
facts fully, then it should have requested the trial court to
clarify its findings of fact in order to obtain certainty with regard
to the facts underpinning the points of law it sought to reserve.
[26]
In my view, it is problematic at the appeal stage to complain that
the trial court did not set
out the factual findings. More especially
in a case such as this, where it is unclear from the trial court’s
judgment on
the merits which facts it accepted to be the facts proved
in this case, it would be difficult to glean from the judgment the
factual
findings of the trial court which gave rise to the dispute
over the points of law, and which were material to formulating the
questions
of law, without difficulty or contestation. Moreover, as
the State did not request the trial court to clarify its factual
findings,
it is not known which facts the State relied upon in its
s
319
application to reserve the questions of law. Had the State done
so, there would be no misunderstanding between the parties as to
what
the trial court’s factual findings were. A perusal of the heads
of argument of the respective parties, indicates that
there is a
discord between the facts set out by the State in its application
before this Court, its heads of argument, its petition
and the
respondent’s heads of argument.
[27]
What should resonate is what this Court said in
Schoeman
at
paras 45-46:
‘
If
we were to entertain the appeal on the merits, we would face the task
of having to ascertain the relevant facts. To this end,
we would have
to read the entire record and re-evaluate all of the evidence,
thereby second-guessing the trial judge who was best
placed to do
this. We would thus have to approach the matter as if this were a
full appeal on the merits. The problem does not
end there. Having
embarked on this task, we would have to decide whether the facts
established by us accord with those found by
the trial court. It is
only if we find that the factual findings of the trial court were
wrong and the result of a legal error
would we be obliged to
interfere with the decision of the trial court.
This is
why courts of appeal require strict adherence to the requirement for
the State to set out the factual basis for the reservation
of any
point of law before it will entertain it. Here the State has not even
attempted to comply with this requirement. We thus
hold that the
State has not properly reserved its four points of law. That ought to
be the end of the matter. We consider it necessary,
however, to deal
further with the issue.’
(My
emphasis.)
[28]
In this case the factual bases for the reservation
of the questions of law were not set out in the record.
They also did
not appear fully from the judgment of the trial court, and
regrettably the State did not request the trial court
to return a
special finding on the facts upon which the points of law hinged.
Accordingly, it ought to be the end of this matter.
[29]
It bears emphasis that what the State is ultimately seeking is
condonation of facts that are
self-serving, which it has compiled and
presented to this Court in its petition. It is clear that the facts
upon which the points
of law were said to hinge were not set out
fully or otherwise by the State in its
s 319
application. For all the
aforegoing reasons, the application for condonation by the State must
be refused. There would be good
reasons for this Court to dismiss the
application based on the State’s concession alone. But I do not
think that this course
should be adopted. I thus nevertheless
consider it necessary in this matter to deal further with the issues
raised.
Are
the questions raised by the State questions of law or fact?
[30]
I turn to consider whether the questions of law raised by the State
are questions of fact or
questions of law.
The
respective contentions of the parties
[31]
The State contended that the proposed questions of law were not based
on the dissatisfaction
with the manner in which the trial court went
about evaluating the evidence, nor the correctness of its conclusion,
but instead:
(i) with the consequent approach of the trial court that
only some of the evidence required evaluation, whilst others would
not
avail the court in reaching the conclusion it sought to reach;
(ii) with the trial court’s failure to scrutinise and evaluate
the respondent’s version of duress and his
viva voce
evidence in support thereof, so as to be able to reach a finding that
the said version is reasonably possibility true; and (iii)
with the
trial court equating the existence of a prior agreement to an
essential element of the crimes of kidnapping, robbery and
murder.
The State contended that this approach was flawed, which inevitably
led to a wrong conclusion in that the respondent was
acquitted. This
was tantamount to an error of law. With regard to the third question
of law, the State was of the view that it
had been subsumed by the
first question of law.
[32]
The nub of the State’s contentions lies in paras 99 and 102 of
the trial court’s
judgment, where the trial court pertinently
said
:
‘
It
is also important to take note that the court in
S v Texeira
stressed that, in evaluating the evidence of a single witness, “
a
final evaluation can rarely, if ever, be made without considering
whether such evidence is consistent with the probabilities
”.
It is indeed so that corroboration, which is a common safeguard
against the dangers of relying on the evidence of a single
witness,
has been defined as other evidence which supports the evidence of the
State witness and which renders the evidence of
the accused less
probable on the issue in dispute.
The present case clearly
demonstrates that the existence or non-existence of an agreement to
rob the deceased of her motor vehicle,
was allegedly found on a
private and personal agreement between the accused [Pooe] and
Keorapetse Shabalala [Chabi], without any
knowledge of third parties.
