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[2019] ZASCA 158
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Director of Public Prosecutions, Western Cape v Schoeman and Another (904/2017) [2019] ZASCA 158; 2020 (1) SACR 449 (SCA) (28 November 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 904/2017
In
the matter between:
DIRECTOR OF PUBLIC
PROSECUTIONS,
WESTERN
CAPE
APPELLANT
and
MARC
SCHOEMAN
FIRST RESPONDENT
GERHARD
BOTHA
SECOND RESPONDENT
Neutral
citation:
DPP, Western
Cape v Schoeman & another
(904/2017)
[2019]
ZASCA 158
(28 November 2019)
Coram
:
Cachalia, Plasket, Nicholls, Dlodlo JJA & Tsoka AJA
Heard
:
26 September 2019
Delivered:
28 November 2019
Summary:
Application for leave to appeal against refusal by trial court to
reserve questions of law in terms of
s 319
of the
Criminal Procedure
Act 51 of 1977
– factual bases for the reservations not set
out, did not appear fully from the judgment and no request was made
to trial
court for special finding on the facts upon which points of
law hinged – questions of fact and not law sought to be
reserved
– application for leave to appeal dismissed.
ORDER
On
appeal from:
Western Cape Division of the High Court, Cape Town
(Veldhuizen J and assessors sitting as court of first instance).
The
application for leave to appeal is dismissed with costs.
JUDGMENT
Cachalia
and Plasket JJA (Nichols and Dlodlo JJA and Tsoka AJA concurring)
[1]
The distinction between questions of law and questions
of fact is
often notoriously difficult to draw. This matter raises this
difficulty in relation to an application brought by the
State in
terms of s 319 of the Criminal Procedure Act 51 of 1977 (the CPA) to
reserve what it claimed were questions of law.
[2]
Six men, including the respondents, Mr Marc Schoeman
and Mr Gerhard
Botha, stood trial before Veldhuizen J and assessors in the Western
Cape High Court, Cape Town on a large number
of charges of
contravening the Prevention of Organised Crime Act 121 of 1998
(POCA), fraud, contravening the Value Added Tax Act
89 of 1991,
contravening the Income Tax Act 58 of 1962 and contravening the
Companies Act 61 of 1973.
[3]
Two of the accused were discharged at the end of
the State’s
case. At the conclusion of a lengthy trial, accused 1, Mr Johan Van
Staden, was convicted of a large number of
the charges against him,
and was sentenced to an effective term of 20 years’
imprisonment. He emerged, during the trial,
as the mastermind in a
massive scheme in terms of which the South African Revenue Service
(SARS) was defrauded of approximately
R 250 million. The remaining
accused, Schoeman, Botha and Mr Mark Newmark, were acquitted.
[4]
In response to the acquittal of Schoeman and Botha, the
State
applied, in terms of s 319 of the CPA to reserve questions of law for
the consideration of this court. Veldhuizen J dismissed
that
application. On petition, however, this court ordered that the
‘application for leave to appeal and condonation [for
the late
filing of the record] is referred for oral argument in terms of s
17(2)(
d
) of the
Superior Courts Act 10 of 2013
’ and that
the parties ‘must be prepared, if called upon to do so, to
address the court on the merits’.
Background
[5]
The Indo-Atlantic group of companies, founded and controlled
by Van
Staden, comprised of four companies, Indo-Atlantic Seafoods (Pty) Ltd
(Seafoods), Indo- Atlantic Shipping (Pty) Ltd (Shipping),
Indo-Atlantic Group Holdings (Pty) Ltd (Group Holdings) and Southern
Ocean Marine Corporation (Pty) Ltd (SOMC). It would appear
that the
most active of these companies was Seafoods and, for that reason, it
was central to the fraudulent scheme that Van Staden
designed and
implemented.
[6]
The scheme took advantage of the zero-rating, for VAT
purposes, of
the start- up costs and capital expenditure associated with the
establishment of Seafoods, and the zero-rating of
the cost of fish
and seafood products that were exported.
[7]
This took at least three forms. First, Van Staden engaged
in what was
described as ‘invoice harvesting’. For instance, he
sought quotations for the design and installation of
a fish
processing line, a refrigeration system and for a number of vehicles.
He asked for each quotation to take the form of an
invoice, stating
that he would be obtaining finance from abroad to fund the
acquisitions. After he was presented with an invoice
he would ‘claim
back’ the amount of VAT specified on the invoice, even though
he had never paid the invoice. In a variation
on this method, he
claimed to have purchased vessels, and
‘claimed back’
the VAT portion
of the purchase price, but the purchases were fictitious as the
vessels were either under arrest
or unseaworthy and could not have
been sold.
[8]
Secondly, VAT refunds were claimed for fish and seafood
purchases
that were exported, as well as other input costs such as rental.
Sometimes these transactions were genuine, it would
appear, but in
other cases the prices in genuine transactions were inflated.
[9]
Thirdly, records of non-existent transactions were fraudulently
manufactured and input VAT claimed on them. For instance, a number of
invoices ostensibly from an entity called Isotherm were forgeries.
(It was when SARS looked into these invoices that Van Staden’s
scheme began to be unravelled, with his eventual conviction
and
imprisonment being the end result.)
[10]
Schoeman had met Van Staden before the the Indo-Atlantic group of
companies
was established. In May 2005, Van Staden requested
Schoeman, through his firm, S & D Consulting, to provide
bookkeeping services
for the group. Schoeman agreed to do so.
