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[2010] ZACC 16
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S v Marais (CCT 54/10) [2010] ZACC 16; 2010 (2) SACR 606 (CC) 2011 (1); SA 502 (CC) ; 2010 (12) BCLR 1223 (CC) (21 September 2010)
Links to summary
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case
CCT 54/10
[2010]
ZACC 16
In
the matter between:
RUBY
CHARMAINE
MARAIS
...........................................................................
Applicant
and
THE
STATE
.......................................................................................................
Respondent
Decided
on : 21 September 2010
JUDGMENT
THE
COURT:
Introduction
The applicant, Ms
Ruby Charmaine Marais, is currently serving a sentence of life
imprisonment, having been convicted of the
‘contract murder’
of her husband. Her case is agonising because it raises the
horrific spectre of domestic violence
and, in particular, the
dilemma of an abused woman who may resort to murdering her partner
by engaging others to kill him.
On this the Supreme Court of
Appeal had much to say in the leading judgment of
S v Ferreira
and Others
.
1
It found contract killing arranged by a battered woman, and
depending on her subjective state of mind and motive, may
constitute
self-defence provided that the killing is objectively
justifiable and is thus a complete defence to a charge of
pre-meditated
murder.
The applicant was
convicted of pre-meditated murder by Dlodlo J sitting on circuit in
the Western Cape High Court (High Court)
with two assessors.
Thereafter, the High Court refused her application for leave to
appeal against the murder conviction but
granted her leave to
appeal to the Full Court of the High Court against sentence only.
Unhappy with the refusal, Ms Marais
petitioned the Supreme Court of
Appeal for leave to appeal against her conviction. On 19 May 2010,
it refused leave to appeal
without furnishing reasons for the
decision.
The applicant,
through her daughter, a practising attorney, has now approached
this Court for leave to appeal against her conviction
and sentence
by the High Court. It is not inappropriate to observe that the
applicant’s appeal against sentence is still
pending before
the Full Bench of the High Court. To this matter we revert when we
later consider whether it is in the interests
of justice to hear an
appeal on sentence whilst it is still pending before the High
Court. However, first, we narrate a few
salient facts.
Ms Marais was
charged as accused 6, together with five other people, for the
murder of her husband, Mr Jacobus Petrus Marais.
The essence of
the charge was that she had arranged the murder by engaging the
other accused to commit a so-called “contract
murder”
of her husband. However, before the trial commenced, Mr Ivan
Sefoor (accused 1) and Mrs Caroline May (accused
5) became state
witnesses.
2
The other accused were Mr Ricardo Piedt (accused 2), Mrs Hester
Ronika Afrika (accused 3) and Mrs Elizabeth Lawerdien (accused
4).
Mr Piedt was found to be the person who delivered the multiple stab
wounds that killed the deceased and he, Mrs Africa
and Mrs
Lawerdien, together with the applicant, were convicted as
co-perpetrators of the murder.
During her trial,
the applicant raised the defence that she was a battered woman who
had been suffering at the hands of her
deceased husband for many
years. She had come to a point where she could no longer stand the
abuse, assaults and what she
saw as repeated rape by her husband.
She explained that she had arranged with Mrs May and Mrs Afrika for
the deceased to be
given a “hiding” but that when she
arranged her husband’s “hiding” she was not
herself because
she had abused tranquilizers. She testified that
she had arranged for the “hiding” to take place some 30
metres
from the front door of their residence, in the hope that the
deceased would phone her from his mobile phone for help; that she
would then help him and that thereafter he would treat her better
and with more respect.
The High Court
rejected the applicant’s defence as improbable and untrue.
It found that she was not a battered woman
and that she had
committed a calculated murder because of financial greed and gain.
In this Court, the
applicant challenges the conviction and related sentence imposed
upon her by the High Court. Her pivotal
complaint is that the
trial court breached her right to a fair trial guaranteed under
section 35 of the Constitution when it
dismissed her defence of
being a battered woman and consequently found her guilty of murder.
The State opposes
her application for leave to appeal. It contends that her defence
was correctly rejected on the facts, and
that she was properly
convicted of pre-meditated murder which was motivated by monetary
considerations. The murder was well-planned
over a number of
weeks. It was accordingly not surprising that the Supreme Court of
Appeal rejected her petition for leave
to appeal.
Should leave to appeal
be granted?
It is by now trite
that an application for leave to appeal should be granted only if
two important considerations are satisfied.
