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[2020] ZASCA 69
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Director of Public Prosecutions: Limpopo v Molope and Another (1109/19) [2020] ZASCA 69; [2020] 3 All SA 633 (SCA); 2020 (2) SACR 343 (SCA) (18 June 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1109/19
In
the matter between:
DIRECTOR
OF PUBLIC PROSECUTIONS:
LIMPOPO APPELLANT
and
LASABATHA
LUCAS
MOLOPE FIRST
RESPONDENT
JACK
LETSOALO SECOND
RESPONDENT
Neutral
citation:
Director of Public Prosecutions: Limpopo v Molope
and Another
(Case no 1109/19)
[2020] ZASCA 69
(18 June 2020)
Coram:
CACHALIA, SALDULKER and DLODLO JJA
Heard
:
19 February 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties' representatives by email, publication on the Supreme
Court
of Appeal website and release to SAFLII. The date for hand-down is
deemed to be on 18 June 2020.
Summary:
Reservation of law in terms of
s 319
of the
Criminal Procedure
Act 51 of 1977
– accused discharged at the end of the State’s
case – whether point of law properly reserved – whether
conduct of accused fell within the ambit of the offences of
kidnapping and murder committed in furtherance of a common purpose –
appeal dismissed.
ORDER
On
appeal from
: Limpopo Division of the High Court, Polokwane
(Sikhwari AJ sitting as court of first instance):
The
appeal is dismissed.
JUDGMENT
Cachalia
JA (dissenting):
[1]
I would uphold the appeal. The two respondents, Lasabatha Lucas
Molope (Molope) and Jack Letsoalo (Letsoalo), and three other
accused
were arraigned in the Limpopo High Court, Polokwane; on two counts of
kidnapping and two counts of murder. The charges
arose from a series
of incidents on 11 October 2017, which culminated in two young men,
Thato Present Maake (Thato) and Mmakelesti
William Maake (Willy)
losing their lives. They were aged 28 and 33 respectively.
[2]
The indictment alleged that the five accused and other members of the
community of Makgwareng Section, Ga-Molepo Village in
Polokwane,
believed that the deceased were responsible for a ‘spate of
robberies’ in the area. They kidnapped the deceased,
took them
to a mountain and brutally assaulted them. Thato died on the scene
and Willy succumbed to his injuries in hospital two
weeks later. The
post-mortem report attributed the cause of Thato’s death to
‘multiple blunt force injuries’
and Willy’s death
to ‘head and crush injuries due to blunt force trauma’.
The murder charge included the allegation
that the offence was
committed in furtherance of a common purpose.
[3]
The two respondents were accused 1 and 2 respectively. Accused 5 fell
ill and his trial was separated. The trial proceeded against
the
respondents and accused 3 and 4. The State led the evidence of two
persons, Thabang John Mangena (Mangena) and Malampa Martina
Mametja
(Mametja). At the end of the State’s case the defence applied
for all the accused to be discharged in terms of
s 174
of the
Criminal Procedure Act 51 of 1977 (the CPA). The State did not oppose
the application in respect of accused 3 and 4, as
there was no
evidence that required an answer from them. It did, however, resist
the application for the discharge of the respondents
on the ground
that there was direct evidence implicating them in the commission of
these crimes and particularly of their having
participated in the
assault of the deceased persons.
[4]
The trial court (Sikhwari AJ), however, found ‘material
contradictions’ in the State’s case and thus ordered
the
discharge of the respondents on the two main charges of kidnapping
and murder. This, despite having found that there was ‘sufficient
evidence upon which a court may convict on the alternative verdict of
assault with intent to do grievous bodily harm against both
respondents’. The trial court went on to convict the
respondents of the crime of assault GBH – a competent verdict
for murder – after the respondents had closed their case and
elected not to testify. The judge also said, when sentencing
them,
that the deceased had been subjected to these assaults ‘for a
very long time’ and significantly, that the respondents
had
‘initiated’ the ‘mob justice’ that culminated
in the two men losing their lives.
[1]
[5]
The fact that the trial court made these findings against the
respondents and yet discharged them at the end of the State’s
case on the main counts lies at the heart of the State’s
contention that it erred in law. The State therefore applied to
the
trial court to reserve a question of law in terms of s 319 of the
CPA.
[2]
[6]
The State initially applied to reserve two questions of law. These
were stated as follows:
(i) At the close of the
State case, did the evidence of Thabo John Mangena and Malampa
Martina Mametja constitute a prima facie
case against the respondents
on all counts;
(ii) Did the Honourable
Court comply with s 146 by granting a discharge in terms of s 174 on
two counts of kidnapping, without giving
reasons for doing so?
[7]
During the hearing of the application the State withdrew the second
question. The judge was satisfied that the question posed
raised a
question of law as envisaged in s 319 and granted leave to this
Court.
[8]
The parties then filed heads of argument in this Court. In a
nutshell, the State contended that there was prima facie evidence
against the respondents on both counts (kidnapping and murder) at the
end of the State’s case, and that the court was not
competent
to discharge them merely because there were contradictions in its
case. That determination could only have been made,
so it contended,
at the end of the trial after the respondents had been put on their
defence. The respondents on the other hand
contended that the trial
judge properly exercised his discretion in discharging them and that
in any event, even if the judge had
erred in his assessment of the
facts, this was not a point of law that could legitimately be
reserved in terms of s 319.
