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[2016] ZACC 41
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Liesching and Others v S and Another (CCT245/15) [2016] ZACC 41; 2017 (4) BCLR 454 (CC); 2017 (2) SACR 193 (CC) (15 November 2016)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 245/15
In the matter
between:
PIETER PIETERTJIE
LIESCHING
First
Applicant
MALVIN NAAS
SWARTZ
Second
Applicant
XAVIER
MALGAS
Third
Applicant
and
THE
STATE
First
Respondent
MINISTER OF
JUSTICE AND
CORRECTIONAL
SERVICES
Second
Respondent
Neutral citation:
Liesching and Others v The State and Another
[2016] ZACC 41
Coram:
Mogoeng CJ, Nkabinde ADCJ, Froneman J, Jafta J, Khampepe J, Madlanga
J, Mbha AJ, Mhlantla J, Musi AJ and Zondo J
Judgment:
Musi AJ
Heard on:
6
September 2016
Decided on:
15 November 2016
Summary:
Section
17(2)(f) of the Superior Courts Act — power of the President of
the Supreme Court of Appeal to refer petition for
reconsideration —
available to convicted persons — remitted to President of the
Supreme Court of Appeal for consideration
Section 327 of the
Criminal Procedure Act — not an appeal process — used
after recognised legal procedures for appeal
and review have been
exhausted
ORDER
On appeal from the
Supreme Court of Appeal:
1. Condonation is granted.
2. Leave to appeal is granted.
3. The appeal is upheld.
4. The decision of the President of the Supreme Court of Appeal
refusing to refer the applicants’ application in terms of
section 17(2)(f)
of the
Superior Courts Act 10 of 2013
is set aside.
5. The matter is remitted to the President of the Supreme Court of
Appeal to consider the applicants’ application.
JUDGMENT
MUSI AJ (Mogoeng CJ,
Nkabinde ADCJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Mbha AJ,
Mhlantla J and Zondo J concurring):
Introduction
[1] The
President of the Supreme Court of Appeal (President) dismissed the
applicants’ application to refer the refusal
of their petition
to the Supreme Court of Appeal for reconsideration.
The applicants approached this Court
seeking leave to appeal against
that decision.
Background
[2] On 17
November 2011 between 20h00 and 20h30, Messrs Sherwin Arries, Marlin
Abrahams, Gordon Swiegers, and, Renaldo Leeroy
Booysens (deceased)
were standing in front of house number 53 Bluebell Street, Reiger
Park, Boksburg.
[3] A
Volkswagen Polo (vehicle) with four occupants drove in their
direction and gunshots were fired at them from the vehicle.
The
deceased was struck and fell down. Two of the occupants
alighted from the vehicle and shot at the deceased whilst he
was
lying on the ground. He died at the scene. The three
applicants were arrested and charged in the High Court of
South
Africa, Gauteng Local Division, Johannesburg with murder (count one),
unlawful possession of firearms (count two) and unlawful
possession
of ammunition (count three).
High Court
[4] At the
trial, Mr Arries testified that he knew all four occupants of the
vehicle. He identified them as the three
applicants and one
Arthur (who was not charged with the applicants). Messrs
Abrahams and Swiegers testified that the applicants
were in the
vehicle, but they did not know the fourth person.
[5] Each of
the applicants proffered an alibi defence and called witnesses in
support. The trial Judge rejected their
respective alibis and
accepted the testimonies of Messrs Arries and Abrahams. He
rejected Mr Swiegers’ testimony.
[6] All three
applicants were convicted of all charges and sentenced as follows:
count one:
life imprisonment;
count two:
three years’ imprisonment; and
count three:
two years’ imprisonment.
[7] On 9 July
2012, the trial Court granted them leave to appeal against their
respective sentences only. They petitioned
the President for
leave to appeal against their convictions too. Their petition
was dismissed on 6 November 2013.
Recantation
[8] After
their petition was dismissed, Mr Arthur Saimons, purportedly the
fourth person in the vehicle, was charged with
the same crimes.
[9] Mr Arries
testified during Mr Saimons’ trial. He recanted his
earlier testimony and,
inter alia
, testified that he did not
see who shot the deceased and that the applicants were not at the
scene of the crime. He further
testified that Mr Saimons was
not the “Arthur” to whom he had referred during the
applicants’ trial. He
alleged that he was persuaded by
the investigating officer to commit perjury during the applicants’
trial.
[10] Mr Saimons was
found not guilty and discharged in terms of section 174 of the
Criminal Procedure Act (CPA)
[1]
on 24 March 2014.
Supreme Court of
Appeal
[11] The applicants
became aware of what transpired during Mr Saimons’ trial.
They approached the President with an
application to refer the
refusal of their petition to the Court for reconsideration, in terms
of
section 17(2)(f)
of the
Superior Courts Act
[2]
(SC Act). The application was based on the further evidence
that came to light during Mr Saimons’ trial.
