Tuta v The State (CCT 308/20) [2022] ZACC 19; 2023 (2) BCLR 179 (CC); 2024 (1) SACR 242 (CC) (31 May 2022)

CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 308/20

In the matter between:


LIQHAYIYA TUTA Applicant

and

THE STATE Respondent



Neutral citation: Tuta v The State [2022] ZACC 19

Coram: Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J,
Mlambo AJ, Theron J, Tshiqi J and Unterhalter AJ


Judgments: Unterhalter AJ (majority): [1] to [81]
Kollapen J (dissenting): [82] to [187]

Heard on: 8 February 2022

Order issued on: 13 May 2022

Reasons issued on: 31 May 2022

Summary: Jurisdiction — oral submissions — arguable point of law —
application of incorrect legal test — no prejudice arising

Extempore judgment — ambiguity in judgment — rules of
interpretation — rights of the accused

Putative private defence — application of incorrect legal test —
misapplication of established legal principle — arguable point of
law

UNTERHALTER AJ




REASONS FOR ORDER




UNTERHALTER A J (Madlanga J, Majiedt J, Mathopo J, Mhlantla J, Theron J and
Tshiqi J concurring):


Introduction
[1] The applicant, Mr Liqhayiya Tuta, was tried before the High Court of South
Africa, Gauteng Division, Pretoria 1 (High Court). He was convicted on a count of
murder and a further count of attempted murder. The applicant was sentenced to life
imprisonment on the count of murder and 15 years’ imprisonment on the count of
attempted murder. He has approached this Court to seek leave to appeal, and an order
setting aside his conviction and sentence.

[2] On Friday, 13 May 2022, this Court made the following order:
1. Leave to appeal is granted.
2. The appeal is upheld and the conviction and sentence are set aside.
3. The order of the High Court of South Africa, Gauteng Division, Pretoria
is replaced with the following:
“The accused is found not guilty and acquitted.”
4. The Head of the Kgosi Mampuru II Central Correctional Centre,
Pretoria, alternatively the Head of the Johannesburg Correctional
Service, or the Head of the relevant facility where the applicant has been
transferred to, is directed to release the applicant, Mr Liqhayiya Tuta,
from prison immediately.
1 S v Tuta [2019] ZAGPPHC 1059 (High Court judgment).
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UNTERHALTER AJ
5. Reasons for this order shall be given at a later date.

[3] Paragraph 5 of the order stated that reasons would be given at a later date.
These are the reasons.

Background
[4] On 2 March 2018, at about 23 h00, the applicant accompanied his friend to his
residence in Sunnyside, Pretoria. The applicant and his friend realised that they were
being followed by a red unmarked motor vehicle with its occupants wearing civilian
clothing. The applicant and his friend panicked and ran away , believing that the
occupants of the vehicle intended to harm them. They ran in different directions.

[5] The two occupants of the unmarked motor vehicle were, in fact, police officers .
They were on duty patrolling Sunnyside, Pretoria, in civilian clothing. According to
the testimony of Constable Lawrence Makgafela (Constable Makgafela), he and his
partner, Constable Nkosinathi Kenneth Sithole (Constable Sithole), attempted to arrest
the applicant after he and his friend ran away. The police officers suspected the
applicant of being in possession of a stolen laptop because, according to the testimony
of Constable Makgafela, it appeared as if the applicant was hiding a laptop under his
tracksuit jacket. They pursued him, first in the unmarked car, and thereafter on foot.
Constable Makgafela ran after the applicant and his friend. Constable Makgafela
testified further that, even though he was wearing civilian clothing, he also wore a
bullet proof vest bearing the South African Police Service (SAPS) insignia. He
removed the vest to give chase to the applicant, after realising that it slowed him
down. Constable Makgafela and his partner overpowered the applicant, and whilst his
partner held the applicant down, Constable Makgafela went to the vehicle to fetch
handcuffs. The applicant, using a flick knife that was in his pocket, then stabbed
Constable Sithole. When Constable Makgafela returned, the applicant stabbed him in
the head. Constable Sithole was admitted to Muelmed Hospital on 3 March 2018, and
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UNTERHALTER AJ
died on the same day. Constable Makgafela was hospitalised for 34 weeks and now
lives with a severely injured left eye that has affected his eyesight.2

[6] The applicant gave evidence. He admitted to stabbing both police officers, and
testified that he thereafter left the scene immediately to seek help. He testified that,
after failing to receive assistance from security guards in the vicinity , he went to his
residence. There he told the security guard what had happened, and also called his
sister to tell her.

[7] The following day, the applicant, accompanied by his sister, went to the police
station to report the matter. They were informed by the police that a case could not be
opened because the applicant could not identify his attackers . The applicant left his
contact details and residential address with the police officer on duty. He was arrested
later that day at his residence. The applicant handed over the denim jacket that he had
been wearing the previous night. When the police demanded he hand over the stolen
laptop, the applicant informed them he had not been carrying a laptop.

Litigation history
High Court
[8] The applicant was charged with one count of murder for killing
Constable Sithole, and one count of attempted murder for stabbing
Constable Makgafela in the head. He pleaded not guilty to both counts. On
19 September 2019, the applicant was convicted on the charges of murder and
attempted murder.
3 The minimum sentence for killing a police officer is life
imprisonment and the High Court found no substantial and compelling circumstances
that permitted it to impose a lesser sentence. 4 The applicant was sentenced to
15 years’ imprisonment on the count of attempted murder.
2 Id at para 5.1.
3 Id (judgment on sentence) at paras 3 and 16-8.
4 Id (judgment on sentence) at para 15.
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UNTERHALTER AJ

[9] The applicant made an application to the High Court for leave to appeal against
his conviction. On 13 December 2019, that application was refused.

Supreme Court of Appeal
[10] On 13 January 2020, the applicant lodged an application for leave to appeal
with the Supreme Court of Appeal. That application was dismissed on 30 April 2020
on the basis that it had no reasonable prospects of success.

[11] On 22 June 2020, the applicant filed an application to the Supreme Court of
Appeal in terms of section 17(2)(f) of the Superior Courts Act, 5 requesting the
President of the Supreme Court of Appeal to reconsider the Court’s decision to refuse
the application for leave as there were exceptional circumstances to do so. 6 On
25 November 2020, the President of the Supreme Court of Appeal dismissed the
application for reconsideration.

Before this Court
[12] The applicant’s written and oral submissions differ in material respects.
Therefore, I shall treat them separately. The parties were directed by this Court to file
supplementary written submissions to address the question whether the finding of the
trial court that there were no substantial and compelling circumstances so as to deviate
from the minimum sentence is a matter of sentencing discretion or a value judgment.
This particular issue was not previously raised by the parties.

5 10 of 2013.
6 Section 17(2)(f) of the Superior Courts Act confers a discretion on the President of the Supreme Court of
Appeal, in exceptional circumstances, to refer a decision of that C ourt, refusing an application for leave to
appeal, to the Court for reconsideration and, if necessary, variation.
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UNTERHALTER AJ
Applicant’s written submissions
[13] The applicant advance d two grounds which, he contended, engage this Court’s
jurisdiction and serve as the basis for the applicant’s leave to appeal against his
conviction.

[14] The first ground is the infringement of the applicant’s right to a fair trial in
terms of section 35(3) of the Constitution. The second ground is that the matter raises
an arguable point of law of general public importance which ought to be considered
by this Court, namely , the High Court’s misapplication of the test for putative private
defence.

Right to a fair trial – conduct of the Presiding Officer
[15] The applicant submitted that, as a result of the trial Judge’s intervention, the
prosecutor did not cross-examine him regarding his intention. As a result of this
irregularity, he was not informed about the State’s case insofar as it related to his
intention, namely—

“whether the State’s case was that he knew that the assailants were policemen
(dolus directus), or that he foresaw that they could be policemen and acted regardless
(dolus eventualis), or that he may not have known but should have foreseen that they
were policemen (negligence).”

The applicant also submitted that the prosecutor had not “taken a clear position on this
during his opening address”. Therefore, the applicant was not cross-examined
regarding his state of mind. The applicant relied on this Court’s decision in Molimi in
which it was held that “[t]he right of the accused at all important stages to know the
ambit of the case [she or he] has to meet goes to the heart of a fair trial”.
7 The
applicant submitted that this irregularity undermined his right to a fair trial and raised
7 S v Molimi [2008] ZACC 2; 2008 (3) SA 608 (CC); 2008 (5) BCLR 451 (CC) (Molimi) at para 54.
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UNTERHALTER AJ
“a legal question of general public importance at the heart of our system of criminal
justice”.

[16] The applicant advance d an additional ground upon which he relied to appeal
against his conviction. He submitted that the trial court rejected evidence that was not
disputed by the State . The evidence referenced the conduct of the applicant after he
had stabbed the police officers. This, the applicant argued, also constituted an
irregularity. The applicant relied upon this Court’s judgment in Van der Walt 8 and
contended that in Van der Walt this Court upheld an appeal agains t conviction on the
basis that the t rial court relied on exhibits, belatedly, in its judgment, so that the
accused did not know during his trial that the exhibits would be relied upon. 9 The
applicant argued that the same principle applied to the evidence of an accused that was
not disputed by the prosecution.

[17] The applicant’s evidence regarding the measures he took to attempt to report
the incident was not disputed by the respondent. However, it was rejected by the
trial court.
10 This was despite Constable Makgafela testifying that he would not have
been able to identify the applicant after the incident, and yet the applicant was
nevertheless arrested at his place of residence. This, the applicant submitted ,
corroborated his version that he went to the police station and tried to report the
matter.

Arguable point of law of general public importance
[18] The applicant relied upon a second ground upon which to found jurisdiction.
He contended that this Court enjoys jurisdiction on the basis that the case raises an
arguable point of law of general public importance which ought to be considered by
8 Van der Walt v S [2020] ZACC 19; 2020 (2) SACR 371 (CC); 2020 (11) BCLR 1337 (CC).
9 Id at para 30.
10 High Court judgment above n 1 at para 21.
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UNTERHALTER AJ
this Court. The applicant, rel ying upon Paulsen,11 submitted that there was an
incorrect application of the test for putative private defence by the trial court. 12

Applicant’s oral submissions arguable point of law of general public
importance
[19] Some confusion arose, in the course of oral argument, as to what test the
trial court had adopted and applied in respect of the issue of putative private defence.

[20] First, the record filed by the parties with this Court did not correspond with the
papers referred to by counsel during oral submissions. Second, the High Court
judgment filed by the parties was not (or at least, did not appear to be) the judgment
referred to by counsel during oral submissions. This has created some uncertainty.
Therefore, I shall refer to the test for putative private defence referenced in (a) the
judgment contained in the record filed with this Court, and (b) the judgment available
on SAFLII (also referred to during oral submissions).

The judgment in the record filed with this Court
[21] This judgment (on conviction), dated 19 September 2019, is an unsigned
extempore judgment. It states—

“the accused defence firstly amounts to private defence, or more commonly known as
self-defence. A defence excluding unlawfulness, where the test is objective, and
secondly, putative self-defence which relates to the accused state of mind and where
the test is objective. The test to be applied in respect of the accused, he generally held
it mistakenly believed that he was acting in lawful self -defence, or whether his belief
was also held on reasonable doubt.” (Emphasis added.)
11 Paulsen v Slip Knot Investments 777 (Pty) Limited [2015] ZACC 5; 2015 (3) SA 479 (CC); 2015 (5) BCLR
509 (CC) at para 30.
12 An introductory summary of the applicant’s written submissions. states that “the trial court failed to apply the
correct legal test to determine whether the applicant’s defence that he acted in putative private or self -defence
was reasonably possibly true”. However, the applicant’s written submissions argue the case th at the test was
applied incorrectly, not that the incorrect test was applied. The latter was argued by the applicant during oral
submissions.
8

UNTERHALTER AJ

The judgment available on SAFLII and found in the court file
[22] This judgment (on conviction), dated 19 September 2019, is signed by the
Judge and states:

“The accused’s version, as mentioned above is that he acted in self -defence, and that
he did not know that the people who attacked him were policemen executing their
duties. As mentioned above, his defence amounts to putative self-defence. The test is
subjective, in other words, what the accused had in mind, objectively considered.” 13
(Emphasis added.)

