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[2019] ZASCA 90
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Director of Public Prosecutions Gauteng Local Division, Johannesburg v Ramolefi (705/2018) [2019] ZASCA 90 (3 June 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 705/2018
In
the matter between:
THE
DIRECTOR OF PUBLIC PROSECUTIONS
GAUTENG
LOCAL DIVISION,
JOHANNESBURG APPELLANT
and
PULE
ANDREW
RAMOLEFI RESPONDENT
Neutral
citation:
DPP, Gauteng v Ramolefi
(705/2018)
[2019]
ZASCA 90
(3 June 2019)
Coram:
Majiedt and Van Der Merwe JJA and Gorven AJA
Heard
:
28 May 2019
Delivered:
3 June 2019
Summary:
Criminal Procedure – Sentence – appeal by State
against a sentence imposed on appeal to the high court –
lack
of jurisdiction to determine such an appeal – appeal struck
from the roll
.
ORDER
On
appeal from:
Gauteng Local Division of the High Court,
Johannesburg (Molahlehi and Van Der Linde JJ sitting as court of
appeal):
The
appeal is struck from the roll.
JUDGMENT
Gorven
AJA (Majiedt and Van der Merwe JJA concurring):
[1]
The
State wishes to prosecute an appeal against sentence. The respondent
was convicted on one count of murder, committed on 27 April
2013. The
trial took place in the regional court for the regional division of
South Gauteng, held at Alexandra (the trial court).
He was sentenced
to a period of 15 years’ imprisonment. No substantial and
compelling circumstances were found warranting
a reduction of the
minimum prescribed under the Criminal Law Amendment Act
[1]
(the CLAA). He sought leave to appeal against both his conviction and
sentence. Leave was granted against sentence only. Molahlehi
and
Van Der Linde JJ, in the Gauteng Local Division of the
High Court, Johannesburg, (the high court) upheld the
appeal. They
imposed a sentence of five years’ imprisonment, wholly
suspended for a period of five years on condition that
the respondent
is not found guilty of an offence committed during the period of
suspension for which he is sentenced to a period
of imprisonment
without the option of a fine. The appellant (the State) was granted
special leave to appeal the sentence imposed
by the high court.
[2]
Initially, no heads of argument were filed
by the respondent. On the original day the matter was set down for
hearing, counsel appeared
on his behalf and moved for an adjournment.
This was granted for a short period. In support of the adjournment it
was indicated
that the issue of the appealability of the order of the
high court might arise. As a result, a request was made that both
parties
submit short heads of argument on the issue. It is this issue
which must be dealt with initially, since it involves the
jurisdiction
of this court to hear the appeal.
‘
When
a party raises a challenge to the jurisdiction of a court, this issue
must necessarily be resolved before any other issues
in the
proceedings. The reason is simple. If the court has no jurisdiction,
it is precluded from dealing with the merits of the
matter brought to
it.’
[2]
[3]
In
Director
of Public Prosecutions v Olivier
,
[3]
this
court held that it had no jurisdiction to determine an appeal against
a sentence imposed by a high court sitting as a court
of appeal. The
State had only been granted a limited right of appeal against
sentence in 1990. This was done by introducing ss 310A
and 316B
of the Criminal Procedure Act 51 of 1977 (the Act) by an
amendment.
[4]
The section
relevant to this matter, s 316B(1) of the Act reads:
‘
(1) Subject to
subsection (2), the attorney-general may appeal to the Appellate
Division against a sentence imposed upon an accused
in a criminal
case in a superior court.’
Dealing
with s 316B(1),
Olivier
held:
‘
This
subsection provides for appeals to this Court from a sentence imposed
by a Superior Court. This does not mean a Superior Court
sitting as a
Court of appeal. It clearly means a Superior Court sitting as a Court
of first instance.’
[5]
The
Constitutional Court agreed with
Olivier
in this regard.
[6]
[4]
Olivier
was
decided prior to the coming into effect of the Superior Courts Act
(the SC Act).