The first is whether
the application raises a constitutional issue. The second is
whether, if it does, it is in the interests
of justice to hear the
appeal. Where the interests of justice lie will depend on a myriad
of relevant considerations, chief
of which, but not solely
decisive, are prospects of success.
Constitutional issue?
We have explained
that the applicant contends that she has been denied a fair trial
guaranteed by section 35 of the Constitution.
At best, her case is
that, in rejecting her defence to the charge of murder, the trial
court wrongly found that she was not
a battered woman. Had it
found so, she would have been entitled to an acquittal. The
instant question to resolve is whether
her complaint presents a
constitutional issue.
In
S v Boesak
we observed that a litigant’s
dissatisfaction with the factual mistakes of the Supreme Court of
Appeal regarding the evidence
which had been presented by the state
against the accused at trial does not, in itself, constitute a
constitutional matter.
3
Later, in
Rail Commuters Action Group and Others v Transnet Ltd
t/a Metrorail and Others
,
4
we again made plain that—
“
. . . where the only
issue in a criminal appeal is dissatisfaction with the factual
findings made by the SCA, and no other constitutional
issue is
raised, no constitutional right is engaged. . . . .”
5
The applicant
readily acknowledges that her dissatisfaction with the factual
findings made by the trial court that she is not
a battered woman
does not engage a constitutional right. Her case is different, she
says. She contends that in contrast to
Boesak,
6
her appeal raises a constitutional issue. This is so because it
relates to the application of legal rules that are meant to
ensure
a fair trial. She claims that the High Court has misapplied the
legal rules “applicable to criminal trials and
the leading of
evidence, particularly insofar as they relate to the context of the
battered woman syndrome”. This, she
says, has compromised
the fairness of her trial.
She advances five
interrelated grounds of appeal that support the core complaint
that, in reaching the conclusion that she was
not a battered woman;
the trial court misapplied certain legal rules. First, she draws
attention to her and other evidence
led before the High Court
which, she says, supports her version that she was a battered woman
and asserts that the trial court
ignored that evidence when it
considered the question whether she was an abused woman. Second,
she argues that because the
High Court misunderstood the battered
woman syndrome, it erroneously found that she was not a battered
woman. Third, she states
that the High Court disregarded the rule
against inadmissible evidence and improperly took evidence into
account which it should
have disregarded. Fourth, she claims that
the High Court has committed several material misdirections by
making erroneous
inferences on the facts; or by ignoring the
evidence that is contrary to its other conclusions; or by
disregarding the evidence
that is supportive of her defence; or by
holding that she is a liar. She invites us to hold that these
grounds, taken together,
lead to the conclusion that she has not
had a fair trial guaranteed under the Constitution.
The final ground the
applicant advances is that the trial court misdirected itself by
failing to apply the legal rule set out
in
President of the
Republic of South Africa and Others v South African Rugby Football
Union
and Others
.
7
That rule states that “[i]f a point in dispute is left
unchallenged in cross- examination, the party calling the witness
is entitled to assume that the unchallenged witness’s
evidence is accepted as correct.”
8
She argues that because her evidence on being a battered woman was
never seriously contested in cross-examination, her legal
advisers
were entitled to accept and did accept that it was not necessary to
lead further evidence in this regard. She claims
that she realised
for the first time when the merits judgment of the High Court was
delivered that her defence of being a battered
woman had been
rejected. She further contends that if she had realised during the
course of the trial that her evidence that
she was a battered woman
was in dispute, she would have led additional evidence to support
that defence.
We have rehearsed
the “legal rules” that the applicant says have been
breached by the trial court. They seem to
relate to the caution a
trial court should observe when it makes factual findings.
However, aside from the trappings of “legal
rules”, the
pith of her complaint is no more than that the factual
determinations of the High Court on the battered woman
defence are
incorrect. The high watermark of her case is no more than that the
High Court was wrong on the facts. Her complaint
is simply that
the trial court misdirected itself in the manner in which it
evaluated and made factual determinations. On
this reasoning it
was mistaken in rejecting her evidence that she had arranged for
her husband to be killed because she was
a battered woman. Her
dissatisfaction is over a factual finding that stabs at the heart
of her defence. But even so, in itself,
the dissatisfaction with
the finding does not constitute a constitutional issue.
Ordinarily, this
would be the end of the matter. Absent a constitutional issue, an
application for leave to appeal would fail.
One question, however,
remains.