[12] On 24 December
2014, the President dismissed their application. His reason for
the dismissal was, briefly, that the further
evidence that the
applicants sought to adduce was discovered after they had exhausted
all recognised appeal procedures provided
for in the CPA. He
pointed out that section 1 of the SC Act provides that “appeal”
in Chapter 5 does not include
an appeal in a matter regulated in
terms of the CPA. He held that section 327(1) of the CPA makes
provision for cases where
a convicted person wants to adduce further
evidence that became available after all the recognised legal
procedures pertaining
to appeal had been exhausted. He held
that Chapter 5 of the SC Act, and therefore section 17(2)(f), is not
applicable to
the applicants’ case. The President issued
his order, refusing to refer their application for reconsideration,
on 24
December 2014.
Condonation
[13] The application
for leave to appeal was filed, in this Court, on 14 December 2015.
In terms of rule 19(2) of
this Court’s rules, the application
ought to have been lodged within 15 days after the President’s
order.
[3]
[14] Condonation may
be granted if the interests of justice permit. Whether it
should be granted depends on the facts and
circumstances of each
case. The factors to consider when determining whether it is in
the interests of justice to grant condonation
include: the extent of
the delay; the explanation for the delay; the effect of the delay on
the administration of justice and other
litigants; the importance of
the issues to be raised in the appeal; the prospects of success; and
the nature of the relief sought.
The interests of justice must
be determined with reference to all relevant factors.
[4]
[15] The delay in
this matter, which is 226 days, is excessive. The applicants
who were and still are represented by Legal
Aid South Africa (Legal
Aid) state that the delay is not due to their fault. They aver
that the order was sent to the Bloemfontein Justice
Centre. It
was received on 15 January 2015 by their legal representative,
Mr Guarneri, who is attached to the Johannesburg
Legal Aid
offices. He drafted the application and the founding affidavit
was signed, by the first applicant, on 5 February 2015.
[16] After drafting
the papers, Mr Guarneri consulted with Mr Karam, a senior litigator
at Legal Aid, to peruse the papers.
They met on 27 March 2015
and Mr Karam suggested that the papers should be amended.
They also decided to refer the matter
to the Impact Litigation Unit
of Legal Aid (Unit) which deals with the majority of Legal Aid’s
constitutional matters.
On 16 April 2015, they met with an
attorney from the Unit. They were advised to provide a written
motivation for the matter
to be categorised as an impact matter, with
budget for senior counsel’s opinion. On 10 June
2015, they consulted
senior counsel. He provided a written
legal opinion on 15 September 2015. On 9 November 2015, the
Constitutional Case
Management Committee of Legal Aid South Africa
(CCMC) met to consider the opinion. It resolved, on the same
day, to approach
this Court with applications for condonation and
leave to appeal.
[17] The explanation
is inept and unfortunate. It is an embodiment of institutional
bureaucracy, which is characterised by
an excessively layered
procedure which would, in most cases, cause unwarranted delays.
The systemic delays were exacerbated
by the time it took for meetings
to take place or actions to be taken. It is not explained when
the papers were given to
Mr Karam. There is no explanation for
the delay between 27 March 2015 and 16 April 2015. There is no
explanation as
to when the motivation was sent to the Unit.
There is also no explanation why senior counsel took three months to
render
the opinion. Likewise, there is no explanation why the
CCMC took so long to consider the opinion. Why it took a month
and a few days after the meeting of the CCMC to file the applications
is also not explained. All these delays occurred whilst
the
applicants were in prison.
[18] The deleterious
delays were clearly caused by the applicants’ legal
representatives. Legal Aid should urgently
look at its
processes and endeavour to eradicate the deleterious delays.
Although there is a limit beyond which a litigant
would not be
allowed to hide behind his or her legal representative’s
ineptitude, this is not such a case. The applicants
were
incarcerated. They had no hand in the delays. This is not
a case where the applicants should be punished for the
delays caused
by their legal representatives.
[19] The application
for condonation is not opposed. This matter raises important
legal issues that deserve this Court’s
consideration. The
prospects of success are good. Irrespective of the poor
explanation, it is in the interests of justice
to grant condonation.
Leave to appeal
[20] The applicants
seek leave to appeal. They must show that the matter falls
within the scope of section 167(3)(b) of the
Constitution
[5]
and that it is in the interests of justice for leave to appeal to be
granted.
[21] This matter
concerns the interpretation of legislation. In terms of section
39(2) of the Constitution we are obliged,
when interpreting
legislation, to promote the spirit, purport and objects of the Bill
of Rights.
[6]
In
Bakgatla-Ba-Kgafela
[7]
this Court stated:
“It is by now trite that section 39(2) of the Constitution has
introduced a new approach to the interpretation of statutes.
The section obliges courts to promote ‘the spirit, purport and
objects of the Bill of Rights’ when construing legislation.
This new approach has been described as ‘a mandatory
constitutional canon of statutory interpretation’.”
[8]
The application
therefore raises a constitutional matter.
