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[2019] ZASCA 23
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Director of Public Prosecutions, KwaZulu-Natal v Ramdass (1236/2017) [2019] ZASCA 23; 2019 (2) SACR 1 (SCA) (28 March 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1236/2017
In
the matter between:
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
KWAZULU-NATAL
APPELLANT
and
DONOVAN
MARK
RAMDASS
RESPONDENT
Neutral
citation
:
The Director of Public Prosecutions, KwaZulu-Natal v
Ramdass
(1236/2017)
[2019] ZASCA 23
(28 March 2019)
Coram
:
Wallis and Swain JJA and Mokgohloa AJA
Heard
:
14 March 2019
Delivered:
28 March 2019
Summary:
Criminal Procedure Act 51 of 1977
–
s 319(1)
–
refusal by trial court to reserve questions of law – petition
in terms of
s 317(5)
and
s 316(13)
(c)
for special leave to
appeal refused –
Superior Courts Act 10 of 2013
–
s
17(2)
(f)
– reconsideration and variation of order –
refusal of reservation of questions of law confirmed –
erroneous order
refusing special leave varied – ordinary leave
to appeal refused.
ORDER
On
appeal from:
KwaZulu-Natal Division of the High Court, Durban
(Ploos van Amstel J sitting as court of first instance):
1
The order granted by this court on 16 August 2017 is varied in terms
of
s 17(2)
(f)
of the
Superior Courts Act 10 of 2013
, by the
deletion of paragraph 2, reading as follows:
‘
The
application for special leave to appeal is dismissed on the grounds
that there are no special circumstances meriting a further
appeal to
this court.’
and
its replacement with the following paragraph:
‘
The
application for leave to appeal is dismissed on the grounds that
there are no reasonable prospects of success and there is no
other
compelling reason why an appeal should be heard.’
JUDGMENT
Swain
JA (Wallis JA and Mokgohloa AJA concurring):
[1]
The respondent, Mr Donovan Ramdass, was acquitted of the murder of
the late Ms Ashika Singh (the deceased), by the KwaZulu-Natal
Local
Division, Durban (Ploos van Amstel J), on the grounds that there was
reasonable doubt whether he possessed the requisite
criminal
capacity, to appreciate that what he was doing was wrongful and to
act in accordance with such appreciation, when he strangled
the
deceased. The respondent was also acquitted of an additional charge
of robbery with aggravating circumstances, for the same
reason.
[2]
The respondent maintained that he had no recollection of what had
happened to the deceased on the evening when he killed her,
as he had
been drinking and smoking crack cocaine. He stated that if he had
caused the death of the deceased, he did so without
realising what he
was doing and without the intention to kill her. He claimed to have
no recollection of events on the evening
in question. His evidence to
this effect was accepted by the trial judge. It had not been
substantially challenged by the State,
which called no expert
evidence to refute the claim of amnesia, or to show that his claim
not to know what happened or what he
was doing that evening, was
false.
[3]
Dissatisfied with the outcome of the trial, the State then requested
the court a quo to reserve a number of questions of law
in terms of s
319(1) of the Criminal Procedure Act 51 of 1977 (the CPA), for
consideration by this court. The application having
been refused by
the court a quo, the State then embarked upon an incorrect
jurisdictional path in order to challenge in this court,
the decision
of the high court. Whether this incorrect procedure results in this
court lacking jurisdiction to hear the appeal,
must be determined at
the outset.
[4]
The starting point in determining the correct jurisdictional path
that should have been followed by the State, is s 319 of the
CPA. The
relevant provisions of the section are ss 319(1) and 319(3) which
provide as follows:
‘
(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)
. . .
(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.’
[5]
If the trial judge refuses the application to reserve questions of
law, the provisions of s 317(5) of the CPA (as referred to
in s
319(3)), dealing with appeals against such a refusal, are the next
step in the process and provide that:
‘
If
an application for condonation or for a special entry is refused, the
accused may, within a period of 21 days of such refusal
or within
such extended period as may on good cause shown, be allowed, by
petition addressed to the President of the Supreme Court
of Appeal,
apply to the Supreme Court of Appeal for condonation or for a special
entry to be made on the record stating in what
respect the
proceedings are alleged to be irregular and not according to law, as
the case may be, and thereupon the provisions
of subsections (11),
(12), (13), (14) and (15) of section 316 shall
mutatis mutandis
apply.’
[6]
The manner in which the petition then had to be dealt with by this
court, requires a consideration of ss (11), (12) and (13)
of s 316 of
the CPA, (as referred to in s 317(5)), which provide as follows:
‘
(11)
(a)
A petition referred to in subsection (8), including an
application referred to in subsection (8)
(b)
(ii), must be
considered in chambers by two judges of the Supreme Court of Appeal
designated by the President of the Supreme Court
of Appeal.
(b)
If the judges differ in opinion, the petition shall also
be considered in chambers by the President of the Supreme Court of
Appeal
or by any other judge of the Supreme Court of Appeal to whom
it has been referred by the President.
(c)
For the purposes of paragraph
(b)
any decision of
the majority of the judges considering the petition, shall be deemed
to be the decision of all three judges.