[11]
Van Staden had indicated that Indo-Atlantic was losing money as a
result
of not being able to process its paperwork. He particularly
wanted S & D Consulting’s help in this regard. Schoeman
testified
that, at that stage, there was about a year’s worth
of arrear invoices. It was agreed that S & D Consulting would
take
on the job of ‘capturing’ the paperwork, getting it
into a format and submitting VAT returns to SARS.
[12]
Botha and Schoeman had known each other since the early 1990s when
both
had worked at SARS. When Botha wished to move from Johannesburg
to Cape Town, Schoeman gave him a job at S & D Consulting. Botha,
as the newest employee at S & D Consulting, was given the
Indo-Atlantic work. In October 2006, Van Staden asked if Botha could
work at Indo-Atlantic’s offices. It was agreed that he would be
seconded for a four month period. He then left the employ
of S &
D Consulting and became an employee of the Indo-Atlantic group. He
resigned from that employment in October 2008.
[13]
In August 2005 when the first VAT returns had been submitted and
repayments
were due, it transpired that there was a problem with
Indo-Atlantic’s bank account. Schoeman said that it was
acceptable
to SARS to pay into a third party’s account as long
as the appropriate form was filled in. It was decided between him and
Van Staden that S & D Consulting’s account would be used.
For Schoeman there was a good business reason for this arrangement:
it enabled S & D Consulting to control the funds that came in and
to ensure that it was paid what it was owed before the rest
of the
funds were paid to Indo-Atlantic or, on its instructions, to its
creditors.
[14]
Van Staden made an offer to S & D Consulting: in return for it
managing
the VAT returns, it would be entitled to ten percent of the
amounts it recovered from SARS. Schoeman agreed to this offer and an
agreement to this effect, drafted by Schoeman, was reduced to
writing.
[15]
In 2008, SARS acted on information it had received that the VAT
returns
of the Indo-Atlantic group were fraudulent. Its
investigations found this to be so and that, for all practical
purposes, the group
had no viable business whatsoever. A trial
lasting over a year and a half ensued, with the result that we have
detailed above.
The record, bound in 54 volumes, ran to 10 127 pages.
The judgment
[16]
The charges to which the respondents were required to answer were
contraventions
of the Prevention of Organised Crime Act 121 of 1998
(POCA), a number of counts of fraud, a number of counts of forgery
and three
counts of reckless conduct of business in contravention of
s 424(3) of the Companies Act 61 of 1973. In addition, Van Staden was
charged with further counts of fraud and he and accused 5, Mr Gary
Newmark, were charged with contraventions of the Value Added
Tax Act
89 of 1991 and the Income Tax Act 58 of 1962.
[17]
Veldhuizen J noted early in his judgment that a great deal was common
cause. He stated:
‘
It
is common cause that during the period 2005 to 2008, in all 35 claims
for the repayment of input VAT were presented to SARS by
Indo-Atlantic Seafoods (Pty) Ltd. It is also common cause that these
claims were largely false and accused 1 conceded that all
the claims
in respect of Isotherm were false. Of these claims only the last
three were not paid.’
He
found that the total amount that SARS paid as a result of the
fraudulent scheme was R250 362 792.03.
[18]
The court found Van Staden to have been a ‘very bad witness’
who had been evasive, who claimed not to be able to remember when it
suited him and who lied at times. The court accepted that
he was the
person who was legally responsible for the VAT returns of the
Indo-Atlantic Group. During the course of his evidence
he admitted
that he had signed most of the VAT returns.
[19]
After considering the evidence of a considerable number of State
witnesses
concerning individual instances of fraudulent conduct on
the part of Van Staden, Veldhuizen J held that while Van Staden
claimed
to know little of the financial aspects of the Indo-Atlantic
Group, this was simply not true: in fact, he was aware of every
payment
received from SARS. He stated:
‘
In
all these transactions the hand of accused 1 is evident. The part he
plays runs like a golden thread through all of them. This
finding is
also supported by the evidence of accused 3 that once he had received
the spreadsheet from Ms Claudia Manele, accused
1 supplied the false
information which appeared at the end of the VAT control account.’
[20]
When money was paid by SARS to the Indo-Atlantic Group, a significant
amount of it appears to have found its way to Van Staden personally.
He bought a game farm, an aircraft and motor vehicles, as
well as a
flat for his daughter. He took his family on a holiday to Mauritius
in a chartered jet. Veldhuizen J found that Van Staden
had been
unable to explain how the Indo-Atlantic companies to which VAT had
been paid had transferred the funds to him, and that
it was clear
that he ‘lived in luxury on the money that the SARS claims
provided’. He concluded that ‘[a]ll the
facts and
circumstances lead us inexorably to the conclusion that accused 1 had
put in place and implemented the scheme whereby
SARS was defrauded’.
[21]
Van Staden was convicted of racketeering and money laundering in
terms
of ss 2 and 4 of POCA, 38 counts of fraud and three counts of
reckless trading in terms of the 1973 Companies Act.
[22]
The court then dealt with Schoeman. It noted that early in 2005, Van
Staden approached Schoeman to render bookkeeping and accounting
services, through his firm S & D Consulting, to the Indo-Atlantic
Group. This included the submission of VAT returns to SARS. Fairly
early in the relationship between S & D Consulting and the
Indo-Atlantic Group, the latter had failed to pay the former’s
fees. Van Staden then suggested that S & D Consulting
be paid ten
percent of all VAT refunds plus its fees. Schoeman agreed to this
proposal (and reduced the agreement to writing).