[22] The correct
interpretation of and interplay between sections 1 and 17(2)(f) of
the SC Act, on the one hand, and section 327
of the CPA, on the
other, has not yet been considered by this Court. This matter
also raises an arguable point of law of
general public importance
which ought to be considered. A judgment by this Court would
give clarity and certainty about the
reconsideration of petitions in
criminal matters where further evidence is sought to be adduced.
The prospects of success,
though not decisive, are good. It is
in the interests of justice to grant leave to appeal.
Submissions
[23] The applicants
do not challenge the constitutionality of section 17(2)(f) of
the SC Act or section 327 of the CPA.
They contend that
section 17(2)(f), as interpreted by the President, would violate
their rights to a fair trial,
[9]
equality,
[10]
and access to the courts.
[11]
[24] The applicants
argue that their right to equality before the law and their right to
equal protection and benefit of the law
would be violated because a
litigant in a civil matter who wants to adduce further evidence,
after a petition had been dismissed,
may utilise section 17(2)(f)
whereas a convicted person must utilise section 327 of the CPA.
They contend that their
right to access to courts would be violated
because the section 327 procedure is not an appeal. They
further contend
that their right to a fair trial would also be
violated because they would be denied the right to have their matter
reconsidered
by the Court.
[25] The first
respondent contends that section 17(2)(f) is not applicable to
criminal matters because of the definition of “appeal”
in
section 1 of the SC Act.
Issues
[26] The following
issues require determination:
(a) Does the definition of “appeal” in section 1 of the
SC Act exclude all criminal matters from the scope of Chapter
5 of
the SC Act?
(b) Does section 17(2)(f) apply to criminal proceedings?
(c) Is the section 327 procedure an appeal regulated in terms of the
CPA or any other criminal procedural law?
(d) Is adducing further evidence after a petition has been refused a
matter regulated in terms of the CPA or any other criminal
procedural
law?
Legislation
[27] Section 1 of
the SC Act reads as follows:
“In this Act, unless the context otherwise indicates—
‘
appeal’
in Chapter 5 does not include an appeal
in a matter regulated in terms of the Criminal Procedure Act, 1977
(Act no. 51 of 1977),
or in terms of any other criminal procedural
law.”
[28] Section
17(2)(f), which is in Chapter 5 of the SC Act, reads as follows:
“The decision of the majority of the judges considering an
application referred to in paragraph (b), or the decision of the
court, as the case may be, to grant or refuse the application is
final: Provided that the President of the Supreme Court of Appeal
may
in exceptional circumstances, whether of his or her own accord or on
application filed within one month of the decision, refer
the
decision to the court for reconsideration and, if necessary,
variation.”
[29] Section 327(1)
of the CPA provides:
“If any person convicted of any offence in any court has in
respect of the conviction exhausted all the recognised legal
procedures pertaining to appeal or review, or if such procedures are
no longer available to him or her, and such person or his
or her
legal representative addresses the Minister by way of petition,
supported by relevant affidavit, stating that further evidence
has
since become available which materially affects his or her
conviction, the Minister may, if he or she considers that such
further evidence, if true, might reasonably affect the conviction,
direct that the petition and the relevant affidavits be referred
to
the court in which the conviction occurred.”
Interpretative
approach
[30] This Court has
reiterated that statutes must be construed consistently with the
Constitution in so far as the language of the
statute permits.
[12]
Words in a statute must be read in their entire context and must be
given their ordinary grammatical meaning harmoniously
with the
purpose of the statute.
[13]
The actual words used by the Legislature are important.
Judicial officers should resist the temptation “to substitute
what they regard as reasonable, sensible or businesslike for the
words actually used. To do so in regard to a statute or
statutory instrument is to cross the divide between interpretation
and legislation”.
[14]
All statutes must be interpreted through the prism of the Bill of
Rights in order to give effect to its fundamental values.
[15]
This is so because section 39(2) of the Constitution requires courts
to do so.
[31] The command of
section 39(2) has been articulated in various judgments of this
Court. In
Bato Star
,
[16]
Ngcobo J stated it as follows:
“The Constitution is now the supreme law in our country. It
is therefore the starting point in interpreting any legislation.
Indeed, every court ‘must promote the spirit, purport and
objects of the Bill of Rights’ when interpreting any
legislation.
That is the command of section 39(2).
Implicit in this command are two propositions: first, the
interpretation that
is placed upon a statute must, where possible, be
one that would advance at least an identifiable value enshrined in
the Bill of
Rights; and second, the statute must be reasonably
capable of such interpretation. This flows from the fact that
the Bill
of Rights ‘is a cornerstone of [our constitutional]
democracy’. It ‘affirms the democratic values of
human
dignity, equality and freedom’.”
