About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2018
>>
[2018] ZACC 25
|
|
Liesching and Others v S (CCT304/16) [2018] ZACC 25; 2018 (11) BCLR 1349 (CC); 2019 (1) SACR 178 (CC); 2019 (4) SA 219 (CC) (29 August 2018)
Links to summary
Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 304/16
In the matter
between:
PIETER PIETERTJIE
LIESCHING
First
Applicant
MALVIN NAAS
SWARTZ
Second
Applicant
XAVIER
MALGAS
Third
Applicant
and
THE
STATE
Respondent
Neutral citation:
Liesching and Others
v
The State
[2018] ZACC 25
Coram:
Zondo
DCJ, Cameron J, Froneman J, Jafta J, Kathree-Setiloane AJ,
Kollapen AJ, Madlanga J, Mhlantla J, Theron J and Zondi
AJ
Judgments:
Kathree-Setiloane AJ (minority): [1] to [116]
Theron J (majority):
[117] to [164]
Heard on:
24
August 2017
Decided on:
29 August 2018
Summary:
Superior
Courts Act 10 of 2013
—
section 17(2)(f)
— referral of
petition for reconsideration — discretion of the President of
Supreme Court of Appeal— exceptional
circumstances — duty
to provide reasons
ORDER
On appeal from the
President of the Supreme Court of Appeal (in terms of
section 17(2)(f)
of the
Superior Courts Act 10 of 2013
):
1.
The
application for leave to appeal is dismissed.
2.
There
is no order as to costs.
JUDGMENT
KATHREE-SETILOANE AJ:
[1]
This
application concerns the question whether a post-trial recantation by
a material witness in the subsequent trial of a co-accused
may be an
exceptional circumstance as contemplated in
section 17(2)(f)
of the
Superior Courts Act.
[1
]
Section 17(2)(f)
confers a discretion on the President of the
Supreme Court of Appeal (President), in exceptional circumstances, to
refer a decision
of that Court, refusing an application for leave to
appeal, to the Court for reconsideration and, if necessary,
variation.
It provides:
“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 shall
be 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.”
Litigation
history
[2]
This
application is a sequel to
S v Liesching
(
Liesching I
),
[2]
where this Court was called upon to determine whether
section
17(2)(f)
of the
Superior Courts Act applied
to convicted persons
in criminal proceedings. It held that it did. The
applicants in that application are the applicants
in this
application. They are Messrs Pieter Pietertjie Liesching (first
applicant), Malvin Naas Swartz (second applicant)
and Xavier Malgas
(third applicant).
In the High Court
[3]
The applicants were each convicted in the High Court of
South Africa, Gauteng Local Division, Johannesburg on three
counts:
murder; unlawful possession of firearms and unlawful
possession of ammunition (High Court judgment). Their
convictions arose
from a shooting incident that had occurred on 17
November 2011 in Reiger Park, Boksburg, during which
Mr Renaldo Leeroy
Booysens (the deceased) was shot dead.
[4]
The key evidence against the applicants in the trial court was
that of three witnesses: Mr Sherwin Arries, his brother Mr Marlin
Abrahams and the deceased’s uncle, Mr Gordon Swiegers.
The trial court found Mr Swiegers to be an unsatisfactory
witness and treated his evidence with caution. It convicted the
applicants on the strength of the testimony of Mr Arries
and Mr
Abrahams, who identified the applicants as the occupants of the Polo
from where the gunshots that killed the deceased were
fired.
[5]
Mr Arries testified that on the night of the incident, he was
standing at the gate of his house with Mr Swiegers. His
brother,
Mr Abrahams, Mr Clint Campbell, whom he referred to as
“Shoes”, and the deceased were sitting on the pavement,
in front of the neighbouring property, smoking tobacco. A black
Polo, driven by Mr Malgas, passed them very slowly.
Mr Liesching sat on the front passenger seat, and Mr Swartz
sat at the back with a person,
whom
he knew only by the nickname “Atter”.
Soon
after the Polo had passed them, it made a u-turn at the crossroad and
came towards them. Mr Liesching fired gunshots
from the Polo in
the direction of Mr Abrahams, Mr Campbell and the deceased.
[6]
The deceased was shot and fell to the ground. Mr
Abrahams and Mr Campbell managed to run into yard of Mr Arries’
house.
Mr Swartz and the other occupant (Atter) got out of the
Polo. At that point, Mr Arries heard more gunshots being fired
and
he went into the yard. He closed the gate, and remained
standing there. He did not “duck” or fall to the
ground but nonchalantly walked backwards into the yard, so that he
was still in a position to see “everything that happened”.
Mr Swartz and Atter got back into the Polo, and Mr
Liesching fired two shots into the yard.
[7]
At the time of the shooting incident, two of the gangs that
operated in Reiger Park were the “Serpents” and
“Dogans”.
There was continual conflict between the
two gangs, dating back to when Mr Arries was a child. The
applicants were members
of the Dogans. The deceased was not a
member of any gang. Nor were Messrs Arries and Abrahams.
Mr Campbell was
a member of the Serpents. Mr Liesching was
originally a member of the Serpents, but later crossed over to the
Dogans.
[8]
There was bad blood between Mr Liesching and Mr Campbell
as Mr Liesching had shot Mr Campbell in the neck. Mr
Liesching
was facing a charge of attempted murder for this shooting
at the time of the deceased’s death. He had, in turn,
laid
a charge of attempted murder against Mr Abrahams and Mr Campbell
after the deceased was killed. The laying of false charges
against members of the rival gang, colloquially known as “bom
sake” was commonplace between the two gangs.
[9]
Mr Abrahams corroborated Mr Arries’ testimony in two
respects. The first was in relation to where the deceased,
Mr Campbell
and himself were standing when the gunshots were
fired from the Polo. And the second was in relation to where Mr
Liesching,
Mr Swartz and Mr Malgas and a fourth person were seated
inside the Polo. According to him, the Polo came from the
direction
of Leon Ferreira Street. It had four occupants.
Mr Malgas drove the Polo very slowly. Its windows were open.
Mr Liesching sat on the front passenger seat, and Mr Swartz
on the back seat with a person who was unknown to Mr Abrahams.
The Polo drove past them, made a u-turn and came back towards them.
[10]
Mr Liesching and Mr Malgas stuck their guns out of the window
of the Polo and fired shots at them. Mr Abrahams, Mr Campbell
and the deceased ran up the street towards his house. Both Mr
Abrahams and Mr Campbell made it into the yard, but the
deceased
fell while running. Mr Swiegers and Mr Arries were already
in the yard, behind the gates, when Mr Abrahams
and Mr Campbell
came running into the yard. There was acrimony between him and
Mr Liesching as well as between him and
Mr Swartz because, before 17
November 2011 (the day that the deceased was murdered),
Mr Liesching had fired a shot at him, and he opened an attempted
murder
case against Mr Liesching. Mr Liesching had, on 17
November 2011, also opened a false case of attempted murder against
him.
He lost his job because of the false charges that Mr
Liesching laid against him.
[11]
The High Court found “the evidence of the three
[applicants] to be false when weighed against the evidence of Mr
Arries, as
well as the independently verifiable evidence of Captain
Jordaan”. It accordingly convicted the applicants as
charged
on all three counts and sentenced each of them to a term of
life imprisonment. It granted the applicants leave to appeal
against sentence to a Full Court of the High Court, but refused
them leave on conviction. They subsequently applied to
the
Supreme Court of Appeal for leave to appeal against their
convictions, but that application was also dismissed.
The Saimons’
trial
[12]
Four months after the applicants had been refused leave by the
Supreme Court of Appeal, a Mr Arthur Saimons was also tried in the
High Court for the murder of the deceased. The state alleged
that Mr Saimons had been the fourth occupant of the Polo
on the
night of the deceased’s murder.
[13]
Mr Arries also testified for the state in the Saimons’
trial. He, however, recanted the testimony that he gave in the
applicants’ trial. The essence of his recantation was
that he had been arrested for housebreaking. The investigating
officer, whom he knew only as Mr Maringa, had offered to assist him
with the housebreaking charge if he falsely identified the
applicants
as the occupants of the Polo from where the gunshots that killed the
deceased were fired.