[7]
After
the SC Act came into effect, this court was confronted by the same
question in
DPP
Western Cape v Kock
.
[8]
In
Kock
,
special leave to appeal was sought after an appeal to the high court
against the sentence imposed by the regional magistrate had
been
brought by the State in terms of s 310A of the Act. This appeal
to the high court was competent, but failed. Dissatisfied
with the
outcome, the State sought special leave to appeal the high court’s
order to this court. The application for special
leave was based on
s 16(1)
(b)
read with s 17(1)
(a)
(i)
and (ii) of the SC Act. This court held that the SC Act has not
altered the position:
‘
The
limitation of the right of the state to appeal against
both conviction and sentence is underpinned by constitutional
and
policy considerations. In the first place, granting the state the
unlimited right to appeal against sentence through several tiers
of
appeal might well be unconstitutional. . . In
Olivier
this
court recognised that what is set out in that dictum was the very
foundation upon which the restriction of the state's
right to
appeal is founded.’
[9]
The
definition of ‘appeal’ in chapter 5 of the SC Act
excludes appeals in matters ‘regulated in terms of the
Criminal
Procedure Act&rsquo
;.
Kock
held that: ‘The state's right of appeal is
specifically regulated by the CPA, therefore the provisions of
s 16(1)
(b)
do
not find application.’
[10]
It
concluded by saying:
‘
Having
regard to the constitutional and policy imperatives dealt with
earlier in this judgment, the question of a further right
of appeal
by the state in respect of sentence would have to be specifically
dealt with in legislation that is clear and precise.
As stated above,
legislation to that effect might well be challengeable.
. . .
In
light of what is set out above, it is in my view clear that in the
present case the state has no further right to appeal to this
court.’
[11]
The
matter was struck from the roll.
[5]
There is only one feature which
distinguishes this matter from
Kock
.
That matter dealt with a further appeal by the State. Here, the
sentence by the trial court was appealed by the respondent and
not
the State. The attempt by the State to appeal the resultant sentence
is the first attempt of the State to appeal. There is
thus no
question of ‘a
further
right of appeal by the state in respect of sentence’ as was the
case in
Kock
.
(my emphasis)
[6]
It is appropriate at this point to sketch
the circumstances of the matter. It will be necessary to do so in
some detail. At his
trial, the respondent’s plea explanation
indicated that he had stabbed the deceased once in order to defend
himself against
an attack by the deceased. The incident took place at
a car wash facility. The deceased, the respondent and the
respondent’s
wife had all brought their vehicles to be washed.
Two years prior to that, the respondent had caught his wife and the
deceased
in flagrante delicto
.
The respondent and his wife reconciled soon thereafter. No further
liaison took place between her and the deceased. That was the
last
occasion on which the paths of the respondent and the deceased
crossed.
[7]
Two eyewitnesses testified for the State.
Neither of them saw the entire episode. They first became aware of
events when they saw
the deceased fleeing out of the gate of the car
wash facility with the respondent in hot pursuit. The respondent was
holding a
knife. The deceased was bleeding from his back. The
deceased stumbled and fell, whereupon the respondent stabbed him once
on his
neck. At the time, the deceased was sitting on his buttocks
with his right hand on the ground. The respondent then said that he
would ‘finish off’ the deceased. The deceased stood up
and continued fleeing. The respondent resumed his chase. The
first
State witness stopped him and escorted him back to the car wash
premises. As he entered the gate, the respondent said to
the
bystanders that they should not be surprised, since the deceased was
having sexual intercourse with his wife. The respondent
and his wife
then left in their vehicles.
[8]
The deceased was left bleeding profusely.
The first State witness drove him to hospital where emergency surgery
attempted to stem
the flow of blood to no avail. Both the doctor who
had treated the deceased and the doctor who had performed the
post-mortem examination
testified that the deceased sustained two
stab wounds. The non-fatal wound was to his back. The fatal one was
to the left-hand
side of his neck.