Later it was agreed
that it would be arranged that SARS would pay refunds into S & D
Consulting’s account, that S &
D Consulting would deduct
the fees due to it and then pay the rest to the appropriate
Indo-Atlantic company.
[23]
Initially, the returns in terms of this arrangement were not
particularly
big but they grew with time. By the time the bubble
burst, S & D Consulting had received R37 million. This
arrangement, Veldhuizen
J pointed out, was not unlawful although it
may have been opportunistic. The court was also satisfied that the
agreement was not
entered into ‘with the purpose of concealing
or disguising the nature or source of the money that was paid by
SARS’.
The evidence of Schoeman concerning the genesis and
purpose of the arrangement could not, the court held, be said to be
false beyond
reasonable doubt.
[24]
Veldhuizen J found Schoeman to have been a very good witness who
‘answered
all questions to the best of his ability’, and
who, contrary to the argument of the State, was not an evasive
witness. The
court found that Schoeman had no reason to believe that
SARS was being defrauded. He also found that, generally speaking,
‘accused
2 had no part in the management or the day to day
business or the operations of the Indo-Atlantic Group’; and
that, in performing
his functions, he ‘relied solely on the
information and documentation supplied to him by the company’s
employees’.
[25]
Furthermore, Veldhuizen J found that nothing made Schoeman suspect
that
all was not above board. For instance, he found that Schoeman
‘seldom visited the offices of his client but on occasions that
he did he saw what was by all appearances a healthy and wealthy
company’. He concluded that ‘there were no facts or
circumstances on which he should have concluded that the refunds were
tainted or out of the ordinary’, and that he was accordingly
entitled to an acquittal.
[26]
The court then turned to Botha. It commenced its consideration of the
case against him by stating that it had to answer the question
whether he was ‘a party to the presentation of the false claims
or did he have knowledge of their falsity and despite his knowledge
nonetheless went ahead and presented the VAT returns to SARS’.
[27]
Botha was
employed by Schoeman but later began to work for the Indo-Atlantic
Group. He appears to have been involved in the running
of the VAT
account but, as the court pointed out, he ‘stood under the
instructions of accused
[1]
’.
[28]
Botha’s task in relation to VAT claims was that he was
presented
with a ‘spreadsheet of all invoices that qualified
for claiming input VAT’, he was then given figures by accused 1
that constituted further claims – and which were false input
VAT claims. He denied that he was aware of the falsity of the
claims.
He ‘simply accepted accused 1’s figures’.
[29]
The court stated:
‘
We
have to keep in mind that the completion of the VAT returns was only
a small part of the tasks that accused 3 was required to
perform.
There can be little doubt that his attention was for the most part
occupied with the other daily financial matters of
the group and
towards the end dealing with the complaints of unpaid creditors.
Eventually he, like the erstwhile accused 6, became
uncomfortable
with the large refunds that were received from SARS.’
[30]
The court found that no false invoices were stored on his computer
and
that save for bonuses paid to him, he received ‘very little
benefit from the refunds paid by SARS’. It was clear, the
court
held, that accused 3 became increasingly uncomfortable concerning the
VAT refunds and it found that he ‘sought to distance
himself
from these claims by firstly threatening to resign and eventually
resigning from the Indo-Atlantic Group of companies on
30 October
2009’.
[31]
Botha was found to have been a good witness overall. (The court found
there had been some blemishes in his evidence.) Tellingly, it found
that he had been a much better witness in cross-examination
than he
had been in chief. It found that ‘[w]ith the exception of a few
matters we are satisfied that his evidence can be
accepted’. He
was then acquitted.
The reserved questions
[32]
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.’
[33]
Du Toit, De Jager, Paizes, Skeen and Van der Merwe in
Commentary
on the
Criminal Procedure Act
1 state
that
s 319
‘makes
provision for an appeal on the basis of a reserved question of law
and thus creates a third way in which a person
who has been found
guilty – and in certain circumstances even not guilty –
in a superior court as court of first instance
. . . may submit his
case to the Supreme Court of Appeal’.
[34]
In its application in terms of
s 319
of the CPA, the State applied
for four questions to be reserved. The first question was formulated
as follows:
‘
1
Did the court correctly conceive and apply the legal
principles pertaining to circumstantial evidence.
In particular:
1.1
Did the court fail to correctly formulate and apply the general
principles regarding
circumstantial evidence, including that all such
evidence must be properly considered and evaluated without improperly
omitting
to consider some of the evidence?
1.2
Did the court, in contravention of the legal principles regarding
circumstantial evidence, fail at all to evaluate and give any weight
to probative evidence that, had it been considered, would
inevitably
have led a reasonable court to convict the Respondents?
1.3
Did the court, by omitting to evaluate probative evidence in
contravention
of the legal principles regarding circumstantial
evidence:
1.3.1
Give undue weight to the evidence that the court did evaluate in
favour of an acquittal?
1.3.2
Fail to give sufficient weight to the evidence that the court did
evaluate in favour of
conviction?’
