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[2022] ZANCHC 57
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Director of Public Prosecutions, Northern Cape v Swarts and Another (KS19/2016) [2022] ZANCHC 57; 2023 (1) SACR 101 (NCK) (7 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
number: KS
19 / 2016
Date
Heard: 08 / 08 / 2022
Date
delivered: 7 / 10 / 2022
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Regional Magistrates: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:-
THE
DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT
NORTHERN
CAPE
and
FRANK
SWARTS FIRST
RESPONDENT
FRANK
ITUMELENG SECOND
RESPONDENT
Coram:
Nxumalo J, Stanton AJ and Kgopa AJ
JUDGMENT
STANTON
AJ
INTRODUCTION:-
[1]
The respondents were arraigned before his Lordship Matlapeng AJ, in
the Kgalagadi
Circuit Court, in Kathu, on the following charges: -
1.1
Contravention of s 3 of the Firearms
Control Act, Act 60 of 2000, the unlawful possession of a firearm;
1.2
Contravention of s 90 of the Firearms
Control Act, Act 60 of 2000, the unlawful possession of ammunition;
and
1.3
Murder, read with the provisions of s
51(1) of the Criminal Law Amendment Act, Act 105 of 1997.
[2]
The respondents, without giving evidence, were acquitted on all the
charges on 26
May 2017.
[3]
Subsequent to the acquittal, the appellant applied to the trial court
to have certain
questions of law reserved in terms of the provisions
of s 319 of the Criminal Procedure Act, Act 51 of 1977 (“the
CPA”).
This application was dismissed on 26 February 2018.
[4]
The applicant proceeded to lodge a petition to the President of the
Supreme Court
of Appeal, on 23 April 2018, for leave to appeal
against the dismissal of the application in terms of the provisions
of s 319 of
the CPA.
[5]
On 23 May 2018, the Supreme Court of Appeal ordered that leave to
appeal be granted
to the Full Bench of this Court.
SECTION
319 OF THE CPA:-
[6]
S 319(1) of the CPA stipulates:-
“
Reservation
of question of law.
(1)
If any question of law arises on
the trial in a superior court of any person for any offence, that
court may of its own motion or
at the request either of the
prosecutor or the accused reserve that question for the consideration
of the Appellate Division, and
thereupon the first-mentioned court
shall state the question reserved and shall direct that it be
specially entered in the record
and that a copy thereof be
transmitted to the registrar of the Appellate Division.”
[7]
According to the appellant, the term “
question of law
”
relates to the application of a legal principle to an established set
of facts and the determination of whether or not a
crime has been
committed. The appellant submits that the three questions of law that
require determination are:-
7.1
Whether the trial court failed to properly consider and appreciate
relevant evidence or erroneously approached
or treated relevant
evidence presented by the State against both the respondents;
7.2
Whether the trial court correctly appreciated and applied the legal
principles relating to circumstantial
evidence by not applying these
legal principles in consideration to all the relevant evidence
presented by the State; and
7.3
Whether the trial court disregarded the established legal principles
of liability, particularly the doctrine
of common purpose, by not
applying such principles to the relevant and proven evidence against
the first respondent.
[8]
In support of its argument that the trial court incorrectly applied
various legal
principles to the evidence, the appellant
comprehensively lists a wide range of examples
in
its heads of argument. In my view, it is not necessary to
traverse them here, but they can be distilled as follows,
namely that
the trial court failed to: -
8.1
Properly appreciate and consider the
full content of exhibit “W” in conjunction with other
evidence presented by the
State, and consequently failed to
appreciate all the relevant circumstantial evidence;
8.2
Properly evaluate the evidence against
the second respondent, namely the cap found on the scene and the
presence of the cell phone
in the vicinity of the farm, and such
phone being in his possession; and
8.3
Establish the liability of the first
respondent on the evidence before it.
APPLICABLE
LEGAL PRINCIPLES:-
[9]
I turn to consider whether the questions raised by the appellant are
indeed questions
of law or of fact.