(12)
The judges considering a petition may –
(a)
call for any further information from the judge who
refused the application in question, or from the judge who presided
at the trial
to which the application relates, as the case may be;
(b)
in exceptional circumstances, order that the application
or applications in question or any of them be argued before them at a
time
and place determined by them; or
(c)
call for a copy of the record or portion of the record of
the proceedings if it was not submitted in terms of subsection
(10)
(c).
(13)
The judges considering a petition may, whether they have acted
under subsection (12)
(a)
or
(b)
or not –
(a)
. . .
(b)
. . .
(c)
in the case of an application for leave to appeal, subject to
paragraph
(d)
, grant or refuse the application; and
(d)
. . .
(e)
in exceptional circumstances refer the petition to the Supreme
Court of Appeal for consideration, whether upon argument or
otherwise,
and the Supreme Court of Appeal may thereupon deal with
the petition in any manner referred to in this subsection.
(14)
. . . .’
[7]
Under those provisions of s 316 of the CPA the application had to be
lodged with this court and placed before two Judges in
accordance
with the directions issued by the President of the court. If the two
disagreed, either the President or a third Judge
nominated by her
would consider the petition and the view of the majority would
prevail. The Judges considering the petition could
grant it, dismiss
it or refer it to argument before the court. In all cases where
direct imprisonment had been imposed, they were
required to deal with
the petition as a matter of urgency. Their decision would be final.
The only appeal that would lie against
their decision would be one to
the Constitutional Court with its leave.
[8]
However, the State did not apply to this court in terms of s 317(5)
of the CPA, but in terms of s 319(1) of the CPA, read with
s 16(1)
(b)
of the Superior Courts Act 10 of 2013 (the SC Act), asking for
special leave to appeal against the refusal. Section 16(1)
(b)
of
the SC Act provides as follows:
‘
(1)
Subject to section 15(1), the Constitution and any other law –
(a)
. . .
(b)
an 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 . . .
(c)
. . . .’
[9]
The application followed the incorrect procedure and was defective in
two respects:
(a)
First, special leave was not required. The State only required the
ordinary leave of this court and the provisions of s 16(1)
(b)
of
the SC Act were not applicable. That section deals with appeals
against any decision of a division of the high court taken on
appeal
to it, where the special leave of this court is required.
(b)
Second, the definition of ‘appeal’ contained in the SC
Act provides that ‘appeal’ in Chapter 5, which
includes
ss 16 and 17, does not include an appeal in a matter regulated in
terms of the CPA. As the appeal in the present matter
is regulated in
terms of the CPA, it should follow that these sections of the SC Act
do not apply.
[10]
The application for special leave to appeal was then considered by
two Judges designated by the President of this court. However
no
doubt misled by the fact that it was couched as an application for
special leave to appeal, it was dismissed on the erroneous
ground
that there were no special circumstances meriting a further appeal to
this court. That was an incorrect test. As the proposed
appeal was
against the high court’s refusal to reserve the suggested
questions of law, the proper question in considering
the application
was whether the proposed questions of law should have been reserved
for decision by this court.
[11]
Dissatisfied with this outcome, the State then applied in terms of s
16(1)
(b)
and s 17(2)
(f)
of the SC Act, read with s
319(1) of the CPA, for a reconsideration and variation of the refusal
of special leave by this court.
On its face this further compounded
the procedural irregularity.
[12]
The reference in the application to the provisions of s 17(2)
(f)
must be examined in the context of ss 17(2)
(a)
and
17(2)
(b)
of the SC Act. These sections provide that:
‘
(2)
(a)
Leave to appeal may be granted by the judge or judges against
whose decision an appeal is to be made or, if not readily available,
but any other judge or judges of the same court or Division.
(b)
If leave to appeal in terms of paragraph
(a)
is refused,
it may be granted by the Supreme Court of Appeal on application filed
with the registrar of that court within one month
after such refusal,
or such longer period as may on good cause be allowed, and the
Supreme Court of Appeal may vary any order as
to costs made by the
judge or judges concerned in refusing leave.’
Section
17(2)
(f)
provides that:
‘
The
decision of the majority of the judges considering an application
referred to in paragraph
(b)
, or the decision of the court, as
the case may be, to grant or refuse the application shall be final:
Provided that the President
of the Supreme Court of Appeal may in
exceptional circumstances, whether of his or her own accord or on
application filed within
one month of the decision, refer the
decision to the court for reconsideration and, if necessary,
variation.’
[13]
As pointed out above, the definition of ‘appeal’
contained in the SC Act provides that ‘appeal’ in
Chapter
5, which includes s 17, does not include an appeal in a matter
regulated in terms of the CPA. As the appeal in the present
matter is
regulated in terms of the CPA, it should follow that s 17 of the SC
Act does not apply.
