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[2017] ZASCA 78
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Director of Public Prosecutions, Gauteng Division, Pretoria v Moloi (1101/2015) [2017] ZASCA 78; 2017 (2) SACR 177 (SCA) (2 June 2017)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1101/2015
In
the matter between:
DIRECTOR
OF PUBLIC PROSECUTIONS,
GAUTENG
DIVISION, PRETORIA
APPELLANT
and
KINGSLEY
JAFTA MOLOI
RESPONDENT
Neutral
Citation:
DPP
v Moloi
(1101/2015)
[2017] ZASCA 78
(2 June 2017).
Coram:
Maya AP, Theron and
Dambuza JJA and Molemela and Gorven AJJA
Heard:
15 February 2017
Delivered:
2 June 2017
Summary:
Appeal in terms of
s 311
of the
Criminal Procedure Act 51 of 1977
:
Section 311
provides
for an appeal as of right, without leave: failure to have regard to
all
the evidence in determining the guilt or otherwise of an accused
constitutes an error of law: question of law upheld: order of
the
high court set aside: conviction and sentence imposed by the regional
court reinstated and matter remitted to the high court
for the appeal
to proceed on the merits.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Louw J and Avvakoumides AJ
sitting as a court of appeal):
1
The appeal is upheld in respect of the first question of law.
2
The order of the court a quo is set aside.
3
The conviction and sentence imposed by the regional court are
reinstated.
4
The matter is remitted to the high court for the appeal to proceed on
the merits.
JUDGMENT
Dambuza
JA (Molemela AJA concurring):
[1]
On 12 February 2014 the respondent was convicted by the Nelspruit
Regional Court on a charge of the
rape
of a 13 year old girl. He was sentenced to life imprisonment. The
Regional Magistrate ordered that he not be considered for
parole and
that his name be entered in the register of sex offenders.
[2]
On appeal the Gauteng High Court, Pretoria, (per Avvakoumides AJ with
Louw J concurring) (high court), set aside the conviction
and the
sentence. Consequently, the respondent was released from
imprisonment. The Director of Public Prosecutions, Gauteng Division,
Pretoria (DPP) then brought an application, in this court, for
special leave to appeal against the order of the court a quo. The
appeal was to be founded on two questions of law, as provided in
s 311(1) of the Criminal Procedure Act 51 of 1977 (CPA).
This
court ordered that the application for special leave to appeal be
argued in open court and that the parties be prepared to
make
submissions on the merits of the appeal if invited to do so.
[3]
In this judgment I set out the background facts. I then consider
whether the intended grounds of appeal fall within the ambit
of s 311
of the CPA, whether such an appeal requires special leave or is an
appeal as of right, whether a proper case has
been made for special
leave to appeal and whether the appeal should be upheld.
[4]
The respondent was charged in the Regional Court, Nelspruit, with the
rape of his 13 year old niece, who was his sister’s
daughter
(the complainant). At the time of the incident, which took place on 9
September 2005, the complainant shared her home
in Phola Trust,
Nelspruit with her older sister G. Their mother lived in Johannesburg
where she worked. Although this is not clear
from the record, it
would appear that their father lived elsewhere as well. The
respondent lived with his mother (the children’s
grandmother).
[5]
The State led the evidence of the complainant, G who was 16 years old
at the time of giving evidence; Dr Megan Windvogel who
examined the
complainant after the incident; Nurse Lucy Themba who drew a blood
sample from the respondent and several police officers
who were
involved in the safekeeping and transmission of the forensic samples.
The respondent was the sole defence witness.
[6]
The complainant’s evidence was as follows. On the afternoon
preceding the night of the incident her uncle the respondent,
and his
girlfriend who lived in their locality, requested that she sleep at
the girlfriend’s home that night, to keep the
latter’s 14
year old daughter, K, company as the couple were going out for the
evening. For this reason the couple fetched
the complainant from her
home during the day and left her at the girlfriend’s home. In
the early hours of the following morning,
whilst the complainant was
still at the girlfriend’s home, the couple returned home. They
were drunk and it appeared that
they had been fighting. The
respondent continued to assault the girlfriend until she ran away. He
then ordered the complainant
to go to her home with him to see if G
was home. They found her at home. The respondent told the complainant
that he was taking
her back to his girlfriend’s home. On the
way he told her that they should stop at his home to close a window.
At his home
they went into the respondent’s bedroom. The
respondent closed the window and the bedroom door and instructed the
complainant
to undress and get into the bed. By this time he had a
firearm in his hand. He promised not to hurt the complainant. When
the complainant
did as she was instructed the respondent proceeded to
have sexual intercourse with her without her consent. Thereafter he
gave
her R50 and warned her not to tell anyone about the incident.
The complainant went home where she immediately told G what had
happened.
[7]
G testified that at about 06h00 on the morning of 10 September 2005
she was at home when the complainant arrived home crying,
reporting
that the respondent had sexual intercourse with her at their
grandmother’s house and then gave her R50. G took
the money and
went to her grandmother’s home where she reported the matter.