[17]
[32] An impugned
provision must therefore be interpreted in conformity with the
Constitution. Courts must, as far as possible,
avoid a
construction that would render a provision unconstitutional unless
such construction would be unduly strained. Every
reasonable
construction must thus be resorted to in order to save the impugned
provision from unconstitutionality. This principle
was
articulated in
De Beer NO
,
[18]
where it was said that—
“[t]his Court has accepted the well-recognised principle of
constitutional construction that where a statutory provision
is
capable of more than one reasonable construction, one of which would
lead to constitutional invalidity and the other not, a
court ought to
favour the construction which avoids constitutional invalidity,
provided such interpretation is not unduly strained.”
[19]
Section 1 of the
SC Act
[33] “Appeal”
is defined in section 1 of the SC Act. Where a word is defined
in a statute, the meaning ascribed
to it by the Legislature must
prevail over its ordinary meaning.
[20]
The definition makes plain that the word “appeal” would
only bear the meaning ascribed to it by the Legislature
if the
context so requires. If, however, there are compelling reasons,
based on the context, to disregard the ascribed meaning
then the
ordinary meaning of the word must be used. If a defined word or
phrase is used more than once in the same statute
it must be given
the same meaning unless the statutory definition would result in such
injustice or incongruity or absurdity as
to lead to the conclusion
that the Legislature could never have intended the statutory
definition to apply.
[21]
[34] Where the
definition section provides that the definition should be applied
“unless the context otherwise indicates”,
“context”
should be given a wide and not a narrow meaning. In
Hoban
,
[22]
it was said that—
“‘[c]ontext’ includes the entire enactment in which
the word or words in contention appear . . . and in its widest
sense
would include enactments in
pari materia
[on the same subject]
and the situation, or ‘mischief’ sought to be remedied.
. . . The moment one has to analyse
context in order to
determine whether a meaning is to be given which differs from the
defined meaning one is immediately engaged
in ascertaining
legislative intention. One remains so engaged until the
interpretive process is concluded.”
[23]
[35] A definition in
an Act therefore applies to the entire Act unless its meaning is
specifically confined to a particular section
or chapter. The
definition of “appeal” in section 1 of the SC Act is
confined to its use in Chapter 5.
Where it is used in other
chapters of the SC Act it would have its ordinary grammatical
meaning.
[24]
[36] The reason for
the exclusion of appeals regulated in terms of the CPA or any other
criminal procedural law from the purview
of Chapter 5 is to avoid
duplication. It would be senseless to have two statutes
regulate the same subject matter.
The Legislature recognised
that, although the CPA deals comprehensively with appeals in criminal
matters, it does not do so exhaustively.
Chapter 5 of the
SC Act, in so far as it deals with appeals, complements and
supplements the CPA. The purpose of the
definition is therefore
not only to harmonise the provisions of the CPA and the SC Act but
also to supplement the provisions of
the CPA.
[37] “Appeal”
for purposes of Chapter 5 does not include an appeal in a matter
regulated in terms of the CPA or any
other criminal procedural law.
The converse is also true; if it is not a matter regulated by the CPA
or any other criminal
procedural law it would be an appeal for the
purposes of Chapter 5.
[25]
The CPA
[38] The CPA
regulates appeals in criminal proceedings, in respect of
Superior Courts, in sections 315 to 324. These
provisions
regulate various matters including applications for leave to appeal,
petitions, applications to adduce further evidence
and special
entries. The CPA regulates applications to adduce further
evidence, after conviction in the High Court, in two
instances.
First, in section 316(5) and second, in sections 316(13)(d) and (e).
[39] The relevant
parts of section 316 reads as follows:
“(1)(a) Subject to
section 84
of the
Child Justice Act,
2008
, any accused convicted of any offence by a High Court may apply
to that court for leave to appeal against such conviction or against
any resultant sentence or order.
. . .
(5)(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.
(5)(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.
(5)(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.
(6) Any evidence received under subsection (5) shall for the purposes
of an appeal be deemed to be evidence taken or admitted at
the trial
in question.”
[40] In terms of
section 316(5)
of the CPA, the application for leave to appeal must
be accompanied by the application to adduce further evidence.
The application
to adduce further evidence is heard by the trial
court. It must be supported by an affidavit stating that the
requirements
of
section 316(5)(b)(i)
to (iii) have been met.
If any of the three requirements is not met, then the application
would not succeed.
[26]
The dismissal of an application of this kind is appealable.
[27]
[41] If the
application is successful, the further evidence and any rebuttal
evidence by the State and evidence called by the Court
must be
received by the trial court. The court must then record its
findings and views with regard thereto and such evidence
shall be
deemed to be evidence taken or admitted at the particular trial.
[42]
Section
316(13)(d)
and (e) provides:
“The judges considering a petition may, whether they have acted
under subsection (12)(a) or (b) or not—
. . .
(d)
in the case of an application for further evidence, grant or refuse
the application, and, if the application is granted the
judges may,
before deciding the application for leave to appeal, remit the matter
to the High Court concerned in order that further
evidence may be
received in accordance with subsection (5)(c); or
(e)
in exceptional circumstances refer the petition to the Supreme Court
of Appeal for consideration whether upon argument or otherwise,
the
Supreme Court of Appeal may thereupon deal with the petition in
any manner referred to in this subsection.”