The differences in the formulation of the test for putative private defence in these two
versions of the judgment of the trial court are matters to which I shall return.

[23] During oral submissions, the applicant did not argue that the trial court
misapplied the test for putative private defence. Instead, the applicant argued that the
trial Judge misunderstood the test. The applicant’s submissions relied primarily on
the contention that the trial court failed to articulate the test for putative private
defence correctly and that it conflated the requirements for fault and negligence when
articulating the test. This incorrect understanding of the test for putative private
defence, the applicant argued, constitutes a failure of justice.

Appeal on sentence
[24] In the event that the appeal against the applicant’s conviction was unsuccessful,
the applicant submitted that the imposition of a sentence under mandatory minimum
sentencing legislation, and the determination by the trial Judge as to whether there are
substantial and compelling circu mstances warranting a departure from the mandatory
minimum sentence, is not a true discretion insulated from interference on appeal.
Rather, the determination is a value judgment that permits of appellate correction,
13 High Court judgment above n 1 at para 8.
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UNTERHALTER AJ
absent which, legislative mandatory minimum sentencing infringes the constitutional
right to a fair trial.

Respondent’s submissions
[25] The respondent submitted that it is not in the interests of justice for leave to be
granted. The respondent relied on this Court’s decision in Paulsen in which it held
that “the interests of justice factor aims to ensure that the court does not entertain any
and every application for leave to appeal brought to it”.14

[26] The respondent also submitted that the applicant’s legal counsel did not raise
any complaints with the trial Judge, which counsel could have done. According to the
respondent, the applicant’s rights were not infringed and no irregularities occurred.

Arguable point of law of general public importance
[27] On the evidence, the respondent contended that the applicant was well aware
that he was pursued by police officers . The police officers were wearing bullet proof
vests with the SAPS insignia and it was not disputed that the streetlights were on
when the applicant was spotted by the police. In addition, the police off icers
identified themselves to the applicant. Accordingly, the applicant did not act in
putative private defence and the conviction is unassailable.

Appeal on sentence
[28] The respondent, with reference to Malgas,
15 submitted that the court’s
discretion in imposing the prescribed minimum sentence is limited. Furthermore, so it
was contended, there is no rule preventing a court from sentencing a first time
offender to direct imprisonment, especially in such severe cases. Thus, the sentence is
justified.
14 Paulsen above n 11 at para 30.
15 S v Malgas [2001] ZASCA 30; 2001 (2) SA 1222 (SCA) (Malgas) at para 25.
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UNTERHALTER AJ

Jurisdiction and leave to appeal
Fair trial
[29] The applicant contended that the curtail ment of the prosecution’s
cross-examination of him by the trial Judge resulted in the applicant not knowing the
prosecution’s case as to his state of mind. Since the applicant’s case rested upon
putative private defence, it was essential for the applicant to have known what the
prosecution alleged his state of mind to have been. Did the prosecution’s case rest
upon the allegation that the applicant knew that his assailants were police officers; or
that he had foresight that they were police officers, and acted heedless of such
foresight; or that the applicant acted when he ought reasonably to have recognised that
his assailants were police officers? These states of mind constitute different species of
fault, and the applicant was entitled to know, precisely, the case made against him.
This, it was submitted on behalf of the appl icant, was an irregularity of sufficient
seriousness so as to undermine the applicant’s right to a fair trial. Following Van der
Walt,16 an irregularity of this kind engages the jurisdiction of this Court.

[30] Not every allegation of an infringement of fair trial rights will engage the
jurisdiction of this Court. 17 An irregularity must be “sufficiently serious as to
undermine basic notions of trial fairness and justice”. 18 I turn to consider whether the
applicant’s complaint that the trial court’s curtailment of his cross-examination by the
prosecution amounted to an irregularity is warranted; and if so, whether this Court’s
jurisdiction is indeed engaged.

[31] In the course of the trial, and towards the end of the prosecution’s
cross-examination of the applicant, the following intervention took place by the
trial Judge:
16 Van der Walt above n 8 at para 15.
17 S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC) (Boesak) at para 15.
18 Van der Walt above n 8 at para 15.
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UNTERHALTER AJ

“MS ROOS [counsel on behalf of the respondent] : Constable [ Makgafela] said that
the first time he saw you he followed you on foot a nd he was wearing his reflector
bullet proof vest.
ACCUSED: As I testified that the first time we saw this red Polo it was at the
T Junction at Riley Street and the people that I saw, none of them was wearing a
bullet proof vest.
COURT: Ms Roos, is the re any sense in confronting the accused with the state’s
evidence at this point in time, you know what his version is.
MS ROOS: Yes, M’Lord, as long as there. . . [intervenes]
COURT: Now move on please.
MS ROOS: . . . is not an inferen ce drawn from the fact that the state did not put it,
M’Lord, then I can leave that, M’Lord.
COURT: Yes.”

[32] This intervention was misplaced. The point of the cross-examination was not
simply to permit the prosecution to ascertain and then test the applicant’s version. At
this stage of the trial, it was doubtless true that the prosecution did understand the
applicant’s version. The trial court lost sight of the elementary proposition that the
cross-examination of the accused by the prosecution requires that the prosecution
must put its case to the accused. The trial c ourt’s impatience was unwarranted and
irregular because the prosecution was engaged upon an essential task – to put its case
to the applicant. The question that arises is this: is the trial rendered unfair, upon the
interruption by the trial Judge of the prosecution’s efforts to put its case to the
accused?

[33] The intervention of which the applicant complains was the curtailment of the
prosecution’s cross-examination of the applicant. This curtailment was, in the first
place, a disability placed upon the prosecution. The prosecution sought to put its case
to the applicant and was prevented further from doing so. That may have important
entailments. The State must discharge its burden of proof. The prosecution must put
its case to an accused. A failure to do so, or to do so sufficiently, will have a bearing
upon the trial court’s assessment of the evidence led at trial. In this case, as we shall
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UNTERHALTER AJ
see, the cross -examination of the applicant, up to the point of the trial Judge’s
intervention, had already traversed some im portant aspects of the State’s case. What
remained to be done by the prosecution may have affected the trial court’s assessment
of the applicant’s testimony and whether the State had discharged its burden of proof.
But to determine this would require an assessment of all the evidence before the
trial court. Such an assessment amounts to an appeal on a question of fact, a matter
outside the jurisdiction of this Court. 19 It is also not a ground of appeal relied upon by
the applicant.

[34] Is the intervention by the trial Judge, apart from the disability placed upon the
prosecution, then, also an irregularity that compromised the applicant’s right to a fair
trial? The applicant contended, as I have explained, that he did not know the State’s
case against him as to his state of mind. However, in the summary of substantial
facts, the central issue in the trial was framed in the following way:

“The officials pinned the accused down. The accused said that he was not aware that
they were polic e officers. The complainant in count 2 produced his appointment
certificate and demanded an explanation for the laptop. The accused did not answer.”

[35] This passage made it plain that the State’s case was that Constable Makgafela
had identified himself as a police officer, and thus the applicant was aware that his
pursuers were police officers. For this reason, according to the State’s case, the
applicant could not maintain that he was unaware that his assailants were police
officers.

[36] The prosecution developed this case in the course of the evidence it led at trial.
The State called Constable Makgafela. He testified that when he had given chase, he
had shouted the words “stop police”. When he and Constable Sithole caught up with
the applicant, who fell to the ground, Constable Makgafela testified as follows:

19 Boesak above n 17 at para 39.
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UNTERHALTER AJ
“My first question to him was ‘do you think that you can outrun the police? ’. . . His
answer to the question I asked, he said ‘I did not know that you were the police’. I
then took out my wallet and I presented my appointment card to him”.

[37] It is plain from the cross-examination of Constable Makgafela that the
applicant’s counsel was aware of the significance of Constable Makgafela’s evidence,
and, in particular, that, according to Constable Makgafela, he had identified himself to
the applicant as a police officer. Counsel for the applicant explained that the applicant
had asked his assailants, “what are you doing?”. Constable Makgafela testified that he
had answered, “we are the police”. Counsel probed when it was that
Constable Makgafela had taken off his bullet proof vest which identified him as a
police officer. Counsel also put the applicant’s version to Constable Makgafela. He
put the matter this way: “You see the accused’s version is that you were trying to put
him into the car and then he feared that he was either kidnapped or hijacked, it does
not matter”. And later counsel framed his client’s case thus: “[The] [a]ccused will say
that he stabbed you and Sithole . . . he was acting in self -defence”. To which
Constable Makgafela responded, “No M’Lord he will be lying by so saying because
he already knew by the time that we were police officers”. Counsel then said: “The
accused will deny that he knew at any stage that you were police officers”.

[38] These exchanges leave no doubt that the applicant understood the State’s case
as to his state of mind at the time that he stabbed the police officers. That case was
quite simply that the applicant knew that he was being arrested by police officers, and
hence he could not maintain that he was acting in the belief that he was defending
himself against an attack by violent assailants.

[39] After Constable Makgafela had testified, the State closed its case. The
applicant elected to testify. Before doing so, the applicant did not complain that he
was unclear as to the State’s case against him. His counsel sought no further clarity
from the State, and voiced no concern that his client’s election to testify was in any
way compromis ed. In his evidence -in-chief, the applicant’s counsel dealt head-on
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UNTERHALTER AJ
with the issue of his state of mind. The following evidence was led by the applicant’s
counsel:

“Mr Engelbrecht: Okay, did you at any stage know that the two aggressors whom you
stabbed were members of the SAPS?
Accused: No, I did not know, I only learned when I was arrested by the police.
Mr Engelbrecht: Now any of the two or both of them were they wearing police vest s,
bullet proof vests.
Accused: No, they were both wearing civilian clothes.
Mr Engelbrecht: And did any of them show you their appointment certificate as
members of the SAPS?
Accused: None of them did.”

[40] This passage from the applicant’s evidence-in-chief leaves no doubt that the
applicant and his counsel understood the State’s case to be that the applicant knew at
the time that he stabbed his assailants that they were police officers.

[41] In the cross-examination of the applicant, and before the trial Judge’s
intervention, the prosecutor put the testimony of Constable Makgafela to the
applicant. The following passage is salient:

“Ms Roos: But you said then yourself you asked them what you have done wrong and
the police officer told the Court there was this discussion about where did you get the
laptop they informed you that they are police officers.
Accused: That is not true what they said.”

[42] The prosecutor, later in the cross-examination, raised with the applicant that
Constable Makgafela had testified that he was wearing his bullet proof vest. The
applicant answered that he had not seen this. It was then that the trial Judge
intervened and required the prosecutor to move on, as he saw no point in conf ronting
the applicant with the State’s evidence.

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UNTERHALTER AJ
[43] However, at this point in the cross-examination of the applicant, the essential
features of the State’s case as to the applicant’s state of mind had already been put to
the applicant. Given the evidence led at trial, up to the point of the trial J udge’s
intervention, taken together with the summary of substantial facts, the applicant knew
well the case he was required to meet as to his state of mind. The State’s case was
that he knew that the men he stabbed were in fact police officers; and when he stabbed
them he could not have believed he was acting in self -defence. Rather, he stabbed the
police officers with intent to kill them.

[44] Once that is so, the intervention of the trial Judge did not undermine the
applicant’s right to a fair trial. The trial Judge should not have prevented the
prosecution from its further efforts to put its case to the applicant. But the
consequence of that intervention was to saddle the prosecution with an evidential
impediment to the discharge of its onus and gave rise to no unfairness of the kind
postulated by the applicant. At the point in the trial that the trial Judge’s intervention
took place, the applicant knew the case he had to meet. The applicant had elected to
give evidence, and had given his evidence-in- chief. His cross-examination was well
advanced. No unfairness of the kind relied upon by the applicant vitiated the
proceedings.

[45] It follows that the applicant suffered no irregularity, as he has alleged, let alone
an irregularity of sufficient seriousness. This Court therefore has no jurisdiction to
entertain this ground of appeal. As to whether the disability under which the
trial Judge placed the prosecution had any bearing upon the discharge by the State of
its onus of proof, this is an issue the applicant did not rely upon as a ground of appeal.
In any event, that was an impediment suffered by the State, not by the applicant. If
anything, it enured to the benefit of the applicant. Consequently, the applicant’s
appeal on the basis that his right to a fair trial was infringed must be dismissed.

