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[2018] ZASCA 187
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Director of Public Prosecutions: Limpopo v Ramalekana (528/2018) [2018] ZASCA 187 (14 December 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 528/2018
In
the matter between:
DIRECTOR
OF PUBLIC PROSECUTIONS:
LIMPOPO APPELLANT
and
MOHALE
RAMALEKANA RESPONDENT
Neutral
citation:
DPP v Ramalekana
(528/2018)
[2018] ZASCA 187
(14
December 2018)
Coram:
Maya P, Mocumie and Schippers JJA and
Carelse and Nicholls AJJA
Heard:
26 November 2018
Delivered:
14 December 2018
Summary:
Criminal procedure - appeal by the
Director of Public Prosecutions in terms of
s 311
of the
Criminal
Procedure Act 51 of 1977
– accused acquitted on charge of rape
under
s 3
Criminal Law (Sexual Offences of the and other Matters)
Amendment 32 of 2007 – DNA evidence excluding accused as the
perpetrator
– whether decision in favour of accused on a
question of law – matter struck from the roll.
ORDER
On
appeal from
:
Limpopo
Division, Polokwane (Phatudi ADJP and Semenya J sitting as court of
first instance in terms of
s 310(1)
of the
Criminal Procedure Act 51
of 1977
):
The matter is struck from the
roll.
JUDGMENT
Mocumie
JA (Maya P, Schippers JA and Carelse and Nicholls AJJA concurring):
[1]
The issue in this appeal is whether a decision on a question of law
has been given in favour of the respondent within the meaning
of
s
311(1)
the Criminal Procedure Act 51 of 1977 (the CPA). In 2014 he
was acquitted by the Tzaneen Regional Court on a charge of rape in
contravention of s 3 of the Criminal Law (Sexual Offences and Other
Matters) Amendment Act 32 of 2007, pursuant to a plea of not
guilty.
The State failed to prove that the respondent had penetrated the
complainant or that his DNA matched a genital swab specimen
taken
from her. The appellant, the Director of Public Prosecutions, Limpopo
(DPP), contending that the acquittal was based on a
question of law,
more specifically that the respondent should have been convicted of
attempted rape, requested the magistrate to
state a case for the
consideration of the high court, as envisaged in s 310(1) of the
CPA.
[1]
The
high court held that the respondent’s acquittal followed on
factual issues only, that there was no question of law decided
in his
favour and struck the matter from the roll. Not satisfied with this
decision, the DPP applied for special leave to this
Court, which was
granted in line with decisions of this Court to the effect that leave
to appeal is not required and the provisions
of the
Superior Courts
Act 103 of 2013
do not apply.
[2]
[2]
In brief, the factual background of this case is as follows. The
complainant who was 15 years of age at the time, testified
that in
the early hours of 29 November 2014, she left a tavern with three
friends, where they had been socialising the previous
night. The
respondent joined them subsequently. The complainant asked her
friend, Mr Levi Manyama, to take her halfway to her home,
but he
declined because he was injured. The respondent offered to walk her
home. The complainant refused the offer. He then threatened
her with
a knife and she ran home. The respondent, still armed with the knife,
chased her. When nobody opened the door to her house,
the complainant
ran to the home of her brother’s friend, Mr Mashakeni.
[3]
The respondent, still armed with a knife, followed her. He told Mr
Mashakeni that he had rescued the complainant from certain
men who
had attacked her at the tavern. He went into Mr Mashakeni’s
house where, according to the complainant, he ordered
her to take off
her clothes, which she did. The respondent then stripped down to his
knees and had sexual intercourse with the
complainant without her
consent. He did not use a condom and ejaculated inside her. The
complainant said that Mr Mashakeni entered
the room while they were
having intercourse and the respondent offered him R20 for the use of
the room. The police, who had been
called in the interim, entered the
house and found the respondent on top of the complainant, and
arrested him. The complainant
testified that she had not engaged in
consensual intercourse with any person other than the respondent for
seven days before, or
after the alleged rape.