This clearly excludes the evidence alliunde and the court has to be
almost exclusively reliant on a
credibility finding of the accused
[Pooe] and Keorapetse Shabalala [Chabi], including an assessment of
probabilities
.’ (My emphasis.) (Footnotes omitted.)
And
at para 102:
‘
This
court is clearly seized with the dilemma that to find the existence
or non-existence of an agreement between the accused [Pooe]
and
Keorapetse Shabalala [Chabi]. It would be important for the court to
compare the nature and quality of the evidence of Keorapetse
Shabalala [Chabi] with that of the accused [Pooe]. This court draws
some sol[a]ce from the matter of
S v Maake
where the court was
satisfied that the magistrate had properly, cautiously and correctly
approached the evidence of both the appellant
and the complainant.
His reasoning could not be faulted. He had properly assessed the
quality and nature of the complainant’s
evidence as well as the
fact that her version of the events immediately after the alleged
rape had been corroborated in material
respects by an independent
witness. This court however does not have the benefit of an
independent witness when it comes to the
existence or non-existence
of an intimate agreement to kill the deceased and to take her motor
vehicle and certain movable assets.’
(Footnotes omitted.)
[33]
The State contended that there was a material misdirection in the
trial court’s approach
in the aforegoing paragraphs, as it
expressly said it was excluding evidence. The trial court’s
approach was based on the
premise that the evidence of all State
witnesses apart from Chabi could be ignored and that it would not be
considering such evidence,
as the alleged private and personal
agreement between Chabi and the respondent had been reached without
any knowledge of third
parties. The court concluded at paragraph 99
that ‘[t]his clearly excludes the evidence aliunde and the
court has to be almost
exclusively reliant on the credibility finding
of the accused [Pooe] and Keorapetse Shabalala [Chabi], including an
assessment
of probabilities’. The same sentiment was also
expressed in paragraph 102 of the trial court’s judgment as set
out
above, where the trial court said that there is no independent
witness that can assist the court ‘when it comes to the
existence
or non-existence of an intimate agreement to kill the
deceased and to take her motor vehicle and certain movable assets’.
The State contended that other witnesses’ evidence which may
have assisted the trial court in determining the objective
probability of the respective versions, was simply ignored and not
considered. Furthermore, the trial court had failed to evaluate
the
probabilities of the respective versions. Failure to take into
account relevant and admissible evidence constituted an error
of law.
The absence of any reference to any of these aspects in the trial
court’s evaluation of the evidence constituted
a materially
flawed approach and an error in law. All the evidence had to be
accounted for in its totality, and no evidence could
simply be
disregarded. The State contended that the trial court failed to
evaluate all the evidence in its totality. The test for
the
evaluation of evidence in a criminal trial, as set out in
S v Van
der Meyden
1999 (1) SACR 447
(W) at 449j-450b, was the accepted
legal position.
[34]
In contrast, counsel for the respondent argued that the State had
failed to comply with the requirements
of
s 319
of the CPA, and that
all of the questions raised by the State were questions of fact. As
the factual findings did not appear from
the record, it was incumbent
on the State to have approached the trial court to set out the
findings of fact, which regrettably
it did not do. In the
circumstances, there were no points that could properly be reserved.
The trial court had regard to all the
evidence, and although the
trial court had not mentioned all of the aspects it had taken into
account in its judgment in acquitting
the respondent, there was no
misdirection in respect of the legal principles that the trial court
had applied. The State could
only appeal if there was an issue
relating to a mistake of law, and there was none in this case.
Discussion
[35]
In many cases the decision of whether a question is one of fact or
one of law poses considerable
difficulty. This Court, in
Schoeman,
having found that the court had erred in the matter of
Director
of Public Prosecutions, Gauteng v Pistorius
[2015]
ZASCA 204
;
2016
(2) SA 317
;
[2016]
1 All SA 346
;
2016 (1) SACR
431
(SCA), said the following at paras 73-74:
‘
It
seems, therefore, that this court in
Pistorius
erred,
with respect, in finding, albeit obiter in our view, that where a
trial court ignores evidence or displayed a lack of appreciation
of
its relevance, that this amounted to an error of law. As we have
demonstrated, this conclusion is at odds with a long line of
authority in this court, endorsed by the Constitutional Court. We do
not agree that the test for the applicability of
s 319
is whether the
judicial process is adversely affected by the error made by the trial
court. That test would have the effect of
making almost every
material error of fact an error of law. That is not what is envisaged
by
s 319.