[10]
The Supreme Court of Appeal in the recent judgment of
the
Director
of Public Prosecutions, Gauteng Division, Pretoria v RP
[1]
(“the
RP judgment”), comprehensively dealt with the legal principles
relating to the application of s
319 of the CPA. In the
RP
judgment
,
the State sought to reserve four questions, all pertaining to the
evaluation of evidence before Hattingh AJ. In its judgment,
the
Supreme Court of Appeal reaffirmed the judgment of
Director
of Public Prosecutions: Limpopo v Molope and another
[2]
where the Court held:-
"The
provisions of s 319 of the CPA are peremptory and require strict
compliance, as its purpose is to limit appeals by the
State. It
should be mentioned that s 319 has been subjected to a detailed
analysis in a number of judgments, both by this Court
and the
Constitutional Court. Its principles have accordingly been firmly
established in our law.
Two
decades ago, in Director of Public Prosecutions, Natal v
Magidela and others this Court eloquently and commendably
set
out the position of the relevant law stating that:
'The
provisions of section 319 and its predecessors have been the subject
of judicial interpretation over the years and in order
to see whether
the requirements of the section were complied with in this case it is
important to consider how the section has
been construed. The
first requirement is not complied with simply by stating a question
of law. At least two other
requisites must be met. The
first is that the question must be framed by the Judge "so
as accurately to express
the legal point which he had in mind" (R
v Kewelram
1922 AD 1
at 3). Secondly, there must be
certainty concerning the facts on which the legal point is intended
to hinge. This requires
the court to record the factual
findings on which the point of law is dependent (S v Nkwenja en 'n
ander 1985 (2) SA 560 (A)
at 567B-G [also
reported at
[1985] 1 All SA 70
(A) – Ed]). What
is more, the relevant facts should be set out fully in the record as
part of the question of
law (S v Goliath 1972 (3) SA 1 (A)
at 9H-10A [also reported at
[1972] 3 All SA 69
(A) –
Ed]). These requirements have been repeatedly emphasised in
this Court and are firmly established (see, for
example, S
v Khoza en andere 1991 (1) SA 793 (A) at
796E-I [also reported at
[1991] 3 All SA 971
(A) –
Ed]). The point of law, moreover, should be readily
apparent from the record for if it is not, the
question cannot
be said to arise "on the trial" of a person (S
v Mulayo 1962 (2) SA 522 (A)
at 526-527
[also reported at
[1962] 2 All SA 492
(A) – Ed]).
Non constat that the point should be formally raised at the
trial: it is sufficient if it "comes
into existence" during
the hearing (R v Laubscher
1926 AD 276
at 280; R v
Tucker 1953 (3) SA 150 (A) at 158H-159H
[also reported at
[1953] 3 All SA 258
(A) – Ed]). It
follows from these requirements that there should be certainty not
only on the factual issues on which
the point of law is based but
also regarding the law point that was in issue at the trial.'
[Original emphasis.]
[11]
The approach in
Director
of Public Prosecutions: Natal v
Magidela
and others
(“Magidela”)
[3]
was
endorsed by the Supreme Court of Appeal in
Director
of Public Prosecutions
:
Western
Cape v Schoeman and another
[4]
(“Schoeman”)
where
it is stated:-
"
The
State has a right of appeal only against a trial court's mistakes of
law, not its mistakes of fact
.
Indeed, Du Toit, De Jager, Paizes, Skeen and Van der Merwe stress
that this 'restriction will not be relaxed by the fact that
the trial
judge considered the facts incorrectly'.
Before
a question of law may be reserved under s 319 three requisites must
be met. First, it is essential that the question
is framed
accurately leaving no doubt what the legal point is. Secondly, the
facts upon which the point hinges must be clear.
Thirdly, they
should be set out fully in the record together with the question of
law.
"
[5]
[12]
In
Schoeman
[6]
,
the Supreme Court of Appeal, with regard to the consequences of not
meeting the three requisites, stated that:-
"
Unless
the State does this
,
it
may not be possible for a court of appeal to establish with certainty
what the conclusions on the legal point
,
which
the trial court arrived at
,
are.