She used the money to telephone her parents from
a nearby public
phone, to report the incident. While she was phoning her parents she
observed the respondent fleeing from her grandmother’s
home.
Thereafter she, together with her grandmother and her aunt, went back
home to the complainant. She gave what was left of
the money to her
grandmother to take the complainant to the clinic. Prior to that
morning, she had last seen the complainant the
previous evening when
the respondent’s girlfriend came to fetch her to keep her
daughter, K, company.
[8]
Dr Megan Windvogel’s evidence related to the contents of the
medico-legal report she had prepared pursuant to the medical
examination of the complainant following the allegation of rape. In
essence, her evidence was to the effect that the complainant’s
private parts presented with redness and she had observed a white
discharge thereon. She took vaginal swabs from the complainant
and
placed them in a crime kit which, after sealing, she handed, together
with the medico-legal report, to Inspector Nkosi.
[9]
Evidence relating to the collection and transmission of forensic
evidence was also led, together with the evidence of a nurse
who drew
a blood sample from the respondent. It was common cause at the trial
that blood samples were obtained from him on two
occasions. Two
forensic reports set out in two affidavits deposed to by Lieutenant
Colonel Catharina Botha, in terms of ss 212(4)(
a
)
and 8(
a
)
of the CPA, form
part of the record. Lieutenant Colonel Botha performed the forensic
analysis on the specimens obtained from the
complainant and the
respondent.
[10]
In the first affidavit, dated 16 July 2008, she stated amongst other
things, that:
‘
The
partial STR profile of the DNA obtained from the vaginal vault swab
is the same as the STR-profile of the DNA obtained from
the control
blood sample’
.
It
was common cause that the blood sample referred to in this report was
the one allegedly drawn from the respondent on the first
occasion. In
the second affidavit, dated 17 July 2012, she said that:
‘
The
STR-profile of the DNA obtained from the control blood sample is the
same as the STR-profile of the DNA obtained from the control
blood
sample “KJ MOLOI”.’
[11]
In summary, the State case was that the DNA results were obtained on
an analysis done on the first blood sample drawn from
the respondent
in 2007. The second blood sample was used to confirm that the first
and the second blood samples belonged to the
same person, the
respondent.
[12]
The respondent denied having had sexual intercourse with the
complainant. He insisted that his DNA could never have been found
on
the complainant. According to him, on his arrival at his girlfriend’s
home, after the evening out, he saw two boys leaving
the girlfriend’s
house. The suggestion was that the two boys must have been in the
company of the complainant and K and that
is how the complainant had
engaged in sexual intercourse. According to him the false charge of
rape and the fabricated evidence
against him was motivated by a
‘vendetta’ on the part of his sister, the complainant’s
mother, and her children.
They did not want him to discipline them.
He denied that he had requested the complainant to sleep at his
girlfriend’s home
and that he had a firearm in his possession
on the night in question.
[13]
In convicting the respondent the magistrate found that the chain
evidence relating to the DNA was never seriously disputed
during
cross-examination. He acknowledged, however, that the respondent had
denied that the first blood specimen was drawn from
him and suggested
that the second blood specimen could have been contaminated. The
magistrate was of the view that the fact that
the person who drew the
first blood sample from the respondent did not testify at the trial,
did not undermine the rest of the
evidence relating thereto. It was
sufficient, in the view of the magistrate, that Nurse Themba who drew
the second blood sample,
and Constable Simba in whose presence the
second blood sample was drawn, gave evidence. What was paramount,
according to the magistrate,
was that both blood samples were proved
to be from the respondent, and that the DNA from the first blood
specimen matched the partial
STR profile of the DNA found in the
vaginal smear obtained from the complainant. The magistrate concluded
that forensic evidence
proved that the respondent had engaged in
sexual intercourse with the complainant.
[14]
As to the different versions given by the respondent and the
complainant, the magistrate found that the complainant’s
evidence was credible. He found that the complainant did not
contradict herself and that, although she was a single witness, G’s
evidence as to the complainant’s condition when she returned
home, the report she made to G immediately upon her arrival,
together
with the R50 she had in her possession, all supported her version. On
the other hand the fact that the respondent fled
from his home after
the arrival of G to report the incident, was found to be
supportive of the State case. The magistrate
found the respondent to
be a liar and that his version, including his allegation of
conspiracy against him by his sister and her
children, was false.
[15]
On appeal, the high court set the conviction aside based on the
denial of sexual intercourse, the failure of the State to ‘sustain
the chain and link of the blood samples taken from the Appellant’
and ‘the failure to lead evidence to “corroborate
the
samples and the authenticity of the tests conducted and to link such
samples to the Appelant”.’
[16]
It is pursuant to the order of the high court that the DPP brought
the application in this court, seeking special leave to
appeal
against the decision of the high court. The application is based on
two questions of law, advanced by the DPP as follows:
‘
1.