As Corbett CJ pointed out in
Magmoed
, even
where there are “strong indications” from the evidence
that there were cogent reasons to convict an accused ‘[t]hese
considerations must not . . . be allowed to obscure one’s
perception of the legal and policy issues involved in permitting
s
319
to be utilized in the manner the prosecution in this case wishes
to use it; or to weaken one’s resolve to maintain what appears
to be sound legal practice.
Put
simply, the mere fact the judicial process has become flawed by the
way a trial court goes about assessing the evidence before
it, does
not justify permitting
s 319
to be used by the prosecution to reserve
a point of law for what is in truth misdirection of fact. That
impermissibly undermines
the clear language of the section and the
deliberate choice of the legislature to restrict appeals in terms of
the section to questions
of law. The law as reflected in Canadian
cases cited in
Pistorius
does not reflect the
position in our law.’
[36]
In my view the answer to all of the contentions raised by the State
lies in what was said by
this Court in
Schoeman
at paras 73
and 74, as quoted in the aforegoing paragraph above. It is clear from
Schoeman
that even if a trial court ignored evidence or
displayed a lack of appreciation for its relevance, this does not
amount to an error
of law. Furthermore, even if the trial court did
not mention something specifically in its judgment, this also did not
amount to
an error of law. In any event, this Court cannot rule out
that the trial court actually did consider all of the evidence when
it
said that it had considered the totality of the evidence, and that
the defence of duress was considered when the trial court said
that
the respondent had testified that he was scared of Chabi, feared for
his life and that of his family. In addition, it also
does not appear
from the judgment of the trial court that it focused only on the
existence of a prior agreement between the respondent
and Chabi. The
prior agreement had been raised by Chabi in his
s 112
statement and
had to be dealt with.
[37]
In my view it was clear from the judgment of the trial court that it
was satisfied from a totality
of the evidence that the State had not
proved its case beyond a reasonable doubt against the respondent. It
is trite that the onus
rests on the State to prove the respondent’s
guilt. Failing that the respondent must be acquitted. It was not for
the trial
court to go further and evaluate the respondent’s
case if there were shortcomings therein to convict.
[38]
Furthermore even if this Court were to determine that the trial court
has incorrectly applied
legal principles in its evaluation of the
evidence and the respondent’s guilt, this Court could only
reserve questions of
law and not questions of fact. As decided by
this Court in
S v Basson
2003 (2) SACR 373
(SCA) paras 10-11:
‘When a question of
law arises as aforesaid, the trial court, or, where it refuses to do
so, this court has to decide on application
by the state whether to
reserve a question of law for consideration by this court. When this
court considers an application by
the state for leave to appeal
against a refusal to reserve a question of law by the trial court, as
with any other application
for leave to appeal, it will only exercise
its discretion in favour of the state where there is a reasonable
prospect that if the
mistake of law had not been made, the accused
would have been convicted.’
And
at para 6 of
Basson
, this Court said:
‘
The
only way in which the state can appeal against the decision of the
trial court in terms of the Act is therefore by way of the
reservation of a question of law in terms of section 319. The state
has no right of appeal in terms of the Act in respect of erroneous
findings of fact by the trial judge. Only if the trial court has
given a wrong decision due to a legal error can the state
appeal. In
order to determine whether the trial court committed an error of law,
it must be determined on what factual basis
it based its
decision. After all, another factual basis cannot give an
indication as to whether the judge committed a legal
error. Whether
the trial court's findings of fact are right or wrong is therefore
totally irrelevant in order to determine
whether he erred in law. It
follows that a legal question arises only when the facts on which the
trial court bases its ruling
may have a different legal consequence
than the legal consequence that the trial court found. For the
aforesaid reasons (a)
there must be certainty as to the point of law
at issue and of the facts on which the trial judge based his
finding; and (b)
when a question of law is reserved, it must be
clearly stated, not only which point of law is involved, but also the
facts on which
the trial court based its finding (see
Director
of Public Prosecutions, Natal v Magidela and Another
2000
(1) SACR 458
at para 462g-463c). When the state has such a
legal question reserved, it is therefore necessary for the state to
compile
the specific facts properly and in full as part of the
exposition of the question of law (see
S
v Goliath
1972 (3) SA 1
(A)
at 9H).’
[39]
The gravamen of the State’s complaint is that the respondent
has been acquitted when he
ought to have been convicted for very
heinous and serious crimes. Undoubtedly, there are aspects of the
trial court’s judgment
that are troubling. Given the
circumstances, it is disquieting that the trial court, having found
that the respondent did not disassociate
himself from the crime, and
that there were inconsistencies in his evidence, nevertheless
appeared not to pay much attention to
the conduct of the respondent.