[28]
[43] An application
to adduce further evidence may therefore also be made after an
application for leave to appeal has been refused
by the High Court.
Judges considering the petition have a discretion to grant or refuse
the application. If they decide
to grant it they must decide
whether to remit the matter to the High Court to consider the further
evidence in terms of
section 316(5)
or refer it to the Supreme Court
of Appeal for consideration.
[44] The CPA does
not regulate receiving further evidence, after a trial in the
High Court, other than in the manner prescribed
by
sections
316(5)
and (13). It also does not regulate an application to
adduce further evidence after a petition, in terms of
section
316(8)(a)
,
[29]
had been refused. There is no other criminal procedural law
that regulates it. An application to adduce further evidence
on
appeal, after a petition had been refused, is not a matter regulated
by the CPA or any other criminal procedural law. Chapter
5 of
the SC Act is therefore applicable to such matters.
Section 19 of the
SC Act
[45] Section 19 of
the SC Act, which is in Chapter 5, gives the Supreme Court of Appeal
or a High Court exercising appeal jurisdiction
very wide powers with
regard to receiving evidence. Section 19 provides:
“The Supreme Court of Appeal or a Division exercising appeal
jurisdiction may, in addition to any power as may specifically
be
provided for in any other law—
(a)
dispose of an appeal without the hearing of oral argument;
(b)
receive further evidence;
(c)
remit the case to the court of first instance, or to the court whose
decision is the subject of the appeal, for further hearing,
with such
instructions as regards the taking of further evidence or otherwise
as the Supreme Court of Appeal or the Division deems
necessary; or
(d)
confirm, amend or set aside the decision which is the subject of the
appeal and render any decision which the circumstances
may require.”
[46] Subsection
19(b) is not subject to time limits. It does not prescribe a
procedure as to when and how the new evidence
may be received by the
Court of Appeal. There is, more specifically, no indication in
the section or any other relevant legislation
that the Court of
Appeal may not receive further evidence after a petition has been
refused.
[47] Before the
enactment of section 19 of the SC Act, section 22 of the
Supreme Court Act
[30]
stipulated the powers of the Courts of Appeal as follows:
“The appellate division or a provincial or local division 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; and
(b)
to confirm, amend or set aside the judgment or order which is the
subject of the appeal and to give any judgment or make any
order
which the circumstances may require.”
[48] Evidence could
therefore only be received in terms of section 22 of the Supreme
Court Act “on the hearing of the appeal”.
In
Sibande
[31]
the accused was convicted in the Supreme Court. Leave to appeal
was refused by the trial Court and the Appellate Division.
[32]
The applicant applied to adduce further evidence after the
refusal of the petition. The Court said the following:
“The power of this Court to set aside a conviction and direct
the taking of further evidence flows from section 4 of Act
1 of 1911,
which provides that this may be done ‘on the hearing of an
appeal’. There must be an appeal, i.e.
a claim for relief
on the existing record, before this Court can order the taking of
further evidence. Leave to appeal may
be granted, although
there is no prospect of success on the existing record, if there is a
reasonable prospect, if leave to appeal
is granted, that this Court
will order the taking of further evidence, with, of course, a
reasonable prospect of successful appeal
on the augmented record.
This appears from
R v Ncube
,
1955 (2) SA 152
(AD), and
R v
Siwesa
,
1957 (2) SA 223
(AD). But although the reasonable
prospect that the taking of further evidence may be ordered may
provide the only reason
for granting leave to appeal, this does not
alter the fact that there must be an appeal to this Court in
existence before the taking
of further evidence can be ordered.”
[33]
[49] Schreiner JA
held that the Court did not have the power to receive the further
evidence because the refusal of the petition
was final.
[34]
Section 19 of the SC Act does not contain the limitation in section
22 of the Supreme Court Act.
[35]
Further evidence can therefore be received on the hearing of the
appeal,
[36]
when considering a petition
[37]
and when reconsidering a petition.
[38]
[50] Our courts have
always been reluctant to reopen trials in order to receive further
evidence.
[39]
The reopening of a case is ordered only if the requirements for
reopening have been met. This is so because—
“[i]t is clearly not in the interests of the administration of
justice that issues of fact, once judicially investigated
and
pronounced upon, should lightly be re-opened and amplified. And
there is always the possibility, such is human frailty,
that an
accused, having seen where the shoe pinches, might tend to shape
evidence to meet the difficulty.”
[40]
[51] The judicially
developed requirements for receiving further evidence, which are by
and large similar to those in section 316(5),
were summarised as
follows:
“(a) There should be some reasonably sufficient explanation,
based on allegations which may be true, why the evidence which
it
sought to lead was not led at the trial.
(b) There should be a prima facie likelihood of the truth of the
evidence.
(c) The evidence should be materially relevant to the outcome of the
trial.”