[14]
When asked by counsel for the state: “Are you angry with
Maringa for being the investigating officer against you [in the
housebreaking
case]?” Mr Arries answered: “M’Lord,
what happened is that Mr Maringa said that the statement that
I
have made [in the applicants’ trial] will help me on this case
for which I am now serving a sentence, but instead of the
statement
helping me, I am now convicted and sentenced for a crime that I did
not commit”. When asked by the State Advocate:
“So
tell me, in relation to this shooting, am I correct that you probably
saw Zagars, Naas, Pietertjie and this other Arthur
that we do not
know, the Arthur that is not before court?” Mr Arries
responded: “For the fourth time, I did not
see anyone shoot, I
ran into the yard. How many times must I tell you that?”
[15]
Mr Arries testified that he had not seen the applicants in the
Polo when the shooting occurred as he had run into his house.
He said that he told the investigating officer that there were people
in the vehicle, but he did not give him their names. He
said
that “it was the police who gave [them] the names of the people
who were in the black Polo”. He also said
that Mr
Abrahams and Mr Swiegers were present when Mr Maringa had
induced him to falsely implicate the applicants, by
placing them in
the Polo on the night of the deceased’s death. He said
that Mr Maringa had also induced Mr Abrahams
and Mr Swiegers to do
the same thing in the presence of other police officers. He
denied knowing Mr Saimons or referring
to him in the applicants’
trial. He said that the “Arthur” whom he had
referred to there, was “Arthur
De Winnaar” who was always
in the company of Mr Liesching.
[16]
Mr Arries was declared a hostile witness. He was
consequently cross-examined by both the state and the defence.
As a
result of Mr Arries’ recantation of the testimony that he
gave in the applicants’ trial, Mr Saimons was discharged at
the
close of the state’s case in terms of section 174 of the
Criminal Procedure Act.
[3]
In the Supreme Court of Appeal
[17]
Some months later, the applicants’ legal representative
informed them of Mr Arries’ recantation and Mr Saimons’
resultant acquittal. Encouraged that this development could
materially affect their convictions as well, the applicants made
application to the President, in terms of
section 17(2)(f)
of the
Superior Courts Act, in
which they sought a referral of the decision
refusing them leave to appeal to the Court for reconsideration or
variation.
[4]
Obtaining leave from the Supreme Court of Appeal to lead the new
evidence in the High Court, prior to the hearing of the
appeal on
sentence by the Full Court, was fundamental to the relief sought by
the applicants in the
section 17(2)(f)
application.
[18]
The President, however, dismissed their application on the
basis that a convicted person seeking to adduce further evidence,
after
all the recognised appeal procedures had been exhausted, had to
do so under
section 327(1)
[5]
of the Criminal Procedure Act and not
section 17(2)(f)
of the
Superior Courts Act. He
held that in terms of
section 1
of the
Superior Courts Act the
definition of
“appeal” did not include a criminal appeal.
In the
Constitutional Court – Liesching I
[19]
The applicants launched an application to this Court for leave
to appeal against the President’s dismissal of their
section
17(2)(f)
application. They contended that an
interpretation of
section 17(2)(f)
that precluded the reconsideration
of decisions refusing leave to appeal in criminal matters, where
further evidence is sought
to be adduced, violated their
constitutional rights to a fair trial,
[6]
equal protection of the law,
[7]
and access to court.
[8]
[20]
In upholding the appeal on the basis that
section 17(2)(f)
applied both to criminal and civil proceedings, this Court held:
“
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.”
[9]
[21]
This Court overruled the conclusion of the President on the
basis that
section 327
is not an appeal procedure as it may only
be utilised after the convicted person has exhausted all recognised
legal review and
appeal procedures.
[10]
It observed that although both provisions are “geared at
preventing an injustice”, they apply at different stages
–
whereas
section 17(2)(f)
of the
Superior Courts Act applies
while the
appeal process is still open, section 327(1) of the Criminal
Procedure Act only does so after the appeal processes have
been
exhausted. It observed, in this regard, that the section 327
procedure is not “a substitute for an appeal, [but
rather] a
process beyond the appeal stage that is meant to be the final net in
order to avoid a grave injustice”.
[11]
It therefore held:
“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 . . . preserves the applicants’
rights to equal treatment before the law, and
is in conformity with
the command in section 39(2) of the Constitution.”
[12]
[22]
This Court held that
section 17(2)(f)
of the
Superior Courts
Act enjoined
the President to apply his mind to the issue of whether
the further evidence sought to be adduced by the applicants was an
exceptional
circumstance that warranted the referral of the decision
refusing leave to appeal to that Court for reconsideration or
variation,
in the interests of justice.
[13]
But since the President had dismissed the applicants’
application without applying his mind to it, the Court set aside
his
decision and remitted the applicants’
section 17(2)(f)
application to him for consideration.
[23]
Six days later, the Acting President of the Supreme Court of
Appeal (Acting President) considered the application and
dismissed
it. Her order dismissing the application reads:
“The condonation application and the application for leave to
appeal in terms of section 17(2)(f) of the Superior Courts
Act 10 of
2013 (SC Act) are dismissed for the reason that no exceptional
circumstances have been shown to exist for the decision
refusing
leave to appeal to be referred to the court for reconsideration.”
The present
application
[24]
It is against this decision that the applicants seek leave to
appeal to this Court. In addition, the applicants seek, inter
alia, orders—
(a) referring the matter to the High Court to receive the transcript
of Mr Arries’ evidence in the Saimons’ trial,
and to
hear the further evidence of Mr Arries and Mr Abrahams including any
other evidence which, in the discretion of the High
Court, may be
relevant to the issues for determination; and
(b) granting them leave to appeal to the Full Court of the
Gauteng Local Division, Johannesburg against their
convictions
on 19 June 2012 under case number SS 78/2012,
Alternatively
:
(c) setting aside the order of the President of the Supreme Court of
Appeal under case number 20303/2014 dismissing the application
for
condonation and the application, in terms of
section 17(2)(f)
of the
Superior Courts Act for
reconsideration of the decision dismissing
the application for leave to appeal under Supreme Court of Appeal
case number 778/2013;
and
(d) remitting the matter to the Supreme Court of Appeal to reconsider
the decision dismissing the application for leave to appeal
under
Supreme Court of Appeal case number 778/2013.
Applicants’
submissions
[25]
The applicants’ application for referral to
reconsideration is founded on the new evidence of Mr Arries’
post–trial
recantation of the testimony which the High Court
relied upon to convict the applicants. The nub of the
applicants’
case is that the new evidence is by definition an
exceptional circumstance, as contemplated in
section 17(2)(f)
of
the
Superior Courts Act, for
two interrelated reasons. The
first is that each of them was convicted on, among others, the charge
of murder and sentenced
to life imprisonment on the testimony of Mr
Arries. The second is that Mr Arries subsequently recanted
that testimony
in the Saimons’ trial, as a result of which
Mr Saimons was acquitted of those exact charges. The
applicants contend
that had the Supreme Court of Appeal been aware of
the new evidence in their application for leave to appeal, the
outcome would
have been different. The contention they thus
advance is that the new evidence warrants the re-opening of their
trial in
the High Court for the purpose of recalling Mr Arries
to be cross-examined on his recantation, and for this to be put to,
among others, Mr Abrahams and Sergeant Chris Van Wyk, an
investigating officer in their case.
[26]
Concerning the veracity of the new evidence they seek to lead
on remittal, the applicants contend that it is not a “mere
recantation”
as it was tested in cross-examination in the
Saimons’ trial by both the state and the defence.
Moreover, they contend
that the Acting President’s dismissal of
their
section 17(2)(f)
application has resulted in a grave
injustice to them, as they have been denied the opportunity to use
the new evidence to prove
their innocence. They contend that
this is a further exceptional circumstance that warranted a referral
of the decision refusing
them leave to appeal, in terms of
section
17(2)(f)
of the
Superior Courts Act, to
the Supreme Court of
Appeal for reconsideration.
[27]
Lastly, in relation to the failure of the Acting President to
provide reasons for dismissing their
section 17(2)(f)
application,
the applicants argue that she was obliged to provide “full
reasons” because her decision dismissing their
application
could still be subject to an application for leave to appeal to this
Court.
State’s
submissions
[28]
The state did not file any affidavit in answer to the
applicants’ application for leave to appeal in this Court and
in the
section 17(2)(f)
application in the Supreme Court of
Appeal. However, it informed the Court during argument that at
the time that Mr
Arries testified in the Saimons’ trial, both
he and Mr Saimons were serving their respective sentences at the same
prison
in Boksburg, but they were subsequently transferred to
different prisons. Based on these facts, which were confirmed
by counsel
for the applicants at the hearing in this Court, the state
argues that the possibility of collusion between Mr Saimons and Mr
Arries
cannot be ruled out.