Where
it is unclear from the judgment of the trial court what its findings
of fact are
,
it
is therefore necessary to request the trial judge to clarify its
factual findings. Where this is not done, the point of law is
not
properly reserved.
"
[7]
(Footnotes omitted.)
[13]
The Supreme Court of Appeal in
S
v Basson
[8]
reaffirmed
that:-
"When
a question of law arises as aforesaid, the trial court, or, where it
refuses to do so, this court has to decide on application
by the
state whether to reserve a question of law for consideration by this
court. When this court considers an application
by the state
for leave to appeal against a refusal to reserve a question of law by
the trial court, as with any other application
for leave to appeal,
it will only exercise its discretion in favour of the state where
there is a reasonable prospect that if the
mistake of law had not
been made, the accused would have been convicted."
"The
only way in which the state can appeal against the decision of the
trial court in terms of the Act is therefore by way
of the
reservation of a question of law in terms of section 319. The
state has no right of appeal in terms of the Act in
respect of
erroneous findings of fact by the trial judge. Only if the
trial court has given a wrong decision due to a legal
error can the
state appeal. In order to determine whether the trial court committed
an error of law, it must be determined on what
factual basis it based
its decision. After all, another factual basis cannot give an
indication as to whether the judge committed
a legal error. Whether
the trial court's findings of fact are right or wrong is therefore
totally irrelevant in order to determine
whether he erred in law. It
follows that a legal question arises only when the facts on which the
trial court bases its ruling
may have a different legal consequence
than the legal consequence that the trial court found. For the
aforesaid reasons (a)
there must be certainty as to the point of law
at issue and of the facts on which the trial judge based his finding;
and (b) when
a question of law is reserved, it must be clearly
stated, not only which point of law is involved, but also the facts
on which
the trial court based its finding (see Director of
Public Prosecutions, Natal v Magidela and
another 2000 (1) SACR 458 at
paragraphs
462g-463c [also reported at
[2000] JOL 6331
(A) – Ed]).
When the state has such a legal question reserved, it is therefore
necessary for the state to compile the specific
facts properly and in
full as part of the exposition of the question of law (see S v
Goliath 1972 (3) SA 1 (A)
at 9H [also
reported at
[1972] 3 All SA 69
(A) – Ed])."
[9]
[14]
I also take heed of what the Supreme Court of Appeal confirmed
in
DPP,WP
v
Schoeman
at
paragraphs 45 – 46:-
[10]
"If
we were to entertain the appeal on the merits, we would face the task
of having to ascertain the relevant facts. To
this end, we
would have to read the entire record and re-evaluate all of the
evidence, thereby second-guessing the trial judge
who was best placed
to do this. We would thus have to approach the matter as if
this were a full appeal on the merits. The
problem does not end
there. Having embarked on this task, we would have to decide
whether the facts established by us accord
with those found by the
trial court. It is only if we find that the factual findings of
the trial court were wrong and the
result of a legal error would we
be obliged to interfere with the decision of the trial court.
This
is why courts of appeal require strict adherence to the requirement
for the State to set out the factual basis for the reservation
of any
point of law before it will entertain it. Here the State has not even
attempted to comply with this requirement. We
thus hold that
the State has not properly reserved its four points of law. That
ought to be the end of the matter. We
consider it
necessary, however, to deal further with the issue."
(My emphasis.)
[15]
Mr Rosenberg, on behalf of the appellant, submitted that the trial
court’s failure to correctly
consider and evaluate all the
relevant evidence, constitute an error of law, and not fact. In
support of his argument that
a disregard of relevant circumstantial
evidence, is an error of law, much reliance was placed on the
judgment of the Supreme Court
of Appeal in the matter of
DPP,
Gauteng v Pistorius
[11]
.
[16]
In contrast, counsel for the respondents argued that the appellant
had failed to comply with
the requirements of s 319 of the CPA, and
that all of the questions raised, were questions of fact.