May a court of appeal set aside a conviction and sentence in
circumstances where an appellant is implicated by direct eye witness
evidence without evaluating, referring (to) or rejecting such
evidence in the judgment?
2.
Is there a duty on the prosecution to tender viva voce evidence of an
analyst who deposed to an affidavit in terms of section
212(4) of Act
51 of 1977 in circumstances where an accused does not lay a basis for
his mere denial that it was his DNA found in
the specimen obtained
from the complainant?’
[17]
Section 311 provides that:
‘
Where
the provincial or local division on appeal, whether brought by the
attorney-general or other prosecutor or the person convicted,
gives a
decision in favour of the person convicted on a question of law, the
attorney-general or other prosecutor against whom
the decision is
given may appeal to the Appellate Division of the Supreme Court,
which shall, if it decides the matter in issue
in favour of the
appellant, set aside or vary the decision appealed from and, if the
matter was brought before the provincial division
in terms of-
(a)
section
309(1), re-instate the conviction, sentence or order of the lower
court appealed from, either in its original form or in
such a
modified form as the Appellate Division may consider desirable; or
(b)
section
310(2), give such decision or take such action as the provincial or
local division ought, in the opinion of the Appellate
Division, to
have taken (including any action under section 310(5), and thereupon
the provisions of section 310(4) shall
mutatis
mutandis
apply.
(2)
If
an appeal brought by the attorney – general or other prosecutor
under this section or section 310 is dismissed, the court
dismissing
the appeal may order that the appellant pay the respondent the costs
to which the respondent may have been put in opposing
the appeal,
taxed according to the scale in civil cases of that court: Provided
that where the attorney – general is the
appellant, the costs
which he is so ordered to pay shall be paid by the State.’
[18]
It is trite that the term ‘question of law’ relates to
the application of a legal principle to an established set
of facts
and determination of whether or not a crime has been committed.
Recently this court, in
Director
of Public Prosecutions, Gauteng v Pistorius
[1]
considered, comprehensively, the disregarding, by a court, of
relevant evidence in considering whether the commission of a crime
has been proved. This court found that the failure by the trial court
to take into account all the relevant evidence as to the
presence or
otherwise of
dolus
eventualis
constituted
an error of law. Leach JA reasoned that:
‘
[34]
It is thus trite that a trial court must consider the totality of the
evidence led to determine whether the essential elements
of a crime
have been proved. As Nugent J stated in
Van
der Meyden
,
a passage oft cited with approval in this court:
“
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is
appropriate to the application of that test in any particular case
will depend on the nature of the evidence which the
court has before
it. What must be borne in mind, however, is that the conclusion which
is reached (whether it be to convict or
to acquit) must account for
all the evidence. Some of the evidence might be found to be false;
some of it might be found to be
unreliable; and some of it might be
found to be only possibly false or unreliable; but none of it may
simply be ignored.”
.
. .
[36]
There seems to me to be no difference in principle between the
exclusion of relevant evidence by ruling it inadmissible and
excluding such evidence, once admitted, by not taking it into account
to decide the issues in dispute. In either event the judicial
process
becomes flawed by regard not being had to material which might affect
the outcome. As much as excluding evidence on the
basis of
admissibility is a legal issue, it seems to me to also be a legal
issue should account not be taken of any evidence placed
before court
which ought to be weighed in the scales.’
As contended by the
DPP, failure by any court to take into account relevant evidence is
an error of law. Since the high court did
not consider anything other
than the DNA evidence, it failed to take into account relevant and
admissible evidence. This means
that the first question of law is in
fact one which was decided in favour of the respondent and that s 311
applies. That being
the case it is not necessary to deal with the
second question of law.
[19] The question of law, having been
decided in favour of the convicted person (the respondent), as
envisaged in s 311(1)
(a)
of the CPA, the next issue for
consideration is whether the applicable test in relation to prospects
of success was met. The contentious
issue of whether leave of court
is required to prosecute an appeal under this section, was
introduced, rather obliquely, in the
parties’ heads of
argument. Notably, although the section provides for the right of
appeal by the DPP under s 311, nowhere
does the CPA prescribe a
procedure for prosecuting such appeal. Furthermore, s 1 of the
Superior Courts Act provides that:
‘“
appeal”
in
Chapter 5, does not include an appeal in a matter regulated in terms
of the Criminal Procedure Act, 1977 (Act 51 of 1977), or
in terms of
any other criminal procedural law.’
The
contention was that in terms of this definition appeals under s 311
of the CPA are excluded from the procedure set under ss
16(1)
(b)
and 17(3) of the Superior Courts Act. More specifically, s 311
(1)
(a)
of
the CPA
provides
for an automatic right of appeal to this court from a decision of the
high court given on appeal to that court.