[4]
The version of the respondent was that he had stopped a fight between
two of the complainant’s friends after they had
left the
tavern. After her friends went in different directions, the
complainant and the respondent were alone and, in his words,
he
‘proposed love’ to her. She replied that there was no
problem. When they got to Mr Mashakeni’ s house he offered
the
latter R50 for the use of the place and told Mr Mashakeni that he was
going to sleep with the complainant. They went into the
house and he
was sitting on a bed talking to the complainant when the police
arrived and arrested him. The respondent denied that
he had engaged
in sexual intercourse with her. In this regard he presented evidence
by a forensic analyst who testified that the
respondent’s DNA
was not found in the semen extracted from the complainant’s
body (which under normal circumstances
lasts for a period of five
days). The semen found inside the complainant belonged to somebody
else. The respondent also denied
that he was in possession of a knife
and that he had chased the complainant to Mr Mashakeni’s home.
[5]
The trial court evaluated the evidence as well as the applicable case
law and concluded as follows:
‘
With
the evidence tendered before this court, the court cannot safely
accept that you penetrated Ms Mabusela on the date in question
for,
it is your evidence that at that time the police official arrived.
You were intending to have sexual intercourse with her
but it was
before you penetrated her . . . . I am persuaded now based on the
evidence that was tendered before this court and having
thoroughly
analysed it to accept the version of the defence. For the witness was
not a credible one. There is no way that the swab
could have
contained semen if she did not have sexual intercourse with anyone
within the period that has been indicated before
this court
especially that the expert witness also strengthened the evidence
that the, in the normal course of events the lifespan
of the semen is
more or less five days.
There
is evidence, there is corroboration on other aspects which were
placed before this court but not disputed on the main issue.’
The
trial court concluded;
‘
The
main issue in dispute is that you did not penetrate the complainant
the victim Ms Mabusela. As such evidence of Ms Mabusela
is hereby
rejected. You are given the benefit of a doubt you are found
NOT
GUILTY AND DISCHARGED.
’
[6]
In the high court, the parties agreed and the court also found that
the case, as stated by the trial court in response to the
request by
the state, was defective and did not comply with the requirements of
the CPA. The high court decided to deal with the
matter based on the
question formulated by the state, ie ‘whether incriminating
evidence of the state was accounted for or
not’.
[3]
[7]
Counsel for the state contended that the trial court ignored certain
pieces of evidence or lacked appreciation of relevant evidence.
He
contended that nowhere in its judgment did the trial court consider
whether or not the state had proved attempted rape, despite
the fact
that the charge sheet referred to
s 256
of the CPA, which provides
that ‘if the evidence in criminal proceedings does not prove
the commission of the offence charged
but proves an attempt to commit
the offence
or an
attempt to commit any other offence of which the accused may be
convicted on the offence charged, the accused may be found
guilty of
an attempt to commit that offence or, as the case may be, such other
offence’.
The
failure to consider attempted rape, so it was contended, demonstrated
that the trial court did not properly consider the evidence
by the
state witnesses placed before it. Despite this narrow approach by the
trial court, the high court concluded that the evidence
of the state
was evaluated holistically and misconceived the concept ‘accounting
for the evidence’, as explained in
Van
der Meyden
.
[4]
The
high court’s failure to take into account relevant evidence, it
was argued, was an error of law.
[8]
Having listened to both parties, the high court found:
‘
[I]t
is evident that the trial court extensively evaluated the version of
the appellant against that of the state witnesses. It
criticised the
appellant’s failure to challenge damning evidence that points
to his guilt. It further dealt with the improbabilities
in his
version and gave reason for rejecting it. The trial court went
further to address discrepancies between what was put to
the state
witnesses during cross-examination and what the respondent said in
his evidence-in-chief.’
[9]
The high court further held:
‘
Apart
from weighing the defence’s case against that of the state, the
trial court dealt with what it believed to be weaknesses
in the
state’s case. There is no doubt that the trial court, wrongly
or rightly, placed more emphasis on forensic evidence.
It is however
evident from the judgment that the trial court has evaluated that
forensic evidence against the evidence of the complainant.
Having
done so, it proceeded to make an adverse finding against her.’
[10]
In conclusion, the high court found:
‘
It
is my finding that the trial court evaluated the evidence presented
before it holistically. I am further satisfied that the respondent’s
acquittal followed on factual issues only and that there is no
question of law that was decided in the respondent’s favour.
The High Court is not permitted to hear the appeal under these
circumstances. Whether or not I agree with the trial court’s
conclusion is immaterial.’
[11]
In order to ascertain whether the high court gave a decision in
favour of an accused on a question of law, its judgment must
be
examined so as to determine whether the accused succeeded on a matter
of law.