So viewed, and in the light of the evidence, as well as the judgment
of the trial court, the State’s
complaint may justifiably be
valid. However, as stated by this Court in
Molope
at para 55:
‘
This
is a court of appeal, its function is not to seek to discover reasons
adverse to the conclusions of the trial judge. The inquiry
before
this Court is whether the question of law was properly reserved,
which question, in view of all the aforegoing, must be
answered in
the negative. It is true that no judgment is perfect and
all-embracing, but it does not necessarily follow that, because
certain aspects were not mentioned in the judgments, they were not
considered.’
Conclusion
[40]
This court is precluded from entertaining an appeal from the State on
the facts. As an appellate
court, it is not sitting in judgment on
the factual circumstances of this case, but adjudicating on whether
the questions raised
by the State are questions of law. For all the
reasons set out above, all
of the questions
raised by the State are questions of facts and not of law
.
In
view of all the aforegoing, the State’s application in terms of
s 319 of the CPA falls short of what is required, and therefore
must
be dismissed.
[41]
What must be borne in mind is that an innocent woman lost her life in
very tragic and violent
circumstances. Her murder was carried out
with complete disregard for human life. It was a callous and
senseless killing. The State
did not bring a frivolous or vexatious
application. Therefore, in the circumstances, there appears to be no
good reason to mulct
it with costs.
[42]
In the result, I would dismiss the application for leave to appeal.
________________
H
SALDULKER
JUDGE
OF APPEAL
Mabindla-Boqwana
AJA (Mbha JA and Ledwaba AJA concurring)
[43]
I have read the judgment prepared by my colleague, Saldulker JA.
W
hile I agree with my colleague that the
application for leave to appeal should fail, in my view, such failure
should not be on the
grounds of non-compliance with s 319(1),
but on the basis of the merits of the application.
[44]
Section 319(1) of the CPA provides:
‘
(1) If any question of law
arises on the trial in the superior court of any person for any
offence,
that court
may of its own motion or at the request
either of the prosecutor or the accused
reserve that question
for the consideration of the Appellate Division, and thereupon
the
first-mentioned court shall state the question reserved
and
shall
direct that it be specially entered in the record
and that a copy
thereof be transmitted to the registrar of the Appellate Division.’
(Emphasis added.)
[45]
This section does not permit the framing of questions of fact as
questions of law. It has been
stated however that ‘the
distinction between questions of law and questions of fact is
notoriously difficult to draw’.
[7]
The
requirements to be met when seeking reservation of a question of law
were restated in
Schoeman
as:
‘
Before
a question of law may be reserved under s 319 three requisites must
be met. First, it is essential that the question is framed
accurately
leaving no doubt what the legal point is. Secondly, the facts upon
which the point hinges must be clear. Thirdly, they
should be set out
fully in the record together with the question of law
.’
[8]
[46]
In terms of s 319, the duty is placed upon the court to state the
question of law it has decided
to reserve. It must also direct that
the question be specially entered into the record and a copy thereof
be dispatched to the
registrar. In
Magidela
,
[9]
it was held
that ‘. . .
the
question must be framed by the Judge
“so as accurately to express the legal point which
he
had in mind” (R v Kewelram
1922
AD 1
at 3). Secondly, there must be certainty concerning the facts on
which the legal point is intended to hinge. This requires
the
court to record
the factual findings on which the point of law is dependent (
S
v Nkwenja en ‘n Ander
1985
(SA) 560 (A) at 567B-G) . . .’. (Emphasis added.)
[47]
These requirements are to ensure that the court of appeal can
establish with certainty what the
conclusions on the legal point are.
If the findings are not clear in the judgment of the trial court, it
is necessary to request
the trial judge to clarify such factual
findings, for where that is not done, the point of law is not
properly reserved.
[10]
[48]
In
S
v Petro Louise Enterprises (Pty) Ltd and Others
,
[11]
where the
magistrate failed to comply with the requirements in relation to the
recital of the facts and the formulation of the question
of law
involved, the court cautiously allowed the appeal to proceed. It
remarked as follows:
‘
Generally
speaking, I think that this Court will decline to hear an appeal
under sec. 104
where the magistrate
has failed in a material
respect to comply with the requirements of formulating a stated case
in terms of sec. 104(1) and
Rule 67(10), in spite of the
unfortunate prejudice and inconvenience that may result to the
appellant and the respondent from such
a step – which is all
the more reason, of course, why magistrates should be meticulous in
performing their duties in this
regard. In the present case, the
stated case is so pronouncedly defective that there would have
been ample justification for
us to have refused to entertain the
appeal. However, when this possibility was mooted at the outset of
the argument, counsel on
both sides,
stressing that the problem
was not of their or their clients' making
, urged us to be
indulgent and to listen to their arguments. We allowed ourselves to
be persuaded to do that. The fact that we were
prepared to hear the
present appeal, in the particular circumstances present here,
should not, however, be regarded as a precedent
that in future cases
of a similar nature this Court will be equally indulgent.’