[41]
[52] Finality in
criminal proceedings is very important. This policy
consideration underlies the requirements for adducing
further
evidence. It is important that litigation be brought to an end
as speedily and expeditiously as possible.
[42]
Legal controversies, once judicially settled, should not be reopened
except under a few circumscribed circumstances.
Finality
enhances certainty and allows litigants to get on with their lives.
[53] Finality,
however, is not absolute. It may happen that Judges, because of
human fallibility, make mistakes or that circumstances
change after a
petition has been refused by the Supreme Court of Appeal. There
is a tension between finality and certainty
on the one hand and
justice on the other. Finality should therefore always be
balanced against correcting errors or providing
for meritorious
changed circumstances in order to ensure a just outcome.
Although appeal courts should exercise the power
to receive further
evidence sparingly and in exceptional circumstances, they should
always remember that finality should not be
allowed to swamp all
other considerations. As Kirby J put it:
“Just as in the law, we can love truth, like all other good
things, unwisely; pursue it too keenly; and be willing to pay
for it
too high a price, so we can love finality too much.”
[43]
Section 17(2)(f)
of the SC Act
[54] The proviso in
section 17(2)(f) is very broad. It keeps the door of justice
ajar in order to cure errors or mistakes
and for the consideration of
a circumstance, which, if it was known at the time of the
consideration of the petition might have
yielded a different
outcome. It is therefore a means of preventing an injustice.
This would include new or further
evidence that has come to
light or became known after the petition had been considered and
determined.
[55] The President
is given a discretion, to be exercised judiciously, to decide whether
there are exceptional circumstances that
warrant referral of the
matter to the Court for reconsideration or, if necessary, variation.
The President must therefore
decide whether there are exceptional
circumstances. This will depend on the facts and circumstances
of each case.
[56] In
Avnit
,
[44]
Mpati P succinctly examined some cases wherein the words “exceptional
circumstances” were discussed and analysed.
He correctly
came to the conclusion that “the overall interests of justice
will be the finally determinative feature”
for the exercise of
the President’s discretion.
[45]
[57] Section
17(2)(f) does not distinguish between criminal and civil
proceedings. The President may, of his or her own accord
or on
application, if he or she concludes that there are exceptional
circumstances, which in the interests of justice warrant
reconsideration, refer any previously determined petition to the
Court for reconsideration.
Section 327 of
the CPA
[58] The President
held that section 17(2)(f) was inapplicable in this case. He
further held that the procedure to be followed
in a case where a
convicted person desires to lead further evidence, that became
available after he or she exhausted all the recognised
legal
procedures pertaining to appeal, is regulated by section 327(1) of
the CPA. Therefore, because it is a matter regulated
by the
CPA, it is in terms of section 1 of the SC Act excluded from the
scope of Chapter 5.
[59] The procedure
in section 327 of the CPA is not an appeal. The section makes
plain that it may only be utilised after
the convicted person has
exhausted all recognised legal procedures pertaining to appeal or
review or if such procedures are no
longer available to him or her.
The section may therefore only apply after an appeal process is no
longer available to the
convicted person.
[60] Sections 327(1)
and 17(2)(f) are both geared at preventing an injustice. They
serve the same purpose, but at different
stages. Section
17(2)(f) does so while the appeal process is still open while section
327(1) applies after the appeal processes
are spent and permanently
closed. The section 327 procedure is also not a substitute for
an appeal. It is a process
beyond the appeal stage that is
meant to be the final net in order to avoid a grave injustice.
[61] Even after the
section 17(2)(f) application is dismissed, the applicants can still
approach this Court with an application
for leave to appeal. If
successful, they could even apply to adduce further evidence in this
Court.
[46]
Conclusion
[62] The first
respondent’s contention that Chapter 5 of the SC Act does not
apply, at all, to criminal proceedings is not
textually supported by
a careful reading of section 1 of the SC Act. The
President has correctly, on numerous occasions,
applied
section 17(2)(f) to criminal proceedings.
[47]
The first respondent’s contention that those cases were
incorrectly decided is misplaced.
[63] The President’s
interpretation creates an anomaly in that a litigant in a civil
matter who wants to adduce further evidence,
after a petition had
been dismissed, may utilise section 17(2)(f) whereas a convicted
person, in the same position, may not.
That interpretation
precipitated the applicants’ contention that their right to
equal treatment before the law would be violated.
[64] The
interpretation that section 17(2)(f) may be utilised by litigants in
criminal or civil proceedings to adduce further evidence
after a
petition had been dismissed eradicates that anomaly. It also
preserves the applicants’ right to equal treatment
before the
law and is in conformity with the command in section 39(2) of the
Constitution.
[65] The President
did not consider whether the further evidence sought to be adduced
was an exceptional circumstance. The
section enjoins him to
apply his mind to the issue and make a determination whether the
matter presents an exceptional circumstance
that warrants its
referral to the Court for reconsideration or variation, in the
interests of justice. The President should
be given the
opportunity to do so. The matter should therefore be remitted
to the President.