[14]
Furthermore, it is a basic rule of interpretation of statutes that a
proviso must be read and considered in relation to the
principal
matter to which it is a proviso. It is not a separate and independent
enactment and the words of the proviso are dependent
on the principal
enacting words, to which they are attached as a proviso. The words of
the proviso cannot be read as divorced from
their context. In
Mphosi
v Central Board for Co-operative Insurance Ltd
1974 (4) SA 633
(A) at 645B-F, the following was stated:
‘
This
argument altogether overlooks the true function and effect of a
proviso. According to Craies,
Statute Law
, 7th ed., at p. 218
–
"the
effect of an excepting or qualifying proviso, according to the
ordinary rules of construction, is to except out of the
preceding
portion of the enactment, or to qualify something enacted therein,
which but for the proviso would be within it; and
such proviso cannot
be construed as enlarging the scope of an enactment when it can be
fairly and properly construed without attributing
to it that effect”.
In
R
. v
Dibdin
,
1910 P. 57
, Lord FLETCHER MOULTON at p.
125, in the Court of Appeal, said -
"The
fallacy of the proposed method of interpretation (i.e. to treat a
proviso as an independent enacting clause) is not far
to seek. It
sins against the fundamental rule of construction that a proviso must
be considered in relation to the principal matter
to which it stands
as a proviso. It treats it as if it were an independent enacting
clause instead of being dependent on the main
enactment. The Courts,
as for instance in such cases as
Ex parte Partington
,
6 Q.B.
649
;
In re Brockelbank
,
23 Q.B. 461
, and
Hill v East and
West India Dock Co.
, 9 App. Cas. 448, have frequently pointed out
this fallacy, and have refused to be led astray by arguments such as
those which
have been addressed to us, which depend solely on taking
words absolutely in their strict literal sense, disregarding the
fundamental
consideration that they appear in a proviso."’
This
passage was quoted with approval by Mahomed J in the majority
judgment in
S v Mhlungu & others
[1995] ZACC 4
;
1995 (3) SA 867
(CC) para
32.
[15]
The proviso to s 17(2)
(f)
qualifies the finality of a decision
by two Judges in dealing with an application for leave to appeal
under s 16, whether it is
an application for leave or special leave.
It does so by providing for the President of this court to review the
decision and,
in exceptional circumstances, refer it for
reconsideration by the court. There is no equivalent provision in the
provisions of
s 316 cited earlier and there is no principle of
statutory interpretation permitting a proviso to a section in the SC
Act, qualifying
appeals in civil cases and appeals from courts
composed of more than a single Judge in the high court, to be
transplanted to the
provisions of the CPA governing appeals in
criminal cases originating in the high court. On the terms of the SC
Act therefore it
would seem that the order by the President,
referring the decision by two Judges to refuse the petition for
special leave to this
court for reconsideration, would not involve a
reconsideration of the merits of the application to reserve questions
of law for
determination by this court. Precisely what it would
involve beyond upholding the dismissal of that petition, but possibly
on the
different ground that it was an irregular proceeding, need not
be decided for the reasons that follow.
[16]
Despite these difficulties, the
Constitutional Court in
S v
Liesching & others
[2016]
ZACC 41
;
2017 (2) SACR 193
(CC) held that s 17(2)
(f)
applied in the following
circumstances. Leave to appeal against conviction by the high court
had been refused by two Judges under
s 316(13)
(c)
of the CPA. The President
of this court was approached some two years later under s 17(2)
(f)
to reconsider the refusal
on the grounds that the principal witness at the trial had, at a
subsequent trial of another accused,
recanted his evidence. The
application for reconsideration was accompanied by an application to
lead further evidence on appeal.
The President held that he had no
jurisdiction to reconsider the previous order under s 17(2)
(f)
.
On further appeal to the Constitutional Court it held that he had
such jurisdiction and referred the matter back for
reconsideration.
[1]
[17]
The reasoning of the
Constitutional Court requires careful scrutiny. It held that where
the CPA regulates a matter, chapter 5 of
the SC Act has no
application (para 37). Having considered s 316(5) of the CPA, which
dealt with the ordinary circumstance, where
an application to lead
further evidence on appeal accompanies the application for leave to
appeal, it held that there was no provision
of the CPA dealing with
applications to lead further evidence on appeal after a petition had
been refused (para 44). Accordingly,
it held chapter 5 of the SC Act
applied in that situation. It then concluded that, because s 17(2)
(f)
does not distinguish
between civil and criminal cases and the proviso is couched in
extremely broad terms aimed at preventing injustice,
the President
could refer any refused petition to the court for reconsideration
under the section (para 57). It pointed out that
the President had
previously done so in several criminal cases.
[2]
[18]
The effect of this was to divorce the proviso to s 17(2)
(f)
from
its context, referring back to an application for leave to appeal
under s 16 of the SC Act, and to treat it as a general enacting
provision. In reaching that conclusion the court did not refer to the
rules governing the interpretation of provisos referred to
above.