[9]
The version of the respondent was that he
and his wife took their vehicles to the car wash. He removed items
from his car, including
a Swiss army pocket knife. When he went to
pay, someone patted him on his back. When he turned around, the
deceased struck him
in his eye. He fell down with the deceased on top
and assaulting him. He managed to dislodge the deceased enough to
locate and
open his pocket knife. He stabbed the deceased once, who
then jumped up and ran away. The respondent pursued him. After they
were
outside the gate, the respondent gave up the chase. He was
adamant that he had stabbed the deceased only once.
[10]
He stated that he chased the deceased
because he was angry at being hit without reason. He was not
attempting to stab him again,
even though he was chasing him with the
knife in his hand. He denied having stabbed the deceased because the
deceased had had an
affair with his wife. He said that he decided not
to kill him at that time, despite having had a firearm which he could
have used
for that purpose. He could not explain why the doctors both
found that the deceased had sustained two stab wounds.
[11]
The
trial court accepted the evidence of the State witnesses and rejected
that of the respondent where they conflicted. A crucial
fact was the
presence of two stab wounds on the body of the deceased. This tallied
with the State evidence. The second aspect rejected
by the trial
court was that the deceased at no stage fell down while being chased.
The third was the manner in which the respondent
said that he had
stabbed the deceased. This was inconsistent with the medical evidence
of how the wounds were sustained. The trial
court accepted that the
non-fatal wound was administered in self-defence. Thereafter,
however, the deceased had run away and the
fatal blow was inflicted
whilst the deceased was helpless and on the ground. At that stage,
the deceased posed no threat to the
respondent. The respondent denied
the second, fatal, stabbing and thus did not say why he delivered it.
The trial court held that
the respondent had the direct intention to
kill the deceased. None of these findings was attacked on appeal.
Those factual findings
are binding on an appeal court considering an
appeal against sentence.
[12]
[12]
The trial court accepted that the
respondent had been provoked by the attack on him by the deceased.
When he was asked why he had
chased the deceased, the respondent
said: ‘I was angry. I was furious that this man is hitting me
without reason.’
There was no finding, evidence or submission
on behalf of the respondent that the provocation related to the
adulterous affair
between the deceased and the respondent’s
wife which had taken place two years prior to that. In particular, it
could not
be found that this was the reason the fatal stab wound was
inflicted, since the respondent gave no reason for the fatal stabbing
or evidence of his state of mind at the time.
[13]
Despite this, the high court held that the
respondent was ‘acting in circumstances of extreme
provocation’. It held
that it was understandable, in the light
of the adulterous affair, that ‘when the deceased attacked him,
the [respondent]
should have lost his control over his emotions, and
acted completely irrationally.’ It further held that the fatal
stabbing:
‘
occurred
in the context of utmost and severest provocation by the deceased. It
is not surprising and cannot be said to be unreasonable
for the
[respondent] to have acted in the manner he did. Society would in my
view understand that he acted as he did in the face
of unprecedented
provocation.’
It
went on to find that, in the circumstances, ‘there is a
reasonable possibility that he was not acting rationally when he
stood up from the ground, chased the deceased to the point where he
(the deceased) fell and upon catching up with him, fatally
stabbed
him.’ It further said:
‘
[I]n
my view even the community would accept that the [respondent] acted
with diminished responsibility when he committed the crime.
This is
an important factor which the court below ought to have accorded
sufficient recognition and weight in the consideration
of sentencing
but failed to do so.’
[14]
Unfortunately, these observations are
totally at odds with the specific factual findings of the trial
court. They clearly cannot
found the basis for a sentence on appeal.
It was due to these erroneous views that the high court arrived at
its sentence and set
aside that imposed by the trial court. In my
respectful view, this was not a proper basis on which to approach the
matter. The
wholly suspended sentence imposed by the high court is
shocking in the circumstances. A serious injustice appears to have
been
done.