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UNTERHALTER AJ
Putative private defence
[46] The applicant at trial relied upon putative private defence. In De Oliveira,20 the
Appellate Division set out the test for putative private defence. An accused who kills
another, believing his or her life to be in danger, when, objectively, it is not, acts
unlawfully. However, where such an accused kills another in the mistaken but
genuine belief that his life is in danger, the accused lacks the intention to act
unlawfully. The accused is accordingly not guilty of murder. The accused may be
guilty of culpable homicide. That depends upon whether his belief that his life was in
danger was reasonable or not. Putative private defence is thus concerned with
culpability and not unlawfulness. Culpability on a charge of murder is judged
according to what the accused believed. Culpability on a charge of culpable homicide
is determined on the basis of the reasonableness of that belief.

[47] The applicant’s case in relying on putative private defence was this: the two
persons who subdued him and sought to place him in their vehicle turned out to be
police officers. The applicant was not objectively acting in self -defence. However,
the applicant genuinely believed that his life was in danger at the hands of two
assailants. He stabbed these assailants to protect himself, not realising that they were
police officers. His belief was both genuine and reasonable, and hence the applicant
was guilty of neither murder nor culpable homicide.

[48] The trial court believed the testimony of Constable Makgafela and disbelieved
the applicant. In particular, the trial c ourt found that Constable Makgafela had
informed the applicant, on apprehending him, that he and Constable Sithole were
police officers. That finding excluded the applicant’s reliance upon putative private
defence. If the applicant was told that his two assailants were police officers, he could
not have genuinely held the belief that his life was in danger. Hence, when he stabbed
the police officers he intended to kill them.
20 S v De Oliveira [1993] ZASCA 62; 1993 (2) SACR 59 (A) (De Oliveira) at 63I–64B.
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UNTERHALTER AJ

[49] The applicant’s second ground of appeal is that the trial J udge failed to have
regard to all the evidence led at trial from which the applicant’s subjective state of
mind might have been inferred. Had the trial Judge done so, he would have concluded
that it was reasonably possibly true that the applicant did not realise that his assailants
were police officers and genuinely believed that his life was in danger. The State
would then not have discharged its burden of proof.

[50] This ground of appeal runs into a threshold difficulty. The incorrect
application by the trial court of a well-established legal defence raises neither a
constitutional issue, nor an arguable point of law.
21 If the trial court made no error of
law in formulating the test for putative private defence, then the misapplication of the
correct test to the evidence before the trial court is not a matter that engages our
jurisdiction. The written submissions made on behalf of the applicant sought to
persuade us that the trial court failed to consider all the evidence, and thus failed
properly to draw warranted inferences as to the applicant’s subjective state of mind.
That may or may not be so, but the failure by a trial court properly to evaluate the
evidence is an error of fact and not one of law. This Court’s jurisdiction does not
extend to such issues.

[51] Perhaps in contemplation of this difficulty, applicant’s counsel, in oral
submissions before us, extended the remit of the applicant’s appeal. Counsel
submitted that the trial court had, in addition, failed to formulate the correct test for
putative private defence and then applied the wrong test to the evidence. That, of
course, is an error of law. It carries the risk of an unsound conviction and an unfair
trial, and does engage our jurisdiction.
22

21 General Council of the Bar of South Africa v Jiba [2019] ZACC 23; 2019 JDR 1194 (CC) ; 2019 (8) BCLR
919 (CC) (Jiba) at para 49.
22 University of Johannesburg v Auckland Park Theological Seminary [2021] ZACC 13; 2021 (6) SA 1 (CC);
2021 (8) BCLR 807 (CC) at paras 43–50.
18

UNTERHALTER AJ
[52] This gives rise to further difficulty. Error of law was not advanced as a ground
of appeal in the applicant’s application to this Court. Jurisdiction, as a rule, is
determined on the pleadings. 23 However, this Court has held that it may raise a point
of law that falls within its jurisdiction, but was not raised by the parties. This may be
done under the caveat that it is done exceptionally, that the point of law arises on the
papers, and that the parties are given an opportunity to deal with the issue.24 I cannot
see any basis why this reasoning should not be extended to the situation where an
error of law is raised for the first time in oral argument. If the error of law raises a
constitutional issue or an arguable point of law of general public importance and the
interests of justice require our intervention because of the risk of an unsound
conviction, then if the issue can be determined on the papers as they stand and no
prejudice arises, this Court should not be precluded from considering the matter.

[53] The error of law identified by the applicant’s counsel in oral submissions
before this Court is fundamental to the proper assessment of the defence advanced by
the applicant at trial. An error of this kind, if left uncorrected, would render the
applicant’s trial unfair. It would also condemn the applicant to suffer a conviction and
sentence of great consequence. The point of law arises on the record before us, and
has been fully traversed in argument. No prejudice arises to the S tate if we entertain
the matter, but great prejudice to the applicant would occur if the error of law is
shown to have been made, and remains uncorrected. In these circumstances, a
constitutional issue arises that engages our jurisdiction. It is also in the interests of
justice that this late- arising ground of appeal be heard. Leave to appeal is
consequently granted.

23 See Jiba above n 21 at paras 38 –9; Mbatha v University of Zululand [2013] ZACC 43; (2014) 35 ILJ 349
(CC); 2014 (2) BCLR 123 (CC) ; and Gcaba v Minister for Safety and Security [2009] ZACC 26; 2010 (1) SA
238 (CC); 2010 (1) BCLR 35 (CC).
24 AmaBhungane Centre for Investigative Journalism NPC v Minister of Justice and Correctional Services and
Others; Minister of Police v AmaBhungane Centre for Investiga tive Journalism NPC [2021] ZACC 3; 2021 (3)
SA 246 (CC); 2021 (4) BCLR 349 (CC) at para 58; and Competition Commission of South Africa v Mediclinic
Southern Africa (Pty) Ltd [2021] ZACC 35; 2022 (5) BCLR 532 (CC) at para 38.
19

UNTERHALTER AJ
Merits
[54] I turn then to consider whether the trial Judge did indeed make an error of law
in his formulation of the test for putative private defence. Ordinarily this would
simply require a comparison of the test set out in the judgment of the trial court with
the requirements of our law. However, we are hampered in undertaking this exercise
by the record filed in this Court.

[55] As indicated, the record contains what is described as a transcript of the
trial proceedings. That transcript contains an unsigned judgment. This appears to be
the extempore judgment handed down by the trial Judge in Court on
19 September 2019 (the extempore judgment). The following passage appears in the
extempore judgment:

“[T]he accused defence firstly amounts to private defence, or more commonly known
as self-defence. A defence excluding unlawfulness, where the test is objective, and
secondly, putative self-defence which relates to the accused state of mind and where
the test is objective. The test to be applied in respect of the accused, he generally held
it mistakenly believed that he was acting in lawful self -defence, or whether his belief
was also held on reasonable doubt. (Emphasis added.)
. . .
He was of the mind that he was entitled to react against the attack, not knowing that
the men were policemen or assailants.”

[56] The record also contains a judgment, signed by the trial Judge, dated
19 September 2019 (the signed judgment). The signed judgment is formatted in
numbered paragraphs and contains the following passages:

“The accused’s version, as mentioned above is that he acted in self -defence, and that
he did not know that the people who attacked him were policemen executing their
duties. As mentioned above, his defence amounts to putative self-defence. The test is
20
UNTERHALTER AJ
subjective. in other words, what the accused had in mind, objectively considered. 25
(Emphasis added.)
. . .
It follows that the accused ’s defence firstly amounts to private defence, or more
commonly known as self-defence, a defence excluding unlawfulness, where the test is
objective, and secondly putative self -defence, which relates to the accused ’s state of
mind and where the test is subjective, in respect of whether the accused genuinely,
albeit mistakenly, believed that he was acting in lawful self -defence, or whether his
belief was also held on reasonable grounds.”26

[57] We sought to obtain clarity from the parties as to which judgment this Court
should reference. None was provided, save that we were told that a copy of the signed
judgment was found in the court file. The signed judgment is also the version that
was published on SAFLII. We can only infer that the trial Judge, having handed
down the extempore judgment in court, then edited that judgment, and produced the
signed judgment which was placed in the court file.

[58] The extempore judgment, as it was transcribed, contains a clear error of law. It
states that “putative self-defence which relates to the accused state of mind and where
the test is objective”. That is not so. As De Oliveira authoritatively explained, when
an accused on a charge of murder relies upon putative private defence, the issue for
the trial court is whether the State has proved beyond reasonable doubt that the
accused subjectively had the intent to commit murder, in other words, whether the
accused held the honest but mistaken belief that he was entitled to act in private
defence.

[59] What is not clear is whether the reference to an objective test in the
extempore judgment was simply a transcription error that is not attributable to the
trial Judge. The signed judgment reflects a correction. The test of what is described
25 High Court judgment above n 1 at para 8.
26 Id at para 5.
21

UNTERHALTER AJ
as “putative self-defence” in the signed judgment is formulated on the basis that “the
test is subjective, in other words, what the accused had in mind, objectively
considered”.

[60] In Wells,27 the Appellate Division faced a similar difficulty. Two documents
were placed before the Appellate Division: an extempore judgment and a revised
judgment. The parties to the appeal were at odds as to which was the lawful
judgment. The Appellate Division considered the conflicting authorities at common
law. One line of authority held that a judicial official, having pronounced his or her
judgment, is functus officio and the judgment is incapable of alteration, correction,
amendment or addition. The other approach, following Voet, permits the judge, on the
same day that judgment is given in court, to “explain (explicare) what has been
obscurely stated in his judgment and thus correct (emendare) the wording of the
record provided that the tenor of the judgment is preserved.” 28 The
Appellate Division favoured the more permissive approach of Voet.

[61] The pronouncements in Wells must now be considered under the constitutional
discipline of the accused’s right to a fair trial. An accused is entitled to know the
reasons upon which a court relies to exercise its very great and coercive powers of
punishment, following upon a conviction. Those reasons must be clearly and
precisely formulated. An accused convicted of a crime must be able to understand the
basis of the court’s decision, not least so as to exercise the right to seek leave to
appeal. That is properly done when the accused stands before the court and the
judgment is handed down. An accused convicted and sentenced by a court must be
able to rely upon the reasons a court provides when its judgment is given. That is the
curial pronouncement that reflects the authority of the court. A person convicted of a
crime should not be required to suffer the ex post reformulations and explanations that
a trial Judge considers, on reflection, to best express the reasons for the judgment.
27 S v Wells [1989] ZASCA 154; [1990] 2 All SA 1 (A) (Wells).
28 Id at 820E-F.
22

UNTERHALTER AJ

[62] In busy criminal courts, the extempore judgment is often a necessary part of
judicial practice. No discouragement of this useful practice is warranted. Infelicities
of style, grammar, spelling and word choice may require revision; and they should be
permitted. A patent error or omission may be corrected. However, the substantive
reasons for the judgment, handed down in court, must stand. That is the authoritative
pronouncement of the court, conveyed to the accused. Importantly, it is through this
judgment that the accused is convicted and it also through it that the reasons for the
conviction are reflected. If an extempore judgment is given, its reasons are
authoritative, and they may not be altered or embellished to give further expression to
what the court meant to convey. The time for that is when the judgment is handed
down by the court. This is a somewhat less permissive holding as to the competence
of a trial court to vary its judgment in a criminal case than was allowed in Wells, a
pre-constitutional era decision. However, in my view, it better accords with the
constitutionally entrenched rights of an accused to a fair trial and the duties of a court
to pronounce with finality upon the case before it.

[63] Ordinarily, a legal text is interpreted according to the now well-established
triad of text, context and purpose.
29 That is an exercise by recourse to which a court
arrives at a singular, authoritative interpretation that brings finality to a legal dispute.
If the text is ambiguous, the court’s task is nevertheless to provide the authoritative
meaning of the text. However, where the issue on appeal, as here, is how to treat an
ambiguity in a judgment, rendered at the conclusion of a criminal trial, a different
principle is of application. The question is not simply what did the trial court mean by
the ambiguous text? Rather, if the ambiguity is not resolved because it reflects a
patent error, the ambiguity must be acknowledged and, if it is material, the ambiguity
must redound to the benefit of the accused. That is so because the presumption of
innocence requires that we may not permit an accused to suffer a conviction which
29 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) at
para 18.
23

UNTERHALTER AJ
may have resulted from legal error. If, then, it is unclear whether the trial Judge was
in error as to the law, because the judgment is ambiguous and not the result of a patent
error, an appeal court should not seek to arrive at an interpretation that provides its
best sense of what the trial court meant to say. Rather, if there is a real risk that the
trial court fell into legal error, the accused, now on appeal, cannot be required to run
that risk. If the legal error is material, the conviction is rendered unsafe, and should
be set aside. In this way, an accused person’s fair trial rights in section 35(3) of the
Constitution are also protected.