[19]
In my view, it must necessarily follow from this line of reasoning
that the proviso to s 17(2)
(f)
is now to be understood as
conferring on the President of this court a power, to be used in
exceptional circumstances, for reconsideration
of any application for
leave to appeal or petition, whether brought in terms of s 16 of the
SC Act or s 316 of the CPA, that has
been refused. That leaves only
the question whether this court can condone the irregularities on the
part of the appellant in pursuing
the application for leave to appeal
under s 16 of the SC Act instead of under the applicable provisions
of the CPA. The procedure
in dealing with a petition under s 316
essentially mirrors that to be followed in dealing with an
application for leave to appeal
under s 17 of the SC Act. In my view,
the fact that the incorrect section was cited as the source of this
court’s authority
to grant leave to appeal can therefore be
condoned, and the dismissal of the application be treated as a
dismissal of a petition
under s 316(13)
(c)
of the CPA. That is
what the President referred for reconsideration. In dealing with it,
however, the test to be applied is that
applicable in any case of an
appeal against the refusal of a trial court to reserve a question of
law for this court’s consideration,
not the test for the grant
of special leave to appeal.
[20]
I turn to the merits of the appeal. The questions of law that the
State requested the court a quo to reserve in terms of s
319(1) of
the CPA were based on the following proven facts relating to the
conduct of the accused before, during and after the
death of the
deceased:
‘
3.1
The accused had been drinking prior to the offence.
3.2
The accused was taken to a place allegedly where he had purchased
drugs in the past.
3.3
The deceased was killed between the hours of 20h30 and 21h12.
3.4
The deceased’s semi-naked body had her head wrapped in plastic
and a ligature (extension cord) tied around her neck.
3.5
The accused left the residence within 40 minutes of having been left
alone with the deceased.
3.6
The residence was locked and the drive-way gate was jammed with a
stone. The accused drove the deceased’s motor vehicle
to the
Point Area, CBD from Merebank.
3.7
The accused subsequently travelled from the Durban CBD to the
Umhlanga area during the early hours of the morning following
the
murder.
3.8
The accused was found by relatives in the Umhlanga area.
3.9
The accused had been using his cellular phone throughout the night
until 11h00 the next morning’.
[21]
It was also recorded that the court a quo had found as a proven fact
that the respondent had caused the death of the deceased.
However, as
correctly pointed out by the court a quo, the evidence did not prove
that the deceased had been found with an extension
cord tied around
her neck.
[22]
The questions of law that the State sought to have reserved were the
following:
‘
1.
Did the court err when applying the principle relating to criminal
capacity as set out in
S v Chretien
1981 (1) SA 1097
(A)?
2.
Did the court err in not applying the binding authority as set out in
S v Eadie
2002 (3) SA 719
(SCA)?
3.
In view of its acceptance of previous physical altercations between
the deceased and the accused during arguments, did the court
err in
over-emphasising alternatively, incorrectly evaluating the absence of
a motive and/or conduct out of character, given the
accused’s
drinking/consumption of alcohol?
4.
Did the court err in applying the test regarding inferences to be
drawn from circumstantial evidence, in reaching a conclusion
that the
accused lacked criminal capacity in circumstances indicative of
goal-directed conduct, patchy recollection and the absence
of a
“trigger”?
5.
Did the court err when:
(a)
interpreting s 1(1) of the Criminal Law Amendment Act (CLAA) 1
of 1988, and/or
(b)
applying the proven facts of this matter to this section?
6.
Did the court err in denying the State the opportunity to re-open its
case, when it is accepted practice (the only way) in dealing
with
defences of this nature where the accused has to lay a basis, the
full extent of which is only known following his evidence’?
[23]
Before dealing with the merits of whether the court a quo should have
reserved these issues as questions of law for consideration
by this
court, it is necessary to examine what the court a quo considered
when deciding this issue. In respect of each of the questions
sought
to be reserved, in addition to determining whether they were
questions of law, the court a quo decided that none of them
had
‘reasonable prospects of success’.
[24]
However, all that the court a quo had to decide was whether the
issues sought to be reserved by the State were questions of
law.
Whether any of the questions sought to be reserved possessed
reasonable prospects of success in this court, did not constitute
part of the enquiry before the court a quo. As decided by this court
in
S v Basson
2003 (2) SACR 373
(SCA) paras 10 and 11, when a
question of law arises, the trial court, or, where it refuses to do
so, this court, has to decide
on application by the State, whether to
reserve a question of law for consideration by this court. When this
court considers an
application by the State for leave to appeal
against a refusal to reserve a question of law by the trial court, as
with any other
application for leave to appeal, it will only exercise
its discretion in favour of the State, where there is a reasonable
prospect
that a mistake of law was made. In addition, there must at
least be a reasonable prospect that if the mistake of law had not
been
made, the accused would have been convicted.
[25]
Because the questions sought to be reserved by the State require a
consideration of what constitutes a question of law, as
well as the
requirements necessary to establish the defence of criminal
incapacity caused by intoxication and the consumption of
drugs, these
issues must be briefly examined. In
Magmoed v Janse van Rensburg &
others
[1992] ZASCA 208
;
1993 (1) SACR 67
(A) at 94, this court stated that it is a
question of law whether the proven facts bring the conduct of the
accused within the
ambit of the crime charged. This involves an
enquiry as to the essence and scope of the crime charged, by asking
whether the proven
facts in the particular case constitute the
commission of the crime. Where there is doubt regarding the elements
of the offence
with which the accused has been charged, or doubt as
to the precise scope, nature or interpretation of the elements of the
offence,
the enquiry as to whether the accused is guilty of the crime
charged is a question of law. However, where there is no such doubt,
it is a question of fact whether the evidence establishes one or more
of the factual elements of a particular crime.