[20]
In
Attorney
General, Transvaal v Nokwe & others,
[2]
Trollip J considered, comprehensively, the question whether leave of
the court was required for the Attorney-General (the
predecessor-in-title
of the DPP) to prosecute appeals on a question
of law. The right to appeal on a question of law was, at that time,
provided for
under
s 105
of the
Magistrates Courts Act, 32 of 1944
.
The learned Judge held:
‘
Sec
105(1)
enables the Attorney-General to appeal to the Appellate
Division from a decision given on appeal from a magistrate’s
court
by a Provincial Court in favour of an accused on a matter of
law. No mention is made therein that such an appeal is subject to
leave being first granted.
Section 114(3)
of that Act, however,
provides that nothing in the Act must be construed as affecting the
provisions of sec. 105 of the South Africa
Act, 1909, relating to
appeals to the Appellate Division. That latter section, as amended,
made special provision to the effect
that an appeal to the Appellate
Division from a judgment on appeal by a Provincial Division, only lay
if leave was first granted
by the latter Division.’
[3]
[21]
The learned Judge considered the provisions of s 21(2)
(a)
of
the Supreme Court Act of 1959 (the predecessor to the Superior Courts
Act in its earlier form – prior to the 1982 amendment)
and
concluded that under that Act leave to appeal was necessary to enable
the Attorney-General to prosecute an appeal on a question
of law.
That section provided that:
‘
there
shall be no appeal to the appellate division against … any
decision given by a division on appeal to it except with
the leave of
the court against whose decision the appeal is to be made’.
[22]
In 1982 certain provisions relating to appeals under both the CPA and
Supreme Court Act were amended.
[4]
In its amended form s 20 of the Supreme Court Act read in the
relevant part:
‘
(4)
No appeal shall lie against a judgment or order of the court of a
provincial or local division in any civil proceedings or against
any
judgment or order of that court given on appeal to it except-
(a)
in
the case of a judgment or order given in any civil proceedings by the
full court of such a division on appeal to it in terms
of subsection
(3), with the special leave of the appellate division;
(b)
in
any other case
,
with the leave of the court against whose judgment or order the
appeal is to be made, or where such leave has been refused, with
the
leave of the appellate division.’
[5]
(My
emphasis.)
[23]
The purpose of these amendments was to ensure that appeals based
purely on fact should not unnecessarily take up the time of
this
court, which is more profitably devoted to issues of law. Matters of
pure fact, or of fact and law, where the law is not really
controversial, must be heard by a full court of the provincial
division concerned. Thus, the legislature demonstrated an intention
to maintain the qualitative limitation on appeals coming to this
court. This principle and the concomitant requirement for leave
to
appeal endured after the
Superior Courts Act 10 of 2013
came into
effect in respect of both civil and criminal appeals.
Section
16(1)
(b)
of the
Superior Courts Act provides
that:
‘…
[a]n
appeal against
any
decision of a Division on appeal to it, lies to the Supreme Court of
Appeal upon
special
leave having been granted by the Supreme Court of Appeal
.’
(My
emphasis.)
As
the court remarked in
Nokwe
,
the conclusion that leave of the court is necessary to prosecute an
appeal on a point of law is consistent with the general principle
to
limit appeals to this court from superior courts.
[6]
The wording in
s 16(1)
(b)
conveys an intention, on the part of the legislature, to intensify
the qualitative control over appeals to this court from appeal
decisions of the superior courts.
[24]
Section 311
of the CPA and
ss 1
and
16
(1)
(b)
of
the
Superior Courts Act are
not inconsistent. The former only creates
the right of appeal to this court and the latter sets the procedure
and benchmark for
all appeals to be heard in this court.
Section 1
of
the
Superior Courts Act becomes
applicable where a criminal law
provision, such as
s 309
of the CPA regulates both the jurisdictional
requirements and the benchmark for prosecuting appeals in this court.
It seems to
me that against the entrenched qualitative control
principle set out above, if the Legislature had intended to effect
the suggested
fundamental change in procedure it would have expressed
such intention explicitly. Direct access by the State to this court
is
inconsistent with the intention denoted in the more stringent test
set under the
Superior Courts Act. It
also seems that such right of
direct access unfairly tilts the balance of power in criminal
proceedings in favour of the State
against ordinary persons in whose
favour superior courts find on appeal.
[25]
I am, therefore, of the view that this appeal is not excluded from
Chapter 5 of the
Superior Courts Act and
that
s 311(1)
(a)
of
the CPA does not provide an automatic right of appeal to this court.
Put otherwise, the provisions of
ss 16(1)
(b)
and
17
(3) apply and special leave of this court is therefore required.
[26]
As to whether special leave should be granted in this instance I am
satisfied that there are special circumstances which merit
an appeal
to this court. In regard to the first point of law the record
shows that the high court simply ignored relevant
evidence, including
the evidence of the complainant and her sister. It also disregarded
the findings of the magistrate. This is
impermissible.