[5]
If it
appears from the judgment that the high court gave a decision in
favour of the accused on the facts and not a matter of law,
the
appeal must be struck from the roll on the ground that it is not
competent for the DPP to appeal. However, if it appears from
the
judgment that the court gave a decision in favour of the accused on a
matter of law, then this court is duty-bound to consider
whether or
not the high court erred in law.
[6]
[12]
The determination of whether an issue is a question of law or fact
was recently distilled in
Nzimande
v S
[7]
at
paras 11 – 13 of the judgment which I find fitting to quote as
is:
‘
[11]
In
S
v Petro Louise Enterprises (Pty) Ltd and Others
(a case referred to in the judgment of the High Court, but in a
different context) it was argued by counsel for the State that
the
question whether a given inference was the only reasonable inference
to be drawn from certain facts, was a question of law
–
essentially the same argument that was addressed to the high court in
this instance. The State's argument was rejected
by the court (per
Botha J, Van Dyk AJ concurring) in the following passage:
“
I
am unable to accept counsel's widely-based and generalised
proposition that in all cases the question whether a particular
inference
is the only reasonable possible inference to be drawn from
a given set of facts is a question of law. To accede to the
proposition
in such general terms would, I consider, open the door to
the possibility of large numbers of appeals being brought under
sec.
104
of [the
Magistrates' Courts] Act 32 of 1944
, contrary to the
limited scope of that section which I conceive the Legislature
contemplated. One example of those possibilities
that were canvassed
during the argument will suffice. Suppose that an accused is charged
with an offence of which a specific intent
is an element, e.g.
assault with the intent to do grievous bodily harm. On the evidence,
the magistrate finds that such intent
is not the only reasonable
inference to be drawn from the facts, and consequently he convicts
the accused of common assault. I
cannot for one moment imagine that
the Attorney-General will have a right of appeal upon the footing
that an intent to do grievous
bodily harm was the only reasonable
inference to be drawn from the facts.”
[12]
In
Magmoed v Janse van Rensburg and Others
Corbett CJ (writing
for a unanimous court) quoted the above passage from
Petro Louise
Enterprises
and expressed his 'full and respectful agreement'
with the analysis. In the course of his judgment, the learned Chief
Justice also
said the following:
“
[I]n
my opinion, a question of law is not raised by asking whether the
evidence establishes one or more of the factual ingredients
of a
particular crime, where there is no doubt or dispute as to what those
ingredients are.”
And
further:
“
[T]he
fact that in a particular case the prosecution relies upon inference
to prove the agreement to accomplish a common aim does
not make the
question as to whether the prosecution succeeded in establishing this
inference beyond a reasonable doubt one of law.
As was often pointed
out in the field of income tax appeals on a question of law, facts
may be classified as primary, ie those
facts which are directly
established by the evidence, and secondary, ie those facts which are
established by way of inference from
the primary facts . . . . I have
no doubt that an inference drawn from proven facts that the accused
had by agreement formed a
common purpose which embraced, say, the
possibility of an unlawful killing is an inference of fact, and not
one of law. It is a
secondary fact.
It
is seldom in a case of murder that there is direct evidence of the
perpetrator's actual state of mind. Consequently, whether
the
unlawful killing was accompanied by
dolus
in
one of its forms on his part is normally a matter of inference from
the primary facts. Clearly this is an inference of fact and
any
question as to whether the trial Court correctly decided this issue
is a question of fact.
I can see no difference between this and the issue, also to be
determined by inference, as to whether a number of accused formed
a
common purpose which embraced both an unlawful killing and
dolus
in one of its forms. It is true that the legal consequences of a
common purpose may be said to fall within the sphere of a rule
of
law, but in a case such as this the rule itself and its scope are not
in issue. What is in issue is the factual foundation for
the
application of the rule. That is a question of fact.”(My
emphasis.)