[29]
In addition, the state points out that the statements of
Mr Arries and Mr Abrahams were taken by different police
officers
on different dates (by Constable Nzama on 8 November
2011 and by Constable Maringa on 29 May 2012). Hence, there was
no possibility of collusion between the two witnesses. The
state, furthermore, submits that the recantation evidence which
the
applicants seek to lead on remittal to the High Court is a
fabrication and that, consequently, the appeal against the Acting
President’s order, dismissing the applicants’
section
17(2)(f)
application on the basis of the absence of exceptional
circumstances, should be dismissed. Lastly, in relation to the
duty
to provide reasons for refusing to grant the
applicants’
section 17(2)(f)
application, the state
contends that the Acting President did in fact provide reasons
for dismissing the application and nothing
further was required of
her.
Issues for
determination
[30]
The issues that arise for determination are these:
(a) Does the new evidence constitute “exceptional
circumstances” warranting that the President refer the decision
of the Supreme Court of Appeal to the Court for reconsideration?
(b) If so, will it be in the overall interests of justice that that
decision be referred to the Court for reconsideration in terms
of
section 17(2)(f)
of the
Superior Courts Act?
(c
) Does the President have a duty to provide reasons when dismissing
an application made under
section 17(2)(f)
of the
Superior Courts
Act?
Jurisdiction
and
leave to appeal
[31]
This Court held in
Liesching I
:
“[E]ven after the
section 17(2)(f)
application is dismissed [by
the President of the Supreme Court of Appeal], the applicants can
still approach this court with an
application for leave to
appeal.”
[14]
It also held that it
had jurisdiction to deal with the application for leave to appeal,
and the appeal, for amongst other reasons
that the issues for
determination concerned the interpretation of
section 17(2)(f)
of the
Superior Courts Act, and
the applicants’ rights to equal
protection before the law, access to court, and their fair trial
rights of appeal and to
adduce and challenge evidence. Since
the interpretation of
section 17(2)(f)
is also central to the issues
for determination in this application, and so too are the applicants’
fair trial rights of
appeal and to adduce and challenge evidence,
this Court has jurisdiction in this application.
[32]
The meaning to be given to the phrase “exceptional
circumstances” in
section 17(2)(f)
of the
Superior Courts
Act is
key to the determination of the primary issue here. That is,
whether new evidence of a post-trial recantation by a witness, in the
subsequent trial of a co-accused, may be an exceptional circumstance
that warrants a referral for reconsideration in terms of
section
17(2)(f).
The issue is important and arguable. The
interests of justice require that leave be granted.
Condonation
[33]
The state brought an application seeking condonation for
filing its heads of argument one court day late. The
application
is not opposed. The state has provided a reasonable
explanation for the delay. It is in the interests of justice
that
the delay be condoned. Condonation is granted.
Interpretation of
section 17(2)(f)
[34]
Section
17
of the
Superior Courts Act regulates
applications for leave to
appeal to the Supreme Court of Appeal where leave is refused by a
High Court. In terms of
section 17(2)
an application for
leave to appeal to the Supreme Court of Appeal is referred to two
judges designated by the President for consideration.
[15]
If they disagree, these two judges and the President or a third judge
designated by the President consider the application
[16]
and the decision of the majority is the decision of the Court.
[17]
Section 17(2)(f)
promotes the principle of finality by providing
that the decision to grant or refuse an application for leave to
appeal is final.
This is, however, subject to the proviso that
the President may in exceptional circumstances, whether of her own
accord or on application,
refer the decision to the Court for
reconsideration and, if necessary, variation.
[35]
It is important to distinguish between an application for
leave to appeal to the Supreme Court of Appeal in terms of
section
17(2)(b)
of the
Superior Courts Act and
an application under
subsection (2)(f). The latter is not an application for leave
to appeal. It is an application
to the President for the
referral of a decision of the Court, refusing leave to appeal, to the
Court for reconsideration.
It is another bite at the cherry for
an unsuccessful litigant to have the refusal of its application for
leave to appeal reconsidered
by the Supreme Court of Appeal on
referral by the President in exceptional circumstances.
[36]
By the same token, the reconsideration by the Supreme Court of
Appeal of a decision refusing leave to appeal is not the
consideration
of an appeal on the merits but rather a reconsideration
of the decision refusing leave to appeal. The Court is required
to
decide whether the court below and the two judges of the Supreme
Court of Appeal should have found that reasonable prospects of
success existed to grant leave to appeal.
[18]
[37]
Prior to the coming into operation of
section 17(2)(f)
, there
was no further step that could be taken within
the Supreme Court of Appeal after a refusal by it
of
leave to appeal. The next possible step was an approach to
this Court. The power that
section 17(2)(f)
of the
Superior Courts Act confers
on the President is an extraordinary one
to be exercised only in exceptional circumstances. Its core
purpose is to prevent
an injustice by curing errors or mistakes and
to consider circumstances which, if known when leave to appeal was
refused, would
have resulted in a different outcome.
[19]
[38]
The exercise of the discretion in
section 17(2)(f)
is only
triggered once the President finds that there are exceptional
circumstances. The section involves a two stage
enquiry.
The first stage is a factual enquiry. Whether there are
exceptional circumstances must be established as a
matter of fact.
The second stage involves the exercise of a discretion. The
President may, having found exceptional
circumstances to be present,
consider whether to refer the decision refusing leave to appeal to
the Court for reconsideration.
The exercise of the discretion
must always be guided by what the interests of justice would require
in the particular circumstances
of a case.
[20]
The overall interests of justice are, therefore, the decisive feature
for the exercise of the discretion in
section 17(2)(f)
of the
Superior Courts Act. Whether
it is in the interests of justice,
in criminal proceedings, for the President in terms of
section 17(2)(f)
of the
Superior Courts Act to
refer a
decision refusing leave to appeal for reconsideration to the Court,
must be decided with reference to the facts of the
particular case as
well as other relevant factors.
[21]
These would include the—
(a) importance of the issues raised;
(b) nature and gravity of the crime concerned;
(c) nature and length of the sentence imposed;
(d) interests of the victims against whom the crimes were committed;
(e) interests of society; and
(f) prospects of success.
No one factor is decisive.
[22]
Meaning of
“exceptional circumstances”
[39]
The
phrase “exceptional circumstances” is not defined in the
Superior Courts Act. Although
guidance on the meaning of the
term may be sought from case law, our courts have shown a reluctance
to lay down a general rule.
This is because the phrase is
sufficiently flexible to be considered on a case-by-case basis,
[23]
since circumstances that may be regarded as “ordinary” in
one case may be treated as “exceptional” in another.
For instance, in
Petersen
[24]
a Full Court of the High Court of South Africa, Western Cape
Division, Cape Town (Western Cape High Court) observed in relation
to
an application for bail under section 60(11)(a) of the Criminal
Procedure Act:
“On the meaning and interpretation of ‘exceptional
circumstances’ in this context there have been wide-ranging
opinions, from which it appears that it may be unwise to attempt a
definition of this concept. Generally speaking ‘exceptional’
is indicative of something unusual, extraordinary, remarkable,
peculiar or simply different. There are, of course, varying
degrees of exceptionality, unusualness, extraordinariness,
remarkableness, peculiarity or difference. This depends on
their
context and on the particular circumstances of the case under
consideration. In the context of section 60(11)(a) the
exceptionality of the circumstances must be such as to persuade a
court that it would be in the interests of justice to order the
release of the accused person. This may, of course, mean
different things to different people, so that allowance should be
made for certain flexibility in the judicial approach to the
question. In essence the court will be exercising a value
judgment
in accordance with all the relevant facts and circumstances,
and with reference to all applicable criteria.” (Footnote
omitted.)
[40]
In
MV Ais,
the Western Cape High Court distilled the
following principles that emerged from a survey of case law relating
to the meaning of
the phrase exceptional circumstances:
“1. What is ordinarily contemplated by the words ‘exceptional
circumstances’ is something out of the ordinary
and of an
unusual nature; something which is excepted in the sense that the
general rule does not apply to it; something uncommon,
rare or
different; ‘besonder’, ‘seldsaam’,
‘uitsonderlik’, or ‘in hoe mate ongewoon’.