[26]
In
S v Laubscher
1988 (1) SA 163
(A) at 166H-I, the test for
criminal capacity was formulated as follows:
(a)
The accused must have been able to distinguish between right and
wrong, that is to realise he or she was acting unlawfully,
and
(b)
To act in accordance with that realisation by resisting the
temptation to act unlawfully.
[27]
In
S v Eadie
2002 (3) SA 719
(SCA) para 2, this court held
that when an accused person raised a defence of temporary
non-pathological criminal incapacity, that
is, criminal incapacity
due to factors such as intoxication, provocation, drug use and severe
emotional stress, the State bore
the onus of proving that he or she
had criminal capacity at the relevant time. This court emphasised
that it had repeatedly been
stated that:
‘
(i)
In discharging the onus the State is assisted by the natural
inference that, in the absence of exceptional circumstances, a
sane
person who engages in conduct which would ordinarily give rise to
criminal liability, does so consciously and voluntarily;
(ii)
an accused person who raises such a defence is required to lay a
foundation for it, sufficient at least to create a reasonable
doubt
on the point;
(iii)
evidence in support of such a defence must be carefully scrutinised;
(iv)
it
is for the Court to decide the question
of the accused’s criminal capacity, having regard to the expert
evidence and all
the facts of the case, including the nature of the
accused’s actions during the relevant period.’
[28]
Before the court a quo dealt with the questions of law that the State
sought to have reserved, it stated the following:
‘
There
was no dispute at the trial that criminal capacity was a factual
ingredient of the crimes charged. I found that the evidence
did not
establish this particular ingredient beyond a reasonable doubt. That,
in my view, was a finding of fact . . . My view is
that my finding
that the State failed to prove criminal capacity on the part of the
accused was a factual finding and that the
State is not entitled to
appeal against the acquittal on the basis that my factual finding was
wrong.’
Counsel
for the appellant, although conceding that criminal capacity was a
factual ingredient of the crimes charged and that the
finding by the
court a quo that the evidence did not prove this issue beyond a
reasonable doubt, was a question of fact, nevertheless
argued that
the questions sought to be reserved were questions of law.
[29]
It is against this background that I turn to consider the issues that
the State sought to have reserved as questions of law.
The first
issue is; whether the court erred when applying the principle
relating to criminal capacity, as set out in
Chretien
? The
court a quo stated that counsel for the State did not develop this
point and made no submissions as to how the court a quo
had erred. It
held that ‘although on the face of it’ the question posed
was one of law, it had no reasonable prospects
of success.
[30]
The State submitted that the relevance of the decision in
Chretien
to a determination of whether the issue sought to be reserved was
a question of law, lay in the first leg of the test for criminal
capacity, namely the ability of the respondent to distinguish between
right and wrong. It was submitted that the decision exonerated
an
accused person from criminal liability in circumstances where the
accused as a result of intoxication, was not aware of what
he or she
was doing. It presupposed an involuntary action on the part of the
accused.
[31]
In support of this submission, the State referred to a number of
aspects in the evidence, maintaining that this evidence showed
that
the respondent was able to distinguish between right and wrong, at
the relevant time. Accordingly, the criticism of the State
lay not in
the fact that the court a quo had wrongly applied the legal
principles in
Chretien
, but rather that it should have reached
a different factual conclusion in the light of those principles.
[32]
The ability of the respondent to distinguish between right and wrong
was an issue of fact, to be considered in deciding whether
the State
discharged the onus of proving beyond reasonable doubt that the
respondent possessed the requisite criminal capacity,
at the relevant
time. The conclusion by the court a quo that the State had failed to
discharge this onus was based upon a finding
that the respondent had
established a sufficient foundation in fact for this defence. It
concluded that on the totality of the
evidence there was a reasonable
doubt whether the respondent had the requisite criminal capacity,
when he strangled the deceased.
This was not a conclusion of law,
because whether the evidence established one or more of the factual
elements of the particular
crime, namely criminal capacity, was a
question of fact. Consequently, although framed as a question of law,
the issues sought
to be raised were purely factual in nature and
cannot be reserved as a question of law.
[33]
The second issue that the State sought to have reserved as a question
of law was; whether the court a quo erred in not applying
the binding
authority as set out in
Eadie
? The court a quo stated that
what it had said in regard to the first question sought to be
reserved, applied equally to this question.
In other words, ‘although
on the face of it a question of law’ the point had no
reasonable prospects of success.