[13]
The principles so lucidly articulated in
Petro
Louise Enterprises
and in
Magmoed
have subsequently received the express imprimatur of the
Constitutional Court in
S
v Basson
,
and are dispositive of the present appeal ’
(Footnotes
omitted)
[13]
On an examination of the high court’s judgment, the DPP’s
contentions do not withstand scrutiny. The court dealt
with the
matter on the basis of the question as formulated by the State,
namely whether all the incriminating evidence adduced
by the State
had been accounted for. The high court considered the evidence in its
totality and held that all of it had been accounted
for. It found
that the trial court had extensively evaluated the appellant’s
version against that of the State witnesses,
and that it had weighed
the forensic evidence against the complainant’s evidence, after
which it made an adverse credibility
finding against her. The high
court concluded that the trial court had assessed the evidence before
it holistically; and as already
stated, found that the respondent was
acquitted on the facts and that no question of law had been decided
in his favour.
[14]
In my view, that conclusion cannot be faulted. On the facts, the
State failed to prove its case beyond reasonable doubt, and
the
complainant’s evidence was rightly rejected as unreliable and
not credible. She testified that she did not engage in
consensual
intercourse with anyone other than the respondent before or after the
alleged rape; that the respondent had had unprotected
sex with her;
and that he had ejaculated inside her. Again, on the facts, it was
found that if the complainant never had sexual
intercourse within the
relevant period, then there was no way that semen could have been
found in the DNA that was analysed. Consequently,
it could not be
accepted, as a fact, that the respondent had penetrated the
complainant on the day in question. And it was also
established, as a
fact, from DNA analysis that the respondent did not have sexual
contact with the complainant.
[15]
In the circumstances of this case, all these findings were
quintessentially findings of fact. Further, the argument that the
failure to consider a conviction of attempted rape, is likewise an
attempt to frame, as a question of law, something which in substance
is a matter of fact. Save for the complainant’s testimony,
there was no evidence of any sexual assault or attempted rape
by the
respondent, as they were alone at the relevant time. Now if her
evidence could not be accepted because it was unreliable
and not
credible for the reasons already advanced, and the trial court
accepted the version of the defence, then on the facts,
there was no
conceivable basis upon which the respondent could be convicted of
attempted rape. Aside from this, a question of law
is not raised by
asking whether the evidence establishes one or more of the factual
elements of a particular crime – as the
DPP sought to do –
where there is no doubt as to what those elements are.
[8]
[16]
This appeal does not fall within the ambit of
s 311(1)
of the CPA, as
the high court gave a decision in favour of the respondent on the
facts. The matter is accordingly struck from the
roll.
_________________
B C Mocumie
Judge of Appeal
APPEARANCES
For
Appellant: M Sebelebele
Instructed
by:
Director
of Public Prosecutions, Polokwane
Director
of Public Prosecutions, Bloemfontein
For
Respondent: L M Manzini
Instructed
by:
Legal
Aid, Polokwane
Legal
Aid, Bloemfontein
[1]
Section 310(1)
reads:
‘
Appeal from lower
court by prosecutor
310(1) When a lower court has in
criminal proceedings given a decision in favour of the accused on
any question of law, including
an order made under
section 85(2)
,
the attorney-general or, if a body or person other than the
attorney-general or his representative, was the prosecutor in the
proceedings, then such other prosecutor 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]
Director of Public
Prosecutions, Gauteng v KM
2017 (2) SACR 177
(SCA) para 51.
Section 1
of the
Superior Courts
Act 10 of 2013
provides, inter alia, that an appeal in Chapter 5
‘does not include an appeal in a matter regulated in terms of
the
Criminal Procedure Act (Act
51 of 1977), or in terms of any
other criminal procedural law’.
DPP
v KM
was affirmed in
Director of Public
Prosecutions, Gauteng Division, Pretoria v Moabi
2017 SACR 384
(SCA) para 16.
[3]
See
Director
of Public Prosecution, North Gauteng v Pistorius
2016(1) SACR 431 (SCA),
DPP,
North Gauteng v Moloi
(1101/2015)
[2017] ZASCA 78(2 June 2018)
and
S
v Van der Meyden
1999(1) SACR 447 (W).
[4]
S v Van Der Meyden
1999 (1) SACR 447
(W) at 449c-450b.
[5]
Attorney-General,
Transvaal v Moores (SA) (Pty) Ltd
1957 (1) SA 190
(A) at 195E.
[6]
Moores
fn 5 at 196B-C.
[7]
Nzimande
v S
[2010]
ZASCA 80; 2010 (2) SACR 517 (SCA).
[8]
Magmoed v Janse Van
Rensburg & others
[1992] ZASCA 208
;
1993 (1) SA 777
(A) at 808B.