(Emphasis added.)
[49]
In
Molope
,
[12]
this
Court recognised that in certain instances courts have cautiously
allowed the appeal to proceed. It remarked:
‘
Notwithstanding
the strict application of the section and the law that has been
adopted in this matter, courts have, in the past,
albeit with a note
of caution, reluctantly allowed the appeal to proceed even though the
requirements were not met.’
[13]
[50]
This indicates that the court always has a discretion, although it
must exercise it sparingly.
This was underscored by the minority
judgment in
Molope
, wherein it was stated that:
‘
The
State’s failure to comply with the requirements of s 319 was
not exclusively of its making. It was faced with an unclear
judgment
by the trial court and its failure to state the facts upon which it
reserved the point of law.
Secondly,
as I shall demonstrate below, it is possible to glean the factual
findings of the trial court, which give rise to the
dispute over the
point of law, without difficulty or contestation. And finally, as I
shall also demonstrate, despite the shortcoming
in its formulation of
the point of law, in substance what we are concerned with here is a
dispute over a point of law and not merely
dispute over the trial
court’s assessment of the facts. These factors cumulatively
outweigh whatever prejudice the respondents
may suffer by allowing
the appeal to proceed
.’
[14]
(Emphasis added.)
[51]
I do not read the line of authority, and in particular
Molope
,
to suggest that failure by the State to set out facts fully in its s
319 application, as explained in various judgments, is not
condonable. What is important, in my view, is whether the question of
law sought to be reserved and the facts upon which the findings
hinge
can be ascertained from the judgment and the record. This case, in my
view, is not one of those where the appeal court will
need to trawl
through the record to learn what the factual findings of the court
are, inadequate as they may be.
[52]
Counsel for the applicant conceded that the factual findings upon
which the proposed questions
of law hinge were not fully set out in
the application, as required by the judgments in
Molope
and
Schoeman
. This case, in my view, is distinguishable on the
facts from
Schoeman
and
Molope.
In
Schoeman
and
Molope
, factual findings underlying the conclusion that the
court reached in those cases were found to be unclear. In that sense,
facts
had to be clarified in order to adjudicate the correctness of
the decision. In the present case, however, the facts are clear. The
trial court’s conclusions giving rise to the query over the
points of law raised can be clearly gleaned from the judgment
without
any difficulty.
[53]
The thrust of the trial court’s findings was that there was no
prior agreement established
on the facts. The facts pointed out being
the evidence led by Chabi on the fact that he and the respondent had
an agreement to
rob the deceased’s vehicle the day before the
incident. That is central to the entire judgment. The following key
findings
are apparent in the trial court’s judgment:
‘
[95]
It is quite clear that the evidence by Keorapetse Shabalala in terms
of an agreement between him and the accused falls within
the ambit of
section 208. Keorapetse Shabalala was the only witness by the state
that can testify about an agreement that existed
between himself and
the accused.
[.
. .]
[99]
. . . The present case clearly demonstrates that the existence or
non-existence of an agreement to rob the deceased of her
motor
vehicle, was allegedly found on a private and personal agreement
between the accused and Keorapetse Shabalala, without any
knowledge
of third parties. This clearly excludes the evidence alliunde and the
court has to be almost exclusively reliant on a
credibility finding
of the accused and Keorapetse Shabalala, including an assessment of
probabilities.
[.
. .]
[102]
This court is clearly seized with the dilemma that to find the
existence or non-existence of an agreement between the accused
and
Keorapetse Shabalala. It would be important for this court to compare
the nature and quality of the evidence of Keorapetse
Shabalala with
that of the accused. This court draws some sol[a]ce from the matter
of
S v Maake
[15]
where the court was satisfied that the magistrate had properly,
cautiously and correctly approached the evidence of both the
appellant
and the complainant. His reasoning could not be faulted. He
properly assessed the quality and nature of the complainant’s
evidence as well as the fact that her version of the events
immediately after the alleged rape had been corroborated in material
respects by an independent witness. This court however does not have
the benefit of an independent witness when it comes to the
existence
or non-existence of an intimate agreement to kill the deceased and to
take her motor vehicle and certain movable assets.
[.
. .]
[123].