Further evidence on
the battered woman syndrome
That question is
whether it is open to this Court to receive further evidence that
could upset the conviction of the High Court
or to remit this
matter to the trial court or to the Supreme Court of Appeal in
order to receive further evidence. This enquiry
is prompted by two
matters. The first is the applicant’s assertion that had she
known before the judgment of the trial
court was delivered that her
defence of a battered woman was disputed; she would have sought
leave from that court to lead
further evidence. The record before
us shows that she did not seek to tender fresh evidence when she
sought leave to appeal
before the High Court or when she petitioned
the Supreme Court of Appeal. In this Court too her notice of
motion does not
carry a prayer to lead new evidence. As we show
later, even if she had sought to tender new factual matter she
faces considerable
obstacles.
The second matter
that prompts an enquiry into whether further evidence should be
entertained is that this Court has received,
somewhat belatedly, an
application from Tshwaranang Legal Advocacy Centre (Tshwaranang) to
be admitted as
amicus curiae
and to be granted leave to
present written and oral argument. The main thrust of their
submissions is that the trial court
misunderstood the defence of a
battered woman syndrome and Tshwaranang seeks to make legal
submissions on the appropriate ways
in which courts ought to deal
with the victims of domestic abuse and their response to the abuse.
Importantly, Tshwaranang
also seeks to rely on a report containing
expert evidence on domestic violence. Put simply, it seeks to
introduce new matter
that was never tendered before the trial court
and that is directed at contesting the correctness of the factual
findings of
that court on the battered woman syndrome.
An application for
leave to lead further evidence by an accused person who is
convicted of any offence before the High Court
is regulated by
section 316(5)
9
of the Criminal Procedure Act.
10
An application to re-open a case for further evidence after a
conviction must be made by the accused at the time when the
application for leave to appeal is made before the High Court or
before the Supreme Court of Appeal disposes of the appeal.
The
power of the Supreme Court of Appeal to receive further evidence
derives from section 22(a)
11
of the Supreme Court Act.
12
However, once an application for leave to appeal has been disposed
of by granting or refusing it, the High Court that has
finally
determined the matter is rendered
functus officio
and thus
ceases to have the power to entertain an application to lead
further evidence unless the conviction is set aside and
remitted to
the High Court by the Supreme Court of Appeal.
13
By parity of
reasoning, it seems plain that once the Supreme Court of Appeal has
considered an application for leave to appeal
and has refused it,
in other words, once the appeal procedure has been exhausted, it is
not open to the High Court that entered
the conviction or to the
Supreme Court of Appeal that has refused leave to appeal, to
re-open a concluded case or, put otherwise,
to consider an
application to receive further evidence thereafter.
14
This position was confirmed by the Supreme Court of Appeal more
recently in the matter of
Britz v The State.
15
For the sake of
completeness we draw attention to three well settled substantive
requirements for re-opening a case after a
criminal conviction in
the High Court.
16
There must be an adequate explanation for the delay. The evidence
must be probably true and reliable. And, lastly, if admitted
the
evidence must lead to a substantive reversal of the outcome of the
case.
This Court does not
have before it an application from Ms Marais to re-open her
criminal trial for further evidence. For that
reason, we neither
have an explanation for the delay nor an inkling of the probative
value of the new matter she might want
to adduce and whether it may
lead to the setting aside of her conviction. In any event, we have
already held that the application
before us does not raise a
constitutional issue. It follows that, even if she had applied to
tender new evidence, we would
hold no power to re-open her case for
further evidence. For the same reason, this Court would have no
power to remit this
matter to the High Court or the Supreme Court
of Appeal if those courts have already disposed of her application
for leave
to appeal on the merits of the conviction. Should she
decide to mount an application to set aside her conviction and seek
leave to adduce further evidence it will have to be done within the
constraints of section 316(5) of the Criminal Procedure Act.
And
to that end, she would have to take legal advice on which court, if
any, is still available to her to initiate the application
to
re-open her case in order to lead fresh evidence.
In conclusion on
this aspect, we note that the Supreme Court of Appeal, in
considering an application for leave to appeal that
has been
refused in the High Court, has power to grant leave to appeal
either to it or to a Full Court of the High Court.
17
However, neither the Supreme Court Act nor the Criminal Procedure
Act give this Court express power, when refusing leave to
appeal in
a criminal case, to undo a prior refusal of leave to appeal to
another court, and to remit the matter to another
court. The
reason is, no doubt, that the relevant provisions of those statutes
were drafted before this Court was created.
The Constitutional
Court Complementary Act
18
does not give this power either.