[15]
Can
Kock
be construed to mean that, because this is the first appeal by the
State against sentence, this court has jurisdiction to determine
it?
In the light of the clear reasoning in
Olivier
,
Nabolisa
and
Kock
,
the answer is no. As I have indicated, policy considerations have
been invoked for the narrow right of appeal accorded to the
State. No
provision is made for the situation where, as a result of an appeal
against sentence by a convicted person, the appeal
court wildly errs
in the opposite direction, leaving the State without a right to
appeal. The situation in the present matter may
well expose a lacuna
in those provisions which might merit consideration by the
legislature.
[16]
When confronted with the insuperable
difficulty of
Kock
,
and which it conceded, the State attempted to call in aid the
provisions of s 311 of the Act. The relevant part reads:
‘
(1) Where the
provincial or local division on appeal, whether brought by the
attorney-general or other prosecutor or the person
convicted, gives a
decision in favour of the person convicted on a question of law,
the attorney-general or other prosecutor
against whom the
decision is given may appeal to the Appellate Division of the Supreme
Court, which shall, if it decides
the matter in issue in favour of
the appellant, set aside or vary the decision appealed from . . .’.
In
DPP,
Gauteng Division, Pretoria v Moabi
,
[13]
this court held that s 311 granted an automatic right of appeal
and that no leave or special leave was required. But such
an appeal
lies only against a decision in favour of a convicted person on a
question of law.
[17]
The State sought to rely on the following
passage in
Moabi
:
‘
It was held
in
Magmoed
v Van Rensburg
that
the question, whether the proven facts bring the conduct of an
accused person within the ambit of the crime charged,
is one of
law.’
[14]
But
this dealt with the situation where the appeal court based its
approach to sentence on the incorrect section of the CLAA as
a result
of a finding on a question of law. This was summarised in the
majority judgment:
‘
The
High Court held that intent must be proved when establishing
whether grievous bodily harm was inflicted. This was clearly
wrong as
is pointed out in [15] of the minority judgment. This conclusion was
accordingly a question of law wrongly decided in
favour of the
respondent.
’
[15]
[18]
In this matter, the State submitted:
‘
[T]he
finding of the [high court] that the Respondent acted with
diminished criminal responsibility when he committed the
crime is a
decision in favour of a convicted person on a question of law as
contemplated in
section 311
of the
Criminal Procedure Act.’
But
a distinction must be drawn between diminished responsibility and
lack of criminal capacity, although both involve findings
of fact. In
S
v Mnisi
,
[16]
Boruchowitz AJA said:
‘
The
appellant does not seek to rely upon the defence of
temporary non-pathological criminal incapacity but rather upon
diminished
responsibility which is not a defence but is relevant to
the question of sentence. The former relates to a lack of criminal
capacity
arising from a non-pathological cause which is of a
temporary nature whereas the latter presupposes criminal capacity but
reduces
culpability.’
Whether
or not diminished criminal responsibility is present is a question of
fact. If it is found to be present, it is a factor
to be taken into
account along with other factors bearing on sentence. If an incorrect
factual finding is applied to the question
of sentence, this simply
amounts to a misdirection of the court doing so. It does not involve
a decision in favour of the convicted
person on a question of law.
This was explained by Nugent JA in
Director
of Public Prosecutions, Transvaal v Venter
:
[17]
‘
We
are not dealing in this case with a pathological condition that
requires expert medical opinion to guide a court in reaching
its
conclusion. We are dealing with the weight to be attached to a set of
factors that might have operated on the respondent's
mind to diminish
his culpability.’
[19]
In
Director
of Public Prosecutions, Gauteng v MG
,
[18]
this court held that:
‘
An
exercise of a judicial discretion based on a wrong principle or
erroneous view of the law is clearly a question of law decided
in
favour of a convicted person.’
It
is the underlying legal principle which was misconceived in
Moabi
.