[64] It follows that the extempore judgment of the trial Judge must be taken to state
the legal test relied upon by him to assess the case of putative private defence. The
signed judgment may be of some assistance though, to the extent that it does not
exceed the bounds of permissible judicial correction.

[65] A comparison of paragraph 5 of the signed judgment and the corresponding
passage of the extempore judgment, fairly read, indicates an editorial correction that
does not change the contents of the extempore judgment, save in one important
respect. As appears from the relevant passage of the extempore judgment, the
trial Judge cast the test for putative private defence as objective, whereas in the signed
judgment the trial Judge framed the test as subjective. This, the applicant submits, is a
manifest error of law.

[66] This Court must, unavoidably, interpret the relevant passage of the
extempore judgment. The passage posits that the test relates to the accused’s state of
mind, but that the test is nevertheless objective. One way to interpret this is that there
was a transcription error or that the word “objective” was said in error and the
trial Judge meant to say “subjective”. Some confirmation of this latter interpretation
is to be found in the logic of the passage itself. The trial Judge was contrasting private
defence, a defence excluding unlawfulness, where the test is objective, and putative
private defence, which relates to the accused’s state of mind. It would make logical
sense then to cast putative private defence as a defence tested on a subjective basis,
24
UNTERHALTER AJ
and hence the trial Judge may simply have misspoken. The extempore judgment later
contains the following passage: “ I have already mentioned that the accused (sic)
defence amounts to putative self -defence. He was of the mind that he was entitled to
react against the attack, not knowing whether the men were policemen or assailants.”
This may also be read as supportive of the trial Judge’s adherence to a subjective test.

[67] There is a danger, in an exercise of this kind, to interpret the judgment so as to
repair an error, and treat the word “objective” in the extempore judgment as either a
transcription error or a word said in error. However, in paragraph 8 of the signed
judgment, the following sentences appear: “As mentioned above, his defence amounts
to putative self -defence. The test is subjective, in other words, what the accused had
in mind, objectively considered” (emphasis added). The second sentence, here cited,
has no analogue in the extempore judgment, b ut it is a cle ar indication of what the
trial Judge considered the test to be for putative private defence to which he had
sought to give expression in his extempore judgment.

[68] What then did the trial court understand by this gloss upon the test that the
accused’s state of mind must be ascertained, “objectively considered”. Was this
simply a reference to the commonplace recognition that a finding by the trial court as
to the accused’s state of mind rests upon inferences drawn from the evidence led at
trial? Or was the reference to “objectively considered” the invocation of a regulating
consideration of reasonableness in determining the accused’s state of mind? In other
words, even if the accused acted in the genuin e but mistaken belief that his life was in
danger, putative private defence requires that his mistake must be reasonable.

[69] If that is the test for putative private defence that the t rial court relied upon,
then it would, as I have sought to explain, confuse how the defence negatives fault in
respect of the crimes of murder and culpable homicide. An accused who holds the
genuine but mistaken belief that his life is endangered lacks the intention to act
unlawfully, and is not guilty of murder. The issue is simply what belief did the
accused hold at the relevant time. Whether the accused’s mistaken belief, though
25
UNTERHALTER AJ
genuinely held, was reasonable or not, determines whether the accused is guilty of
culpable homicide.

[70] The trial Judge, in formulating the test for putative private defence, was
unquestionably passing judgment on the charges of murder and attempted murder. He
was not considering the separate question as to whether the applicant, if not guilty of
murder, was nevertheless guilty of culpable homicide. That enquiry would have
followed only after it was established that the applicant had held a particular belief –
the question would then have been, was that belief reasonable? If not, he could have
been convicted of culpable homicide, a competent verdict on a charge of murder. It
follows that there is an appreciable risk that the trial Judge, in formulating the test for
putative private defence in the signed judgment, imported objective considerations of
reasonableness into the test, and thereby confused how the defence negatives fault in
respect of the crime of murder. Although the gloss of objective consideration may
have been intended to have a more benign evidential import, given the gravity of the
charges with which the applicant was charged, any ambiguity on this score must be
resolved in favour of the applicant.

[71] How then does the importation of reasonableness into the test of putative
private defence in the signed judgment affect our interpretation of what is said in the
extempore judgment, given that the formulation of the test in the extempore judgment
is indicative of the trial Judge’s reasoning? In my view, it casts doubt upon the
interpretation of the extempore judgment, offered above, that the reference to an
objective test was either a transcription error or slip of the tongue. That is so because
the signed jud gment indicates that the trial Judge did consider putative private
defence, on a charge of murder, to require some conformity with objective
considerations of reasonableness. At the very least, the contents of the signed
judgment support the conclusion that the trial Judge was confused as to the test for
putative private defence.

26
UNTERHALTER AJ
[72] The extempore judgment, it will be recalled, formulated the test f or putative
private defence as “objective”. We would only read that as a reference to
“subjective”, if the error was clear, and beyond doubt. On a matter as important as the
formulation of the test upon which the applicant’s defence rests, our interpretative task
is not to ask what the trial Judge could have meant to convey, but rather, whether what
he said must be taken to mean its opposite, and that this must manifestly be so. If the
error is not obvious, we run the risk of overlooking an error of law that has significant
consequences for the safety of the applicant’s conviction.

[73] In my view, the formulation of the test for putative private defence in the
extempore judgment does not meet the test of manifest or obvious error. The relevant
passage in the extempore judgment certainly makes more sense if the reference to the
word “objective” is taken to mean “subjective”. However, my analysis of the signed
judgment indicates that the trial Judge was not clear as to the distinction between these
concepts in his appreciation of the requirements for putative private defence. That
being so, we cannot discount the possibility that, in characterising the test as objective
in the extempore judgment, the trial J udge meant to import some considerations of
reasonableness into his appreciation of the test. In consequence, we cannot say that
the extempore judgment gives expression to an obvious error. The relevant passage of
the extempore judgment must thus be read as it appears from the transcript.

[74] On this reading of the extempore judgment, the trial Judge made a conspicuous
error of law. On a charge of murder, putative private defence is not determined on the
basis of a test that is objective. Following De Oliveira, the authorities are clear. 30 The
central issue at the trial of the applicant should have been whether the S tate had
proved beyond reasonable doubt that the applicant subjectively had the intent to
commit murder. If it was reasonably possibly true that the applicant entertained the
honest, but mistaken belief that his life was threatened, and that he was entitled to act
30 See, amongst others, Director of Public Prosecutions, Gauteng v Pistorius [2015] ZASCA 204; 2016 (2) SA
317 (SCA) at paras 52-3.
27

UNTERHALTER AJ
in private defence, then the State would not have proved its case. The reasonableness
or otherwise of the applicant’s belief is not relevant to this enquiry. It is relevant to
the question as to whether the applicant was guilty of culpable homicide. The
trial Judge’s invocation of an objective test for putative private defence was an error
of law, one that is fundamental to the soundness of his findings as to the guilt of the
applicant on the charges of murder and attempted murder.

[75] I am fortified in my conclusion that the trial J udge made an error of law when
regard is had to the trial court’s assessment of the applicant’s evidence at trial.
I engage this enquiry, not to determine whether the trial Judge failed to apply the law,
a matter, standardly, outside of our jurisdiction, but rather to consider whether the
trial Judge sought to make findings as to the applicant’s state of mind, free of
considerations of reasonableness.

[76] As I have sketched above, the trial Judge approached the case on the basis that
if he believed Constable Makgaf ela’s evidence, the applicant must be disbelieved,
more particularly as to whether Constable Makgafela had informed the applicant that
his pursuers were police officers. This binary approach failed to consider whether the
applicant in fact appreciated what had been said to him. The applicant’s evidence was
that he was sworn at by his pursuers in a language he did not fully understand.
Whether the applicant’s version was reasonably possibly true required a careful
assessment of what occurred after the applicant stabbed the police officers.

[77] The applicant’s evidence was that, after the stabbing, he told the security
guards in the vicinity that he was being pursued and sought help. He then went to his
residence and reported the matter to the security guards there; he telephoned his sister,
and told her what had happened. He explained that he stabbed two men who tried to
rob and abduct him. The next day, the applicant and his sister went to the police
station to report the matter. The police declined to open a case because the applicant
could not identify his attackers. Later, the applicant was arrested at his residence.
Since Constable Makgafela testified that he did not know the applicant the
28
UNTERHALTER AJ
overwhelming likelihood is that the police only knew of the applicant’s place of
residence, as a result of the applicant’s report to the police.

[78] This evidence of what occurred after the stabbing was not challenged by the
prosecution. Yet the trial Judge rejected it as inconsistent and improbable, and did so
absent any explanation as to how the police came to learn of the applicant’s identity
and place of residence, save for the report that the applicant had made to the police.
The applicant’s account of what he did after the stabbing is consistent with his version
that he thought he was being attacked by assailants, that his life was in danger, and
that he had stabbed the deceased and Constable Makgafela in the belief that he needed
to protect himself. Had the trial Judge focused his assessment on the applicant’s state
of mind, he could not have simply rejected the post-stabbing conduct of the applicant
as improbable. It was, after all, uncontradicted and borne out by the arrest of the
applicant. It was evidence supportive of the applicant’s account of his state of mind.

[79] What this illustrates is that the trial Judge did not have the applicant’s state of
mind at the forefront of his assessment. Rather, his assessment of the applicant’s
defence was marked by what he reasoned to be objective considerations and
probabilities. This is the very ambiguity that lies at the heart of the trial Judge’s
formulation of the test for putative private defence. The state of mind of an accused is
to be judged, the trial Judge stated, on the basis of “what the accused had in mind,
objectively considered”, and hence on the basis of reasonableness. That is not the
correct test. But it appears to have been the operative test used by the trial Judge.
This too, then, supports the interpretation of the test f or putative private defence
enunciated by the trial Judge in the extempore judgment, as being a test that references
objective considerations.

[80] I find therefore, that the trial Judge made an error of law going to the heart of
the applicant’s defence. The conviction and sentence of the applicant by the
trial Judge cannot survive this error. The applicant’s appeal on this ground succeeds,
and his conviction and sentence for murder and attempted murder must be set aside.
29
UNTERHALTER AJ / KOLLAPEN J

Conclusion
[81] For these reasons, this Court issued the order on 13 May 2022 in which it
upheld the applicant’s appeal, set aside the order of the High Court, acquitted the
applicant and ordered his immediate release.



KOLLAPEN J (Mlambo AJ concurring):


Introduction
[82] I have had the benefit of reading and considering the comprehensive and
clearly articulated judgment of my brother, Unterhalter AJ (the first judgment). There
is little doubt that the challenges to conviction and sentence, both on the papers as
well as in argument, relate to a number of constitutional rights, yet none of them,
either individually or collectively, raise a constitutional matter or an arguable point of
law of general public importance. As a result, the jurisdiction of this Court is not
engaged and the application for leave to appeal stands to be dismissed. In particular, I
am not in agreement with the conclusion reached in the first judgment that the
High Court incorrectly formulated the test for putative private defence. In respect of
sentence, no constitutional matter or arguable point of law of general public
importance is raised; nor can it be said that any alleged error by the High Court in
applying the settled test for substantial and compelling circumstances engages the
jurisdiction of this Court.

Background
[83] The applicant was convicted of murder and attempted murder by the
High Court and sentenced to life imprisonment and 15 years’ imprisonment,
respectively. The conviction arose out of an incident which occurred on the night of
2 March 2018 in Sunnyside, Pretoria. The incident led to the stabbing of two
policemen, one fatally and the other was left with a serious and permanent disability.
30
KOLLAPEN J

[84] Two mutually destructive versions of what occurred on that night were placed
before the High Court and the detail of these versions is set out fully in the
first judgment. The applicant says that he and his f riend were followed through the
streets of Sunnyside by two persons driving an unmarked vehicle and that, fearing for
their lives, they sought to get away from them but he was unsuccessful.