[35]
The second question was formulated as follows:
‘
Did
the court fail to consider and apply
dolus eventualis
as a
form of
mens rea
sufficient to sustain convictions on the
charges requiring intention, in circumstances, where, had it been
considered and applied
to all the circumstantial evidence, had it
been properly considered, a reasonable court would inevitably have
convicted the Respondents?’
[36]
The third question was formulated as follows:
‘
Did
the court fail at all to mention, consider and apply the provisions
of
section 1(2)
and
2
(1)(e) of POCA in respect of Count 2, when the
circumstantial evidence, had it been properly considered, indicated
that the Respondents
had knowingly, as defined in
section 1(2)
of
POCA, whilst employed by or in association with the enterprise,
participated in the unlawful business?’
[37]
The fourth question was formulated as follows:
‘
Did
the court fail at all to mention, consider and apply the provisions
of
section 4
of POCA in respect of Count 3 and its alternatives,
namely money-laundering or receipt of the proceeds of crime in
contravention
of
section 4
of POCA, when the circumstantial evidence,
had it been properly considered, indicated that the Respondents at
least ought reasonably
to have known that the VAT repayments they
assisted to generate and receive from SARS were the proceeds of
fraud?’
[38]
It is evident that the first question is the key to the State’s
entire case. If it does not succeed on this question, the remaining
questions do not arise, because the factual basis for them
to succeed
will be lacking. In other words, it is only in the event of the court
below’s factual findings being altered as
a result of more
weight being given to circumstantial evidence that, according to the
State, was not properly evaluated, that inferences
may be drawn as to
the intention of the respondents and their knowledge of Van Staden’s
criminal enterprise.
The factual basis upon
which the reservation of the points of law is said to hinge
[39]
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’.
[2]
Before a
question of law may be reserved under
s 319
three requisites must be
met. 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.
[3]
[40]
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.
[4]
Where this is
not done, the point of law is not properly reserved.
[5]
[41]
In this case, in its application for leave to appeal against the
judgment
of the high court the State sought to reserve the four
questions of law that we have quoted above. The grounds for their
reservation
were set out in the application but the factual basis
upon which they supposedly pivot were not.
[42]
In their response opposing the application, the respondents
complained
that the application was fatally defective because it was
vague. In particular, they protested that the questions of law were
not
clear and that the facts disclosing the circumstantial evidence,
which the trial court had supposedly ignored, were absent.
[43]
The trial court dismissed the application because the State was
unhappy
with the inferences it had drawn from the evidence and the
result reached. This, it said, was a factual question and not one
that
could be reserved as a legal question. We shall return to this
issue. It is however apparent that the respondents’ complaint
that the State had not complied with the requirements for reserving
questions of law under
s 319
was justified, as we shall demonstrate.
[44]
First, as mentioned, the factual bases for the reservation of the
questions of law are not set out in the record. Secondly, they do not
appear fully from the judgment of the high court. Finally,
the State
did not request the trial court to return a special finding on the
facts upon which the points of law hinge.
[45]
If we were to entertain the appeal on the merits, we would face the
task
of having to ascertain the relevant facts. To this end, we would
have to read the entire record and re-evaluate all of the evidence,
thereby second-guessing the trial judge who was best placed to do
this. We would thus have to approach the matter as if this were
a
full appeal on the merits. The problem does not end there. Having
embarked on this task, we would have to decide whether the
facts
established by us accord with those found by the trial court. It is
only if we find that the factual findings of the trial
court were
wrong and the result of a legal error would we be obliged to
interfere with the decision of the trial court.
[46]
This is why courts of appeal require strict adherence to the
requirement
for the State to set out the factual basis for the
reservation of any point of law before it will entertain it. Here the
State
has not even attempted to comply with this requirement. We thus
hold that the State has not properly reserved its four points of
law.
That ought to be the end of the matter. We consider it necessary,
however, to deal further with the issue.
Has the State reserved
questions of law or of fact?
[47]
It is evident that the first question that the State sought to
reserve
– the alleged failure of the trial court to evaluate
the circumstantial evidence in accordance with legal principle –
lies at the heart of its case. It is only if we alter the factual
findings of the trial court, that we may draw inferences as to
the
intention of the respondents and their knowledge of Van Staden’s
criminal enterprise, which are raised in the remaining
questions.
[48]
The State
relied on
Director
of Public Prosecutions, Gauteng v Pistorius
[6]
where this court held that a failure by a trial court to appreciate
relevant evidence – circumstantial evidence in this case
–
constituted an error of law. We shall return to
Pistorius.
It is
necessary first to examine how our courts have approached attempts by
the State to reserve questions of law under
s 319.
Central to this
examination is the distinction between mistakes of fact, which cannot
form the basis of a reservation in terms
of
s 319
, and mistakes of
law, which do.
[49]
The leading
case is
Magmoed
v Janse van Rensburg & others
.
[7]
It involved a private prosecution arising from an incident where law
enforcement officers, who were passengers on a truck despatched
to
quell unrest in a Cape Town suburb, fired on a gathering. This
resulted in the death and injury of several people. One of those
killed was the appellant’s son. The Attorney-General declined
to prosecute the policemen who were involved in the incident.
Magmoed
then instituted a private prosecution and indicted the policemen for
murder, alternatively culpable homicide, on the ground
that they had
acted with common purpose to bring about the death of his son. The
trial judge acquitted all the policemen. He subsequently
refused the
application by the aggrieved parent to reserve certain questions of
law. The appellant then petitioned this court.