[27]
If allowed to stand the incorrect approach by the high court would
uproot the long established legal principles in our law
in relation
to evaluation of evidence. The high court is a precedent setting
court. The incorrect approach would result in extensive
miscarriage
of justice to members of the public. Therefore the matter is of
importance, not only to the parties in this case, but
to the members
of the general public. These factors constitute special circumstances
and I would therefore grant leave to appeal.
[28]
Further, having found that the high court disregarded relevant
evidence and ignored the findings of the trial court, the appeal
on
the first question of law must succeed. That being the case, it is
unneccessary to deal with the second question of law.
[29]
Counsel for both parties urged us to consider the merits of the
appeal in the event that the application for leave to appeal
was
granted. However this court does not have the benefit of properly
considered views of the full court on the submissions made
to it on
the merits. The respondent has not had the benefit of consideration
of the merits of his appeal by the high court. This
court would, in
essence, be considering the merits of the findings made by the
magistrate. It is appropriate therefore that the
matter revert to the
high court for a proper determination of the issues on the merits.
[30]
I would therefore grant the State special leave to appeal on a
question of law, uphold the appeal, reinstate the conviction
and
sentence and remit the appeal to the high court for consideration on
the merits.
____________________
N
DAMBUZA
JUDGE
OF APPEAL
Gorven
AJA ( Maya AP and Theron JA concurring):
[31]
I have read the judgment of my colleague Dambuza JA.
The
high court simply failed to consider admissible evidence by confining
itself to the DNA evidence. The failure to do so was accordingly
a
question of law decided in favour of the respondent as is explained
in the minority judgment. The provisions of
s 311
of the CPA are
therefore triggered. The first question of law must be decided in
favour of the appellant. It is unnecessary to
decide the second
question. The appeal must be allowed. The error of law committed by
the high court, in the exercise of its appeal
jurisdiction, was
fundamental and of so gross a nature as to vitiate the proceedings in
that court.
[7]
The result is that the respondent’s appeal has not been heard
on the merits. The conviction and sentence of the respondent
must be
re-instated in their original form as imposed by the trial court. It
follows that the matter must be remitted to the high
court for it to
properly exercise its appeal jurisdiction.
[8]
I thus concur in the order granted in this matter.
[32]
I write because it is my view that special leave to appeal is not
required in a matter arising from
s 311
of the CPA. This section
provides for an appeal as of right, without leave. An appeal under
s 311
of the CPA is also an appeal ‘regulated in terms of
the Criminal Procedure Act’.
[9]
It is therefore one to which the provisions of Chapter 5 of the
Superior Courts Act,
[10
]
and in particular
s 16(1)
(b)
thereof, do not apply.
[33]
Paragraph 24 of the minority judgment holds that
s 311
of the
CPA ‘only creates the right of appeal to this court’
whereas
s 16(1)
(b)
of the
Superior Courts Act ‘sets
the procedure and benchmark for all appeals to be heard in this
court’. It goes on to hold in paragraph 25 that:
‘
[T]his
appeal is not excluded from Chapter 5 of the
Superior Courts Act and
that
s 311(1)
(a)
of the CPA does not provide an automatic right of appeal to this
court. Put otherwise, the provisions of
ss 16(1)
(b)
and
17
(3) [of the
Superior Courts Act] apply
and special leave of
this court is therefore required.’
I
respectfully differ from this approach.
[34]
The introduction of the definition of an appeal in
s 1
of the
Superior Courts Act has
given rise to a new situation. This must
prompt fresh enquiries on matters settled under the previous
legislation. Certain appeals
are now excluded from the operation of
Chapter 5 of the
Superior Courts Act. This
was not the position
under the Supreme Court Act.
[11]
The enquiry which must be made prior to concluding that s 16(1)
(b)
,
which requires special leave to appeal, applies, is whether the
appeal in question is subject to the provisions of Chapter 5.
I now
turn to that enquiry.
[35]
Section 1
of the
Superior Courts Act provides
that an appeal in
Chapter 5 ‘does not include an appeal in a matter regulated in
terms of the
Criminal Procedure Act 
;. . . or in
terms of any other criminal procedural law’. Chapter 5 of the
Superior Courts Act comprises
ss 15
-
20
. This means that, if an
appeal is ‘regulated in terms of’ the CPA, the provisions
of
s 16(1)
(b)
requiring special leave to appeal do not apply. The crisp issue in
this regard is whether an appeal under
s 311
is one ‘regulated
in terms of the
Criminal Procedure Act&rsquo
;.
[12]
[36]
Section 311
of the CPA reads:
‘
(1)
Where the provincial or local division on appeal, whether brought by
the attorney-general or other prosecutor or the person
convicted,
gives a decision in favour of the person convicted on a question of
law, the attorney-general or other prosecutor against
whom the
decision is given may appeal to the Appellate Division of the Supreme
Court, which shall, if it decides the matter in
issue in favour of
the appellant, set aside or vary the decision appealed from and, if
the matter was brought before the provincial
or local division in
terms of-
(a)
section
309(1)
, re-instate the conviction, sentence or order of the lower
court appealed from, either in its original form or in such a
modified
form as the said Appellate Division may consider desirable;
or
(b)
section
310(2)
, give such decision or take such action as the provincial or
local division ought, in the opinion of the said Appellate Division,
to have given or taken (including any action under
section 310(5))
,
and thereupon the provisions of
section 310(4)
shall
mutatis
mutandis
apply.