[9]
Before the hearing the parties were invited to submit supplementary
heads of argument in the light of this Court’s recent
judgment
in
DPP,
Western Cape v Schoeman.
[3]
There the court reiterated the rule that before a question of law is
reserved under this section three requisites must be met.
First, the
question must be framed accurately leaving no doubt what the legal
point is; secondly, the facts upon which the point
hinges must be
clear; and thirdly, these facts should be set out fully in the record
together with the question of law.
[4]
[10]
Unless the State does this, the court continued, it may not be
possible for an appeal court to establish with certainty what
the
conclusions made by the trial court on the legal point were. So where
it is unclear from the judgment of the trial court what
its findings
of fact are, it is necessary for the State to request it to clarify
its findings. If this is not done, the point of
law is not properly
reserved.
[5]
[11]
It is apparent that this injunction was not met. Leaving aside for
the moment whether the question posed raised a proper question
of
law, the facts upon which the point of law were said to hinge were
not set out in the State’s application. What the State
did was
to summarise the evidence that was led without setting out the trial
court’s factual findings. It must be pointed
out that the trial
court’s judgment in the discharge application is not a model of
clarity. If this was the reason the State
was unable to set out the
facts, it should have asked the trial court to clarify its findings
of fact. It did not do that either.
The trial court also had a duty
to ensure that its factual findings underpinning the point of law
were properly set out. But, regrettably,
it also did not do so.
Despite this shortcoming, the trial court was content to reserve the
question as one of law falling within
the ambit of the section.
[12]
There would therefore be good reason for this Court to dismiss the
application. But I do not think we should adopt this course
here. The
State’s failure to set out the facts in its application or
request the trial court to clarify its factual findings
is deserving
of censure, as is the failure of the trial court to diligently
perform its function in this regard. But an appeal
court must always
consider the possible prejudice to both parties before deciding to
dismiss the application on this ground. The
merits of the application
must unavoidably enter into this assessment.
[13]
The State’s failure to comply with the requirements of s 319
was not exclusively of its making. It was faced with an
unclear
judgment by the trial court and its failure to state the facts upon
which it reserved the point of law. Secondly, as I
shall demonstrate
below, it is possible to glean the factual findings of the trial
court, which give rise to the dispute over the
point of law, without
difficulty or contestation. And finally, as I shall also demonstrate,
despite the shortcoming in its formulation
of the point of law, in
substance what we are concerned with here is a dispute over a point
of law and not merely dispute over
the trial court’s assessment
of the facts. These factors cumulatively outweigh whatever prejudice
the respondents may suffer
by allowing the appeal to proceed.
[6]
[14]
Our focus in the analysis of whether the point of law was properly
reserved must be on the trial court’s judgment in
the discharge
application. However it must be borne in mind that the trial court’s
findings in the discharge application,
at the end of the trial and
those referred to in the judgment on sentence arise from the same
evidence of the two State witnesses.
It is therefore proper to have
regard to the three judgments to establish the proven facts.
[15]
Before establishing the factual findings of the trial court it is
necessary to bear in mind the essential elements of the offences
of
kidnapping and murder committed in furtherance of a common purpose,
for which the respondents were discharged. Kidnapping, is
the act of
unlawfully and intentionally depriving a person of their freedom
against their will. Murder involves the unlawful and
intentional
killing of another person. Where two or more perpetrators perform
unlawful acts together in bringing about this result
they are said to
act in furtherance of a common purpose. Their individual acts must
manifest an active association with the common
purpose of the group
to murder the person, provided that each accused is proved to have
the requisite
dolus.
The
acts of the group that caused the death of the deceased are then
imputed to each accused.
[7]
These requirements must be borne in mind when assessing whether the
proven facts fell within the scope of these offences.
[16]
The State’s evidence against the respondents was the following:
Mangena, the first State witness, met Letsoalo at the
Paledi Shopping
Mall and accompanied him to Nedbank, located inside the Mall. Mangena
was Willy’s uncle. Whilst at the bank
Letsoalo received a phone
call, probably from Molope. Letsoalo and Mangena then left the bank
and boarded a taxi where they drove
to a place between Ga-Makanye and
Ga-Thoka Villages.
[17]
Upon their arrival there in the early afternoon they saw Thato in the
company of Molope. Letsoalo then demanded that Thato
return the
television he had stolen from him. Thato denied having stolen the
television and attempted to flee, but Letsoalo apprehended
him. The
two respondents then began assaulting him with their fists on his
face and his body. This sustained assault lasted for
about three
minutes, until another taxi arrived on the scene.
[18]
The respondents thereafter escorted Thato to the taxi and boarded it
with him. Mangena also came aboard. From there the taxi
was directed
to drive to a taxi rank near the Paledi Shopping Mall. Upon their
arrival there they all alighted from the taxi. Molope
announced, to
the other taxi drivers gathered there that they had apprehended –
referring to Thato – a television thief.
The other taxi drivers
then began to gather around Thato threateningly.
[19]
Accused 5, who is known as ‘Small’ arrived on the scene
and told Thato menacingly that: ‘you are going to
take out the
television today’. He then walked to one of the taxis parked
there and removed a wheel-spanner from it. In the
meantime the
respondents resumed assaulting Thato. He fell to the ground and they
began kicking him. Small then handed the wheel-spanner
to Letsoalo,
who used it to hit Thato over the left side of his head, causing an
open wound from where he started bleeding. At
the same time he
repeated Small’s threat to Thato that he must tell them where
he had left the television. Molope insisted
that Thato had stolen the
television, but he denied this.