[85] The applicant and his friend ran off in different directions but the applicant was
caught. He says that he feared for his life and resisted attempts by those who had
followed him to force him into the vehicle. In doing so, the applicant used a flick
knife he had in his possession to stab the two men. His evidence was that at no stage
was he made aware that the two men were police officers.

[86] The version of the State was that the two victims of the stabbing were police
officers in plain clothes and on duty that night; they followed the applicant and his
friend as they suspected that the applicant may have been in possession of a stolen
laptop. At some stage they had to give chase on foot and, in doing so, called out to the
applicant to stop and shouted out that they were police officers. The applicant was
apprehended and shown a police identification card and in the process of attempting
an arrest of the applicant, he stabbed both of them.

[87] A central dispute before the High Court was whether the applicant, as he says,
was unaware that the men were police officers or whether, as the S tate contended, he
was made aware that they were police officers before the stabbing occurred. The
High Court accepted the evidence of the State, rejected that of the applicant and
proceeded to convict the applicant of the charges he faced and thereafter he was
sentenced as set out above.

[88] The litigation history before the High Court and the Supreme Court of Appeal
is fully dealt with in the first judgment, as are the submissions of the parties before
this Court, and they do not warrant repeating as they are sufficiently comprehensive.
31
KOLLAPEN J

Challenge to the conviction
[89] This challenge was advanced on two legs. The first one related to the
intervention of the trial Judge during the cross examination of the applicant. I agree
with the conclusion reached in the first judgment that the intervention of the trial
Judge did not result in any serious irregularity that impacted on the fairness of the
trial. I agree that this leg of the challenge is not sustainable and stands to be dismissed
for the reasons given in the first judgment.

[90] The second challenge to the conviction was based on how the High Court dealt
with the defence of putative private defence. The argument changed tack substantially
during the course of the hearing from one, initially and on the written submissions,
located on the incorrect application of the test for putative private defence, to one, in
oral argument, asserting that the trial court incorrectly formulated the test.
Notwithstanding its late introduction and that the error of law contended for was not
pleaded, I agree with the conclusion reached in the first judgment that the issue was
fully ventilated before this Court and that the interests of justice coupled with the risk
of an unsound conviction must mean that this Court should consider the argument,
notwithstanding its lateness.

Jurisdiction and leave to appeal
[91] Section 167(3)(b)(i) of the Constit ution provides that “[t]he
Constitutional Court . . . may decide (i) constitutional matters”. In Boesak,
31 this
Court set out the approach and what it described as the threshold requirement in
applications for leave to appeal when it said:

“A threshold requirement in applications for leave relates to the issue of jurisdiction.
The issues to be decided must be constitutional matters or issues connected with
decisions on constitutional matters. This is dealt with more fully below.
31 Boesak above n 17.
32

KOLLAPEN J
A finding that a matter is a constitutional issue is not decisive. Leave may be refused
if it is not in the interests of justice that the Court should hear the appeal. The
decision to grant or refuse leave is a matter for the discretion of the Court and, in
deciding whether or not to grant leave, the interests of justice remain fundamental.”
32

[92] In Jiba,33 this Court affirmed the two requirements that must be met for leave
to appeal to be granted. It said:

“For leave to appeal to be granted in this Court, the applicant must meet t wo
requirements. These are that the matter must fall within the jurisdiction of this Court
and that the interests of justice warrant the granting of leave. For this Court’s
jurisdiction to be engaged the matter must either raise a constitutional issue or an
arguable point of law of general public importance that ought to be heard by this
Court.”
34

[93] More recently in Tembisa, 35 this Court, in considering what a constitutional
matter or an arguable point of law of general public importance meant in the context
of section 167(3)(b) of the Constitution, said:

“In order for a case to be a ‘constitutional matter’ within the meaning of
section 167(3)(b)(i), the resolution of a constitutional issue must be reasonably
necessary in order to determine the case’s outcome. Similarly, a case only ‘raises an
arguable point of law’ within the meaning of section 167(3)(b)(ii) if the answer to
that question is reasonably necessary to determine the case’s outcome.”
36

[94] This of course raises the sharp question whether, in these proceedings, there is
any constitutional matter or arguable point of law of general public importance whose
32 Id at paras 11-2.
33 Jiba above n 21.
34 Id at para 35.
35 NVM obo VKM v Tembisa Hospital [2022] ZACC 11; 2022 (6) BCLR 707 (CC) (Tembisa).
36 Id at para 88.
33

KOLLAPEN J
resolution is necessary to determine the outcome of this appeal. There does not
appear to be one.

[95] Given that the applicant’s challenge has vacillated between the incorrect
application of a settled test to the incorrect formulation of a settled test, it may be
useful to set out how those different components of the challenge impact on the
jurisdiction of this Court.

[96] In University of Johannesburg,
37 this Court distinguished between the two and
said that a wrong decision in the application of the law raises neither a constitutional
issue nor an arguable point of law of general public importance. 38 It went on,
however, to say that where a court departs from settled law, such a departure would
establish the arguability of the point of law provided that there was merit to it and it
had prospects of success.39

[97] The first judgment relies on University of Johannesburg for the proposition that
if the trial court incorrectly formulated the test then that would constitute an error of
law, carrying with it the risk of an unsound conviction and would engage our
jurisdiction.

[98] Accordingly, and arising out of University of Johannesburg, if the applicant is
able to show that the High Court formulated the test for putative private defence
incorrectly and in conflict with settled law, that may well constitute an arguable point
of law of general public importance. But equally , if no such case can be advanced,
then the result must be that this Court’s jurisdiction is not engaged and any complaint
as to how the test may have been applied will not engage our jurisdiction.

37 University of Johannesburg above n 22.
38 Id at para 49.
39 Id at para 50.
34

KOLLAPEN J
[99] Therefore, the question whether the High Court formulated the test for putative
private defence correctly and in accordance with settled law, determines the fate of
this appeal.

Test for putative private defence
[100] Given the centrality of whether the test was correctly formulated by the
High Court, a useful and necessary starting point would be to recall the test for
putative private defence.

[101] In De Oliveira,40 the Appellate Division framed the test in the following terms
as it sought to distinguish private defence from putative private defence:

“From a juristic point of view the difference between these two defences is
significant. A person who acts in private defence acts lawfully, provided his conduct
satisfies the requirements laid down for such a defence and does not exceed its limits.
The test for private de fence is objective – would a reasonable man in the position of
the accused have acted in the same way. In putative private defence it is not
lawfulness that is in issue but culpability (‘skuld’). If an accused honestly believes
his life or property to be in danger, but objectively viewed they are not, the defensive
steps he takes cannot constitute private defence. If in those circumstances he kills
someone his conduct is unlawful. His erroneous belief that his life or property was in
danger may well (depending upon the precise circumstances) exclude dolus in which
case liability for the person’s death based on intention will also be excluded; at worst
for him he can then be convicted of culpable homicide.”
41

[102] The test for private defence is objective while that for putative private defence
is subjective, the latter is concerned with culpability and is an enquiry into the state of
mind of the accused. The applicant’s defence was firstly that of private defence and
secondly that of putative private defence, but the High Court correctly characterised it
40 De Oliveira above n 20.
41 Id at 63H-64B.
35

KOLLAPEN J
as putative private defence – one where the applicant says that he genuinely but
mistakenly believed that his life was in danger.

[103] Given that putative private defence is concerned with the culpability of the
accused person and the test for putative private defence is characterised as subjective,
its application, depending on the charge an accused faces, may require considerations
of reasonableness.

[104] As Burchell
42 explains:

“Provided a foundation is laid for ‘putative’ private defence, then the court proceeds
to examine whether the accused genuinely, albeit mistakenly, believed that he or she
was acting in lawful private defence (where the charge requires intention to be
proved) or whether this belief was also held on reasonable grounds (where negligence
is sufficient for liability).”
43

[105] The reference to “reasonable grounds”, may carry the risk that the accused’s
belief must be reasonable and may suggest that the test is not purely subjective or
nuanced. This is not so. Where the crime requires intention, a genuinely held
mistaken belief will negate intention. However, where the crime merely requires
negligence, the belief should also be held on reasonable grounds. The test remains
subjective, though, in both enquiries.

[106] The risk alluded to, however, is not academic but real as a court may properly,
in appropriate instances, have regard to considerations of reasonableness in assessing
a defence based on putative private defence. It must be that if it does so in the context
of a charge requiring intention it would misconstrue the test, but doing so where the
charge requires negligence would be permissible.

42 Burchell South African Criminal Law and Procedure 4 ed (Juta & Co Ltd, Cape Town 2011) vol 1 (Burchell).
43 Id at 132.
36

KOLLAPEN J
[107] Indeed, in De Oliveira the accused did not testify and the Court in dealing with
an appeal against a conviction of murder resorted to considerations of reasonableness
in assessing the question of culpability.

[108] The Court said in relation to the murder charge the accused was facing:

“In those circumstances it is inconceivable that a reasonable man could have believed
that he was entitled to fire at or in the direction of the persons outside in defence of
his life or property (and that without even a warning shot).44
. . .
In the circumstances there was prima facie proof that the appellant could not have
entertained an honest belief that he was entitled to act in private defence.”45

[109] Botha46 comments on the approach of the Court in De Oliveira and contends
that it applied a partially objective test when she says:

“In S v De Oliveira 1993 2 SASV 59 (A), how ever, the then Appellate Division in a
rather drastic turnabout insisted on a purely subjective ‘erroneous belief’ as the only
requirement to eliminate dolus (intent). At the same time, though, in deciding
whether the accused in De Oliveira could successf ully raise putative self -defence
against a murder charge, the court unfortunately and unnecessarily clouded the issue
by applying a partially objective test, stating that the ‘reasonable person’ in the
circumstances of the accused would not have believed that he was entitled to shoot.”

[110] However, the better view on the matter and one that preserves the necessary
conceptual distinction between the tests for private defence and that of putative private
defence is that advanced by Snyman. 47 When co mmenting on t he approach of
44 De Oliveira above n 20 at 64G-H.
45 Id at 65A-B.
46 Botha “Putative self-defence as a defence in South African criminal law: A critical overview of the uncertain
path to Pistorius and beyond ” Litnet Academics (26 Jul y 2017), available at https://www.litnet.co.za/putative -
self-defence-defence-south-african-criminal-law-critical-overview-uncertain-path-pistorius-beyond/.
47 Snyman Criminal Law Casebook 5 ed (Juta & Co Ltd, Cape Town 2013) (Snyman).
37

KOLLAPEN J
the Court in De Oliveira, he says that while the Court may have had recourse (in the
absence of the accused testifying) to what the reasonable person would have done,
such an enquiry would not be dispositive of the question of culpability . In those
circumstances, the Court would be required to go beyond what the reasonable person
would have done and consider whether there were other factors that could lead it to a
conclusion different from the reasonable person test.48

[111] What all of this demon strates is that even while conceptual clarity may exist in
respect of the test for putative private defence, the subjective enquiry to be followed
may properly, and in appropriate circumstances, consider elements of reasonableness.
It would certainly do s o when the charge is one requiring negligence, and it would do
so in the process of inferential reasoning courts undertake to determine what the state
of mind of the accused may have been in a particular situation. That, however, does
not change the nature of the test from being a subjective test, as Snyman correctly
asserts in his comment on De Oliveira:

“This judgment illustrates the difference between real and putative private defence.
Because these two defences belong to two quite distinct elements of liability, namely
unlawfulness and culpability ( mens rea), the judgment also illustrates the important
distinction between the inquiry into unlawfulness and that into culpability. The
appellant did not take the court into its confidence by telling the court what he
thought or what went on in his mind at the crucial moment when he fired the shots.
The Court accordingly had to decide his subjective state of mind by means of
inferential reasoning. One of the aids in determining by inferential reasoning w hat
the appellant’s state of mind was, is to have recourse to what the reasonable person
would have known or foreseen. However, the reasonable person test is the test to
determine negligence, and not intent or foresight, and therefore a court which
investigates an accused’s state of mind at the crucial moment cannot confine its
investigation to what the reasonable person thought or foresaw. The court must go
beyond the reasonable person test and further inquire whether there were possibly
48 Id at 170.
38

KOLLAPEN J
other circumstances which could lead the court to come to a conclusion which differs
from the conclusion reached by an application of the reasonable person test.”49

[112] That said, I proceed to deal with the conclusions reached in the first judgment
in support of the setting aside of the conviction.

