Summary of Judgment

1. Introduction

The proceedings were criminal appeals to the Supreme Court of Appeal arising from convictions and sentences imposed by the Circuit Court of the Local Division for the Northern District at Pietersburg (trial court), per Els J. The appeals concerned both convictions (in part) and, centrally, death sentences imposed for murder.

The parties were Elifas Sebola (first appellant), Piet Ralephata (second appellant), and Gilbert Matlakala (third appellant) as appellants, and the State as respondent. The appellants were co-accused at trial and were convicted on various counts including robbery, rape, and murder.

The procedural history reflected that the first appellant sought to appeal both his conviction and sentence on count 13 (robbery) and his death sentence on count 15 (murder). The third appellant appealed only against the death sentence. The second appellant, with leave of the Supreme Court of Appeal, appealed against both his convictions and sentences. A key procedural feature was that the first appellant had not obtained leave to appeal against his conviction on count 13, and had not petitioned the Supreme Court of Appeal for such leave.

The dispute’s general subject-matter concerned the correctness of the trial court’s acceptance of identification and related evidence implicating the second appellant, the admissibility and reliability of evidence relating to a pointing-out and accompanying statement, and the continued validity of the death penalty following constitutional developments.

2. Material Facts

The criminal incident giving rise to the charges occurred on 12 March 1991. The deceased, Sergeant Maloi, and his girlfriend, R. R., were seated in a motor vehicle on the side of the Matlala Road. They were robbed, R. was raped, and Maloi was severely assaulted.

After the assault, Maloi was placed in the boot of the motor vehicle while apparently still alive. The vehicle was then set alight, and “almost nothing remained” of Maloi’s body. Evidence was led that an investigating officer (Botha) later encountered the wrecked vehicle while it was still smouldering and found five stones in the boot and a blood-marked stone alongside the vehicle.

A distinction was drawn in the appellate reasons between what was not in issue and what was contested. The first and third appellants admitted guilt, thereby placing their participation in the crimes beyond dispute for purposes of the appeal. By contrast, the second appellant put his identification as a participant in issue and gave evidence denying knowledge of the events.

The State relied materially on the evidence of R., who identified the second appellant at an identification parade as one of the persons present and as the person who raped her. The State also relied on a pointing-out to Lieutenant De Lange and an accompanying statement, together with copies of notes relating to the pointing-out (an original document prepared by De Lange having disappeared, according to Botha’s evidence).

The reliability of the identification parade was attacked not on the basis of procedural irregularity in the parade, but because R. pointed out a third person who was not one of the accused and did not point out the first appellant. In the evidence summarised by the Supreme Court of Appeal, R. stated she did not previously know the second and third appellants, and although she pointed out three persons in addition to the second and third appellants, she was uncertain about the identity of the person she pointed out in relation to whom she was uncertain, and that person was the first appellant. She stated categorically that the second appellant raped her and that the third appellant said she and Maloi were to be killed and thrown into a dam.

On the pointing-out, the second appellant admitted that he pointed out various matters to De Lange, but claimed he had been told beforehand what he was required to do. The second appellant objected to the admissibility of copies of the notes of the pointing-out.

A further factual strand concerned the second appellant’s treatment following arrest. A police officer (Louw) testified that during the arrest he struck the second appellant in the face with his fist, but did not see injury to the appellant’s eye. Approximately two days after the pointing-out, the second appellant was taken to a magistrate and mentioned that his left eye was slightly red and his back sore; the magistrate noted slight redness in the eye and no visible signs of injury to the back. The second appellant did not tell the magistrate he had been threatened or assaulted, and the redness was not noticeable until pointed out to the magistrate. The second appellant asserted in a trial-within-a-trial that there were other visible injuries, but was unable to explain why he did not show them to the magistrate.

3. Legal Issues

A first legal issue was jurisdictional and procedural, namely whether the Supreme Court of Appeal could entertain the first appellant’s appeal against his conviction and sentence on count 13 in the absence of leave to appeal or a petition for leave. This issue was a matter of law and procedure affecting the court’s competence to hear that portion of the appeal.

A second set of issues concerned the second appellant’s challenge to his convictions, which turned on questions of fact and the application of legal standards to facts. These included whether the trial court was correct to accept R.’s identification evidence, whether the second appellant’s denial (described as an alibi contention) was reasonably possibly true, and whether the pointing-out evidence (including copies of notes) was admissible and reliable.

A third legal issue was the effect of constitutional developments on the death sentences imposed, specifically whether death sentences imposed before the coming into force of the Constitution of the Republic of South Africa Act 200 of 1993 could stand after the Constitutional Court’s decision invalidating the death penalty. This was a matter of law (constitutional validity) with consequential remedial implications for sentencing.