[17]
In many cases, the decision of whether a question is one of fact or
of law poses considerable
difficulty. In
Schoeman
,
[12]
the Supreme Court of Appeal, having found that the court had erred in
the matter of
Director
of Public Prosecutions
,
Gauteng
v Pistorius
,
stated that:-
"It
seems, therefore, that this court in Pistorius erred, with
respect, in finding, albeit obiter in our view, that
where a trial
court ignores evidence or displayed a lack of appreciation of its
relevance, that this amounted to an error of law.
As we have
demonstrated, this conclusion is at odds with a long line of
authority in this court, endorsed by the Constitutional
Court. We
do not agree that the test for the applicability of s 319 is whether
the judicial process is adversely affected
by the error made by the
trial court. That test would have the effect of making almost
every material error of fact an error
of law. That is not what
is envisaged by s 319. As Corbett CJ pointed out in Magmoed,
even where there are 'strong indications'
from the evidence that
there were cogent reasons to convict an accused '[t]hese
considerations must not . . . be allowed
to obscure
one's perception of the legal and policy issues involved in
permitting s 319 to be utilized in the manner the prosecution
in this
case wishes to use it; or to weaken one's resolve to maintain what
appears to be sound legal practice. Put simply,
the mere fact
the judicial process has become flawed by the way a trial court goes
about assessing the evidence before it, does
not justify permitting s
319 to be used by the prosecution to reserve a point of law for what
is in truth misdirection of fact.
That impermissibly undermines
the clear language of the section and the deliberate choice of the
legislature to restrict
appeals in terms of the section to questions
of law. The law as reflected in Canadian cases cited
in Pistorius does not
reflect the position in our law."
[18]
It is clear from the judgment of the trial court that it was
satisfied from a totality of the
evidence that the State had not
proved its case beyond a reasonable doubt against the respondents.
The judgment confirms
that the evidence led by the State was
accounted for and due weight was accorded to it. The conclusion
to which the trial
court arrived was that the evidence was not
sufficient to establish the guilt of the respondents.
[19]
It is clear from
Schoeman
that even if a
trial court ignored evidence or displayed a lack of appreciation for
its relevance, this does not amount to
an error of law. The
appellant is in essence, requesting the Court to approach the matter
as if this were a full appeal on
the merits. In my view, and
for the reasons set out above, I find that the questions raised by
the appellant are questions
of fact and not of law.
[20]
In addition to my finding above, the three questions with enough
precision to leave no doubt
as to what the legal point is, or that
the facts on which the points hinge, are clear and succinct.
[21]
In view of all the aforegoing, the appellant’s application in
terms of s 319 of the
CPA, falls short of what is required and
stands to be dismissed.
WHEREFORE
THE FOLLOWING ORDER IS MADE:
THE
APPEAL IS DISMISSED.
STANTON
A
ACTING
JUDGE
I
concur.
NXUMALO
J
JUDGE
I
concur.
KGOPA
AJ
ACTING
JUDGE
On
behalf of the appellant:
Adv. J.J.D.
Rosenberg
On
instruction of:
The NDPP
On
behalf of the first respondent:
Mr.
R.
Ishmael
Private
instruction
On
behalf of the second respondent:
Adv.
J.J. Schreuder
Private
instruction
[1]
[2021] JOL 50296 (SCA).
[2]
[2020] 3 All SA 633
(SCA) at paragraphs [44] and [45]; [also
reported at 2020 (2) SACR 343 (SCA)].
[3]
[2000]
JOL 6331
(A) at paragraph [9].
[4]
[2019]
ZASCA 158
; [also reported at 2020 (1) SACR 449 (SCA)
at paragraph [39]].
[5]
Emphasis
supplied and footnotes omitted.
[6]
Supra
at
paragraph [40].
[7]
Emphasis
supplied.
[8]
2003 (2) SACR 373 (SCA) paragraphs 10 – 11
[also reported at [2003] 3 All SA 51 (SCA); [2003]
JOL 11111
(SCA)].
[9]
Supra
at
paragraph [6].
[10]
2020
(1) SACR 449 (SCA).
[11]
2016 (1) SACR 431
(SCA) at paragraph [40].
[12]
Supra at
paragraphs
[73] - [74].