[113] In finding that the appeal against conviction must succeed, the first judgment
concludes that the trial court committed an error of law in formulating the test for
putative private defence and that the application of an incorrectly formulated test
brought about a conviction that was unsound and one that this Court would be
justified in interfering with.

[114] In coming to its conclusion, the first judgment laid the foundation for its
conclusion on a number of arguments which I now deal with.

Status of an extempore judgment
[115] Extempore judgments form part of the necessary tools of trade of our courts.
Judicial officers who have carefully given thought to the deliberations before them
and the decision to be brought out often resort to the delivery of an
extempore judgment to state the court’s findings. The complexity of the matter, both
legally and factually, will often determine whether resort is to be had to the use of an
extempore judgment. It is this judgment that a person affected by it, be it in civil or
criminal proceedings, will hear in open court and it is this judgment that must
ultimately reflect the court’s articulation of the law and the manner in which it dealt
with the evidence and the reasons for its conclusion. I agree with the conclusion of
the first judgment with regard to the symbolic and legal importance of an
extempore judgment in an open public court.

49 Id at 170-1.
39

KOLLAPEN J
[116] In practice, an extempore judgment is read into the record. Its source may be
carefully prepared notes, a prepared summary of the law and the evidence, or, at
times, a Judge’s recollection and framing together of the law and the facts without any
detailed or particular recourse to a script or a text. It is often a matter of judicial style
and determined by a consideration of the particular matter at hand and its complexity.

[117] Transcribed extempore judgments form part of the record of proceedings and
the parties to litigation place reliance on them, in either advancing a case on appeal or
for other purposes such as to prove the correctness of the contents and the findings of
the judgment. Ordinarily, that does not and should not pose a problem , but in the
realm of human fallibility and imperfection, errors do occur. They do so when the
presiding officer makes an error in the use of language or in properly articulating
some proposition or conclusion; they may also do so when the transcriber does not
accurately transcribe what has been correctly expressed by the presiding officer or
where the recording is inaudible. In these scenarios, the transcription may not always
be a correct reflection of what was intended to be articulated, alternatively, of what
was indeed properly articulated.

[118] The law recognises the possibility of error at this level and the concomitant
need to address and remedy it while preserving the substance of the extempore
judgment.

[119] In Wells,50 the Appellate Division considered the then conflicting views
relating to the power of a judicial officer to revisit the contents of an
extempore judgment and in doing so, eschewed the strict approach that held that once
pronounced, a judgment was incapable of being altered, corrected or amended. The
Appellate Division also did not find favour with a variant of the strict approach that
would permit a judicial officer to make linguistic or other corrections without
changing the substance of the judgment.
50 Wells above n 27.
40

KOLLAPEN J

[120] The Court then went on to consider the approach espoused by Voet. This
approach would permit a Judge, on the same day after judgment is given in court , to
add to it remaining matters which relate to the consequences of what has already been
decided. And, to further “explain (explicare) what has been obscurely stated in his
judgment and thus correct (emendare) the wording of the record provided that the
tenor of the judgment is preserved”.51

[121] Describing this as the more enlightened approach, the Court accepted that
approach as the correct statement of our law and, in doing so, observed that it
accorded with South African practice.

[122] The first judgment, however, suggests a departure from the approach taken in
Wells
52 and for the adoption of a less permissive holding, arguing that it accords better
with the rights of an accused to a fair trial and the duty of a court to pronounce with
finality upon the case before it.

[123] While fair trial imperatives and finality in criminal proceedings are important
in our constitutional dispensation, I am not sure how the enlightened approach taken
in Wells is inconsistent with these objectives. What Wells does is strike the
appropriate balance between certainty and accuracy. It ensures that what an accused
is informed of in open court when the court’s decision and the reasons for it are
delivered is not altered in substance by any subsequent revision of the judgment.
However, errors, grammatical or otherwise, patent errors and obscure formulations are
capable of being revised, all of course subject to the important rider that the substance
of the judgment may not be changed.

51 Id at 820 D-F.
52 Id at 820F.
41

KOLLAPEN J
[124] It is therefore difficult to see how any changes or amendments to an
extempore judgment that do not change its substance, imperil the fair trial guarantees
of an accused, in particular, when the substance of the judgment remains constant.
Wells is clear on that – the substance of the judgment may not be changed and, on that
basis, the adoption of a less permissive approach as advocated in the first judgment,
may neither be necessary nor justified.

[125] In this regard, it must be accepted that an error that reflects the presiding
officer’s incorrect understanding of the law is a serious one and should not be capable
of revision, as to allow that would be to allow a change in the substance and the tenor
of the judgment.

[126] A departure from Wells, while not being necessary to protect the fair trial rights
of an accused, may als o have a chilling effect on the administration of justice. This
may create a reluctance on the part of judicial officers to resort to the delivery of an
extempore judgment which will largely be cast in stone, and in respect of which only
grammatical, spelling and word choice errors may be revised.

[127] The right to a fair trial is a right that not only has consequences for an accused
person, but also extends to others who have an interest in the criminal justice system.
In Thebus,
53 this Court held:

“Although a principal and important consideration in relation to a fair trial is that the
trial must be fair in relation to the accused, the concept of a fair trial is not limited to
ensuring fairness for the accused. It is much broader. A court must also ensure that
the trial is fair overall, and in that process, balance the interests of the accused with
that of society at large and the administration of justice.”
54

53 Thebus v S [2003] ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC).
54 Id at para 107.
42

KOLLAPEN J
[128] The approach in Wells represents the appropriate wide consideration of fairness
that Thebus proclaims. Even in the specific context of the fair trial rights of an
accused person, such an approach is not invasive of those carefully crafted rights.

[129] However, and in the context of these proceedings, it matters not whether an
enlightened approach or a variant of the strict approach, which the first judgment
advocates for, is used, as on either approach the end result will be the same. Even on
a less permissive approach, the revisions reflected in the signed judgment all fall
squarely within the revisionary remit of the court.

Did the High Court err in formulating the test for putative private defence?
[130] The first judgment suggests that a revision would be permissible to effect
matters of style, grammar, spelling and word choice as well as to correct a patent error
or omission. The first judgment would, as I understand it, allow for the passage in
question to be read as follows:

“It follows that the accused’s defence firstly amounts to private defence, or more
commonly known as self-defence, a defence excluding unlawfulness, where the test is
objective, and secondly putative self -defence, which relates to the accused’s state of
mind and where the test is objective , in respect of whether the accused genuinely,
albeit mistakenly, believed that he was ac ting in lawful self -defence, or whether his
belief was also held on reasonable grounds.”
55 (Emphasis added.)

[131] The first judgment reminds us that it is the extempore judgment that would be
the authoritative judgment in the sense that it is this judgment that the accused would
hear and understand to reflect the reasoning and the conclusions of the Court.

[132] Clearly, the only difference then in this passage, and that which appears in the
first judgment as revised, would be the use of the word “objective” and it is the use of
that word that the first judgment would contend constitutes the error of law. For that
55 See the first judgment at [54].
43

KOLLAPEN J
argument to succeed, the use of the word “objective” must not reflect a matter of style,
grammar or word choice or be a patent error or omission.

[133] It is this passage that the first judgment says contains a manifest error of law
and that error, it says, lies in it casting the test for putative private defence as
objective.
56 I have some difficulties with this proposition.

[134] The test for putative private defence is formulated in the passage as a whole
and not only in the phrase where the word “objective” is used in relation to the test. If
there is anything to be gleaned from judgments such as Endumeni
57 and Capitec58
(even though they dealt with the interpretat ion of contracts) it is that in the use of
language, context and the purpose form part of a unitary exercise, and that these are
not to be considered in a mechanical fashion. Importantly, Endumeni tells us that a
sensible meaning is to be preferred to one that is not sensible.
59

[135] If regard is had to the passage in its entirety, the Court was setting out and
distinguishing the tests for private defence and putative private defence. It correctly
described the test for private defence as relating to unlawfulness and said that the test
was objective. It then correctly characterised putative private defence as relating to
the accused’s state of mind, but then also labelled the test as objective.

[136] The first judgment observes that the High Court was contrasting the two tests
and that it would make logical sense to cast putative private defence as a defence
tested on a subjective basis. Indeed, the use of the word “objective” does not fit into
the flow of the ideas conveyed, nor of the substantive content of the test that the court
went on to describe. In addition, the insistence that the word “objective” be insulated
56 Id at [65].
57 Endumeni above n 29.
58 Capitec Bank Holdings Ltd v Coral Lagoon Investments 194 (Pty) Ltd [2021] ZASCA 99; 2022 (1) SA 100
(SCA) (Capitec).
59 Endumeni above n 29 at para 18.
44

KOLLAPEN J
from revision, would mean that the Court contrasts two different tests, the one relating
to unlawfulness and the other to fault, but then ends up labelling both tests as being
objective. This is in stark contrast to the exercise of distinguishing the tests. This is
not only illogical but does not lead to a sensible interpretation of the passage.

[137] It must follow that the word “objective”, if it was used by the trial Judge at all,
was a patent error as everything else in the passage militates against the use of the
word “objective” in that context. However, if there is any doubt that the word
“objective” constitutes a patent error, it is dispelled by the phrase that immediately
follows where the court describes the test as whether the accused “genuinely, albeit
mistakenly, believed he was acting in lawful self-defence, or whether his belief was
also held on reasonable grounds”.
60

[138] This is the part of the passage that reflects the description and the formulation
of the test as it relates to culpability – a subjective test that goes to the mind of the
accused and, in respect of crimes involving negligence, one that would also consider
the reasonableness of the belief. The language used does not conflate a subjective
approach with objective considerations and is not reflective of any confusion or
misunderstanding on the part of the High Court.

[139] The test, as formulated by the High Court, when it says whether the accused
“genuinely, albeit mistakenly, believed he was acting in lawful self-defence, or
whether his belief was also held on reasonable grounds”
61 is one that is almost
identical to that which Burchell refers to and to which reference has already bee n
made.62

60 High Court judgment above n 1 at para 5.
61 Id.
62 Burchell above n 42 at 132.
45

KOLLAPEN J
[140] Viewed in its totality, everything in the passage points to a subjective
formulation except for the use of the term “objective”. If there is any disjuncture
between how the test is labelled in contrast as to how it is substantively formulated,
then surely the labelling of a test is different from its formulation and its labelling
cannot be dispositive of the question. Its formulation lies in how the High Court saw
and gave expression to the components of the test and, on that score, there is simply
no error or ambiguity in the formulation. To suggest that the incorrect use of the word
“objective” under those circumstances constitutes an error of law is not sustainable.
The first judgment impermissibly narrows the focus of the enquiry to a single word as
opposed to considering the passage as a whole. It elevates form (the label of the test)
above substance (the formulation of the test) and ultimately leads to a conclusion that
is not sensible in context. All of this is rested on an assumption that it was the Judge
in the High Court that used the word “objective”, even in the absence of any evidence
that this was so.

[141] Of course, if there was an error in the use of the term “objective” by the Judge,
then it would constitute a patent error in the light of everything else the passage
correctly expresses and in this regard the first judgment holds that a patent error or
omission may be corrected.
63 It must therefore follow that the passage which contains
the proper exposition of the test must then mean that the word “objective” (if used by
the judge at all) was a patent error which, even on the variant of the strict approach,
should be capable of revision.

[142] I would therefore conclude that, purely on the basis of the extempore judgment,
one cannot say that the High Court erred in formulating the test for putative private
defence. The full exposition of the test accords in every respect with the current
established test for putative private defence.

63 See the first judgment at [62].
46

KOLLAPEN J
[143] If the word “subjective” was used, then there could be no complaint that the
test was incorrectly formulated in the ex tempore judgment. Essentially, it comes
down to the use of a single word. If we are to approach interpretation as a unitary
exercise and not mechanically, and if we are to give a sensible meaning to the
language used, then everything militates against the conclusion that the word
“objective” must outweigh all other considerations and lead to the conclusion that an
error of law occurred in how the High Court formulated the test. At best, an error
would have occurred in the labelling of the test and not in its formulation and in
context. That error cannot constitute an error of law.