2. To be exceptional the circumstances concerned must arise out of,
or be incidental to, the particular case.
3. Whether or not exceptional circumstances exist is not a decision
which depends on the exercise of a judicial discretion: their
existence or otherwise is a matter of fact which the court must
decide accordingly.
4. Depending on the context in which it is used, the word
‘exceptional’ has two shades of meaning: the primary
meaning
is unusual or different; the secondary meaning is markedly
unusual or specially different.
5. Where, in a statute, it is directed that a fixed rule shall be
departed from only under exceptional circumstances, effect will,
generally speaking, best be given to the intention of the Legislature
by applying a strict rather than a liberal meaning to the
phrase, and
by carefully examining any circumstances relied on as allegedly being
exceptional.”
[25]
[41]
In line with a strict construction of the phrase “exceptional
circumstances” in
section 17(2)(f)
of the
Superior Courts
Act, Mpati
P held in
Avnit
:
“Prospects of success alone do not constitute exceptional
circumstances. The case must truly raise a substantial point
of
law, or be of great public importance or demonstrate that without
leave a grave injustice might result. Such cases will
be likely
to be few and far between because the judges who deal with the
original application will readily identify cases of the
ilk.
But the power under
section 17(2)(f)
is one that can be exercised
even when special leave has been refused, so ‘exceptional
circumstances’ must involve
more than satisfying the
requirements for special leave to appeal. The power is likely
to be exercised only when the President
believes that some matter of
importance has possibly been overlooked or a grave injustice will
otherwise result.”
[26]
[42]
Although the inquiry into whether there are exceptional
circumstances is a factual one, it must embody a legal appreciation
of the
phrase. This is because of the “extraordinary”
nature of the discretion conferred upon the President – which
she may only exercise in the circumscribed circumstances where “some
matter of importance has been overlooked, or a grave
injustice may
result from the failure to refer the decision refusing leave to
appeal for reconsideration”. To this,
I would add: “where
the administration of justice may be brought into disrepute” if
the decision is not referred for
reconsideration.
[43]
An example of a scenario that could bring the administration
of justice into disrepute is what occurred in
Van der Walt,
[27]
where two “contrary orders” were made by two different
panels of judges of the Supreme Court of Appeal where the facts
in
the applications for leave to appeal were “materially
identical”. The contradictory orders were the granting
of
leave to appeal in one application and its refusal in the other.
The applicant who was refused leave made application
for special
leave to appeal, alternatively direct access, to this Court. That
application was dismissed.
[44]
I cannot help but think that, had the remedy in
section
17(2)(f)
of the
Superior Courts Act been
available to the applicant
in
Van der Walt
at the time, the outcome of his case would
have been different.
This is illustrated
by the decision of the Supreme Court of Appeal in
Ntlanyeni
,
[28]
where an administrative bungle by the registrar, relating to the
status of an application for leave to appeal, was found to be
an
exceptional circumstance that warranted referral to the Court for
reconsideration. There the applicant and his two co-accused
had
been charged and sentenced before the High Court of South Africa,
Eastern Cape Local Division, Port Elizabeth (Eastern Cape
High
Court).
[45]
The Eastern Cape High Court refused their application for
leave to appeal. Each of them subsequently made a separate
application to the Supreme Court of Appeal. The
applicant’s co-accused were granted leave to appeal,
but the
applicant was not. He was refused leave almost two years later
in September 2014. The delay was caused by the
mistaken belief
of the registrar that the applicant had already been granted leave to
appeal in 2012. He was, consequently,
advised in 2012 that
leave was granted to the Eastern Cape High Court. In mid-2015
he was advised of the error, and seven
days later he brought an
application, in terms of
section 17(2)(f)
of the
Superior Courts Act,
for
the decision refusing leave to be reconsidered or varied by the
Court. This was a full ten months after leave to appeal was
refused by two judges of the Supreme Court of Appeal.
[46]
The President found the circumstances to be exceptional and
referred the matter to the Court for reconsideration. On
reconsideration,
the Court condoned the delay, holding that the
President has
mero motu
authority under
section 17(2)(f)
to refer a decision for reconsideration, and that this authority is
not time-bound.
[29]
It, accordingly, concluded that the President was correct in
referring the decision refusing leave for reconsideration, both
because of the prospects of success on the merits and the mishandling
of the case by the Court.
[47]
In
S v Malele; S v Ngobeni
,
[30]
Mr Malele and eight others (the applicants) faced murder charges.
One of the accused was found not guilty and discharged,
and the
others were found guilty and sentenced to 15 years’
imprisonment. On 3 May 2016, their joint application
for leave to the Supreme Court of Appeal was dismissed. It so
happened, that one of their co-accused, Mr Bonginkosi Mdluli,
made a
separate application to the Supreme Court of Appeal for leave to
appeal. On 24 May 2016, he was granted leave to the
Full Court
of the High Court of South Africa, Gauteng Division, Pretoria against
his conviction and sentence. On discovering
this, the
applicants made separate applications to the President, in terms of
section 17(2)(f)
of the
Superior Courts Act, for
the decision
refusing them leave to appeal to be reconsidered by the Court.
[48]
It was argued on the applicants’ behalf that the facts
on which Mr Mdluli’s application for special leave was granted
were identical to those on which their applications for leave were
founded, and that was a compelling reason for the decision refusing
them leave to appeal to be referred to the Court for
reconsideration. However, Mpati AP, adopted the view that the
mere
fact that Mr Mdluli had successfully applied for leave to appeal
“does not necessarily mean that the applicants should, without
more, also be granted leave to appeal”.
[31]
Having differentiated Mr Mdluli’s conduct from that of
the applicant,
[32]
Mpati AP concluded that Mr Mdluli’s application for leave
to appeal was a neutral factor and not an exceptional circumstance
for purposes of
section 17(2)(f)
of the
Superior Courts Act.
[33
]
[49]
He did, however, have grave doubts in relation to the trial
court’s application of the doctrine of common purpose,
[34]
and its conclusion that “the applicants’ form of intent
(
mens rea
) was
dolus eventualis
”.
[35]
He took the view that on a correct application of these
principles, another court might reach a different conclusion.
[36]
He accordingly concluded that “a grave injustice may
otherwise result” if he did not refer the decision dismissing
the applicants’ application for leave to appeal to the court
for reconsideration, and that a grave injustice “in itself
constitutes exceptional circumstances enabling [him],
mero motu
,
to refer the decision to the court for reconsideration”.
[37]
[50]
In
Gwababa
,
[38]
the applicant was also one of the co-accused in
Malele,
whose
application for leave to appeal had been dismissed. His
situation was similar to that of the co-accused in respect
of whom
Mpati AP ordered a reconsideration in
Malele
. He
subsequently made an application, in terms of
section 17(2)(f)
of the
Superior Courts Act, for
the President to refer the dismissal of
his application for leave to appeal to the Court for reconsideration.
Maya AP stated
that she was “enjoined to determine his
application on its own merits and consider if the applicant has
established exceptional
circumstances warranting the reconsideration
and, if necessary, variation of the order refusing him special
leave”.
[39]
For the same reasons as set out by Mpati AP in
Malele
, Maya AP
held that a failure to refer the matter to the Court for
reconsideration would result in a grave injustice which constitutes
an exceptional circumstance enabling her to refer the decision to the
Court for reconsideration.
[40]
[51]
What then is the meaning that should be ascribed to the phrase
“exceptional circumstances” in
section 17(2)(f)
of the
Superior Courts Act? Construed
strictly, I consider the words
“rare”, “extraordinary”, “unique”,
“novel”, “atypical”,
“unprecedented”,
and “markedly unusual” to more fittingly exemplify the
meaning of the phrase contemplated
by
section 17(2)(f)
of the
Superior Courts Act. What
we must remain mindful of though, is
that what is exceptional must be determined on the merits of each
case.
[41]
It is a factual inquiry.
[52]
The
court must look at substance, not form.
[42]
It must consider all relevant factors and determine whether
“individually or cumulatively” they constitute
exceptional
circumstances.
[43]
An “ordinary circumstance that is present to an exceptional
degree” may also constitute an exceptional circumstance.
[44]
So too may the conflation of a number of unusual circumstances.