(2)
If an appeal brought by the attorney-general or other prosecutor
under this section or
section 310
is dismissed, the court dismissing
the appeal may order that the appellant pay the respondent the costs
to which the respondent
may have been put in opposing the appeal,
taxed according to the scale in civil cases of that court: Provided
that where the attorney-general
is the appellant, the costs which he
is so ordered to pay shall be paid by the State.’
[37]
It can be seen that
s 311
gives jurisdiction to this court when
a high court ‘on appeal . . . gives a decision in favour of the
person convicted on
a question of law’. Jurisdiction is founded
on
s 311
itself and is clear and express. The present matter was
brought before the high court by way of an appeal in terms of
s 309(1)
of the CPA. We have found that, on appeal, the high
court decided the first question of law in favour of the respondent.
Accordingly,
the provisions of
s 311(1)
(a)
find application. In those circumstances, this court’s
jurisdiction is established under
s 311.
[38]
As mentioned, the introduction of the definition of appeal in
s 1
of the
Superior Courts Act has
brought about a new situation
requiring the consideration of whether an appeal is regulated by the
CPA. In
S v Van Wyk &
another
,
[13]
in the context of an appeal by an accused person, this court held
that ‘[t]he CPA does not contain any provision dealing
with a
right of appeal to this court from a decision of the high court taken
on appeal to it from a magistrates’ court.’
[14]
Accordingly, it was held, such an appeal is not regulated by the CPA
and is not excluded from the operation of Chapter 5 of the
Superior
Courts Act. As
a result, the provisions of
s 16(1)
(b)
govern such an appeal.
[15]
This requires the grant of special leave to appeal by this court. In
contrast to the position dealt with in
Van
Wyk
,
s 311
of the CPA
clearly does ‘contain [a] provision dealing with a right of
appeal to this court from a decision of the high court
taken on
appeal to it from a magistrates’ court.’
[16]
This distinguishes the position under
s 311
from that dealt with
in
Van Wyk
.
Applying the dictum in
Van
Wyk
, because
s 311
of
the CPA gives a right of appeal, such an appeal is excluded from the
operation of Chapter 5 of the
Superior Courts Act.
[39
]
In
DPP Western Cape v
Kock
,
[17]
this court held that, where the state seeks to appeal against
sentence under the provisions of
s 316B(1)
of the CPA, that
right of appeal ‘is specifically regulated by the CPA,
therefore the provisions of
s 16(1
)(b)
do not find application.’
[18]
And in
Director of
Prosecutions v Olivier
,
[19]
this court held that it only has jurisdiction to deal with an appeal
against sentence brought by the state under
s 316B
of the CPA
where the high court acted as a court of first instance and not as an
appeal court.
[20]
These both dealt with attempts to appeal against sentence in this
court where that sentence had been imposed by the high court
sitting
as a court of appeal. In both of those matters this court held that
it had no jurisdiction to entertain such an appeal.
In each of those
cases the appeal was struck from the roll, which is the appropriate
order when there is a lack of jurisdiction
to adjudicate an appeal.
Neither of those matters dealt with an appeal brought under
s 311
of the CPA.
[40]
The context of
s 311
must be considered. Most other sections of
the CPA which allow for an appeal require applications for leave to
appeal. These include
s 309(1
)(a)
,
s 309B(1)
(a)
,
s 310A(1)
,
s 316(1)
(a)
and
s 316B(1)
of the CPA. It is clear that these are appeals
‘regulated in terms of’ the CPA. They give the right of
appeal and deal
with the procedure for the exercise of that right. In
all cases, the procedure requires an application for leave to appeal.
[41]
Leaving aside
s 311
for the moment, the exceptions to the
requirement of leave to appeal in the CPA are twofold. The first is
the proviso to
s 309(1)
(a)
:
‘
Provided
that if that person was sentenced to imprisonment for life by a
regional court under
section 51(1)
of the Criminal Law
Amendment Act, 1997 (Act 105 of 1997), he or she may note such an
appeal without having to apply for leave
in terms of section 309B’.
There
is therefore an explicit provision that an accused person in the
circumstances set out in the proviso to s 309(1)
(a)
‘may note such an appeal without having to apply for leave’.
The reason for specifying this is clear. It is stated
as an exception
to the general provision in that section requiring leave to appeal.
In this section, the right to appeal is given,
it is expressly stated
that no leave to appeal is required and the person is directed to
exercise that right by simply noting an
appeal.