There were also inconsistencies and contradictions in the evidence of
the accused. Most prominently are those that relat[e]
to the fact
that he never tried to disassociate himself with the commission of
the crime. He however told the court that he was
scared of Chabi. It
was furthermore strange to the court that when Chabi eventually
dropped him off close to his house in Elandsrand
he still did not
confide in his parents nor the police about what happened. He however
gave the court some explanation of the reasons
why he did not
disassociate. He testified that he feared for his life and that of
his family. He furthermore rationalized that
he has only one subject
left to write examination on whereafter he and his family is going to
move to Rustenburg and that would
be the best way to come clean on
this issue.
[.
. .]
[127]
In the end I find that the state did not prove its case beyond
reasonable doubt. I reject the version of the state witness,
Keorapetse Shabalala, insofar as he testified about the existence of
an agreement between himself and the accused to take the motor
vehicle of the deceased. His testimony was riddled with
inconsistencies and contradictions in terms of the alleged agreement
between
himself and the accused on material aspects.
[128]
The above coupled with the fact that Keorapetse Shabalala was a
single witness, that presuppose a cautionary rule on this
court, the
court, on the totality of the evidence finds that the accused is not
guilty on all the charges against him.’
[54]
To the extent that there were any inadequacies in setting out the
facts in the trial court’s
main judgment, in its judgment
refusing the reservation of the point of law (refusal judgment), the
trial court set out the facts
upon which its findings were based in
para 35 as follows:
‘
It
was in fact the objective evidence in its totality that played a
major role in the trial court rejecting Chabi’s version
of the
existence of an agreement between himself and the accused. In this
regard Chabi’s evidence was of a very poor quality.
The
objective evidence that refuted Chabi’s version are, but not
limited to, the following:
35.1
The material contradictions in the evidence of Chabi when it relates
to the reason why they needed the vehicle of the deceased’s.
See in this regard paragraph [110] and [117] of the judgment.
35.2
The version of Chabi that he shot the deceased in self-defence is
highly unlikely.
35.3
Evidence by the accused that Chabi bullied him, which was to some
extent corroborated by witnesses and more specifically, Mr
Chris
Benade and Mrs Mohau Grootboom.
35.4
The fact that Chabi stated that after they asked the witness, Andries
Van der Walt, for the masking tape they went back to
class, was
clearly a lie. See in this regard paragraph [107] point 6 of Chabi’s
guilty plea. Also paragraph [111] of the
judgment.
35.5
Chabi in his
viva voce
evidence said he tried to deceive the
police by intentionally handing the wrong tape to the police. See
paragraph [115] of the
judgment.
35.6
Finally, W/O M.B. Mmatli testified that Chabi’s father stated
that Chabi admitted that the accused pulled the trigger
of the
firearm that killed the deceased. Chabi only later confessed that he
pulled the trigger. See paragraph [43] of the judgment.’
Based
on what is stated above, I am of the view that non-compliance with
the requirements should be condoned.
[55]
I now turn to consider the merits. While the applicant put forward
four points of law, there
are in essence only two questions worth
considering in my view: First, whether the trial court erred in law
by focusing solely
on the question of prior agreement as an element
of common purpose to the exclusion of other elements, and in the
process purposely
excluding other evidence; second, whether the trial
court’s failure to assess and make a finding that the
respondent’s
version was reasonably possibly true, and fell
within the scope of the defence of necessity, amounted to an
error of law.
These are the fourth and the second questions the
applicant seeks to reserve. The first and third questions are
questions of fact.
I will accordingly not deliberate on them any
further.
[56]
In
Magmoed
v Janse van Rensburg and Others
,
[16]
the court
affirmed the well-known dictum of De Villiers CJ in
Queen
v Judelman
[17]
that reflects
the essence of what qualifies as a question of law, that is
‘[w]hether certain facts constitute a definite crime
is a
question of law’.
[18]
Elaborating
on the meaning of this dictum, in
Magmoed
,
the court held that:
‘
It
is a genuine question of law
(a)
whether
the evidence against an accused was such that there was a case to go
to the jury or that there were grounds upon which
the jury could
legally convict the accused of the crime charged;
or (b) whether
the proven facts bring the conduct of the accused within the ambit of
the crime charged
.
Category
(a)
above
is more relevant to question 6 and I shall consider it more
fully when I come to deal with that question. As the
quotation from
the judgment of Feetham JA indicates,
category (b) involves
an enquiry as to the essence and scope of the crime charged by asking
whether the proven facts in
the particular case constitute the
commission of the crime. This is clearly a question of law
.