The exceptionality of the circumstance must be of such
nature so as
to persuade the President that it would be in the interests of
justice to refer the decision refusing leave to appeal
to the Court
for reconsideration.
Duty to provide
reasons
[53]
The Acting President dismissed the applicants’
section
17(2)(f)
application on the grounds that there were no exceptional
circumstances shown to be present for the exercise of her discretion
to refer the refusal of the applicants’ application for leave
to appeal to the Court for reconsideration. The state
contends
that the order makes clear the Acting President’s reasons; so
no more could be expected of her. Related to
this, is the
argument that since exceptional circumstances are a jurisdictional
fact for the exercise of the discretion in
section 17(2)(f)
of the
Superior Courts Act, then
the reasons for dismissing the application
must surely be the absence of exceptional circumstances. A
further argument advanced
against providing reasons, is that since
section 17
of the
Superior Courts Act does
not impose a duty on the
Supreme Court of Appeal to provide reasons when
dismissing an application for leave to
appeal, the President should
not be obliged to provide reasons when dismissing an application in
terms of subsection (2) thereof.
[54]
Where
do courts derive their general duty to provide reasons from, and what
is the purpose of doing so? In
Mphahlele
[45]
this Court held:
“There is no express constitutional provision which requires
Judges to furnish reasons for their decisions. Nonetheless,
in
terms of section 1 of the Constitution, the rule of law is one of the
founding values of our democratic state, and the Judiciary
is bound
by it. The rule of law undoubtedly requires Judges not to act
arbitrarily and to be accountable. The manner
in which they
ordinarily account for their decisions is by furnishing reasons.
This serves a number of purposes. It
explains to the parties,
and to the public at large which has an interest in courts being open
and transparent, why a case is decided
as it is. It is a
discipline which curbs arbitrary judicial decisions. Then, too,
it is essential for the appeal process,
enabling the losing party to
take an informed decision as to whether or not to appeal or, where
necessary, seek leave to appeal.
It assists the appeal court to
decide whether or not the order of the lower court is correct.
And finally, it provides guidance
to the public in respect of similar
matters. It may well be, too, that where a decision is subject
to appeal it would be
a violation of the constitutional right of
access to courts if reasons for such a decision were to be withheld
by a judicial officer.”
(Footnotes omitted.)
[55]
On this reasoning, all court decisions that are subject to
appeal must be accompanied by reasons, and the failure to do so may
constitute
a violation of the litigants’ rights of access to
court.
[46]
However,
Mphahlele
[47]
carved out an exception in terms of which the Supreme Court of Appeal
was not obliged to provide reasons when refusing an application
for
leave to appeal because:
“The refusal of leave to appeal by the Supreme Court of Appeal
is not appealable to any other Court. The failure to
furnish
reasons for a decision made under section 21 of the Supreme Court Act
cannot prejudice the unsuccessful litigant in taking
the matter
further. Except in constitutional matters, the end of the
litigation road has been reached. Moreover, a
litigant who is
refused leave to appeal will already have been informed by the court
of first instance, and in some cases also
by a Court of appeal, of
the reasons for the adverse order. To ensure that adequate
attention is given to an application
for leave to appeal by the
Supreme Court of Appeal, section 21 of the Supreme Court Act
provides that at least two Judges
of that Court must consider the
reasons of the lower court. The litigant will, expressly or by
clear implication, be informed
by their decision that there is no
prospect of successfully challenging that order on appeal.”
[48]
(Footnotes omitted.)
The
Mphahlele
exception seemed to exclude “constitutional matters”
from its scope.
[56]
In
Greenfields Drilling,
[49]
the applicants applied to this Court for direct access to challenge
the constitutionality of the practice of the Supreme Court
of Appeal
not to give reasons when refusing leave to appeal. The
application was premised on the claim that this practice
hamstrung
the applicant in making an application to this Court for leave to
appeal against the order of the Supreme Court of Appeal’s
refusal of leave to appeal against a High Court judgment.
Reaffirming
Mphahlele
, this Court held that the “practice”
in issue was subject to the qualification that “the position
might well
be different if a constitutional matter is involved, and
the Supreme Court of Appeal is not the court of final instance”.
[50]
This Court, however, sidestepped determining whether the Supreme
Court of Appeal was obliged to furnish reasons when it refused
leave
to appeal in a case in which a “constitutional issue”
arose.
[51]
[57]
Three years later, with the coming into force of the
Seventeenth Amendment Act of the Constitution of South Africa,
[52]
a number of changes were made to the structure of the South African
judicial system. The changes which this Act effected
to the
Constitution, included the expansion of the jurisdiction of the
Constitutional Court from “constitutional matters”
only
to “any other matter” where this Court granted leave to
appeal on the grounds that the matter raised an arguable
point of law
of general public importance, which needed to be considered by
it.
[53]
[58]
The Supreme Court of Appeal is consequently no longer a court
of final instance on “non-constitutional” matters.
[54]
This Court is thus the court of final instance on both
constitutional and non-constitutional matters. Section 167(3)(c)
of the Constitution empowers it to make the final decision in
relation to whether a matter is within its jurisdiction in terms
of
section 167(3)(b) of the Constitution. Does this mean that
the Supreme Court of Appeal is obliged to provide reasons
when it
refuses leave to appeal in all matters
-
constitutional and non-constitutional?
[59]
This Court held in
Mabaso
that when the Supreme Court
of Appeal refuses leave to appeal without reasons, any subsequent
application for leave to appeal to
this Court lies against the
decision of the High Court and not against the decision of the
Supreme Court of Appeal.
[55]
This means that where reasons have been provided by the High
Court, there will be no duty on the Supreme Court of Appeal
to
provide reasons for refusing leave to appeal in both constitutional
and non-constitutional matters. This is because the
party
seeking leave to appeal to this Court against that decision, will
have the benefit of the written reasons of the High Court.
It
will, therefore, neither be prejudiced nor “hamstrung” in
making an application to this Court for leave to
appeal.
[60]
However, where the Supreme Court of Appeal decides a matter as
a court of first instance then reasons should ideally be provided.
An example of such a matter would be an application in terms of
section 17(2)(f)
of the
Superior Courts Act, the
dismissal of which
is appealable to this Court. Where it is clear on the face of
the matter that it engages the jurisdiction
of this Court in terms of
section 167(3)(b) of the Constitution, the President would be
required to provide reasons in support
of the dismissal of the
application. Not only will this enable an unsuccessful party to
make an “informed decision”
on whether to appeal against
the decision and the grounds on which to do so, but as the test for
exceptional circumstances is fact
based, it will also assist this
Court in determining whether the order of the President is correct or
not. Importantly, in
this regard, in some cases a singular fact
may meet the test of exceptionality, and in others it may be a host
of facts viewed
cumulatively.
[61]
It is, however, conceivable that not all decisions made in
terms of
section 17(2)(f)
of the
Superior Courts Act will
engage
the jurisdiction of this Court. In matters where no
constitutional issue is discernible, and they do not raise an
arguable point of law of general public importance nor demonstrate
that without leave a grave injustice may result, providing reasons
for refusing the application may be dispensed with.
[62]
As already held, the current application for leave to appeal
engages the jurisdiction of this Court as the issues for
determination
involve the interpretation of
section 17(2)(f)
of
the
Superior Courts Act as
well as the applicants’ fair trial
rights of appeal and to adduce and challenge evidence. The
President was, therefore,
obliged to provide reasons for dismissing
the applicants’
section 17(2)(f)
application. The
duty to do so is enhanced in a matter such as this one, where the
referral for reconsideration is sought
on the basis of new evidence
that came to light only after leave to appeal to the Supreme Court of
Appeal had been refused. Significantly,
in this regard, the
evidence of Mr Arries’ recantation had never been before a
trial court and if it was to be rejected,
then reasons ought to have
been given.
[63]
The duty to provide full reasons was moreover pressing in this
matter because the President’s refusal to allow the
reconsideration
infringed upon the fair trial rights of the
applicants. Principally for these reasons, I find that the President
erred in failing
to provide reasons for dismissing the applicants’
section 17(2)(f)
application.
Application to
adduce new evidence
[64]
As indicated, the exercise of the President’s discretion
to decide whether or not to refer a decision refusing leave to appeal
must be preceded by an enquiry into the presence of exceptional
circumstances. The onus is on the applicant to show that
exceptional circumstances are present warranting a referral for
reconsideration. Once exceptional circumstances are found
to be
present, then the exercise of the President’s discretion must
be guided by what the interests of justice require.