[42]
The second is s 310, the relevant parts of which provide:
‘
(1)
When a lower court has in criminal proceedings given a decision in
favour of the accused on any question of law . . . the
attorney-general
. . . may require the judicial officer concerned to
state a case for the consideration of the provincial or local
division having
jurisdiction, setting forth the question of law and
his decision thereon and, if evidence has been heard, his findings of
fact,
in so far as they are material to the question of law.
(2)
When such case has been stated, the attorney-general or other
prosecutor, as the case may be, may appeal from the decision to
the
provincial or local division having jurisdiction.
(3)
The provisions of section 309(2) shall apply with reference to an
appeal under this section.’
Section
309(2) provides that such an appeal must be noted and prosecuted
according to the rules of court. Section 310 thus gives
a right of
appeal. Unlike s 309(1)
(a)
,
it does not provide in terms that no leave to appeal is required. It
does specify that the right to appeal must be exercised by
noting and
prosecuting the appeal according to the rules of court. It is clear
that leave to appeal is not first required and that
it is also an
appeal as of right.
[43]
The wording of s 311 is similar to that of s 310(2).
Section 311 says that ‘
the
attorney-general or other prosecutor against whom the decision is
given may appeal’. Both sections allow this
when
a
decision in favour of the accused on any question of law has been
made. The right to appeal is given. As is the case with s 310(2),
the section does not state in terms that no leave to appeal is
required. Sections 310 and 311 differ in two respects. Section 310(3)
imports the provisions of s 309(2), which specifies that the
noting and prosecution of the appeal must take place as ‘prescribed
by the rules of court
’
.
There is no equivalent provision in the CPA concerning an appeal
under s 311 and an appeal under s 310(2) does not lie
to
this court.
[44]
Dealing with the second of these first, an objection has been raised
that appeals without leave do not lie to this court.
This
is not so. In the context of
an
appeal by an accused against a refusal by the high court of
condonation for the late noting of an appeal, this court has
consistently
recognised appeals as of right without leave in certain
circumstances.
[21]
Until the coming into effect of the
Superior Courts Act, this
was
also the case for appeals against the refusal of bail or the
imposition of a condition of bail by a high court sitting as a
court
of first instance.
[22]
The
Superior Courts Act also
brought about a change of approach in
this regard.
[23]
[45]
Section
315(4)
of
the CPA is of some significance:
‘
An
appeal in terms of this Chapter shall lie only as provided
in
sections 316
to
319
inclusive, and not as of
right.’
This
section is part of Chapter 31 of the CPA, comprising
ss 315
to
324
,
and deals with appeals in cases of criminal proceedings in superior
courts. Chapter 30, comprising
ss 302
to
314
, must thus be taken
to allow for appeals as of right. This chapter deals with reviews and
appeals in cases of criminal proceedings
in lower courts. We have
seen that both the proviso to
s 309(1)
(a)
and
s 310(2)
fall into the category of appeals as of right.
Section 311
is part of this chapter.
[46]
Section 311(2)
ties
ss 310
and
311
together. It provides
that, if an appeal arising from these two sections is dismissed, ‘
the
court dismissing the appeal may order that the appellant pay the
respondent the costs to which the respondent may have been
put in
opposing the appeal’. This provides a check against abusive
appeals which might otherwise arise from such a provision.
[47]
Similar provisions are found in
ss 310A(6)
and
316B
(3). These
allow the State to apply for leave to appeal against a sentence and,
if given leave, to appeal against sentence. What
is significant is
that, in addition to providing for an ‘order that the State pay
the accused concerned the whole or any
part of the costs to which the
accused may have been put in opposing’ the appeal, they also
provide for an ‘order that
the State pay the accused concerned
the whole or any part of the costs to which the accused may have been
put in opposing’
the application for leave to appeal. The
absence of a similar provision in
s 311(2)
for costs of an
application for leave to appeal fortifies an interpretation that no
such application is necessary.
[48]
As mentioned,
s 310(3)
specifies that the appeal must be noted
and prosecuted in terms of the rules of court. This provision does
not find echo in
s 311.
As such, no procedure for the
prosecution of the appeal is set out in the CPA. The question is
whether the absence of a provision
setting out the procedure to
exercise the right of appeal means that it is not one ‘regulated
in terms of’ the CPA.
[49]
The minority judgment holds that
s 311
of the CPA ‘creates
the right of appeal’ but that
s 16(1)
(b)
of the
Superior Courts Act ‘sets
the procedure and benchmark for all
appeals to be held in this court.’ However,
s 16(1)
(b)
provides that:
‘
a
n
appeal against any decision of a Division on appeal to it, lies to
the Supreme Court of Appeal upon special leave having been
granted by
the Supreme Court of Appeal’.
What
this means is that, until granted by this court, there is no right to
appeal. The right to appeal can be withheld or granted
by this court.
But
s 311
of the CPA already gives that right if the
circumstances specified in it are met. In addition, it also specifies
that such an appeal
lies to this court. What the minority judgment
does not explain is why, if a right of appeal is given by
s 311
,
leave is required in order to obtain that right.