[50]
For present
purposes, two questions formulated in the petition are relevant. The
first was aimed at the finding of the trial court
that the evidence
had not proved a common purpose. It asked whether, as a matter of
law, on the facts found and the uncontroverted
evidence, the trial
court correctly found that no such common purpose was
established beyond a reasonable
doubt.
The trial court had refused the
reservation of this question because, in its view, this
was framing,
as a point of law, something that was a matter of fact.
[8]
[51]
Corbett CJ
agreed with the trial court. He said that 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 ambit
of the crime charged. However, he
continued to say that ‘a question of law is not raised by
asking whether the evidence establishes
one or more of the factual
ingredients of a particular crime, where there is no doubt or dispute
as to what those ingredients are’.
[9]
[52]
He
demonstrated the distinction by referring to the judgment of Botha J,
(van Dyk AJ concurring) in
S
v Petro Louise Enterprises (Pty) Ltd & others
.
[10]
There, a magistrate had found that the State had failed to prove a
contravention of
s 2(
b
)
of the Prevention of Corruption Act 6 of 1958. The allegation was
that A had paid certain sums of money to B as an inducement
or reward
for having done something to further his principal’s business.
The question was whether, on the undisputed facts,
the only
reasonable inference to be drawn was that the accused were guilty of
the charge.
[11]
The State
contended, as it does in the instant case, that the rules relating to
the drawing of inferences in criminal cases, as
laid down in
R
v Blom,
[12]
were rules of law, and that the manner of their application to a set
of facts was a matter of law. Similarly, it was contended,
it was a
question of law whether a possible inference drawn in favour of an
accused from a given set of facts was so speculative,
having regard
to the evidence, that it did not qualify as a reasonable possibility
justifying the acquittal of the accused.
[13]
[53]
Botha J
said the following regarding the prosecution’s contention that
it had raised a legitimate point of law:
[14]
‘
Here
there is no doubt, nor was there any doubt in the court
a quo
regarding the elements of the offence with which accused Nos. 1,
2 and 3 had been charged, nor is or was there any doubt as to the
precise scope, nature or interpretation of the elements of the
offence. The magistrate found that one of the elements of the offence
had not been proved, viz. that the accused had made the payments to
Bosch as an inducement or reward for causing or having caused
the
payment of his principal’s investment funds to accused No. 1.
In the circumstances of this case, this was a finding of
fact, pure
and simple.’
[54]
He also
rejected the ‘widely-based and generalised proposition that in
all cases the question whether a particular inference
is the only
reasonable inference to be drawn from a given set of facts is a
question of law’.
[15]
On
the proved facts of the case in question, he continued, the
magistrate’s conclusion that the guilt of the accused was
not
the only reasonable inference to be drawn was a finding of fact, not
law.
[16]
[55]
Corbett CJ,
in
Magmoed
,
endorsed the reasoning in
Petro
Louise
.
[17]
In so doing, he explained that direct evidence is not always required
to prove certain crimes. In those instances, the prosecution
usually
relies upon inferences to prove the commission of the crime. This
does not make the question as to whether any inferences
drawn to
establish the guilt of an accused is one of law. Facts, he continued,
may be classified as primary, i.e. those established
by evidence, and
secondary, i.e. those established by way of inference from primary
facts. Consequently, the inference that is
drawn as to an accused’s
state of mind, whether in the form of
dolus,
dolus eventualis or culpa
,
is one usually drawn from the primary facts and is a question of
fact, not law.
[18]
It is true,
he continued: ‘that the legal consequences of a common purpose
may be said to fall within the sphere of a rule
of law, but in a case
such as this the rule itself and its scope is not in issue’:
what was in issue was ‘the factual
foundation for the
application of the rule’ and that is a question of fact.
[19]
He thus concluded that the trial court had correctly dismissed the
application to reserve this question as one of law.
[20]
[56]
The next
point of law sought to be reserved in
Magmoed
was as
an alternative to the previous one. It was ‘whether any
reasonable court could have found on the basis of the factual
findings… and the uncontroverted evidence that none of the
accused were guilty of the offence of culpable homicide or
murder’.
[21]
The trial
court had refused the reservation because, in its view, the question
related to a ‘value judgment on the facts’.
[22]
The premise of this point was that it accepted the finding of the
trial court regarding common purpose on the facts. Corbett CJ
said
that the question in effect was ‘whether any reasonable court
would have acquitted the respondents’.
[23]
After considering the history of provisions allowing for the
reservation of questions of law, he concluded that what had been
reserved as a ‘question of law (so-called)’
[24]
was in truth a question of fact. It is noteworthy that Corbett CJ
indicated that, in his view, another court could well have concluded
that the policemen were guilty of murder, but he made it clear that
that factual determination did not fall within the ambit of
s 319. He
stated:
[25]
‘
Before
proceeding to the next aspect of the case there is, however, one
general observation that I wish to make. Having read the
evidence in
this case, and particularly having several times viewed the video
film, I am left with feelings of shock and dismay
at the conduct of
the policemen concerned with the execution of this operation. Even on
the respondents' own version their reaction
to the situation in which
they found themselves was, in my view, grossly excessive. Moreover,
as the trial Court found, there were
“strong indications”
of the common purpose to act illegally alleged by the prosecution.
And another Court seized of
the case on the merits may well have
concluded that these strong indications, taken in conjunction with
the failure by the accused
to enter the witness box, were cogent
enough to secure the conviction of the respondents, or some of them.