[20]
Molope would not relent and Thato, under compulsion, said that he had
heard that Willy had stolen the television. Still, Molope
was not
satisfied until Thato gave in and admitted that they both had done
so. The respondents then arranged for a taxi to transport
them to
Willy’s home. Mangena, concerned that some harm was to be
visited on his nephew, Willy, asked to accompany them,
and did. The
taxi left with the driver, the two respondents, Thato, and another
person who was described as having a light complexion.
Mangena
occupied the rear seat.
[21]
On route to Willy’s home Mangena notified his younger brother,
via a ‘WhatsApp’ message, of the impending
danger to
Willy. He also overheard Letsoalo phoning another person, Dimakatjo
to tell him that they had found the person they had
been looking for
and that they were on their way to Makgwareng. They arrived there and
picked up Dimakatjo. From there they drove
to Molope’s home
from where he collected two sjamboks, a knobkierie and a crowbar.
They then drove to Willy’s home
where they all alighted from
the taxi. The driver left thereafter.
[22]
The two respondents and Small entered the home. Willy was there with
a man by the name Mapiti. Mapiti’s mother was also
present.
They were enjoying a cup of tea when Letsoalo demanded his television
from Willy. Willy asked what he was referring to.
Letsoalo answered
that it was his television that he had stolen from his home the
previous evening. The respondents then pushed
Mapiti and his mother
aside, grabbed hold of Willy and dragged him outside onto a veranda.
As they reached a gate, Small struck
Willy on the top of his head
with the crowbar, causing him to bleed immediately.
[23]
The respondents then dragged Willy outside the yard to where Thato
was standing. The two respondents then began assaulting
Thato and
Willy with sjamboks all over their bodies while Small weighed in with
a knobkierie. The assault continued until the two
helpless men
admitted to having hidden the televisions near a dam and a mountain
nearby.
[24]
Mametja, the second State witness, was Willy’s neighbour. She
witnessed the incident outside the house. However, she
testified that
Letsoalo had a crowbar instead of sjambok, as Mangena had testified.
Her recollection was that Letsoalo had struck
Willy over the head
with the crowbar causing him to bleed. She also said the respondents
and Small had assaulted the two men indiscriminately
with the
instruments at their disposal. According to her, the assaults lasted
some time until Thato and Willy were taken away.
Some community
members joined as the two men were led away.
[25]
The two helpless men were then marched to the mountain, where the
assaults continued, with members of the community joining
in. Thato
collapsed and died on the scene. Mangena moved to the side and phoned
the police. An ambulance arrived and declared that
Thato had died.
Willy was rushed to hospital where he succumbed to his injuries two
weeks later.
[26]
The evidence established, at least on a prima facie basis, that both
respondents were instrumental in using force to deprive
both Thato
and Willy of their freedom; that they both participated in their
brutal assaults and that they initiated this form of
‘mob
justice’ – to use the trial court’s description in
its judgment on sentence – which ultimately
caused the death of
both deceased. Prima facie, therefore, they not only had a case to
answer on both the main counts of kidnapping
and murder as charged,
but the inference that they had the necessary
mens rea
when
they committed these crimes was also irresistible.
[27]
However, as I have mentioned, they were inexplicably discharged in
terms of s 174. Significantly, the essential facts established
above
were not seriously in dispute. What the defence put in issue was the
precise role that each of them played in the chain of
events. In this
regard it focussed its cross-examination on the apparent
contradictions between Mangena’s oral testimony
and his
statement to the police.
[28]
The judge was persuaded that these contradictions were ‘material’
and thus fatal to the State’s case. He
identified five such
contradictions:
(i) Mangena’s
statement said that Molope had phoned Letsoalo while they were in the
bank, but in his oral testimony he said
he did not know who made the
call;
(ii) In his statement he
identified Letsoalo as having fetched the wheel-spanner from the
taxi; he testified however that it was
Small did this;
(iii) The written
statement made no reference to Dimakatjo, whereas in his oral
testimony he pertinently referred to Letsoalo as
having phoned him to
say that they had found the suspect;
(iv) In his written
statement he said that they found Willy and Mapiti at Willy’s
home, but in his oral testimony he said
that Mapiti’s mother
was also there;
(v) Letsoalo whipped
Willy with a sjambok whilst in Willy’s home, the statement
read; but in his oral testimony he testified
that Letsoalo only
grabbed Willy, he did not see him whip him at that stage.
[29]
For the sake of completeness I mention that the judge referred to
Mametja’s testimony only to point out that she would
have
overheard the conversation where Thato told Willy to hand over the
television to the respondents, if this were true. But he
made no
mention of her important evidence that placed both respondents at the
scene of Willy’s home, observing the assaults
and their being
taken away to the mountain.
[30]
The State persuasively contended that the judge wrongly found the
contradictions between the Mangena’s oral testimony
and police
statement to be material. In fact the finding is perplexing more so
because in his judgment convicting the respondents
for assault GBH,
the judge explicitly found, contradicting his earlier finding, that
these contradictions not material ‘in
so far as the assault GBH
charge is concerned’. It is difficult to understand how these
contradictions were not material
on the assault GBH charge but
material on the murder charge. And further in the judgment on
sentence, as I have mentioned, he found
that ‘this mob justice
was initiated by accused 1 and 2’. These findings are
completely at odds with his findings in
the discharge application.