[50]
It is, of course, instructive that, unlike other sections in the CPA,
s 311
does not in terms specify that any form of leave to appeal
must be obtained. All of the sections requiring leave specify this
requirement.
In my view there is no need to specify the procedure to
exercise the right because
rule 7(1)
(a)
of the rules of this court does so:
[24]
‘
(1)
An appellant shall lodge a notice of appeal with the registrar and
the registrar of the court a quo within one month after the
date of—
(a)
the
granting of the judgment or order appealed against where leave to
appeal is not required’.
Rule 7(1)
(a)
thus deals in terms with a situation where leave to appeal is not
required. Holding that
s 311
deals with an appeal as of right
accordingly does not give rise to a procedural lacuna.
[51]
It is my view that, because a right to appeal is given in
s 311
of the CPA, such an appeal is one ‘regulated’ by the CPA.
It is not necessary, in addition, for the CPA to specify
the
procedure by which to exercise that right. The Director of Public
Prosecutions, or other prosecutor, has an appeal as of right.
That
being the case, an appeal under
s 311
is excluded from the
operation of Chapter 5 of the
Superior Courts Act. As
such, the
provisions of
s 16(1)
(b)
of the
Superior Courts Act do
not apply. An appeal under
s 311
accordingly does not require special leave to appeal.
[52]
Arising from this conclusion, accordingly, no application for special
leave to appeal was necessary in this matter. It follows
that an
order granting special leave to appeal is neither necessary nor
competent.
[53]
In the result, the following order is made:
1
The appeal is upheld in respect of the first question of law.
2
The order of the court a quo is set aside.
3
The conviction and sentence imposed by the regional court are
reinstated.
4
The matter is remitted to the high court for the appeal to proceed on
the merits.
_______________________
T
R Gorven
Acting
Judge of Appeal
APPEARANCES:
For
the Appellant:
S Mahomed SC (with C P Harmzen )
Instructed by:
Office Director of Public
Prosecutions, Pretoria
c/o Director of
Public Prosecutions, Bloemfontein
For
the Respondent:
H L Alberts (with S Moeng)
Instructed by:
Legal Aid South Africa, Pretoria
c/o Bloemfontein
Justice Centre, Bloemfontein
[1]
Director of Public Prosecutions,
Gauteng v Pistorius
2016
(2) SA 317 (SCA).
[2]
Attorney-General,
Transvaal v Nokwe & Others
1962
(3) 803 (T).
[3]
Ibid at 804.
[4]
Appeals Amendment
Act 105 of
1982.
[5]
The Supreme Court
Act 59 of 1959 has since been repealed and replaced by the
Superior
Courts Act 10 of 2013
.
[6]
R v Bhana
1954 (1) SA 45
(A).
[7]
S v Naidoo
1962 (4) SA 348
(A) at 353D-E;
S
v Le Grange and Others
(040/2008)
[2008] ZASCA 102
;
2009 (1) SACR 125
(SCA)
2009 (2) SA 434
(SCA);
[2010] 1 All SA 238
(SCA);
2010 (6) BCLR 547
(SCA) para 30.
[8]
S v Meje
(248/11)
[2011] ZASCA 127
(13 September 2011) para 12.
[9]
From
s 1
of the
Superior Courts Act 10 of 2013
– this section will be dealt
with more fully below.
[10]
Superior Courts Act 10 of 2013
.
[11]
The Supreme Court
Act 59 of 1959 was repealed by the
Superior Courts Act.
[12
]
It
has not been contended that such an
appeal is regulated by any other criminal procedural law.
[13]
S v Van Wyk & another
[2014] ZASCA 152
;
2015 (1) SACR 584
(SCA).
[14]
Van Wyk
para
18.
[15]
Van Wyk
para
20.
[16]
Van Wyk
para
18.
[17]
DPP Western Cape v Kock
[2015] ZASCA 197
;
2016 (1) SACR 539
(SCA).
[18]
Para 18.
[19]
Director of Public Prosecutions v
Olivier
2006 (1) SACR 380
(SCA) approved in
S v
Nabolisa
[2013] ZACC 17;
2013 (2) SACR 221 (CC).
[20]
Olivier
para
81.
[21]
S v Swiegers
1969
(1) PH H110 (A);
S v Tsedi
1984 (1) SA 565
(A) at 570A-C;
S
v Absalom
1989 (3) SA 154
(A) at 162D-E;
S v Botha en
’n ander
2002 (1)
SACR 222
(SCA) para 13.
[22]
S v Botha en ’n
ander
[2001] ZASCA 146; 2002 (2) SA 680 (SCA); 2002 (1) SACR 222; [2002]
All SA 577.
[23]
S v Banger
2016 (1) SACR 115
(SCA).
[24]
Rules Regulating the Conduct of the
Proceedings of the Supreme Court of Appeal of South Africa.