[144] If the incorrect word was purely an error of transcription, then the case for error
of law becomes even more tenuous. The passage in question where the test is
formulated is replete with grammatical and other errors. A cursory comparison of the
transcribed and the revised passage, which the first judgment accepts as permissible
revisions, reveal no more than three errors in transcription in a single sentence dealing
with the formulation of the test.

[145] The unrevised passage reads as follows:

“The test to be applied in respect of the accused, he generally held it mistakenly
believed that he was acting in lawful self-defence, or whether his belief was also held
on reasonable doubts.”

[146] It clearly does not make much sense in its transcribed from but in its revised
form, it reads as follows:

“[W]hether the accused genuinely, albeit mistakenly, believed that he was actin g in
lawful self-defence, or whether his belief was also held on reasonable grounds.”

This is also the formulation that Burchell uses.

47
KOLLAPEN J
[147] It is quite easy to understand how these errors may have crept in:
“generally held” is transcribed instead of “genuinel y held”, “it mistakenly” instead of
“albeit mistakenly” and “reasonable doubt s” is transcribed instead of “reasonable
grounds”. All these errors appear in the same sentence and the transcribed words are
phonetically similar to the revised words. All of this is offered simply in support of
the argument that transcription errors crept into the ex tempore judgment and the
possibility that the use of the word “objective” may also have been an error in
transcription is a strong one. The transcribed ex tempore judgment was never placed
before Bam J; the word “objective” is totally out of kilter, regard being had to the full
passage and the logic and flow of the test formulated. One must be careful in reaching
a conclusion of judicial error under these circumstances where so much points
compellingly away from it.

[148] The first judgment then invokes the revised judgment to suggest that the Court
regarded objective considerations as being part of the test for putative private defence.
In particular, reference is made to paragraph 8 of the revised judgment where
the Court says that—

“his defence amounts to putative self-defence. The test is subjective, in other words,
what the accused had in mind, objectively considered.”64

[149] The first judgment would hold that this sentence would not constitute a
permissible revision of the ex tempore judgment, as it does not even appear in the
extempore judgment and would constitute an addition, which it holds, should not be
possible. It is therefore not clear on what basis reference can be made to this part of
the revised judgment on the narrow test for revision postulated in the first judgment,
while closing the door to the revision of the word “objective”.

64 High Court judgment above n 1 at para 8.
48

KOLLAPEN J
[150] However, and assuming that resort can also be had to the revised judgment as
well as the transcribed judgment, the first judgment then posits the question whether
the words “objectively considered” were simply a reference to the recognition by the
trial court that the enquiry into the accused’s state of mind rests upon inferential
reasoning, or whether it was the invocation of a regulating consideration of
reasonableness in determining the accused’s state of mind.

[151] The first judgment, having posited two possible explanations for the words
“objectively considered”, then concludes the argument by stating that even though the
words may have been intended to have a more benign evidential import, the gravity of
the charges must mean that any ambiguity must be resolved in favour of the applicant.

[152] I am not sure if that conclusion is sustainable.

[153] Firstly, there simply cannot be any ambiguity. In the ex tempore judgment, the
test is correctly formulated as subjective. There is the labelling of the test as being
“objective” which I have sought to demonstrate could only have been a patent error if
indeed it was a term used by the Judge. This, coupled with the recognition in the first
judgment that the words “objectively considered” may have been benignly intended,
must reduce the scope for any ambiguity. Again, the phrase “objectively considered”
cannot be viewed in isolation.

[154] While I agree with the stance taken in the first judgment that our task is to
ascertain what the trial Judge conveyed, as opposed to what he meant to convey, it is
clear from the transcription that firstly we cannot be sure that the trial Judge did
convey the term “objective” but, even if he did, the error is so obvious that it must be
capable of revision on the basis of it being a patent error.

[155] The first judgment also deals with how the trial court dealt with the evidence
before it, in rejecting the version of the applicant that he held a mistaken but genuine
belief that he was warding off an unlawful attack on him, and suggests that objective
49
KOLLAPEN J
considerations constituted part of his consideration which, in turn, would suggest that
he formulated the test incorrectly. One must be cautious at the level of principle of an
approach that considers how the test was applied (which does not engage our
jurisdiction) in order to support an argument that since the test was incorrectly
applied, it must support the conclusion that the test was incorrectly formulated.

[156] However, and even if such an approach was permissible, it does not advance
the conclusion of an error of law. The ex tempore judgment undertook an evaluation
of all the evidence before the Court and in doing so, the Court made credibility
findings and accepted the evidence of Constable Makgafela, describing his evidence
as clear and without contradiction and stating that he made a good impression. In this
regard, that acceptance would have included his evidence regarding the warning to the
accused to stop running as his pursuers were police officers and the evidence relating
to the production of his police identification card.

[157] In dealing with the version of the accused, t he Court correctly accepted as a
starting point that the State bore the onus of establishing the guilt of the applicant
beyond reasonable doubt, and that if the applicant’s version was reasonably possibly
true, he would be entitled to his acquittal. However, it went on to find, after assessing
his evidence and the probabilities thereof , that his version could not be reasonably
possibly true.

[158] There is nothing in the extempore judgment to suggest that the Court had
regard to considerations of reasonableness in rejecting the version of the applicant as
not being reasonably possibly true. That key aspect of the case revolved substantially
around the events that led up to the apprehension of the applicant and the events that
led to the stabbing of the two policemen . The conclusion of the Court was based on
the evidence of the State and that of the applicant. Even if there may be criticism of
how the trial Judge dealt with the post stabbing evidence relating to the attempts by
the applicant to get assistance and report the matter, they do not simply provide
evidence of a resort to objective considerations being taken into account in rejecting
50
KOLLAPEN J
the version of the applicant. It is for these reasons that I would also say that the
assessment of the evidence and the reasons for conviction do not support the
conclusion that either the incorrect test was used, or that considerations of
reasonableness were used by the Court in determining what the state of mind of the
accused was at the time of the stabbing.

[159] Even if we may differ with the conclusion that was reached, it does not suggest
that an incorrect test was formulated or indeed applied.

[160] Finally, and accepting that judicial officers do err and often in serious ways
with far-reaching consequences, we must exercise some measure of caution in
reaching that conclusion. This is so, in particular, where the substantial and possibly
only evidence in support of it is a transcription of a judgment, which transcription was
never placed before the Judge and in respect of which the Judge never associated
himself with the correctness or otherwise of its contents. It is simply not possible in
these circumstances to close the door to the real possibility that the Judge did not use
the term “objective” but that the error was one of transcription. In those
circumstances it would be manifestly unfair to the Judge, to the prosecution and
indeed to the broader interests of the administration of justice, to impute the error to
the Judge. To do so would run counter to the proper assessment of the
extempore judgment, which points diametrically in the opposite direction. There is
nothing to support the conclusion that there is an appreciable risk that the trial court
incorrectly formulated the test resulting in an unsound conviction.

[161] In sum, neither the ex tempore judgment nor the revised judgment provide
evidence of an error of law being committed by the trial Judge in how the test for
putative private defence was formulated. There is also no constitutional matter or
arguable point of law of general public importance that requires determination in order
to deal with the appeal. The result is that our jurisdiction is not engaged and leave to
appeal against conviction must accordingly be refused.

51
KOLLAPEN J
Sentence
[162] The application for leave to appeal is also directed against the sentence
imposed by the trial court. On this aspect, the applicant contends that our jurisdiction
is engaged as the imposition of a mandatory minimum sentence impacts on his
constitutional rights set out in sections 12 and 35 of the Constitution. When regard is
had to sections 12 and 35, then it appears that the relevant portions thereof are
sections 12(1)65 and 35(3)66 of the Constitution.
65 Section 12(1) of the Constitution provides:
“(1) Everyone has the right to freedom and security of the person, which includes the
right—
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private
sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished i n a cruel, inhuman or degrading
way.”
66 Section 35(3) of the Constitution provides:
“(3) Every accused person has a right to a fair trial, which includes the right—
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a lega l practitioner, and to be
informed of this right promptly;
(g) to have a legal practitioner assigned to the accused person by the
state and at state expense, if substantial injustice would otherwise
result, and to be informed of this right promptly;
(h) to be presumed innocent, to remain silent, and not to testify during
the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person understands or, if
that is not practicable, to have the proceedings interpreted in that
language;
(l) not to be convicted for an act or omission that was not an offence
under either national or international law at the time it was
committed or omitted;
52


KOLLAPEN J

[163] The High Court approached the sentencing on count 1 (the murder charge)
mindful that the provisions of the Criminal Law Amendment Act 67 (Act) provides for
the imposition of a minimum sentence of life to be imposed, unless the Court was
satisfied that substantial and compelling circumstances existed to warrant a departure
from the statutorily ordained minimum sentence.

[164] It then proceeded to consider the personal circumstances of the applicant
including that he was relatively young, a first offender and that the crimes he was
convicted of were not committed with any pre-meditation. At the same time, it gave
due consideration to the fact that the crimes committed were very serious, they were
directed at police officers and that there was an expectation generally that courts were
required to deal with such crimes with the requisite level of seriousness.

[165] The Court concluded that the aggravating circumstances concerning the crimes
were overwhelming, and that there were no substantial and compelling circumstances
that justified a departure from the minimum sentence that the Legislature had
determined. It then proceeded to sentence the applicant to the minimum as provided
for in the Act – a sentence of life imprisonment on the count of murder. In respect of
the count of attempted murder a sentence of 15 years’ imprisonment was imposed.

The issuing of directions
[166] On 28 January 2022, the Acting Chief Justice directed the parties to file written
submissions to address the following issue:
(m) not to be tried for an offence in respect of an act or omission for
which that person has previously been either acquitted or
convicted;
(n) to the benefit of the least severe of the prescribed punishments if
the prescribed punishment for the offence has been chang ed
between the time that the offence was committed and the time of
sentencing; and
(o) of appeal to, or review by, a higher court.”
67 105 of 1977.
53

KOLLAPEN J

“[W]hether the finding of the trial court that there were no substantial and compelling
circumstances so as to deviate from the minimum sentence is a matter of sentencing
discretion or a value judgment. If the finding is a value judgment, under what
standard is an appellate court permitted to substitute its own evaluation of substantial
and compelling circumstanc es for that of the trial court, and impose an appropriate
sentence?”

[167] The parties responded to the directions issued and largely took the view that the
determination of the existence of substantial and compelling circumstances involved a
value judgment and not the exercise of a true discretion, and that an appeal court was
at large to intervene if it was of the view that an error had occurred in the
determination of whether substantial and compelling circumstances were found to
exist. The respondent, however, even while accepting that in the main the authorities
pointed in the direction that the court was exercising a value judgment, suggested that
there was also some reference to the court exercising a discretion and that to this
extent argued that the issue required some clarity. I am not convinced about the
cogency of the argument that any uncertainty exists on this issue as the law appears to
be well settled distinguishing, as it does, between a true discretion and a value
judgment in the approach to sentencing generally – it is an issue I will return to.

Leave to appeal
[168] While in general terms it must be so that sentences imposed by a court, in
particular custodial sentences, impact on a number of constitutional rights such as
those found in sections 12 and 35 as the applicant points out, it does not necessarily
follow that every act of sentencing raises a constitutional issue nor can it also be said
that all such matters raise an arguable point of law of general public importance.