The sentencing court wrongly based the sentence on the incorrect
section of the Criminal Law Amendment Act. It did so because
it
incorrectly held that intention to cause grievous bodily harm must be
present when all that the Act required was that grievous
bodily harm
had in fact been inflicted during a rape. The present matter is
distinguishable. It is not a wrong legal principle
to take into
account diminished criminal responsibility when considering sentence,
even if as a matter of fact, a case for diminished
responsibility had
not been made out. It is simply a misdirection on the facts.
[20]
As I have said, the judgment of the high
court on sentence is replete with serious misdirections. In those
circumstances, the high
court clearly erred in its approach to
sentence. And the sentence it imposed is shockingly lenient. But that
does not give this
court jurisdiction under s 311 of the Act. I
come to this conclusion with great reluctance in view of the facts of
this matter.
If this court had jurisdiction to entertain an appeal,
there is little doubt that the respondent would have received a
sentence
of a lengthy term of direct imprisonment. I say this
because, in case the court did have jurisdiction, full argument was
heard
on the merits. Since this court does not have jurisdiction to
determine the appeal, the appropriate order is to strike the matter
from the roll.
[21]
In the result, the following order is made:
The
appeal is struck from the roll.
____________________
T
R Gorven
Acting
Judge of Appeal
Appearances
For
the Appellant: R Ndou
Instructed
by:
The
Director of Public Prosecutions, Johannesburg
Webbers,
Bloemfontein
For
the Respondent: PJ Du Plessis
Instructed
by:
BDK
Attorneys, Johannesburg
Symington
& De Kok Attorneys, Bloemfontein
[1]
Criminal
Law Amendment Act 105 of 1997
. The sentence falls under the
provisions of
s 51(2)
read with
Part II
of Schedule 2 of the
CLAA.
[2]
Zhongji
Development Construction Engineering Co Ltd v Kamoto Copper Co SARL
[2014] ZASCA 160
;
2015 (1) SA 345
(SCA) para 50.
[3]
Director
of Public Prosecutions v Olivier
[2005]
ZASCA 121
;
2006 (1) SACR 380
(SCA) para 22.
[4]
These
sections were inserted by s 11 of the Criminal Law Amendment
Act 107 of 1990.
[5]
Olivier
para 15.
[6]
Nabolisa
v S
[2013] ZACC 17
;
2013 (2) SACR 221
(CC) para 81.
[7]
Superior
Courts Act 10 of 2013
.
[8]
DPP
Western Cape v Kock
[2015] ZASCA 197; 2016 (1) SACR 539 (SCA).
[9]
Kock
para 9.
[10]
Kock
para 18. The reference to the CPA is to the
Criminal Procedure Act
51 of 1977
.
[11]
Kock
paras 19 & 20.
[12]
S
v Hadebe
[1997] ZASCA 86
;
1997 (2) SACR 641
(SCA) at 645
d-f
.
This matter dealt with an appeal against conviction. Marais JA said:
‘[T]here are well-established principles governing
the
hearing of appeals against findings of fact. In short, in the
absence of demonstrable and material misdirection by the trial
Court, its findings of fact are presumed to be correct and will only
be disregarded if the recorded evidence shows them to be
clearly
wrong.’ This summarised the fuller reasoning in
R
v Dhlumayo & another
1948 (2) SA 677
(A) 705-706. The approach is even more applicable
where the appeal is against sentence only.
[13]
DPP,
Gauteng Division, Pretoria v Moabi
[2017] ZASCA 85; 2017 (2) SACR 384 (SCA).
[14]
Moabi
para 12. References omitted.
[15]
Moabi
para 26.
[16]
S
v Mnisi
[2009] ZASCA 17
;
2009 (2) SACR 227
(SCA) para 4.
[17]
Director
Of Public Prosecutions, Transvaal v Venter
[2008] ZASCA 76
;
2009 (1) SACR 165
(SCA) para 67.
[18]
Director
of Public Prosecutions, Gauteng v MG
[2017] ZASCA 82
;
2017 (2) SACR 132
(SCA) para 29.