[34]
The State submitted that the relevance of the decision in
Eadie
to
a determination of whether the issue sought to be reserved was a
question of law, lay in the second leg of the test for criminal
capacity, namely that of self-control. It was submitted that the
important aspect of the applicable test was that the respondent
had
to prove that he was unable to exercise self-control in order for his
defence to succeed. In support of this submission, the
State referred
to a number of aspects in the evidence and again maintained that this
evidence showed, that the respondent was able
at the relevant time to
exercise self-control. As in the case of the first question of law
sought to be reserved, the criticism
of the State accordingly lay not
in the fact that the court a quo had wrongly applied the legal
principles in
Chretien,
but rather in the manner in which the
court a quo did so having regard to the factual findings.
[35]
In
Eadie
para 42, it was stated that:
‘
.
. . it is clear that in order for an accused to escape liability on
the basis of non-pathological criminal incapacity he has to
adduce
evidence, in relation to the second leg of the test . . . from which
an inference can be drawn that the act in question
was not
consciously directed, or put differently, that it was an involuntary
act.’
And
at para 53, the second leg of the test was described in the following
terms:
‘
The
second leg of the test . . . is read to mean that one looks to see
whether in all the circumstances of the case the accused
could not
resist or refrain from this act or was unable to control himself to
the extent of refraining from committing the act.’
[36]
The State bore the onus of proving that the respondent possessed the
requisite criminal capacity at the relevant time. The
respondent bore
no onus of proving that he was unable to exercise self-control in
order for the defence to succeed. All that the
respondent had to do
was adduce evidence from which an inference could be drawn that the
strangulation of the deceased was involuntary,
in the sense that the
respondent was unable to prevent himself from committing this act.
[37]
The ability of the respondent to control his conduct is again an
issue of fact to be considered when deciding as a matter of
fact,
whether the State discharged the onus of proving beyond reasonable
doubt that the respondent possessed the requisite criminal
capacity,
at the relevant time. As in the case of the first question sought to
be reserved, the conclusion by the court a quo that
the State had
failed to discharge this onus was based upon a finding that the
respondent had established a sufficient foundation
in fact, from
which an inference could be drawn that the act in question was
involuntary. This was not a conclusion of law but
one of fact, based
upon the evidence. Consequently, although framed as a question of
law, the issues sought to be raised were purely
factual in nature and
cannot be reserved as a question of law.
[38]
The third issue that the State sought to have reserved as a question
of law was; whether in view of the court a quo’s
acceptance of
previous physical altercations between the deceased and the accused
during arguments, the court erred in over-emphasising
alternatively,
incorrectly evaluating the absence of a motive and/or conduct out of
character, given the accused’s drinking/consumption
of alcohol?
The court a quo stated that counsel for the State did not point to
any material misdirection in the judgment and that
the question
seemed to be one of fact and not law. If it could be said to involve
a question of law, the court a quo held that
it had no reasonable
prospect of success on appeal.
[39]
The State submitted that the court a quo in accepting the
respondent’s defence of criminal incapacity as reasonably
possibly true, placed weight on his character and the absence of a
motive. In doing so, the court a quo failed to evaluate material
evidence which the State maintained would have affected the
conclusion reached.
[40]
As regards the weight placed by the court a quo on the apparent
absence of a motive on the part of the respondent to kill the
deceased, the court a quo dealt with the submissions of the State, in
the following terms:
‘
The
motive suggested by counsel for the State was that the accused
resented the deceased because of her controlling and abusive
behaviour, or that they may have argued because he wanted more money
to buy drugs. I see no merit in these contentions. The accused
agreed
that there were problems in their relationship, but was adamant that
they were working on them and were planning to get
married. This was
consistent with Mrs Singh’s evidence. The possibility of an
argument over money is mere speculation and
there is no evidence to
support it. It does not seem likely that if the accused was in
control of his senses he would have killed
the deceased for one of
the reasons suggested by counsel, especially not in the manner in
which he did. In my view no motive to
kill the deceased was
established even as a reasonable possibility.’
[41]
Whether the respondent possessed a motive to murder the deceased, was
therefore considered by the court a quo in the context
of determining
whether the respondent ‘was in control of his senses’, at
the time. As pointed out by Professor J Burchell
Principles of
Criminal Law
5 ed at 353:
‘
The
general rule is that a person’s motives, whether good or bad,
are irrelevant to criminal intent. However, evidence of
the accused’s
motive in committing a crime is admissible and may prove important
especially in implicating the accused in
the commission of the crime
and even in helping to establish intention.’
In
other words, the absence of a motive is a factor to be considered in
determining whether the respondent possessed criminal capacity
to
form the intent to murder the deceased. The conclusion reached by the
court a quo on the evidence that the respondent did not
possess a
motive to murder the deceased, is clearly a question of fact and not
one of law.
[42]
As regards the character of the respondent, the court a quo concluded
on the evidence that the respondent ‘was regarded
by those who
knew him as a gentle and humble person’ and ‘what he did
was completely out of character’. Again,
this conclusion is
clearly a question of fact and not one of law. Consequently, the
issue cannot be reserved as a question of law.
[43]
The fourth issue that the State sought to have reserved as a question
of law was; did the court err in applying the test regarding
inferences to be drawn from circumstantial evidence, in reaching a
conclusion that the accused lacked criminal capacity in circumstances
indicative of goal-directed conduct, patchy recollection and the
absence of a ‘trigger’? The court a quo stated that
no
material misdirection was demonstrated in argument and the question
seemed to involve a finding of fact and not law.