[31]
But even if the contradictions were of a kind that could be described
as ‘material’ this was not sufficient to
discharge the
accused. The threshold requirement for a discharge at the end of the
State’s case in terms of s 174
[8]
is whether there is evidence upon which a court might reasonably
convict. If there is no evidence the court is entitled to discharge
the accused. The fact that there may be contradictions in the State’s
case, whether material or not, does not in itself give
a judge the
competence to discharge the accused. The evidence must, in addition,
be of a quality that no court might reasonably
convict.
[9]
[32]
The trial judge set out the threshold requirement for a discharge of
an accused, without error. He therefore appears to have
concluded –
but did not explicitly say this – that the material
contradictions in the State’s case had the effect
that there
was no evidence upon which a court might reasonably convict. In this
he erred egregiously because there was more than
adequate evidence
for the respondents to answer. At first blush the error seems to be
one of fact as to whether there was sufficient
evidence justifying
the discharge of the respondents at the end of the State’s
case. This would not afford a proper basis
for the reservation of a
point of law under s 319.
[33]
I must therefore return to the reserved ‘point of law’,
which in summary is whether the evidence of the two State
witnesses
constituted a prima facie case against the respondents on all counts.
[34]
Ordinarily a question framed in this manner, would only involve an
inquiry as to whether the court had assessed the evidence
properly in
arriving at this conclusion. This would not raise a question of law.
But where the question reserved requires an enquiry
into the essence
and scope of the crime, it is a question of law whether the facts
proved brought the conduct of the accused within
the scope or ambit
of the crime charged.
[10]
[35]
In the present matter the trial judge did not in his judgment
identify the essential elements of the offences of kidnapping
or of
murder when committed in furtherance of a common purpose. And I think
it is doubtful, to put it at its lowest, that trial
judge understood,
as Botha J, said in
S
v Petro Louise Enterprises (Pty) Ltd and Others
[11]
‘the precise scope, nature or interpretation of the elements’
of these offences. Simply put the judgment does not manifest
any
indication that the judge understood the nature of the conduct that
had to be proved to bring it within the ambit of these
crimes. For it
is incomprehensible that he could find on the one hand as a fact, and
beyond a reasonable doubt, that the respondents
had initiated a form
of ‘mob justice’ that involved taking the two deceased
persons against their will (kidnapping)
and assaulting them with
intent to do grievous bodily harm, which resulted in their deaths
(murder). But also conclude, on the
other hand, that there was no
evidence upon which a court might reasonably find them guilty on the
two main counts.
[36]
The State therefore formulated its question inelegantly. But the
judge did understand that it was properly raising a point
of law, and
not merely a factual issue disguised as a point of law, as the courts
have frequently found in response to the State’s
invocation of
s 319 to contest an acquittal of a criminal accused. The true
question raised by the point of law was whether, on
the proven facts,
the conduct of the respondents prima facie brought it within the
ambit of the crimes of kidnapping and murder.
Had the question been
formulated in this way, which in substance is what the question was
aimed at, the answer to this question
would have been obvious. There
is no doubt that the question raised by the State required an enquiry
into whether the proven facts
fell within the ambit of the two main
offences.
[12]
That
quintessentially raised a point of law. I would therefore have upheld
the reservation of the point of law, set aside the order
of the trial
court discharging the respondents and remitted the matter to high
court for retrial on the murder and kidnapping charges.
_____ _____________
A CACHALIA
JUDGE OF APPEAL
Saldulker
JA (Dlodlo JA concurring):
[37]
I have had the benefit of reading the judgment of my brother Cachalia
JA. The facts have been conveniently set out by him and
there is no
need to repeat same. I, however find myself in respectful
disagreement with my brother’s reasoning and order
for the
following reasons.
[38]
Section 319 of the CPA provides:
‘
(1) If any
question of law arises on the trial in a superior court of any person
for any offence, that court may of its own motion
or at the request
either of the prosecutor or the accused
reserve that question for
the consideration of the Appellate Division, and thereupon the first-
mentioned court shall state the
question reserved and shall direct
that it be specially entered in the record and that a copy thereof be
transmitted to the registrar
of the Appellate Division.
’
(2) The grounds upon
which any objection to an indictment is taken shall, for the purposes
of this section, be deemed to be questions
of law.
(3) The provisions of
sections 317(2) (4) and (5) and 318(2) shall apply mutatis mutandis
with reference to all proceedings under
this section.’
(My
emphasis.)
[39]
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.
[13]
Its
principles have accordingly been firmly established in our law.
[40]
Two decades ago, in
Director
of Public Prosecutions, Natal v Magidela and
Others
[14]
this Court eloquently and commendably set out the position of the
relevant law stating that:
‘
The
provisions of section 319 and its predecessors have been the subject
of judicial interpretation over the years and in order
to see whether
the requirements of the section were complied with in this case it is
important to consider how the section has
been construed.
The
first requirement is not complied with simply by stating a question
of law. At least two other requisites must be met. The first
is that
the question must be framed by the Judge "so as accurately to
express the legal point which he had in mind" (R
v Kewelram
1922
AD 1
at 3). Secondly, there must be certainty concerning the facts on
which the legal point is intended to hinge. This requires the court
to record the factual findings on which the point of law is dependent
(S v Nkwenja en ‘n Ander
1985
(2) SA 560
(A)
at 567B-G). What is more, the relevant facts should be set out fully
in the record as part of the question of law (S v Goliath
1972
(3) SA 1
(A)
at 9H-10A). These requirements have been repeatedly emphasised in
this Court and are firmly established (see, for example, S
v
Khoza en Andere
[1990] ZASCA 142
;
1991
(1) SA 793
(A)
at 796E-I). The point of law, moreover, should be readily apparent
from the record for
if
it is not, the question cannot be said to arise "on the trial"
of a person
(
S
v Mulayo
1962
(2) SA 522
(A)
at 526-527).