But, in my opinion, a question of law is not raised by asking
whether the evidence establishes one or more of the factual
ingredients of a particular crime, where there is no doubt or dispute
as to what those ingredients are.’
[19]
(Emphasis added.)
[57]
The applicant alleged that Chabi and the respondent acted with common
purpose. In order to convict
the accused on the charge of murder, the
applicant needed to prove that the respondent had acted in common
purpose (by prior agreement
or active association) together with the
requisite intent.
[20]
The acts of
Chabi would then be imputed to the accused. The above must be borne
in mind when determining whether the proven facts
fell within the
scope of these offences.
[58]
The meaning of common purpose was summarised as follows in
Magmoed
:
‘
Where
it appears that the accomplishment of the common aim involved, either
directly or indirectly, the unlawful killing of another
human being
and
where
it appears that a participant (A) knew this or foresaw it as a
possibility and yet persisted in his participation reckless
of the
consequences,
then if an unlawful killing did ensue such a participant will be
guilty of murder irrespective of the fact that another participant
actually perpetrated the murder and irrespective of the fact that
there was no causal connection between his (A's) own conduct
and the
death of the deceased.’
[21]
(Emphasis added.)
[59]
As can be seen from the findings of the trial court, its point of
departure was that it was
only
the
prior agreement that would need to be proven in order to secure the
conviction of the respondent. It is apparent that the fourth
question
of law that the applicant seeks to reserve is one that falls under
category (b) noted in
Magmoed
above. What fortifies the question as being one of law and not fact
is that there appears to have been a material misdirection
on the
part of the trial court in construing what the elements of common
purpose are; specifically, that common purpose could have
been
constituted by either prior agreement or active association. ‘
A
finding that a person acted together with one or more other persons
in a common purpose is not dependent upon proof of a prior
conspiracy. Such a finding may be inferred from the conduct of a
person or persons.’
[22]
[60]
When the trial court constrained itself to prior agreement as the
basis for common purpose, it
expressly excluded the evidence
aliunde
and restrained itself to the evidence of the respondent and Chabi
regarding the alleged existence of an agreement. This is in spite
of
the fact that the court had simultaneously implied a finding that
there was an active association, specifically that the respondent
‘never tried to disassociate himself with the commission of the
crime . . . He however gave the court some explanation of
the reasons
why he did not disassociate’.
[61]
The trial court, in my view, not only erred in law by constraining
itself to the question of
prior agreement, but erred in a further
respect, in that, by
expressly
excluding other evidence, it went against a trite principle to be
applied in criminal trials as set out in
S
v Van den Meyden
,
[23]
and endorsed
in numerous decisions, that the trial court ‘must account for
all the evidence. Some of the evidence might be
found to be false;
some of it might be found to be unreliable and some of it might be
found to be only possibly false or unreliable,
but none of it may
simply be ignored’.
[62]
The trial court’s approach of assigning itself to comparing the
evidence of only two witnesses,
Chabi and the respondent (on the
issue of the agreement) without considering the impact that the other
evidence placed before the
court might have on the credibility of the
two witnesses was a material misdirection of the law. The intentional
exclusion of direct
evidence of objective individuals in respect of
the relationship between the two witnesses constituted a material
error of the
law.
[63]
The issue however does not end there. While the court misdirected
itself by focusing solely on
prior agreement, which need not be shown
to prove common purpose, the trial court proceeded to make a finding
that the respondent
‘feared for his life and that of his
family’. A factual finding, albeit scant, has been made that
the responded acted
out of necessity, which is the reason the trial
court attributed to the respondent’s failure to disassociate
himself from
the commission of the crime. The trial court did not
demonstrate how it reached that conclusion. In its refusal judgment,
the trial
court referred to its summary of the evidence, detailed
case law on necessity, and its finding which were captured in one
sentence
stating, ‘there was thus no duty upon the accused to
sacrifice serious injury or his life to protect the deceased from
harm
and/or death’.
[64]
While one may be critical of the trial court’s clear failure to
assess the evidence of
the respondent as against the requirements of
necessity (particularly the fact that the respondent accepted that
his life was not
threatened at any stage by Chabi during the
commission of the crime), that issue remained a question of fact,
which this court
is not at liberty to interfere with. It is an
enquiry that involves judicial process of evaluating evidence. In the
end, the fact
that the trial court erred by confining itself to the
question of prior agreement becomes academic.
[65]
For these reasons, the application for leave to appeal is dismissed.