[44]
The State submitted that the question sought to be reserved related
primarily to the court a quo, incorrectly evaluating the
proven
facts. The inferences drawn by the court a quo were not challenged,
but the conclusion reached by the court a quo based
upon the
inferences that were drawn, was challenged. It was submitted that
this entailed an evaluation of the discretion exercised
by the court
a quo when analysing the proven facts in relation to each of the
charges. It was submitted that the court a quo failed
to exercise its
discretion judicially, by failing to consider all of the facts and
circumstances. The State emphasised that the
court a quo had failed
to consider and evaluate the goal-directed behaviour of the
respondent and more specifically ignored the
principle that a
‘trigger’, was necessary for the respondent’s
defence to succeed.
[45]
In
Director of Public Prosecutions, Gauteng v Pistorius
[2015]
ZASCA 204
;
[2016] 1 All SA 346
(SCA);
2016 (1) SACR 431
(SCA) para
36, this court stated the following:
‘
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.’
Having
reached this conclusion, the court at para 37 referred with approval
to the Canadian Supreme Court case of
R v B
(G) (1990) 56 CCC
(3d) 181 (SCC);
(1990) 2 SCR 57
, in which it was held that where the
record including the reasons for judgment, discloses a lack of
appreciation of relevant evidence
and more particularly the complete
disregard of such evidence, a court of appeal could intervene. In
addition, the following passage
in
R v Roman
(1987) 38 CCC
(3d) 385; 66 Nfld & PEIR 319; 204 APR 319, was approved:
‘
There
is a distinction between reassessment by an appeal court of evidence
for the purpose of weighing its credibility to determine
culpability
on the one hand and, on the other, reviewing the record to ascertain
if there has been an absence of appreciation of
relevant evidence.
The former requires addressing questions of fact and is placed
outside the purview of an appellate tribunal
. . . the latter enquiry
is one of law because if the proceedings indicate a lack of
appreciation of relevant evidence, it becomes
a reviewable question
of law as to whether this lack precluded the trial judge from
effectively interpreting and applying the law.’
This
court in
Pistorius
then concluded at para 38 that:
‘
In
the present instance, although the question of the accused’s
intention at the relevant time is one of fact to be determined
by
inference, there regrettably does appear to have been such “an
absence of appreciation of material evidence” relevant
to that
issue.’
[46]
In the present case there was, however, no failure on the part of the
court a quo to appreciate material evidence in relation
to the
goal-directed behaviour of the respondent. It did so in the following
terms:
‘
Counsel
for the State submitted that the accused could not have been so
intoxicated that he lacked criminal capacity having regard
to his
actions when he left the house. He had to unlock and open the front
door and security gate, open the driveway gate, drive
the car out,
close the gate and then drive to the city centre. He also drew
attention to the cupboards that the accused opened
in the house, the
items he threw on the floor, and the fact that he took the deceased’s
phone, camera charger and Garmin
device. There is no expert evidence
to the effect that these apparent goal-directed actions are
inconsistent with the state of
intoxication in which he says he must
have been.
On
the contrary, Professor Mkhize expressed the view, on the assumption
that his amnesia is genuine, and with knowledge of his subsequent
behaviour, that he may have lacked the capacity to realise that what
he was doing was wrong, or to act in accordance with such
appreciation, or to form the intention to kill.’
[47]
The submissions of the State in this regard simply amount to an
invitation to this court, to reassess the evidence of the
goal-directed behaviour of the respondent for the purpose of
affording it different weight in the overall assessment of the
respondent’s
criminal capacity.
[48]
I turn to the submission by the State that the court a quo ignored
the principle that a ‘trigger’, was necessary
for the
respondent’s defence to succeed. In support of this submission,
the State referred to certain dicta in
Eadie
in which this
court, in dealing with the evidence of two psychiatrists who
testified in that case, referred to what was described
by these
witnesses as an event that ‘triggered’ a ‘period of
automatism’ or which resulted in the appellant
being deprived
‘of the power to make decisions’. The court also referred
to certain other decisions dealing with criminal
incapacity, in which
there was evidence of a ‘trigger’ event that caused the
accused’s conduct. However, the
case is no authority for the
proposition that a defence of criminal incapacity cannot succeed,
unless there is evidence of a ‘trigger
event’ that
resulted in the accused lacking criminal capacity. Consequently, the
issue cannot be reserved as a question of
law.
[49]
The fifth issue that the State sought to have reserved as a question
of law was; did the court err when:
(i)
interpreting s 1(1) of the CLAA, and/or
(ii)
applying the proven facts of this matter to this section?
The
court a quo stated that a contravention of the section was never part
of the State’s case. It was not referred to in the
charge
sheet, nor was it relied on by the State in argument and the only
reason why it was referred to in the judgment, was to
try and explain
to the family of the deceased, why the accused could not be convicted
of the statutory offence. The court a quo
then held that the point
did not have reasonable prospects of success.