Non
constat
that
the point should be formally raised at the trial: it is sufficient if
it "comes into existence" during the
hearing (
R
v Laubscher
1926
AD 276
at
280;
R
v Tucker
1953
(3) SA 150
(A)
at 158H-159H). It follows from these requirements that there should
be certainty not only on the factual issues on which
the point of law
is based but also regarding the law point that was in issue at the
trial.’ (My emphasis.)
[41]
Furthermore the authors Du Toit et al in the
Commentary
on the
Criminal Procedure Act
state
:
[15]
‘
The
trial court must refer to those facts in its judgment as part of the
reserved question of law (
S
v Nkwenja en 'n ander
1985
(2) SA 560 (A)
567B).
Furthermore, whenever the State has a question of law reserved which
rests on particular facts, the State must have
those facts fully
placed on record and in particular as part of the setting out of the
question of law.’
[42]
All of the above considerations need to be borne in mind in the
assessment as to whether a question of law has been properly
reserved, and whether it should be answered in favour of the State.
The registrar of this Court, on the instructions of the presiding
Judge addressed a letter to the State, the contents of which read:
‘
The presiding
judge has directed that the parties’ attention be drawn to this
Court’s recent judgment in
DPP, Western Cape v Schoeman &
Another
(904/2017)
[2019] ZASCA 158
(28 November 2019). In the
light thereof the DPP is requested to consider whether it persists
with the appeal. If so, the parties
will be required to deal
comprehensively with the judgment in their submissions. A response is
required from the DPP on or before
13 February 2020.’
[43]
In
Director
of Public Prosecutions: Western Cape v Schoeman
,
[16]
a very recent judgment of this Court, it was pointed out at para 39
that
before
a question of law may be reserved under
s
319
there
are certain requirements that must be met, they are:
‘
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.’
And
further at para 40 the court said:
‘
Unless
the State does this, it may not be possible for a court of appeal to
establish with certainty what the conclusions on the
legal point,
which the trial court arrived at, are. Where it is unclear from the
judgment of the trial court
what
its findings of fact are, it is therefore necessary to request the
trial judge to clarify its factual findings. Where this
is not done,
the point of law is not properly reserved.
’
(My emphasis.)
[44]
From a careful analysis of all the above considerations, it is clear
that none of the requirements of
s 319
have been complied with in
this matter by both the State and the trial court. The trial court
did not frame a question of law in
its judgment in the
s 319
application for the consideration of this Court, nor did it record
the factual findings on which the purported point of law was
dependent. The trial court had a duty to set out the relevant facts
fully in the record as part of the question of law. As I have
said,
there must be certainty not only on the factual issues on which the
point of law is based, but also regarding the point of
law that was
in issue at the trial. Regrettably, the point of law is not readily
apparent from the record, and thus it cannot be
said to have arisen
‘on the trial’ of a person (see para 9 of
Magidela
above). As is evident from the judgment of the trial court, its
factual findings lack clarity and are confusing to say the least.
Another relevant factor is that
the
trial court did not give any reasons for the granting of the
s 319
application,
which
it ought to have done in terms of
s 146
[17]
of the CPA.
[45]
There were serious shortcomings in the State’s application in
terms of
s 319
, which in my view are insurmountable. An
examination of the
s 319
application by the State pertinently
illustrates that the facts upon which the point of law were said to
hinge were not set out
in its application. The State merely
summarised the evidence of the witnesses without analysing the facts.
It failed to set out
the trial court’s factual findings on
which the reserved question ought to have been considered. In the
circumstances of
this case, where it was not clear what facts the
trial court accepted to be the facts proved in this case, it was
necessary for
the State to request the trial court to clarify its
factual findings.
[18]
Regrettably this was not done. Despite these shortcomings the
trial court nevertheless reserved the question as one of law.
[46]
Before us, counsel for the State accepted, when questioned by the
bench, that it had not properly formulated the question of
law as
required by the provisions of
s 319
, and that the question of law was
thus defective. Nevertheless, the State persisted with the appeal,
contending that the defects
were not fatal to its application, if a
proper question of law could be reformulated on the basis suggested
by the presiding Judge
during the hearing, namely in the following
terms:
‘
[W]hether the
court could competently discharge the accused at the end of the
State’s case without enquiring into whether
their conduct in
assaulting the deceased prima facie brought it within the ambit of
the crime of murder committed in the furtherance
of a common
purpose.’
[47]
Notwithstanding that it was unable to refer to any provisions of the
CPA which allowed this Court to reformulate a defective
question of
law, the State urged this Court to condone its non-compliance with
the provisions of
s 319
and uphold the appeal in the interests of
justice. In its supplementary heads of argument, the State requested
this Court not to
dismiss the appeal but to consider two options:
that this Court postpone the matter sine die and make an order that
the appeal
be enrolled only after the trial court has complied with
s
319
, by stating specifically the question of law that has been
reserved; or remove the matter from the roll with an order that the
appeal be enrolled only after the court a quo has complied with
s 319
by stating in the record precisely which question of law has been
reserved.