N
P MABINDLA-BOQWANA
ACTING JUDGE
OF APPEAL
Appearances
For
appellant:
A Coetzee
Instructed
by:
Director of Public Prosecutions, Gauteng
Director
of Public Prosecutions, Bloemfontein
For
respondent:
D J Combrink
Instructed
by:
Du Toit Attorneys, Centurion
Lovius
Block Attorneys, Bloemfontein
[1]
Section 17(2)
(d)
of the
Superior Courts Act 10 of 2013
reads:
‘
The
judges considering an application referred to in paragraph
(b)
may dispose of the application without the hearing of oral argument,
but may, if they are of the opinion that the circumstances
so
require, order that it be argued before them at a time and place
appointed, and may, whether or not they have so ordered,
grant or
refuse the application or refer it to the court for consideration.’
[2]
Section
317(5)
of the
Criminal Procedure Act 51 of 1977
reads:
‘
If
an application for condonation or for a special entry is refused,
the accused may, within a period of 21 days of such refusal
or
within such extended period as may on good cause shown, be allowed,
by petition addressed to the President of the Supreme
Court of
Appeal, apply to the Supreme Court of Appeal for condonation or for
a special entry to be made on the record stating
in what respect the
proceedings are alleged to be irregular or not according to law, as
the case may be, and thereupon the provisions
of subsections (11),
(12), (13), (14) and (15) of
section 316
shall
mutatis
mutandis
apply.’
[3]
See the
definition of appeal in
s 1
of the
Superior Courts Act: ‘“appeal
”
in Chapter 5, does not include an appeal in a matter regulated in
terms of the Criminal Procedure Act, 1977 (Act No. 51
of 1977), or
in terms of any other criminal procedural law’.
[4]
See also
Director
of Public Prosecutions: Limpopo v Molope and Another
[2020] ZASCA 69
;
2020 (2) SACR 343
(SCA);
[2020] 3 All SA 633
(SCA)
paras 44 and 45, where the State had similarly summarised the
evidence that was led in the trial court without setting
out the
trial court’s factual finding in its s 319 application. Even
though the trial court did not frame the question
of law in its
judgment, nor did it record the factual findings on which the
purported point of law was dependant, the State did
not request the
trial court to clarify its findings. Despite these shortcomings, the
trial court accepted that there were questions
of law that had to be
reserved and granted the State’s 319 application. On appeal,
this Court said that the requirements
of s 319 had not been complied
with, and it was incumbent on the State to request the trial court
for its factual findings so
that the questions of law could be
properly framed and considered; See also
Director
of Public Prosecutions: Western Cape v Schoeman and Another
[2019] ZASCA 158
;
2020 (1) SACR 449
(SCA) para 44, where the trial
court had refused the s 319 application. On appeal to this Court,
the State had not complied with
the requirements for reserving
questions of law under s 319, and therefore the State had not
properly reserved its points of
law.
[5]
S v Boekhoud
[2011] ZASCA 48
;
2011 (2) SACR 124
(SCA) para 34.
[6]
Director of Public
Prosecutions: Western Cape v Schoeman and Another
[2019] ZASCA 158
;
2020 (1) SACR 449
(SCA) para 40.
[7]
Director of Public
Prosecutions: Western Cape v Schoeman and Another
[2019] ZASCA 158
;
2020 (1) SACR 449
(SCA) para 1.
[8]
Ibid para 39.
[9]
Director of Public
Prosecutions: Natal v Magidela and Others
[2000]
ZASCA 4
;
[2000] 2 All SA 337
(A);
[2000] JOL 6331
(A) para 9.
[10]
Ibid fn 1 para 40.
[11]
S v Petro Louise
Enterprises (Pty) Ltd and Others
1978
(1) SA 271 (T).
[12]
Director of Public
Prosecutions: Limpopo v Molope and Another
[2020] ZASCA 69; [2020] 3 All SA 633 (SCA); 2020 (2) SACR 343 (SCA).
[13]
Ibid para 57.
[14]
Ibid para 13.
[15]
Maake
v Director of Public Prosecutions
[2010] ZASCA 51; 2011 (1) SACR 263 (SCA); [2011] 1 All SA 460 (SCA)
paras 6-8.
[16]
Magmoed v Janse van
Rensburg and Others
[1992]
ZASCA 208
;
1993 (1) SA 777
(AD);
[1993] 4 All SA 175
(AD);
[1993] 1
All SA 396
(A).
[17]
Queen v Judelman
(1893) 10 SC 12.
[18]
Ibid at 15.
[19]
Magmoed
paras 27-28.
[20]
Molope
para 15.
[21]
Magmoed
para 37.
[22]
C R Snyman
Criminal
Law
4 ed (2002)
at 260.
[23]
S v Van der Meyden
1999
(1) SACR 447
(W) at 449H.