Central,
though not decisive, to that enquiry is whether there is a reasonable
prospect of leave being granted on reconsideration
by the Supreme
Court of Appeal.
[65]
However, in an application such as this one, where the primary
objective of referring the decision refusing leave to appeal for
reconsideration is to obtain leave of the Supreme Court of Appeal
(sitting in reconsideration) to lead new evidence in the trial
court,
the applicant would in addition need to satisfy the President, on
proper grounds, that there is a reasonable prospect that its
application to adduce new evidence will succeed.
[56]
In other words, there must be a realistic prospect of its application
to adduce new evidence succeeding as well.
[57]
[66]
The
Supreme Court of Appeal sitting in reconsideration of
a
decision refusing leave to appeal that was referred to it, in terms
of
section 17(2)(f)
of the
Superior Courts Act, has
jurisdiction in terms of that subsection to consider an application,
brought in terms of
section 316(5)(a)
[58]
of the Criminal Procedure Act, to adduce further evidence.
[59]
In terms of section 316(13)(d) of the Criminal Procedure Act, the
Supreme Court of Appeal may grant or refuse
the
application, and if the application is granted it 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 section 316(5)(c).
[60]
[67]
It is
established law that it is in the interests of finality that once
issues of fact have been adjudicated upon by a court, the
power to
remit a matter to a trial court to hear new or further evidence
should be exercised sparingly and only when there are
special or
exceptional circumstances.
[61]
This principle was confirmed in
Liesching I
when this
Court stated:
“Our courts have always been reluctant to reopen trials in
order to receive further evidence. 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.’
[62]
”
[63]
[68]
The
possibility of fabrication of the testimony after conviction, and the
possibility that witnesses may be induced to retract or
recant
testimony already given are valid concerns, which generally weigh
against the exercise of the power of remittal.
[64]
The mere fact that the witness has since recanted the testimony which
he gave at the trial will not normally warrant the
re-opening of a
finalised trial.
[65]
It is therefore only in exceptional circumstances
-
and only if certain basic requirements are met – that a court
will set aside a conviction and re-open a trial to enable further
evidence to be led. These requirements, which are conveniently
summarised in
S v De Jager
are:
“(a) There should be some reasonably sufficient explanation,
based on allegations which may be true, why the evidence which
it is
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.”
[66]
[69]
An
applicant seeking a remittal to the trial court for the consideration
of new evidence, after the facts have been judicially pronounced
upon, bears the onus to demonstrate that the new evidence sought to
be adduced satisfies the
De Jager
requirements.
Although a failure to meet any one of these requirements will
generally result in the dismissal of the application
to adduce
further evidence, the court in the exercise of its overall discretion
may, nevertheless, in exceptional circumstances,
grant the
application for remittal to the trial court to receive that
evidence.
[67]
[70]
For instance, in an appeal against a conviction of murder,
accompanied by an application to lead further evidence, the Appellate
Division in
Njaba
held that there were exceptional
circumstances entitling it to grant the application to lead further
evidence, even though it considered
the appellant’s explanation
not to be sufficiently reasonable.
[68]
Here the accused was in prison at the time of the commission of the
offence. The accused had given no evidence and
only brought
this fact to light when asked, after conviction, why the sentence of
death should not be imposed.
[69]
The Appellate Division considered this to be an exceptional
circumstance that warranted the re-opening of the trial to hear
further evidence.
[70]
[71]
Though mindful of the policy considerations of finality and
certainty in criminal proceedings that underlie the requirements for
adducing further evidence on remittal, this Court emphasised the need
to balance those considerations against other equally meritorious
considerations for the attainment of a just outcome, when it said
this in
Liesching I
:
“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.’”
[71]
(Footnotes omitted.)
Prospects of
success in the application to adduce new evidence
[72]
In order to satisfy the President, on proper grounds, that
there is a reasonable prospect that their application to adduce new
evidence
will succeed, the applicants are required to demonstrate
that the new evidence meets the requirements of the
De Jager
test for the re-opening of the trial in the High Court to lead that
evidence, and that there are exceptional circumstances for
doing so.
[73]
In relation to the first requirement, it would seem that the
applicants have provided a reasonably sufficient explanation, based
on allegations which may be true, why the evidence which they seek
leave to adduce on the re-opening of the trial, was not led
at their
trial in the High Court. It is common cause that the new
evidence did not exist at the time of the applicants’
trial.
Mr Saimons’ trial was conducted nearly two years after their
trial. By this time their application to
the
Supreme Court of Appeal for leave to appeal against
conviction had already been dismissed. The new evidence
only
came to the attention of the applicants’ legal representative
approximately six months after their application for leave
to appeal
was refused by the Supreme Court of Appeal. Taking
this into consideration, I would think that there
is a realistic
prospect that the applicants will succeed in meeting this requirement
in the application to adduce new evidence
before the Supreme Court of
Appeal.
[74]
In
relation to the “prima facie likelihood of the truth of the
evidence”, there remains uncertainty on the “required
degree of likelihood” that must be shown by an applicant for
the evidence to be accepted as true.
[72]
In
Van
Heerden
, which preceded
De
Jager
,
the standard that the court endorsed was that laid down in
Ladd v
Marshall
[73]
where that court held that “the evidence must be such as is
presumably to be believed, or in other words, it must be apparently
credible, although it need not be incontrovertible”.
[74]
[75]
Almost two decades later, in
S v Lehnberg,
[75]
the court held that “[n]ot only must further evidence be
available but it must be shown that it is evidence which ‘would
presumably be accepted as true’”. This, the court
took to mean, “no more than that there should be a prima
facie
likelihood of the truth of the evidence”. A few years
later in
R v Loubscher
[76]
the court required that “the evidence might be accepted as
true”. That was understood to mean that the documentary
evidence sought to be adduced must be prima facie true.
[76]
The varying approaches adopted by our courts since that period
are chronicled in
S v Naidoo
[77]
as follows:
“In a recent Appellate Division decision –
Loomcraft
Fabrics CC v Nedbank Ltd
[1995] ZASCA 127
;
1996 (1) SA 812
(A) – Scott AJA
(as he then was) drew attention to the slightly different formulation
by Vivier JA in
Staatspresident en ’n Ander v Lefuo
[1990] ZASCA 6
;
1990
(2) SA 679
(A). Vivier JA had rendered ‘
prima facie
likelihood’ as ‘moet dit waarskynlik die uitslag van die
saak kan verander’. Scott AJA went on to say at
825C:
‘The
apparent difference between the second requirement in Holmes JA’s
formulation [
De Jager
] and the third requirement in that of
Vivier JA is of no real consequence. (The other two are
essentially the same.)
Whether there is a
prima facie
likelihood of the evidence being the truth or whether it is probable
that the evidence will result in the outcome being changed
amounts in
effect to the same enquiry. If there is no
prima facie
likelihood of the evidence being the truth it must follow that it is
improbable that the evidence will cause the result to be altered.’
In a later decision –
S v H
1998 (1) SACR 260
(SCA) at
263 – Smallberger JA said that:
‘Although
the “prima facie likelihood” test has been regularly
applied, there remains some uncertainty as to its
precise juristic
connotation. Does it require some degree of probability that
the evidence in question will be accepted as
true, or will a
reasonable possibility of the evidence being so suffice? . . .
In
the
Loomcraft Fabrics
case . . . it was said that whether
there is a
prima facie
likelihood of the evidence being the
truth or whether it is probable that the evidence will result in the
outcome being changed
. . . amounts in effect to the
same enquiry. The view I take of the present matter makes it
unnecessary for
me to decide whether the
prima facie
likelihood test requires some degree of probability, or merely a
reasonable possibility, for it to be satisfied.’
Smallberger JA referred to the decision of Marais AJ (as he then was)
in
S v Steyn
1981 (4) SA 385
(C), in coming to this view.
In Steyn’s case it was pointed out that if Holmes JA had
literally intended to mean that
a
prima facie
likelihood (or
probability) of the truth of the evidence was required, then this
would have meant that the Appeal Court had ignored
one of its
previous decisions. The reason for this was that in 1952 the
Appeal Court held in
Diale v R
1953 (1) PH H12 (A) that:
‘It
seems to me that before this Court would be justified in exercising
its right to remit the case for further evidence,
it must, at the
least, be satisfied that there is a reasonable prospect that the
appellant will be able to establish the facts
which he proposes to
prove.’