[48]
As the respondents were not in custody, the State contended that the
proposed order will not cause substantial prejudice to
them.
Furthermore, the State submitted that ‘the effect of such a
proposed order would be a balancing act to ensure adherence
to the
provisions of
s 319
on the one hand, and ensuring that those against
whom the State has prima facie evidence, and who have allegedly
committed two
counts of murder, do not escape re-trial on account of
technicality’. In contrast, counsel for the respondents
contended
that this Court could not reformulate the question of law,
and that if this matter were to be remitted to the trial court, it
would
be prejudicial to the respondents who were no longer in
custody.
[49]
I have considered the options suggested by the State, but in my view
they are not viable. Although the State submits that the
respondents
will not suffer substantial prejudice, on the contrary, the purpose
of the proposed orders is clear. Both options envisage
the remittal
to the trial court not only to cure the defect in the
s 319
application, but also as submitted by the State, to ensure that the
respondents do not escape a retrial. The respondents stood
trial on
serious charges, and were discharged on the main counts of murder and
kidnapping, and convicted on a lesser charge of
assault to do
grievous bodily harm. In my view, in these circumstances, the
possible prejudice
[19]
to the
respondents who received a suspended sentence for assault to do
grievous bodily harm, cannot be ruled out.
[50]
For the reasons already alluded to, not only was the question of law
not accurately framed by the trial court, and the facts
upon which
the point hinged not clear, but the State also did not properly
formulate the question of law. These failures are deserving
of
censure. In any event, in the context of this case, it is my prima
facie view that the reserved question, which in summary is
whether
the evidence of Mr Mangena and Mrs Mametja constituted a prima facie
case against the respondents on all counts, clearly
requires an
inquiry into the assessment of the evidence by the trial court. This
raises in essence a question of fact, rather than
one of law. Thus in
the final analysis, the requirements of
s 319
have not been complied
with, and therefore the appeal should fail on these grounds alone.
[51]
My brother Cachalia JA agrees that neither the State nor the trial
court complied with the requirements of
s 319
, and that ‘there
would therefore be good reason for this Court to dismiss the
application’, on this ground alone. However,
in his view, it is
not the course to be adopted in this particular matter, as an appeal
court must always consider the possible
prejudice to both parties
before deciding to dismiss an application. In Cachalia JA’s
view the State’s failure to comply
with
s 319
was not
exclusively of its making, as it was faced with an unclear judgment
by the trial court, compounded by its failure to state
the facts upon
which it reserved the point of law. In his view, despite the
shortcomings in the formulation of the point of law,
the appeal
should proceed, as it was possible to glean the factual findings of
the trial court, which gave rise to the dispute
over the point of
law, without difficulty or contestation. I am in respectful
disagreement with this view.
[52]
My brother Cachalia JA accepts that there were many aspects of the
trial court’s judgment that were problematic inter
alia: the
trial Judge did not identify the essential elements of the offences
of kidnapping or murder when committed in the furtherance
of a common
purpose; it is doubtful whether the trial court understood, as Botha
J, said in
S v Petro Louise Enterprises (Pty) Ltd and Others
1978 (1) SA 271(T)
, the precise scope, nature or interpretations of
the elements of these offences, nor the conduct that had to be proved
to bring
it within the ambit of these crimes. According to him, all
of this led to the State formulating its question inelegantly. He
states
that in actual fact, had the question been formulated in the
following terms: whether on the proven facts, the conduct of the
respondents
prima facie brought it within the ambit of the crimes of
kidnapping and murder, ‘which in substance is what the question
was aimed at, the answer to this question would have been obvious’.
Thus he concludes that ‘there is no doubt that the
question
raised by the State required an enquiry into whether the proven facts
fell within the ambit of the two main offences.
That quintessentially
raised a point of law’. I disagree with this conclusion.
[53]
In my view, the trial court’s judgment contains many aspects
which are troubling. Given the factual circumstances,
it is
disquieting (and perplexing as my brother Cachalia JA puts it) that
the trial court having ruled that there was a prima facie
case of
assault against the respondents, and having found that they were
guilty of those charges, appeared not to have enquired
into whether
those assaults also amounted to prima facie evidence on the main
charge of murder, nor did it say why that fell short
of murder. This
reasoning appears to be implausible.
[54]
Furthermore, the findings made by the trial court in its judgment on
the discharge of the respondents, and their subsequent
conviction on
the assault counts, lack clarity and are confusing. However, as these
aspects do not arise for adjudication before
this Court, this Court
cannot clarify the reasoning of the trial court. In the
circumstances, as the judgment of the trial court
is unclear on
important aspects, it is difficult, to glean from the judgment, the
factual findings which were material to formulating
the question of
law.
[55]
This is a court of appeal, its function is not to seek to discover
reasons adverse to the conclusions of the trial judge.
[20]
The inquiry before this Court is whether the question of law was
properly reserved, which question, in view of all the aforegoing,
must be answered in the negative. It is true that no judgment is
perfect and all embracing, but it does not necessarily follow
that,
because certain aspects were not mentioned in the judgment, they were
not considered. In
Schoeman
at
para 39 this Court said:
‘
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.’
[56]
Implicit in the provisions of
s 319
of the CPA is the prerogative and
the duty of the ‘first mentioned court’ (the trial
court), the high court in this
instance, to properly and accurately
frame the question of law for consideration by a court of appeal.