These considerations
must not, however, be allowed to obscure one's
perception of the legal and policy issues involved in permitting s
319 to be utilised
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.’
[57]
In this
case, it is apparent from the analysis of the two questions in
Magmoed
that we
have discussed that the State’s attempt to reserve its first
point of law on the basis of the alleged failure of the
trial court
to evaluate the circumstantial evidence in accordance with legal
principle must founder. First, it is evident from
the reasons
dismissing the application for the reservation of the point of law
that the trial judge was aware – as one would
expect – of
the rules regarding the drawing of inferences from circumstantial
evidence as set out in
R
v Blom
,
[26]
and applied them in this case. Secondly, if the trial judge drew
incorrect inferences from this evidence, he committed factual,
not
legal, errors. Thirdly, there is no suggestion that the trial court
made any errors relating to the elements or scope of the
offences
with which the respondents were charged. Finally, it is also apparent
that the State’s real complaint is that having
regard to all
the evidence, including the circumstantial evidence, no reasonable
court would have acquitted the respondents. That
is quintessentially
an attempt to reserve a question of law from what was a value
judgment of the trial court regarding the facts.
[58]
It bears
mentioning that in
S
v Basson
[27]
the Constitutional Court endorsed both
Magmoed
and
Petro Louise
.
The
Pistorius
case
[59]
This brings
us to the judgment of this court in
Pistorius
,
[28]
which appears to depart, in one respect, from the approach in these
cases, and upon which the State placed great reliance. A careful
examination of the judgment is therefore, warranted. In
Pistorius
,
the State sought to reserve three points of law for consideration by
the court. For present purposes, only two are relevant. These
were:
(a) whether the principles of
dolus
eventualis
were
correctly applied to the accepted facts and the conduct of the
accused, including error
in
objecto
;
and (b) whether the court correctly conceived and applied the legal
principles pertaining to circumstantial evidence and/or pertaining
to
multiple defences by an accused. Counsel for Mr Pistorius contended
that both points raised factual, not legal, questions.
[60]
The accepted facts were briefly these. Pistorius had fired a several
shots into a cubicle behind a closed bathroom door. His girlfriend,
Ms Reeva Steenkamp, was inside the bathroom behind the door
at the
time. She died after sustaining multiple gunshot wounds. The evidence
of the police forensic expert confirmed this. The
trial court found
this evidence to be particularly useful. It convicted Pistorius of
culpable homicide rather than murder,
which the State contended
was wrong on the proven facts; hence its reservation of the two
points of law.
[61]
The trial court had found that the State had failed to prove that
Pistorius,
who knew, on his own version, that someone was behind the
door, had realised that the deceased was inside the cubicle when he
fired
the shots. It followed, the trial court reasoned, that
Pistorius was not guilty of murder on the basis of
dolus
eventualis
, but guilty of culpable homicide instead.
[62]
This court
upheld the application for the reservation of the first point of law.
It reasoned thus:
[29]
‘
[32]
What was in issue, therefore, was not whether the accused had
foreseen that Reeva might be in the cubicle when he fired the
fatal
shots at the toilet door but whether there was a person behind the
door who might possibly be killed by his actions. The
accused’s
incorrect appreciation as to who was in the cubicle is not
determinative of whether he had the requisite criminal
intent.
Consequently, by confining its assessment of
dolus eventualis
to
whether the accused had foreseen that it was Reeva behind the door,
the trial court misdirected itself as to the appropriate
legal issue.
[33]
This conclusion shows the fallacy in the submission of counsel for
the accused that the first question of law raised solely
a question
of fact. Since the question as to the form of the intention of an
accused in a case of murder invokes a factual enquiry,
at best for
the accused the first question reserved invokes an issue of mixed
fact and law. As there was an incorrect application
of the legal
issue, the first point of law reserved must be determined in favour
of the State’
[63]
Having so found, the court proceeded to the second point, which is
immediately relevant to this appeal. It is necessary to
quote the
relevant passages in full:
[30]
‘
[34]
A further issue which arises in respect of
dolus eventualis
overlaps with the second point of law reserved for decision,
namely whether the legal principles relating to circumstantial
evidence
were correctly applied. As this court has pointed out while
the subjective state of mind of an accused person in a case such as
this is an issue of fact that can often only be inferred from the
circumstances surrounding the infliction of the fatal injury,
the
inference to be properly drawn must be consistent with all the proved
facts. It is thus trite that a trial court must consider
the totality
of the evidence led to determine whether the essential elements of a
crime have been proved…
[35]
In
Magmoed
one of the parties had been an accused in previous
criminal proceedings during which he had made certain vital
admissions relevant
to the issues in the subsequent proceedings. An
application to use the evidence in the previous proceedings was ruled
inadmissible,
and the issue arose whether this ruling was an issue of
fact or of law. Corbett CJ held that the trial court, which had ruled
the
evidence to be inadmissible, had erred as a matter of law, and
that ‘it would have served the due administration of justice’
for the evidence to have been admitted.
[36]
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.
[37]
Illustrative of this, is the decision of the Canadian Supreme Court
in
R v B
, to which counsel for both sides referred us. The
accused in that case had been charged with assault, an allegation
they denied.