In the case before
us, the High Court granted leave to appeal to the Full Court on
sentence, but refused leave to appeal on
the merits of the
conviction. The Supreme Court of Appeal, in considering the
resultant application for leave to appeal to
it, had power under
the Supreme Court Act to grant leave to appeal on the merits of the
appeal either to it, or to the full
court.
19
There is no explicit statutory or constitutional provision
granting this Court an equivalent power when refusing leave to
remit a matter to another court. Having found that there is no
constitutional issue, this Court is, therefore, not empowered
to
set aside the refusal of leave to appeal by the Supreme Court of
Appeal, and grant leave to appeal on the merits of the
applicant’s
appeal to either the full court (which is already seized of her
appeal on sentence), or to the Supreme Court
of Appeal.
Conclusion
The application for
leave to appeal does not raise a constitutional issue and, thus,
falls to be dismissed. What then is the
fate of the party that
seeks to be admitted as
amicus
?
An application to be
admitted as
amicus
is always ancillary and subservient to
the main application in regard to which the
amicus
seeks
admission. When the main application falters so must a request to
become
amicus.
Order
The following order
is made:
(a) The application for leave to appeal is dismissed.
(b) The application of Tshwaranang Legal Advocacy Centre to be
admitted as
amicus curiae
is not granted.
Ngcobo CJ,
Moseneke DCJ, Brand AJ, Cameron J, Froneman J, Khampepe J,
Mogoeng J, Nkabinde J, Skweyiya J
and Yacoob J.
1
2
004 (2) SACR 454
(SCA).
2
In terms of the provisions of
section 204
of the
Criminal Procedure Act 51 of 1977
. In essence the section provides
that, should a witness agree to provide incriminating evidence in a
frank and honest manner,
the court will discharge that witness from
being prosecuted for the offence or offences to which the
incriminating evidence relates.
3
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1)
BCLR 36
(CC) at
para 15.
4
[2004] ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC).
5
Id at para 52. This holding has been affirmed by
this Court in several subsequent cases. See
Minister of
Safety and Security v Luiters
[2006] ZACC 21
;
2007 (3) BCLR 287
(CC) at para 27;
S v Van
Vuuren
[2005] ZACC 11
;
2005 (2) SACR 1
(CC);
2005 (7) BCLR 639
(CC) at para 4.
6
Above n 3.
7
[1999] ZACC 11
;
2000 (1) SA 1
(CC)
;
1999
(10) BCLR 1059
(CC).
8
Id at paras
61-3.
9
Section 316(5)
provides:
“
(a) An application for leave to appeal under
subsection (1) may be accompanied by an application to adduce
further evidence (hereafter
in this section referred to as an
application for further evidence) relating to the prospective
appeal.
(b) An application for further evidence must be
supported by an affidavit stating that—
(i) further evidence which would presumably be accepted
as true, is available;
(ii) if accepted the evidence could reasonably lead to
a different verdict or sentence; and
(iii) there is a reasonably acceptable explanation for
the failure to produce the evidence before the close of the trial.
(c) The court granting an application for further
evidence must—
(i) receive that evidence and further evidence rendered
necessary thereby, including evidence in rebuttal called by the
prosecutor
and evidence called by the court; and
(ii) record its findings or views with regard to that
evidence, including the cogency and the sufficiency of the evidence,
and
the demeanour and credibility of any witness.”
10
Act
51 of 1977.
11
Section
22 provides
:
“
Powers of court on hearing of appeals. The
appellate division or a provincial division, or a local division
having appeal jurisdiction,
shall have power—
(
a
) on
the hearing of an appeal to receive further evidence, either orally
or by deposition before a person appointed by such division,
or to
remit the case to the court of first instance, or the court whose
judgment is the subject of the appeal, for further hearing,
with
such
instructions
as regards the taking of further evidence or otherwise as to the
division concerned seems necessary. . . .”
12
Act
59 of 1959.
13
S v Vontsteen
1972 (4) SA 1
(TPD) at 4G;
S v
Swanepoel
1983 (1) SA 434
(A) at
450H-451F.
14
Sefatsa and Others v Attorney-General
,
Transvaal and Another
1989 (1) SA 821
(A) at 835H-836B.
15
Supreme Court of Appeal, Case No 613/09,
27 May
2010.
16
These elements are set out in the case of
S v
De Jager
1965 (2) SA 612
(A) at para
613D. Also see Du Toit
et al
Commentary on the Criminal Procedure
Act-Supplementary
(Juta & Co Ltd,
Cape Town 1987) at
31-16A.
17
Above n 12
section 20.
18
Act 13 of 1995.
19
Above n 12 Section 20.