This Court, being a court
of appeal is in no position to formulate
the question of law, and then answer it as being properly reserved in
favour of the State.
And even if it could, there is no factual basis
on which to determine the reserved question. More pertinently,
to
do so, would
set a precedent for future defective applications
such as these.
[57]
Notwithstanding the strict application of the section and the law
that has been adopted in this matter, courts have, in the
past,
albeit with a note of caution, reluctantly allowed the appeal to
proceed even though the requirements were not met. I refer
to the
case of
S
v Petro Louise Enterprises (Pty) Ltd and Others
1978
(1) SA 271 (T)
,
[21]
where the court entertained the appeal, even though the magistrate
had failed in a material respect to comply with the requirements
of
formulating a stated case in terms of
s 104(1)
and
rule 67(10)
(now
ss 310
and
414
of the CPA). However, in the final analysis, Botha J
held that the State had reserved a question of fact, and accordingly
dismissed
the appeal. It is important to re-iterate the caution
expressed by Botha J in
Petro
Louise
,
which in my view is well founded, and equally apposite in the matter
before us:
‘
Generally
speaking, I think that this court will decline to hear an appeal
under sec.104(1) –where the magistrate has failed
in a material
respect to comply with the requirements of formulating a stated case
in terms of
s104(1)
and
Rule 67
[now
secs 310
and
414
of the CPA], in
spite of the unfortunate prejudice and inconvenience that may result
to the appellant and the respondent from such
a step – which is
all the more reason, of course, why magistrates should be meticulous
in performing their duties in this
regard. In the present case, the
stated case is so pronouncedly defective that there would have been
ample justification for us
to have refused to entertain the appeal.
However, when this possibility was mooted at the outset of the
argument, counsel for both
sides, stressing that the problem was not
of their or their clients’ making, urged us to be indulgent and
to listen to their
arguments. We allowed ourselves to be persuaded to
do that. The fact that we were prepared to hear the present appeal,
in the particular
circumstances present here, should not, however, be
regarded as a precedent that in future cases of a similar nature this
court
will be equally indulgent.’
(My emphasis.)
[58]
Following upon the approach by Botha J in
Petro
Louise
,
a similar note of caution was expressed in
S
v Nzimande
,
[22]
where the high court proceeded to entertain the appeal (on the basis
of the question as formulated by the State) even though the
case
stated by the magistrate was defective and did not comply with the
requirements of
s 310
of the CPA. The high court said at paras
10 and 11:
‘
Several cases
are referred to by appellant’s counsel which clearly decide
that if the casus is not set out properly, the court
cannot hear the
matter, and applies a rather strict application of the section and
the rule . . . Appellant does
however go further and
refers to the judgment of Botha J in S v Petro Louise . . .
In this case Botha J said the following:
“
Generally
speaking I think this court will decline to hear an appeal under
sec
104
where the magistrate has failed in a material respect to comply
with the requirements of formulating a stated case . . . The
fact that we were prepared to hear the appeal. . . should
not be regarded as a precedent in future cases
. . . .”
Although Botha J did
not intend his judgment to be used as a precedent, it nevertheless
stands as a reported judgment. I for one
cannot ignore it. In fact I
tend to agree with his approach. The section as it stands is very
unsatisfactory in a case where the
magistrate does not do justice to
it. One or all of the parties involved therein are then prejudiced.
This is not in the interests
of justice. It seems to me that where a
case is of such a nature that the true casus
can be
gleaned
from the record and the heads of argument, there is no reason why a
court should not entertain the matter.’
(My emphasis.)
The
high court then proceeded to entertain the appeal. This was
subsequently overturned by this Court on appeal to it by the State,
on the basis that the high court had no jurisdiction to entertain the
appeal, which fell to be struck off the roll.
[59]
Both the courts in
Petro Louise
and
Nzimande
have
expressly cautioned that the fact that they were prepared to hear the
appeals should not be regarded as a precedent in future
cases. This
clearly illustrates that where a question of law has not been
properly formulated, the appeals should be proceeded
with
circumspection, or perhaps not at all. The import of the following
dictum in
Petro Louise
at page 576 should resonate:
‘
[I]t is
important that magistrates who are requested to state a case in terms
of
s 104
and
rule 67
should take great care in complying with
the requirements of those provisions, especially in relation to the
recital of the facts
found and the formulation of the question of law
involved. Lack of clarity and precision in drafting a stated case
very often can
lead to confusion as to the actual issues at stake and
cause unnecessary trouble and inconvenience to the Court of appeal.
This
was pertinently demonstrated in the present case, where a good
deal of time was taken up in argument in an effort to glean from
the
magistrate’s judgment those findings of fact which were
material to the alleged questions of law
.’ (My emphasis.)
[60]
To a large extent, the State’s real complaint in this matter is
that the evidence was assessed by the trial court in
such a manner
that no reasonable court would have acquitted the respondents on the
charges of murder. Undoubtedly this is a serious
matter where two
young men lost their lives. So viewed, and in light of the evidence
as well as the judgment of the trial court,
this complaint may
justifiably be valid. However, this Court is not sitting in judgment
on the factual findings of the trial court,
and is in any event
precluded from entertaining an appeal from the State on the facts.
[61]
I align myself with the sentiments expressed by this Court in
Schoeman
where the following is said at paras 73-74:
‘
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.’
[62]
The
effective prosecution of crime is an important constitutional
objective.