[50]
The State submitted that the court a quo failed to apply the
provisions of this statute, when in circumstances it was bound
to do
so. The essence of the submission appears in the following passage
from the State’s heads of argument: ‘The trial
court
found that the applicant failed to discharge its onus beyond
reasonable doubt that the applicant had the criminal capacity.
In
doing so, the trial court accepted the respondent’s defence as
being reasonably possibly true. It found that he had laid
the factual
foundation for the defence. Thus, on its own reasoning, its logical
conclusion is that the applicant has proven beyond
reasonable doubt
that the respondent lacked criminal capacity due to the consumption
of intoxicating substances.’
It
was submitted that this argument raised a substantial point of law.
[51]
What the argument illustrates, however, is a lack of understanding on
the part of the State, of the effect of s 1(1) of the
CLAA. A finding
that the State failed to prove beyond reasonable doubt that the
respondent possessed criminal capacity at the time,
does not
automatically result in a finding that the State proved beyond
reasonable doubt, that the respondent lacked criminal capacity
at the
time. In terms of the common law, the accused may be acquitted of
murder if there is a reasonable possibility that the accused
lacked
criminal capacity, as a result of intoxication. In terms of s 1(1) of
the CLAA the accused will also escape liability in
terms of the
statute, unless the State proves beyond reasonable doubt that the
accused was so intoxicated, that he could not be
criminally liable at
common law. Consequently, as pointed out by this court in
S v
September
1996 (1) SACR 325
(A) at 328, for a conviction in terms
of the CLAA, it must be positively proved beyond reasonable doubt
that the accused lacked
criminal capacity. If there is doubt
concerning the criminal capacity of the accused, he or she cannot be
found guilty either in
terms of the common law or the CLAA.
[52]
The court a quo in dealing with this issue stated the following:
‘
The
difficulty with a statutory offence is the requirement that the
accused must have been so drunk that he lacked criminal capacity.
In
a case where the accused is acquitted on a charge of murder on the
basis that there is a reasonable possibility that he was
so drunk
that he lacked the required capacity he cannot be convicted of the
statutory offence unless the Court can find beyond
a reasonable doubt
that he did not have such capacity.’
The
court a quo accordingly correctly interpreted and applied s 1(1) of
the CLAA to the facts of the case and there is no basis
for the issue
to be reserved as a question of law. We were not invited to
reconsider the decision in
S v September
.
[53]
The final issue that the State sought to have reserved as a question
of law was; did the court err in denying the State the
opportunity to
re-open its case, when it is accepted practice (the only way) in
dealing with defences of this nature where the
accused has to lay a
basis, the full extent of which is only known following his evidence?
The court a quo stated this issue was
fully dealt with in the
judgment and there was nothing further to say about it. In addition,
it did not consider the point had
reasonable prospects of success on
appeal.
[54]
The State submitted by reference to various aspects of the evidence
that the court a quo had misdirected itself by refusing
the
application by the State to re-open its case, when it was fair and
practical to do so. It was submitted that the court a quo
did not
exercise its discretion judicially, as it reached a decision which
could not reasonably have been made by a court properly
directing
itself to all the relevant facts and principles.
[55]
It is, however, clear from the judgment of the court a quo that it
exercised its discretion in this regard judicially and not
capriciously, or upon any wrong principle, but for substantial
reasons. (
Madnitsky v Rosenberg
1949 (2) SA 392
(A) at 398-
399.) There is accordingly no basis for the issue to be reserved as a
question of law.
[56]
Consequently, a reconsideration of the order granted by this court on
16 August 2017, requires variation by the substitution
of the order
refusing special leave to appeal to this court, with an order
refusing ordinary leave to appeal to this court.
[57]
The following order is granted:
The
order granted by this court on 16 August 2017 is varied in terms of
s
17(2)
(f)
of the
Superior Courts Act 10 of 2013
, by the
deletion of paragraph 2 reading as follows:
‘
The
application for special leave to appeal is dismissed on the grounds
that there are no special circumstances meriting a further
appeal to
this court.’
and
its replacement with the following paragraph:
‘
The
application for leave to appeal is dismissed on the grounds that
there are no reasonable prospects of success and there is no
other
compelling reason why an appeal should be heard.’
___________________
K
G B Swain
Judge
of Appeal
Appearances:
For
Appellant: Mr K L Singh (with Mr K M Shah)
Instructed
by:
The
Director of Public Prosecutions, Durban
The
Director of Public Prosecutions, Bloemfontein
For
Respondent: Mr P Marimuthu
Instructed
by:
Legal
Aid Board, Durban Legal Aid Board, Bloemfontein
[1]
The President refused the application under
s 17(2)(f)
and the
Constitutional Court subsequently held that there were no
exceptional circumstances justifying the exercise of the President’s
discretion. S v Liesching & others [2018] ZACC 25; 2018 (11)
BCLR 1349 (CC); 2019 (1) SACR 178 (CC).
[2]
Notshokovu v S
[2016] ZASCA 112
; S v Ntlanyeni
[2016] ZASCA 3
;
2016
(1) SACR 581
(SCA).