The trial judge acquitted them but the Court of Appeal
allowed the Crown’s appeal and ordered a new trial. In doing
so, it
acknowledged that under the Canadian Criminal Code, similar to
the position in this country, it was not open to an appellate court
to consider the reasonableness of a trial judge’s findings of
fact, but stated it could determine whether the trial court
had
properly directed itself to all the relevant evidence bearing on the
relevant issues. It held that the trial judge had ignored
certain
evidence, or failed to mention it and, in doing so, displayed a lack
of appreciation of the relevant evidence which could
have had a
bearing on the result. This justified an appeal court interfering
with the decision. In a further appeal, this time
by the accused, the
Supreme Court of Canada confirmed the order of the Court of Appeal.
In doing so, Wilson J stated that although
it had not been open for
the Court of Appeal to overturn the acquittal if it found it to be
unreasonable or unsupported by the
evidence, it could do so on
questions of law and that an appeal would lie where the question of
law originates from the trial judge’s
conclusion that he or she
is not convinced of the guilt of the accused because of an erroneous
approach to, or treatment of, the
evidence adduced at trial. After
referring to the judgment of the majority of the Canadian Supreme
Court in
Harper
in which the court had 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, Wilson
J cited with approval the following comment of
Marshall JA in a judgment of the Newfoundland Court of Appeal in
R
v Roman
a case also involving an acquittal (a passage which
counsel for the accused conceded in this court would also amount to
an accurate
reflection of our law):
“
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.”
(Footnotes
omitted.)
[64]
The court
then referred to the circumstantial evidence of a police forensic
expert and concluded that even though the trial court
had referred to
it as ‘particularly useful’ it had failed to appreciate
its import.
[31]
[65]
It is beyond dispute that the trial court
had erred by assuming that
because Pistorius was unaware, on his version, that it was Ms
Steenkamp in the bathroom at the time
he fired the fatal shots, he
could not be found guilty of murder because the requisite intention
in the form of
dolus eventualis
had not been proved. This
court’s reasoning in support of its finding that this was a
legal error is, with respect, therefore
correct.
[66]
Having found in favour of the prosecution
regarding the reserved
question of law, it was also correct in substituting Pistorius’s
conviction of culpable homicide,
with a conviction of murder. The
forensic evidence – being the circumstantial evidence –
relevant to the reservation
of the second point of law (so-called) –
was uncontroversial and found by the trial court, as we have
mentioned, to have
been ‘particularly useful’. It was,
therefore, among the proved facts before the court, which buttressed
the State’s
case against Pistorius.
[67]
That being so, it was not necessary for
this court to have gone
further to answer the question whether the trial court had ‘correctly
conceived and applied the legal
principles pertaining to
circumstantial evidence . . ’. The question was academic.
However,
it did so and found, following a concession from counsel, that the
passages quoted above from the Canadian cases of
Roman
and
Harper
correctly reflected the position in our law. It cited
no authority in our law to support this assertion.
[68]
The
foundation for this conclusion is the statement of the court that
there is ‘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’. Both types of error, it said, adversely
affect the judicial process and its outcome and are therefore
legal
errors as envisaged by s 319.
[32]
[69]
It is not,
in our view, correct to say that all issues concerning the
admissibility of evidence are questions of law. Corbett CJ,
in
Magmoed
,
made it clear that such issues may not necessarily be questions of
law. He stated:
[33]
‘
The
admissibility of evidence may well turn solely on an issue of fact.
An obvious example of this is the case where the admissibility
of an
extra-curial statement by the accused is in issue and this depends on
whether it was made freely and voluntarily and without
undue
influence or whether it was induced by some form of physical
coercion. This is a question of fact; and the only way in which
it
could be raised by an accused person as a point of law reserved would
be to pose the question as to whether there was any legal
evidence
upon which the Judge could properly have found that the prosecution
had discharged the onus on this issue. Admissibility
may, on the
other hand, turn purely on a question of law, for example whether a
certain statement constitutes a confession. Furthermore,
in a
particular case admissibility may depend upon both law and fact.’
(Footnotes omitted)
[70]
In
S
v Basson
[34]
the Constitutional Court specifically endorsed this dictum.
[71]
Our courts
distinguish carefully between errors of law, which fall within the
ambit of s 319, and errors of fact, which do not.
A good example is
S
v Coetzee
,
[35]
also a judgment of this court, written by Rumph CJ, which Corbett CJ
cited with approval in
Magmoed
.
[36]
There, the question posed was whether on the facts found the court
had correctly applied the law. There had been two separate incidents
resulting in the death of a person. On a charge of murder, the
accused’s version was that he had acted in self-defence. The
trial court acquitted him. The State appealed, contending that he was
at least guilty of culpable homicide. It appeared from the
record
that the trial judge had treated the two incidents in isolation, as
if the first incident had no bearing on the second.
It was also
apparent that he had not analysed the evidence properly by asking
himself whether the accused had acted in self-defence
or whether the
facts showed that there had been a ‘free-for-all’ between
him and the deceased. This court concluded
that it may well have been
that the trial judge had misdirected himself with regard to his
treatment of the facts, but there was
no indication of any
misdirection regarding the law.
[37]
[72]
It bears mention that part of the State’s
complaint against the
manner in which trial court dealt with the circumstantial evidence in
the instant case is that it did so
in a piecemeal fashion. As I have
indicated earlier, the trial court said that it was aware of the rule
pertaining to the treatment
of circumstantial evidence. But even if
it did err by dealing with the evidence piecemeal, this would amount
to a misdirection
of fact, not law, and could not avail the State.