The
State was afforded the right to appeal a question of law to the
Supreme Court of Appeal and should have done so properly, considering
it had all the resources available to it at its disposal. A basic
trawl through the cases would have revealed that the requirements
of
s 319
are peremptory, and that the question of law must be framed
accurately by the State and the trial court for the consideration of
this Court. In performing this duty the trial court must be
meticulous.
[23]
Regrettably,
this was not done. In my view for all of the above reasons, this
appeal must fail.
[63]
In the result, the following order is made:
The
appeal is dismissed.
______________________
H
K SALDULKER
JUDGE
OF APPEAL
Appearances
For
appellant: M Sebelebele
Instructed
by: Director of Public Prosecutions, Limpopo
Director
of Public Prosecutions, Bloemfontein
For
respondent: L M Manzini
Instructed
by: Legal Aid, Limpopo
Legal
Aid, Bloemfontein
[1]
The respondents were given lenient sentences of four years’
imprisonment, wholly suspended for a period of five years on
condition that they did not commit another crime of which violence is
an element during this period. They were also declared unfit
to
possess firearms.
[2]
Section 319(1)
of the CPA provides:
‘
(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.’
[3]
DPP,
Western Cape v Schoeman and Another
[2019] ZASCA 158.
[4]
Ibid para 39.
[5]
Ibid para 40.
[6]
Cf
S v
Petro Louise Enterprises (Pty) Ltd and Others
[1978]
1 All SA 571
(T);
1978 (1) SA 271
(T) at 276E-H.
[7]
S v
Safatsa and Others
[1987] ZASCA 150
;
[1988]
4 All SA 239
(AD);
1988 (1) SA 868
(A) at 901H-J.
[8]
Section 174
provides: ‘If, at the close of the case for
the prosecution at any trial, the court is of the opinion that there
is
no evidence that the accused committed the offence referred to in
the charge or any offence of which he may be convicted on the
charge, it may return a verdict of not guilty.’
[9]
See generally: A Kruger
Hiemstra’s
Criminal Procedure
(May
2019 online) at 22-75.
[10]
DPP,
Western Cape v Schoeman and Another
(above)
para 51.
[11]
S v
Petro Louise Enterprises (Pty) Ltd and Others
(above)
at 279E-H.
[12]
Cf
S v
Petro Louise Enterprises (Pty) Ltd and Others
(above)
where the court found there was no doubt in the appeal court or the
court a quo regarding the elements of the offence
with which the
accused were charged, nor was there any doubt as to the scope,
nature or interpretation of the elements of the
offence. The
magistrate had found that one of the elements had not been proved.
In the circumstance of that case this was a finding
of fact, pure
and simple.
[13]
S
v Basson
[2004]
ZACC 13
;
2005 (1) SA 171
(CC);
2004 (6) BCLR 620
(CC); See also
Magmoed
v Janse van Rensburg and Others
[1992] ZASCA 208
;
[1993] 4 All SA 175
(A);
1993 (1) SA 777
(A);
1993 (1) SACR 67
(A),
and
S
v
Petro
Louise Enterprises (Pty) Ltd and Others
[1978]
1 All SA 571
(T);
1978 (1) SA 271
(T), both of which have received
the express imprimatur of the Constitutional Court in
S
v Basson
;
and
S
v Boekhoud
[2011] ZASCA 48; 2011 (2) SACR 124 (SCA).
[14]
Director
of Public Prosecutions, Natal v Magidela and
Others
[2000] ZASCA 4
;
[2000] 2 All SA 337
(A);
2000 (1) SACR 458
(SCA) para 9.
[15]
E Du Toit et al
Commentary
on the
Criminal Procedure Act
(2012
) at RS 48.
[16]
Director
of Public Prosecutions, Western Cape v Schoeman and Another
[2019]
ZASCA 158.
[17]
‘
146.
Reasons
for decision by superior court in criminal trial
A
judge presiding at a criminal trial in a superior court shall –
(a)
where he decides any question of law, including any question under
paragraph
(c)
of the proviso to
section 145(4)
whether any
matter constitutes a question of law or a question of fact, give the
reasons for his decision.’
[18]
See
Schoeman
para 40.
[19]
See
S v
Basson
fn 3 paras 60-64. See also
Magmoed
fn 3 at 202.
[20]
See
R v
Dhlumayo
[1948] 2 All SA 566
(A);
1948 (2) SA 677
(A) about the reluctance to
disturb the trial court’s findings on questions of fact.
[21]
S v
Petro Louise Enterprises (Pty) Ltd and Others
fn
6 at 279E-H.
[22]
S v
Nzimande
2007 (2) SACR 391
(T) and
S
v Nzimande
[2010] ZASCA 80
;
2010 (2) SACR 517
(SCA), where the parties were
agreed that the stated case did not comply with the requirements of
s 310
of the CPA, and the parties urged the court in their interest
to entertain the appeal despite the shortcomings, which it proceeded
to do. On appeal, this Court said: ‘Thus the true complaint of
the State was not that the magistrate had committed any
error of
law, but that he had drawn incorrect inference from the facts.
Judging from the evidence, as well as the judgment of
the High
Court, this complaint may well be valid – an issue on which we
do not have to make a finding. Suffice it to say
that such error (if
it was one) was one of fact, which did not confer the State the
right to appeal against the acquittal of
the appellant’.
[23]
See
Petro
Louise
fn
6 para 276; see
Nzimande
fn 22
paras 10 and 11;
S
v Kameli
[1997]
3 All SA 230
(Ck) at 239.