[169] In Tembisa, this Court remarked as follows on the matter:

“To a greater or lesser extent, the rights guaranteed in the Bill of Rights cover the
whole field of human existence. Almost any case could be framed as touching on one
54
KOLLAPEN J
or other fundamental right. This is not enough to make the case a constitutional
matter. This is shown by Boesak . A sentence of imprisonment, following upon a
conviction that was not justified by the evidence, might be said to implicate the
convicted person’s right not to be deprived of freedom without just cause (section
12(1)(a)) and his right to a fair trial (section 35(3)), yet a contention that the
conviction was not justified on the evidence is not a constitutional matter but a factual
one.”
68

[170] In Bogaards,69 the majority of this Court said:

“The state is correct that, absent any other constitutional issue, the question of
sentence will generally not be a constitutional matter. It follows that this Court will
not ordinarily entertain an appeal on sentence merely because there was an
irregularity; there must also be a failure of justice. Furthermore, this Court does not
ordinarily hear appeals against sentence based on a trial court’s alleged incorrect
evaluation of facts. For instance, this Court will not, in the ordinary course, hear
matters in relation to sentence merely because the sentence was disproportionate in
the circumstances. Something more is required.”
70

Does a constitutional issue arise and is the “something more” that Bogaards alludes
to present in these proceedings?
[171] In his written submissions, the applicant contended that, while sentencing
ordinarily involves the exercise of a true discretion by a court, in the context of the
provisions of the Act, the existence or otherwise of substantial and compelling
circumstances involves a value judgment as opposed to the exercise of a discretion.
71

68 Tembisa above n 35 at para 92. See also Boesak above n 17 at para 15(a) and S v Ramabele [2020] ZACC 22;
2020 (2) SACR 604 (CC); 2020 (11) BCLR 1312 (CC) at para 33.
69 S v Bogaards [2012] ZACC 23; 2013 (1) SACR 1 (CC); 2012 (12) BCLR 1261 (CC) (Bogaards).
70 Id at para 42.
71 For an explanation of a what a value judgment is, see for example Media Workers Associat ion of South Africa
v Press Corporation of South Africa Ltd (‘Perskor’) [1992] ZASCA 149; 1992 (4) SA 791 (A) (Media Workers
Association) at 800C-G.
55

KOLLAPEN J
[172] This issue is not a novel one and has come before the Courts on numerous
occasions. In approaching the matter, one must be careful to distinguish between
what is regarded as the general sentencing discretion of a court as opposed to the
determination of substantial and compelling circumstances.

[173] In Salzwedel,
72 the Supreme Court of Appeal held that—

“the determination of a proper sentence for an accused person fell primarily within
the discretion of the trial Judge and that this Court should not interfere with the
exercise of such a discretion merely because it would have exercised that discretion
differently if it had been sitting as the C ourt of first instance. This submission is
undoubtedly correct, but it is clear that:
‘[t]he Court of appeal, after careful consideration of all the relevant
circumstances as to th e nature of the offence committed and the
person of the accused, will determine what it thinks the proper
sentence ought to be, and if the difference between that sentence and
the sentence actually imposed is so great that the inference can be
made that th e trial court acted unreasonably, and therefore
improperly, the Court of appeal will alter the sentence.’”
73

Similar sentiments were expressed by this Court in Bogaards when it said that
“[o]rdinarily, sentencing is within the discretion of the trial court. An appellate
court’s power to interfere with sentences imposed by courts below is
circumscribed”.
74

[174] In these circumstances where the sentencing court exercises a sentencing
discretion in the true sense, the scope for appellate interference is circumscribed.

72 S v Salzwedel [1999] ZASCA 93; 2000 (1) SA 786 (SCA) (Salzwedel).
73 Id at para 10 quoting from S v Anderson 1964 (3) SA 494 (A) at 495G-H.
74 Bogaards above n 69 at para 41.
56

KOLLAPEN J
[175] In Wijker,75 the Supreme Court of Appeal after referring to Media Workers
Association described a true discretion and the limitations on appellate interference
therewith as follows:

“However, as I stated above, the word discretion is used here in a w ide sense.
Henning ‘Diskresie-uitoefening’ in 1968 THRHR 155 at 158 quotes the following
observation concerning discretionary powers:
‘[A] truly discretionary power is characterised by the fact that a
number of courses are available to the repository of t he power
(Rubinstein Jurisdiction and Illegality (1956) at 16).’
The essence of a discretion in this narrower sense is that, if the repository of the
power follows any one of the available courses, he would be acting within his
powers, and his exercise of power could not be set aside merely because a Court
would have preferred him to have followed a different course among those available
to him. I do not think the power to determine that certain facts constitute an unfair
labour practice is discretionary i n that sense. Such a determination is a judgment
made by a Court in the light of all relevant considerations. It does not involve a
choice between permissible alternatives. In respect of such a judgment a Court of
appeal may, in principle, well come to a different conclusion from that reached by the
Court a quo on the merits of the matter.”
76

[176] While those views correctly express the law in so far as it relates to the general
exercise of a discretion by a court and the limited scope of appellate interference. The
more limited issue that arises in these proceedings, and one that the directions issued
sought to engage with, was confined to the nature of the decision of a court in the
context of minimum sentences and, in particular, the character of that decision as it
relates to the existence of substantial and compelling circumstances.

75 Wijker v Wijker [1993] ZASCA 101; 1993 (4) SA 720 (A).
76 Id at 727F-J quoting from Media Workers Association above n 71 at 800C-G.
57

KOLLAPEN J
[177] In Homareda,77 the Court, after considering the divergent approaches to the
question of substantial and compelling circumstances, ranging from the existence of
exceptional circumstances on the one hand to a proper consideration of the
aggravating and mitigating circumstances present on the other, was clear that the
decision on substantial and compelling circumstances involved a value judgment
when it said:

“The corre ct approach to the exercise of the discretion conferred on a court in
section 51 of the Act, as I see it, may be summarised as follows:
. . .
(5) The decision whether or not substantial and compelling circumstances are
present involves the exercise of a v alue judgment; but a Court on appeal is
entitled to substitute its own judgment on this issue if it is of the view that the
lower court erred in its conclusion: cf Wijker v Wijker 1993 (4) SA 720 (A)
at 727E-728B.”78

[178] While the Court made reference to the exercise of a discretion, it did so in
recognition that generally courts exercise a discretion in their sentencing role which is
distinct and different from the value judgment it is required to make, in coming to a
decision on whether substantial and com pelling circumstances are present. The value
judgment is exercised within the sentencing process and the holding in Homareda
does not suggest that the court exercises a discretion in deciding on the existence of
substantial and compelling circumstances.

[179] Also in GK,
79 the Court expressed similar views and explained how the
exercise of a sentencing discretion and that of a value judgment were different, but
existed within the same sentencing framework that governs minimum sentences when
it said:
77 S v Homareda 1999 (2) SACR 319 (W) (Homareda).
78 Id at 325G-326D.
79 S v GK 2013 (2) SACR 505 (WCC) (GK).
58

KOLLAPEN J

“It is appropriate first to say something concerning the approach of an appellate court
to a trial court ’s finding as to the presence or absence of substantial and compelling
circumstances. I do not think a trial court ’s finding on this question is a matter with
which an appellate court can interfere only if there has been a material misdirection or
if the sentence is ‘disturbingly’ inappropriate or induces a sense of ‘shock’. That is
the approach when an appellate court considers a sentence imposed in the exercise of
the trial court’s ordinary sentencing discretion. In terms of section 51 of the
Criminal Law Amendment Act 105 of 1997 certain minimum sentences are
prescribed and the court is deprived of its ordinary sentencing discretion, unless
substantial and compelling circumstances are present. The presence or absence of
such circumstances is thus the jurisdictional fact (to borrow an expression from
administrative law) on which the presence or absence of the ordinary sentencing
discretion depends. A determinat ion that there are or are not substantial and
compelling circumstances is not itself a matter of sentencing discretion.
The question whether such circumstances are present or absent involves a value
judgment, but unless there are clear indications in the A ct that this value judgment
has been entrusted solely to the discretion of the trial court, an appellate court may
form its own view as to whether such circumstances are or are not present. The fact
that a judicial power involves a value judgment does not in itself mean that it is a
discretionary power in the sense that an appellate court’s power to interfere is
circumscribed (see Media Workers Association of South Africa and Others v Press
Corporation of South Africa Ltd 1992 (4) SA 791 (A) at 800C-G).”
80

[180] The Supreme Court of Appeal in Bailey81 echoed similar sentiments with
regard to a value judgment being exercised and went on to also explain why the
approach by an appeal court was necessarily different when sentencing takes place
within the framework of the minimum sentencing regime, as opposed to what it called
sentencing under the ordinary sentencing regime. It said:

“The approach to an appeal on sentence imposed in terms of the Act, should in my
view, be different to an approach to other sentences im posed under the ordinary
80 Id at paras 3 and 4.
81 S v PB [2012] ZASCA 154; 2013 (2) SACR 533 (SCA) (Bailey).
59

KOLLAPEN J
sentencing regime. This in my view is so because the minimum sentences to be
imposed are ordained by the Act. They cannot be departed from lightly or for flimsy
reasons. It follows therefore that a proper enquiry on appeal is whether the facts
which were considered by the sentencing court are substantial and compelling or not.
The most difficult question to answer is always: what are substantial and compelling
circumstances? The term is so elastic that it can accommodate even th e ordinary
mitigating circumstances. All I am prepared to say is that it involves a value
judgment on the part the sentencing court. I have, however, found the following
definition in S v Malgas (above) para 22 to be both illuminating and helpful:
‘The greater the sense of unease a court feels about the imposition of
a prescribed sentence, the greater its anxiety will be that it may be
perpetrating an injustice. Once a court reaches the point where
unease has hastened into a conviction that an injustice will be done,
that can only be because it is satisfied that the circumstances of the
particular case render the prescribed sentence unjust, or as some
might prefer to put it, disproportionate to the crime, the criminal and
the legitimate needs of society. If it is the result of a consideration of
circumstances the court is entitled to characterise them as substantial
and compelling and such as to justify the imposition of a lesser
sentence.’”
82

[181] The reference to Malgas 83 where the Court set the basis for the determination
of substantial and compelling circumstances as to whether an injustice would occur,
accords with the approach that the court is ultimately exercising a value judgment
when it decides on the existence or not of substantial or compelling circu mstances.
This would in turn permit a widened scope for appellate interference as opposed to
where the sentencing court exercises a discretion in the true sense.

[182] Finally in Mudau, 84 the Supreme Court of Appeal also spoke of an appropriate
sentence in the context of minimum sentences as one that would not be unjustly
82 Id at paras 20-1.
83 Malgas above n 15 at para 22.
84 S v SSM [2013] ZASCA 56; 2013 (2) SACR 292 (SCA) (Mudau).
60

KOLLAPEN J
disproportionate if regard was had to the offence, the offender and the interests of
society. It held:

“Life imprisonment is the most severe sentence which a court can impose. It endures
for the length of the natural life of the offender, although release is nonetheless
provided for in the Correctional Services Act 111 of 1998. Whether it is an
appropriate sentence, particularly in respect of its proportionality to the particular
circumstances of a case, requires careful consideration. A minimum sentence
prescribed by law which, in the circumstances of a particular case, would be unjustly
disproportionate to the offence, the offender and the interests of society, would justify
the imposition of a lesser sentence than the one prescribed by law. As I will presently
show, the instant case falls into this category. This is evident from the approach
adopted by this Court to sentencing in cases of this kind.”
85

[183] The existence of what may be described as two different sentencing approaches
that the Court in Bailey made reference to is clearly justified and warranted by the
far-reaching nature that the Act has introduced into our law. While it has not removed
the sentencing discretion, it has fettered it to some extent and with that comes the
likelihood of a sentencing framework that may pose a significantly higher risk to the
freedom of the individual and considerations of a fair trial. In those circumstances an
error in a finding of substantial or compelling circumstances is inherently more
damaging to the constitutional values of freedom and liberty, justifying at the level of
principle a wider scope for appellate interference.

[184] Reverting to the question posed in Bogaards whether the appeal raises a
constitutional issue as the applicant says it does, the answer must be no. The law is
settled that a court brings out a value judgment when it makes a determination on the
existence of substantial and compelling circumstances. An appellate court is entitled
to interfere with that decision if an error has occurred and Malgas sets the threshold
for such interference as being a sense of injustice with the sentence impo sed. No
85 Id at para 19.
61

KOLLAPEN J
constitutional issue arises nor do any arguable points of law of general public
importance that engage our jurisdiction.

[185] The issue advanced by the applicant that the High Court erred in finding that
there were no substantial and compelling circumstances does not raise a constitutional
issue. No other basis for interference with the sentence was advanced other than
simply the contention that the sentence is disproportionate. Bogaards reminds us that
this is not a basis for intervention.

[186] It is for those reasons that the application for leave to appeal against sentence
must fail.

[187] I would therefore have refused leave to appeal against conviction and sentence.

62

For the Applicant:


For the Respondent:
T Ngcukaitobi SC and J Brickhill
instructed by Marweshe Attorneys

A Roos and M Jansen van Vuuren
instructed by State Attorney, Pretoria