After dealing with other authority Marais AJ observed (at 391F),
‘Maar
presies wat hierdie woorde (prima facie likelihood) behels, is, sover
ek kon vasstel, nog nie verduidelik nie.’
In
S v H
, as I have pointed out, the matter was again left
open.”
[78]
The court in
S v
Naidoo
ultimately applied the test laid down in
Diale v R
–
“whether there is a reasonable prospect that the
appellant will be able to establish the facts which he proposes”.
[79]
[77]
More recently, the Supreme Court of Appeal, in a series of
cases including
S v
Wilmot
[80]
and
Nkomo v S,
[81]
applied the “reasonable possibility standard” in
determining whether the further evidence satisfied the prima facie
likelihood of the truth requirement. In
Nkomo
the
complainant had testified in the trial court that the appellant had
raped her. He was convicted of rape and sentenced
to 15 years
imprisonment. The complainant thereafter wrote a letter in
which she recanted the testimony she had given in
the trial court.
She handed the letter to a police officer at the local police
station, who then informed the appellant of
it. On appeal, the
Supreme Court of Appeal set aside the conviction and sentence,
and remitted the matter to the trial
court for the hearing of the
further evidence. As relating to the prima facie likelihood of
the truth of the contents of
the complainant’s letter, it
stated that it was satisfied that there was a reasonable possibility
of the contents of the
letter being true because:
“[H]aving regard to the contents of the complainant’s
letter, the manner in which it was written, how it came into
the
possession of the appellant and the prima facie likelihood of the
truth of its contents, I am of the view that there are exceptional
circumstances which justify the re-opening of the case and the
leading of the evidence.”
[82]
[78]
The “reasonable possibility standard” is the
standard currently applied by the Supreme Court of Appeal in deciding
whether
the second requirement of the
De Jager
test for
the re-opening of a trial to lead new evidence is met. I
consider this standard to be the correct one, as—
“an accused cannot be expected to satisfy the court that the
new evidence will probably be accepted
-
not even where the onus of proof rests upon the accused. It would be
unrealistic and unfair to expect an accused to show that the
fresh
evidence will probably be accepted, since it would seldom be possible
to persuade a court that evidence in an affidavit which
had not been
subject to cross-examination will probably be preferred to viva voce
evidence which had been led at the trial. All
that is required
is a reasonable possibility that the evidence will be accepted as
true.”
[83]
[79]
The President’s remit, in so far as the application to
adduce the new evidence is concerned, would be to satisfy herself
that
there is a reasonable prospect that the applicants will succeed
in demonstrating to the Court, sitting in reconsideration of the
application for leave to appeal, that the new evidence will meet the
three
De Jager
requirements for the re-opening of the
trial, and that there are exceptional circumstances for doing so.
The onus on the applicant
to show the presence of exceptional
circumstances in the application to adduce new evidence will
generally overlap with the overall
onus to show those circumstances
in
section 17(2)(f)
of the
Superior Courts Act.
[80
]
Do the applicants have a reasonable prospect of meeting these
two latter
De Jager
requirements? During argument,
counsel for the state urged this Court toward a finding that because
Mr Arries is a self-confessed
liar, his evidence in the Saimons’
trial cannot be accepted as credible. In support for this
contention he relied on
Van Heerden
where the Appellate
Division held:
“I can see no reason why the court should accept at their face
value affidavits made by persons who allege therein that they
gave
perjured evidence at the trial. In this context I may refer to
the case of
Ladd v Marshall
,
1954 (3) A.E.R. 745.
In
that case an application was made on appeal for leave to call a
witness who stated on affidavit that she had given false
evidence at
the trial of the case because she was afraid of her husband and other
members of the family. At p. 748 Denning,
LJ, set forth the
principles to be applied in an application for a new trial when fresh
evidence is sought to be introduced.
The third principle he
stated as follows:
‘The
evidence must be such as is presumably to be believed, or in other
words, it must be apparently credible, although it
need not be
incontrovertible.’
Continuing the learned Lord Justice said:
‘We
have to apply those principles to the case where a witness comes and
says: “I told a lie but nevertheless I now
want to tell the
truth”. It seems to me that the fresh evidence of such a
person will not as a rule satisfy the third
condition. A
confessed liar cannot usually be accepted as credible. To
justify the reception of the fresh evidence,
some good reason must be
shown why a lie was told in the first instance, and good ground given
for thinking the witness will tell
the truth on the second occasion.
If it were proved that the witness had been bribed or coerced into
telling a lie at the
trial, and was now anxious to tell the truth,
that would, I think, be a ground for a new trial, and it would be
necessary to resort
to an action to set aside the judgment on the
ground of fraud.’ . . .
To accept at their face value affidavits made by material witnesses
who allege therein that they knowingly gave false evidence
at the
trial would leave the door wide open to corruption and fraud.
It is not in the interests of the proper administration
of justice
that further evidence should be allowed on appeal or that there
should be a re-trial for the purpose of hearing that
further
evidence, when the only further evidence is that contained in
affidavit made after trial and conviction by persons who
recanted the
evidence they gave at the trial. To allow such further evidence
would encourage unscrupulous persons to exert
by means of threats,
bribery or otherwise undue pressure on witnesses to recant the
evidence. In a matter such as this the
Court must be extremely
careful not to do anything which may lead to serious abuses in the
administration of justice.”
[84]
[81]
Accordingly, the Court in
Van Heerden
concluded that it
is not in the interests of the proper administration of justice that
further evidence should be allowed on appeal,
or that there should be
a retrial for the purpose of hearing that further evidence, when the
only further evidence is that contained
in affidavits made after
trial and conviction, by persons who recanted the evidence they gave
at the trial, and there is no fresh
evidence
aliunde
(from
a different place)
to decide whether to admit affidavit
evidence of the two witnesses.
[85]
[82]
Van Heerden
is distinguishable from the present case
because the further evidence sought to be adduced does not involve a
mere recantation
by way of an affidavit. The further evidence
sought to be adduced here is that of a witness who, in a subsequent
trial of
a co-accused, recanted the testimony that the trial court
relied on to convict the accused. As a result of recanting his
testimony in the Saimons’ trial, the state declared Mr Arries a
hostile witness and cross-examined him. The essence
of
Mr Arries’ recantation was that he did not see who killed
the deceased because he had run away when the shooting
started.
He said that he was induced into testifying against the applicants by
an investigator, whom he knew only by the
name of Mr Maringa, in
exchange for assisting him on his housebreaking charge.
[83]
Despite the assertion that the investigating officer in the
applicants’ trial was a Mr Nzama and not Mr Maringa, the state
failed to call either of them to refute the allegations that
Mr Arries made against Mr Maringa in the Saimons’ trial.
So, at the close of the state’s case there was evidence from
neither Mr Nzama nor Mr Maringa to explain which
of
them had taken Mr Arries’ statement, whether there was any
truth to the allegation that Mr Maringa had induced Mr
Arries, in
exchange for assisting him with his housebreaking charge, to falsely
identify the applicants as having murdered the
deceased, and the
steps, if any, that were taken, at the time, to ensure that no false
evidence was given at the trial. Nor
did the state file an
affidavit in this application, or in the
section 17(2)(f)
application
denying the allegations made by Mr Arries in recanting his
earlier evidence.
[84]
This notwithstanding, the state argued, at the hearing, that
the investigating officers and other police officials had no special
relationship with Mr Arries and Mr Abrahams, which could
have caused them to induce either one or both of them to secure
the
conviction of the applicants. To accept this submission without
more, in my view, will be tantamount to engaging in conjecture,
which
our courts have repeatedly cautioned against in the absence of
supporting evidence.
[86]
[85]
I am also mindful of the concern raised, that because Mr
Saimons was serving his sentence in the same prison as Mr Arries, at
the
time of his recantation in the Saimons’ trial, that makes
for the pungent possibility that Mr Arries was “got to”
in the prison network. Although this would generally weigh
against the exercise of the power of remittal, without a factual
basis (save for being in the same prison) to support the suspicion
that Mr Arries was induced by Mr Saimons to recant his testimony,
and
without providing the applicants with an opportunity to respond to
these allegations, the Court would simply be engaging in
conjecture.
[86]
On the state’s version, Mr Nzama was the lead
investigator in both the applicants’ trial and the Saimons’
trial.