[73]
It seems,
therefore, that this court in
Pistorius
erred,
with respect, in finding, albeit obiter in our view, that where a
trial court ignores evidence or displayed a lack of appreciation
of
its relevance, that this amounted to an error of law. As we have
demonstrated, this conclusion is at odds with a long line of
authority in this court, endorsed by the Constitutional Court. We do
not agree that the test for the applicability of s 319 is
whether the
judicial process is adversely affected by the error made by the trial
court. That test would have the effect of making
almost every
material error of fact an error of law. That is not what is envisaged
by s 319. 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.
[38]
[74]
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. The law as reflected in Canadian
cases cited in
Pistorius
does not reflect the position in our
law.
[75]
This case
is not the first time that the State has attempted to reserve a
question of law on the basis of what appears to have been
the
treatment of circumstantial evidence in
Pistorius.
In
The
Director of Public Prosecutions, KwaZulu-Natal v Ramdass
,
[39]
the accused was acquitted on a charge of murder after he had
successfully raised a defence that he had lacked criminal capacity
because he had been intoxicated and under the influence of drugs at
the time he had caused the death of the victim. One of the
questions
of law sought to be reserved on the authority of
Pistorius
was
whether the trial court had erred in applying the test regarding
inferences drawn from circumstantial evidence in concluding
that the
accused lacked criminal capacity in circumstances indicative of
goal-directed conduct, patchy recollection and the absence
of a
‘trigger’ for his actions. The trial court had concluded
in refusing to reserve the question that the State was
unable to
point out any material misdirection and the question seemed to
involve a finding of fact and not law.
[76]
In this
court, the State contended that question sought to be reserved
related primarily to the trial court incorrectly evaluating
the
proved facts. There was no challenge to the inferences drawn by the
trial court, but to the conclusion reached by it based
on the
inferences that were drawn. The State contended that the trial court
failed to exercise its discretion judicially by failing
to consider
all of the facts and circumstances. It emphasised that the trial
court 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.
[40]
[77]
This court
distinguished
Pistorius
and
said the following:
[41]
‘
[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…
[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.’
[78]
As in
Ramdass
, the State in this case seeks to require this
court to reassess the circumstantial evidence for the purpose of
affording it different
weight in the overall assessment of the
respondents’ culpability. This is not a legitimate basis for
the reservation of a
point of law for the reasons we have given.
Conclusion
[79]
As the questions of law (if such they were)
were not properly
reserved for want of a proper factual foundation, and the first
question of law that was reserved, and which
was the key to the other
three being considered, was a question of fact and not of law, there
are no reasonable prospects of the
appeal succeeding.
[79]
The application for leave to appeal is dismissed with
costs.
A
Cachalia Judge of Appeal
C
Plasket Judge of Appeal
APPEARANCES
For
the appellant: F Geyser and M Blows
Instructed
by:
Director
of Public Prosecutions, Western Cape, Cape Town
For
the respondents: W Jacobs
Instructed
by:
Willem
Jacobs & Associates, Somerset West
Symington
& De Kock, Bloemfontein
[1]
E Du Toit, F De Jager, A Paizes, A Skeen and S E Van der Merwe
Commentary
on the
Criminal Procedure Act
>
(Supplementary
Volume) at 31-34A
[2]
At 31-38A.
[3]
Director
of Public Prosecutions, Natal v Magidela & another
2000
(1) SACR 458
(SCA) para 9;
S
v Basson
2003
(2) SACR 373
paras 6-8.
[4]
R v
Tshabala
1921
AD 13
at 15-16.
[5]
S v
Nkwenja & ‘n ander
1985
(2) SA 560
(A) at 568E-F.
[6]
Director
of Public Prosecutions, Gauteng v Pistorius
[2015]
ZASCA 204
;
2016 (2) SA 317
(SCA) paras 37-38
[7]
Magmoed
v Janse van Rensburg & others
1993
(1) SA 777 (A).
[8]
At 806F-I.
[9]
At 808A-B
[10]
S v
Petro Louise Enterprises (Pty) Ltd & others
1978
(1) SA 271 (T).
[11]
At 278E-F.
[12]
R v
Blom
1939
AD 188
at 202-203.
[13]
At 279E-H.
[14]
At 279B-C
[15]
[16]
[17]
Note 7 at 808C-809C.
[18]
At 810G-811C.
[19]
At 811C-D.
[20]
At 811G.
[21]
At 811H-I.
[22]
At 811I.
[23]
At 812A-B.
[24]
At 812A.
[25]
At 818G-I.
[26]
Note 12.
[27]
S v
Basson
[2004]
ZACC 13
;
2005 (1) SA 171
(CC);
2004 (6) BCLR 620
(CC) paras 45-49.
[28]
Note 6.
[29]
Paras 32-33
[30]
Paras 34-37.
[31]
Para 38.
[32]
Para 36.
[33]
Note 7 at 823B-E.
[34]
Note 24 para 57.
[35]
S v
Coetzee
1977
(4) SA 539
(A).
[36]
Note 7 at 809G.
[37]
Note 35 at 544E-545A
[38]
Note 7 at 818H-I.
[39]
Director
of Public Prosecutions, KwaZulu-Natal v Ramdass
[2019]
ZASCA 23; 2019 (2) SACR 1 (SCA).
[40]
Para 44.
[41]
Para 46-48.