Order
[66] The following
order is made:
1. Condonation is granted.
2. Leave to appeal is granted.
3. The appeal is upheld.
4. The decision of the President of the Supreme Court of Appeal
refusing to refer the applicants’ application in terms of
section 17(2)(f)
of the
Superior Courts Act 10 of 2013
is set aside.
5. The matter is remitted to the President of the Supreme Court of
Appeal to consider the applicants’ application.
For the Applicants:
H L Alberts and E A
Guarneri instructed by Legal Aid South Africa
For the First
Respondent:
S J Khumalo
instructed by the State Attorney
For the Second
Respondent:
D J Joubert SC
instructed by the State Attorney
[1]
51 of 1977.
[2]
10 of 2013.
[3]
Rule 19(2)
provides:
“A litigant who is aggrieved by the decision of a court and
who wishes to appeal against it directly to the Court on a
constitutional matter shall, within 15 days of the order against
which the appeal is sought to be brought and after giving notice
to
the other party or parties concerned, lodge with the Registrar an
application for leave to appeal: Provided that where the
President
has refused leave to appeal the period prescribed in this rule shall
run from the date of the order refusing leave.”
[4]
Van Wyk v Unitas Hospital
[2007] ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at para 20;
Brummer v Gorfil
Brothers Investments (Pty) Ltd
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para 3.
[5]
Section 167(3)(b)
reads in relevant part:
“The Constitutional Court—
. . .
(b) may decide—
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court grants leave to
appeal on the grounds that the matter raises an arguable point
of
law of general public importance which ought to be considered by
that Court.”
[6]
Section 39(2)
provides:
“When interpreting any legislation, and when developing the
common law or customary law, every court, tribunal or forum
must
promote the spirit, purport and objects of the Bill of Rights.”
[7]
Bakgatla-Ba-Kgafela Communal Property Association v
Bakgatla-Ba-Kgafela Tribal Authority
[2015] ZACC 25; 2015 (6) SA
32 (CC); 2015 (10) BCLR 1139 (CC).
[8]
Id at para 34.
[9]
Section 35(3)(o) of the Constitution reads:
“Every accused person has a right to a fair trial, which
includes the right of appeal to, or review by, a higher court.”
[10]
Section 9(1) of the Constitution reads:
“Everyone is
equal before the law and has the right to equal protection and
benefit of the law.”
[11]
Section 34 of the Constitution states:
“Everyone has the right to have any dispute that can be
resolved by the application of law decided in a fair public hearing
before a court or, where appropriate, another independent and
impartial tribunal or forum.”
[12]
See
Minister of Mineral Resources v Sishen Iron Ore Company (Pty)
Ltd
[2013] ZACC 45
;
2014 (2) SA 603
(CC);
2014 (2) BCLR 212
(CC)
at para 40;
Investigating Directorate: Serious Economic Offences
v Hyundai Motor Distributors (Pty) Ltd
In re: Hyundai Motor
Distributors (Pty) Ltd v Smit NO
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) (
Hyundai Motor Distributors
)
at para 22.
[13]
See
Department of Land Affairs v Goedgelegen Tropical Fruit
s
(Pty) Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC);
2007 (10)
BCLR 1027
(CC) at para 51;
S v Zuma
[1995] ZACC 1
;
1995 (2)
SA 642
(CC);
1995 (4) BCLR 401
(SA) at para 17.
[14]
Natal Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) at para 18.
[15]
Hyundai Motor Distributors
above n 12 at paras 21-2.
[16]
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
and Tourism
[2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR
687 (CC).
[17]
Id at para 72. See also
Van Vuren v Minister of
Correctional Services
[2010] ZACC 17
;
2012 (1) SACR 103
(CC);
2010 (12) BCLR 1233
(CC) at para 47;
Chagi v Special
Investigating Unit
[2008] ZACC 22
;
2009 (2) SA 1
(CC);
2009 (3)
BCLR 227
(CC) at para 14;
Daniels v Campbell
[2004] ZACC 14
;
2004 (5) SA 331
(CC);
2004 (7) BCLR 735
(CC) at paras 81-3.
[18]
De Beer NO v North-Central Local Council and South-Central Local
Council
[2001] ZACC 9; 2002 (1) SA 429 (CC); 2001 (11) BCLR 1109
(CC).
[19]
Id at para 24.
[20]
Minister of Defence and Military Veterans v Thomas
[2015]
ZACC 26
;
2016 (1) SA 103
(CC);
2015 (10) BCLR 1172
(CC) at para 20.
[21]
Canca v Mount Frere Municipality
1984 (2) SA 830
(TK) at
832B-G.
[22]
Hoban v ABSA Bank Ltd t/a United Bank
[1999] ZASCA 12; 1999
(2) SA 1036 (SCA).
[23]
Id at para 20.