4. Court’s Reasoning

On the jurisdictional point, the Supreme Court of Appeal held that because the first appellant had not obtained leave to appeal from the trial court in respect of count 13 and had not petitioned for leave, the court had no jurisdiction to entertain that appeal. The court applied authority establishing that an appeal is not competent absent the requisite leave, and treated the matter as dispositive of that portion of the proceedings.

In relation to the second appellant’s convictions, the court summarised and endorsed the trial court’s assessment of key evidence. It noted that the identification parade was not attacked for irregularity, but for the witness’s additional and partly uncertain pointing-out of another person and her failure to identify the first appellant. The appellate court accepted, however, that on the record R. was categorical as to the second appellant’s role as rapist and that she identified him at the parade without hesitation, and it emphasised the trial court’s favourable credibility finding that she was a very good witness who made a very good impression.

The Supreme Court of Appeal further addressed the pointing-out evidence and the objection to the admissibility of copies of De Lange’s notes. It recorded that the trial court had carefully considered the disappearance of the original document and nonetheless concluded that there was no basis to exclude the copies, finding them admissible and reliable. The appellate court found no fault with that reasoning and thus declined to interfere on appeal.

As to the second appellant’s denial, the Supreme Court of Appeal rejected the contention that an alibi defence was reasonably possibly true. It characterised the second appellant’s evidence as a bald denial of knowledge, noted that the trial court disbelieved him for good reason, and held that, considering the totality of the evidence, he was clearly linked to the crimes. The court treated R.’s positive identification as of considerable importance in this evaluative assessment.

On sentence, the Supreme Court of Appeal reasoned that the death sentences were imposed before the coming into effect of the Constitution of the Republic of South Africa Act 200 of 1993, and that the Constitutional Court had since decided that from the date of its order in S v Makwanyane and Another the death sentence was no longer a valid punishment and that already-imposed death sentences could not be carried out. Applying that binding constitutional development, the court concluded that the death sentences in the present matter had to be set aside and replaced with other sentences.

The court further exercised a remedial judgment on the appropriate forum for determining substitutionary sentences. It considered that, in all the circumstances, the determination of appropriate sentences for the three appellants should receive the attention of the trial court, and it therefore referred the cases back to the trial court for the imposition of sentence on the murder count.

5. Outcome and Relief

The appeal by the first appellant against his conviction on count 13 was held to be not receivable because no leave to appeal had been granted and no petition for leave had been brought, with the result that the Supreme Court of Appeal lacked jurisdiction to entertain it.

The second appellant’s appeal against his convictions on counts 12, 13, 14, 15, and 16 and against his sentences on counts 12, 13, 14, and 16 was dismissed.

The appeals by all three appellants against the death sentences imposed on count 15 (murder) were upheld. Each death sentence was set aside, and the matters of all three appellants were remitted to the trial court for the imposition of sentence on count 15. The reasons provided do not record any separate costs order.

Cases Cited

National Union of Metal Workers of South Africa v Jumbo Products CC [1996] ZASCA 87; 1996 (4) SA 735 (A)

S v Makwanyane and Another [1995] ZACC 3; 1995 (6) BCLR 665 (CC)

Legislation Cited

Constitution of the Republic of South Africa Act 200 of 1993

Rules of Court Cited

No specific rule of court was cited in the reasons; the decision applied the general requirement of leave to appeal for appellate jurisdiction.

Held

The Supreme Court of Appeal held that it lacked jurisdiction to entertain the first appellant’s appeal on count 13 due to the absence of leave to appeal. It held further that the second appellant’s challenges to conviction and sentence (other than the death sentence) failed because the trial court’s acceptance of the identification evidence and of the pointing-out evidence (including copies of notes) disclosed no appealable misdirection, and the second appellant’s denial was correctly rejected on the totality of the evidence.

The court also held that, following the Constitutional Court’s abolition of the death penalty as a valid sentence, the death sentences imposed on all three appellants had to be set aside. It referred the matters back to the trial court for resentencing on the murder count.

LEGAL PRINCIPLES

The judgment applied the principle that an appellate court’s jurisdiction to hear an appeal against conviction depends on the granting of leave to appeal (or a successful petition where applicable). Absent such leave, an appeal is not competent and cannot be entertained.

It applied the principle that findings on the admissibility and reliability of evidence (including documentary reconstructions or copies where an original is missing) are primarily for the trial court, and an appellate court will not interfere where the trial court’s careful evaluation reveals no basis for exclusion and no demonstrable misdirection.

It applied the approach that a challenge to conviction based on denial or alibi-type contentions must be assessed against the totality of the evidence, including the credibility and reliability findings made by the trial court. Where a trial court’s acceptance of an identification witness is supported by the record and the accused’s version is rejected for good reason, appellate interference is not warranted on the facts as summarised.

It applied the constitutional principle, flowing from binding Constitutional Court authority, that the death penalty is not a valid sentence and that previously imposed death sentences may not be carried out and must be replaced by lawful sentences, with the choice of substitute sentence being remitted to the appropriate court where the appellate court considers that course suitable in the circumstances.