[24]
“Appeal” in Chapter 4 of the SC Act (sections 12-4)
would therefore bear its ordinary grammatical meaning and include
criminal appeals irrespective of whether they are regulated in terms
of the CPA or any other criminal procedural law.
[25]
See
Van Wyk v S
;
Galela v S
[2014] ZASCA 152
;
2015 (1)
SACR 584
(SCA) (
Galela
) at para 18.
[26]
S v Swanepoel
1983 (1) SA 434
(A) at 439C-F.
[27]
Id at 451C-D.
[28]
Subsection 12 reads as follows:
“The Judges considering a petition may—
(a) call for any further information from the judge who refused the
application in question, or from the judge who presided at
the trial
to which the application relates, as the case may be;
(b) in exceptional circumstances, order that the application or
applications in question or any of them be argued before them
at a
time and place determined by them.”
[29]
Section 316(8)(a) reads as follows:
“If any application—
(i) referred to in subsection (1)(b)(ii) (hereafter in this section
referred to as an application for condonation);
(ii) referred to in subsection (1)(b)(i) (hereafter in this section
referred to as an application for leave to appeal); or
(iii) referred to in subsection (5)(a) to adduce further evidence
(hereafter in this section referred to as an application for
further
evidence),
is refused by a High Court, the accused may by petition apply to the
President of the Supreme Court of Appeal to grant any
one or
more of the applications in question.”
[30]
59 of 1959.
[31]
R v Sibande
1958 (3) SA 1
(A).
[32]
The Supreme Court and the Appellate Division are now respectively
called the High Court and the Supreme Court of Appeal.
[33]
See
Sibande
above n 31 at 5E-G. Section 4 of the
Appellate Division Further Jurisdiction Act 1 of 1911 was in
pari
materia
(on the same subject) with section 22 of the Supreme
Court Act. It read:
“Power of
Appellate Division to Remit Cases to Court Appealed from, with
Instructions, etc.—
On the hearing of any appeal, the Appellate Division shall have
power to remit the case to the court appealed from for further
hearing, with such instructions as regards the taking of further
evidence or otherwise as may be deemed necessary, and shall
have
full powers of amendment, and also power to receive further evidence
on questions of fact, either orally or by deposition
before a
commissioner, and may give any judgment or make any order which the
case may require: Provided that in exercising the
power to receive
such further evidence the Appellate Division shall make such order
as will secure an opportunity to the parties
to the proceedings to
appear for the purpose of examining every witness whose evidence
shall be so received.”
[34]
Sibande
id at 5G-H.
[35]
Although the headings of section 22 of the Supreme Court Act and
section 19 of the SC Act are the same, the texts of the respective
provisions are different. A heading is only used as an
interpretive tool when the particular clause is unclear or
ambiguous.
When the wording of the clause is clear, like
section 19 of the SC Act, then it cannot be overridden by the
words of the
heading. See
President of the RSA v Hugo
[1997] ZACC 4
; 1997 (4) SA 1 (CC)
[1997] ZACC 4
; ;
1997 (6) BCLR 708
(CC)
at para 12;
Mkrola v Samela
1981 (1) SA 925
(A) at 941G;
Turffontein Estates Ltd v Mining Commissioner, Johannesburg
1917
AD 419
at 431;
Greater Johannesburg Transitional Metropolitan
Council v Absa Bank Ltd t/a Volkskas Bank
1997 (2) SA 591
(W) at
607E-F;
S v W
1975 (3) SA 841
(T) at 844A-C;
Bhagwan’s
v Swanepoel
1963 (4) SA 42
(E) at 43C-E.
[36]
Section 316(5) of the CPA.
[37]
Section 316(13)(d) of the CPA.
[38]
Section 17(2)(f) of the SC Act.
[39]
S v N
1988 (3) SA 450
(A) at 458;
S v De Jager
1965
(2) SA 612
(A) (
De Jager
) at 613 A-B.
[40]
De Jager
id at 613A-B.
[41]
Id at 613C-D;
S v Marais
[2010] ZACC 16
;
2011 (1) SA 502
(CC);
2010 (12) BCLR 1223
(CC) at para 21.
[42]
Kruger
Hiemstra’s Criminal Procedure
2 (2016) 31-18.
[43]
Burrell v The Queen
[2008] HCA 34
;
238 CLR 218
;
82 ALJR 1221
;
248 ALR 428
at para 72.
[44]
Avnit v First Rand Bank Ltd
[2014] ZASCA 132.
[45]
Id at paras 4-5.
[46]
See rule 30 of this Court’s Rules and
Billiton Aluminium SA
Ltd t/a Hillside Aluminium v Khanyile
[2010] ZACC 3
;
[2010] 5
BCLR 465
(CC) at para 35;
Rail Commuters Action Group v Transnet
Ltd t/a Metrorail
[2004] ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4)
BCLR 301
(CC) at paras 42-3.
[47]
Notshokoru v S
[2016] ZASCA 161
;
Ntlanyeni v S
[2016]
ZASCA 3
;
2016 (1) SACR 581
(SCA).