It can be safely assumed that he would have been aware
that Mr Arries would be called to testify in the latter trial as
well, and
would have taken the necessary precautions to ensure
against the risk of Mr Arries being induced to recant by Mr Saimons.
One would therefore have expected Mr Nzama to state on
affidavit, that despite the steps taken to ensure against the risk
of
this happening, Mr Arries was nonetheless “got to” by Mr
Saimons.
[87]
In the absence of any countervailing evidence from the state
in the Saimons’ trial, Mr Arries’ evidence stood
uncontroverted
and it formed the basis of Mr Saimons’
section 174
discharge in that trial. Thus, in the circumstances
where the state was supine and took no steps to refute Mr Arries’
recantation evidence, it is inappropriate for the state to insist
that the recantation be confirmed by an independent third person,
as
was required in
Van Heerden.
[88]
As already indicated,
Van Heerden
is in any event
distinguishable from this matter. There, the state opposed the
application for leave to call further evidence
on appeal, and filed
an affidavit deposed to by the accomplice denying the allegations
made against him by his wife and the third
witness. The state
also filed affidavits deposed to by the detectives setting out, at
great length, the steps taken to ensure
that no false evidence would
be given at the trial.
[87]
[89]
At the close of the state’s case in the Saimons’
trial, only Mr Arries and Sergeant Chris Van Wyk, the
investigating
officer, had testified. The transcript of
Sergeant Van Wyk’s testimony, in the Saimons’ trial, is
not before
this Court. The transcript of Mr Arries’
evidence in that trial, however, reveals that the defence had put to
Mr Arries,
in cross-examination, the following aspect of Sergeant Van
Wyk’s testimony from the day before:
“Do you know Sergeant Van Wyk? —Yes, I do know Mr Van
Wyk.
Mr Van Wyk came to court yesterday and testified that he is the one
who attended the scene of crime in November 2011 and he informed
the
court that he interviewed some few young guys, young gentlemen who
were at the scene at that particular day and those gentlemen
told him
that when the shooting started they all ran away.
Were you present at that stage? — I was one of, I was part of
the people that ran away but I did not see Mr Van Wyk that
day. I
only spoke to Mr Maringa the next day. At that time I was still
working.”
Mr Arries responded
by stating that he did not see Sergeant Van Wyk on the day of the
incident, but he was “one of the people
who ran away when the
shooting started”. Crucially, on this aspect, Sergeant
Van Wyk’s version that was put to
Mr Arries by the defence
lends support to Mr Arries’ recanted testimony that neither he
nor Mr Abrahams, nor Mr Swiegers
had seen who killed the
deceased as they had run away when the shooting started.
[90]
The state closed its case against Mr Saimons without calling
Constable Nzama, Sergeant Maringa, Mr Abrahams and Sergeant Van Wyk.
The testimony of these individuals was vital for the state to secure
the conviction of Mr Saimons. This omission, coupled
with its
failure to file an affidavit in this Court and in the Supreme Court
of Appeal, denying that Mr Maringa induced Messrs
Arries, Abrahams
and Swiegers to give false evidence against the applicants, suggests
that there may be more than meets the eye
in relation to the state’s
failure to call them to testify in the Saimons’ trial.
[91]
For these reasons, I believe that there is a reasonable
prospect of the Supreme Court of Appeal finding that there is a
reasonable
possibility of Mr Arries’ recantation being
true.
[92]
However, before taking a decision to admit further evidence of
a witness’ recantation, the court in an application to adduce
further evidence of a witness’ recantation, would have to also
be satisfied that the evidence given at the trial was false
and that
the conviction was obtained on false evidence.
[88]
[93]
In its assessment of the evidence of the three witnesses, the
High Court found Mr Arries to be a credible witness. It held
that Mr Arries’ contradictions were not material, and were
largely corroborated by Mr Abrahams and Mr Swiegers in that—
“all three witnesses describe seeing a black or dark blue Polo;
all of them agreed that it was [Mr Malgas] who was the driver
and
that [Mr Liesching] was in the passenger seat. [Mr
Swartz] was a passenger in the back seat of the Polo.”
It noted that
Mr Arries made a good impression as a witness; he didn’t
hide anything and conceded when he made mistakes.
And though
there were contradictions in Messrs Arries’ and Abrahams’
evidence, they did not affect Mr Arries’
credibility as a
witness. The High Court also found Mr Abrahams to be a
credible witness.
[94]
This
Court held in
Makate
[89]
that appeal courts are generally reluctant to interfere with factual
findings made by trial courts, more particularly if the factual
findings depended upon the credibility of the witnesses who testified
at the trial.
[90]
It, however, cautioned that:
“[E]ven in the appeal the deference afforded to a trial court’s
credibility findings must not be overstated. If it
emerges from the
record that the trial court misdirected itself on the facts or that
it came to a wrong conclusion, the appellate
court is duty bound to
overrule factual findings of the trial court so as to do justice to
the case. In
Bernert
this Court affirmed:
‘What
must be stressed here, is the point that has been repeatedly made.
The principle that an appellate court will
not ordinarily
interfere with a factual finding by a trial court is not an
inflexible rule. . . . It should be used to assist,
and not to
hamper, an appellate court to do justice to the case before it. Thus,
where there is a misdirection on the facts by
the trial court, the
appellate court is entitled to disregard the findings on facts, and
come to its own conclusion on the facts
as they appear on the record.
Similarly, where the appellate court is convinced that the
conclusion reached by the trial
court is clearly wrong, it will
reverse it.’”
[91]
[95]
The credibility findings of the High Court are open to
question as there appear to be material contradictions between
Mr Arries’
oral evidence and his police statement, and
between his oral evidence and that of Mr Abrahams and Mr Swiegers.
All three
of them appear to have contradicted each other in relation
to the following fundamental issues in the applicants’ trial:
(a) Whether all four applicants were occupants of the motor vehicle
from where the shots that killed the deceased were fired.
(b) Whether “Atter” and Mr Swart had stepped out of the
motor vehicle and fired gunshots at the deceased, while he
lay on the
pavement.
(c) Was Mr Liesching the only occupant of the motor vehicle who fired
gunshots at the deceased from inside the motor vehicle, or
did
Mr Malgas do so as well?
(d) Did “Atter” and Mr Swartz step out of the car and
fire gunshots at the deceased as well? Or was it “Atter”
and Mr Malgas or “Atter” alone who did so? Or
could it have been Mr Liesching and Mr Swartz?
(e) Did Mr Abrahams know “Atter” and should he have been
able to identify “Atter” as the fourth occupant
of the
motor vehicle?
(f) Did Mr Liesching fire shots into the yard where Mr Arries
was standing as the motor vehicle drove away from the scene?
(g) Were Mr Arries and Mr Swiegers already in the yard when Mr
Abrahams and Mr Campbell ran in?
[96]
Two witnesses seldom give identical accounts of the same
incident, so not all errors or contradictions between their evidence
will
affect their credibility.
[92]
However, where there are numerous material contradictions in
their evidence, that would unquestionably affect their credibility.
Although all three witnesses were purportedly at the scene of the
deceased’s murder, their testimony on what occurred appears
to
be contradictory in material respects. In the circumstances, I
am of the view that there is a realistic prospect of the
Supreme
Court of Appeal concluding that the contradictions had materially
impacted upon the truthfulness of the evidence of both
Mr Arries
and Mr Abrahams.
[97]
Mr Arries testified in the Saimons’ trial that he did
not see who was in the car and who shot the deceased, because when
the
shooting started he ran into the yard and to the back of their
house, where he could not see what was happening in the front. In
comparison to Mr Arries’ testimony in the applicants’
trial, his testimony in the Saimons’ trial appears to be
plausible and consistent with Sergeant Van Wyk’s testimony,
which the defence had put to Mr Arries in cross-examination.
I
am, therefore, of the view that there is a reasonable prospect that
the Supreme Court of Appeal may find that there is
a reasonable
possibility that Mr Arries’ recanted testimony is prima facie
true.
[98]
In addition to contradicting Mr Arries’ evidence in
material respects, Mr Abrahams’ evidence appears to be
implausible
in numerous other respects. This includes his
evidence relating to, his failure to provide a statement to the
police immediately
after the deceased’s murder and, his belief
that he, and not the deceased, was the real target. In the
light of this,
I am of the view that there is a reasonable prospect
that the testimony which Mr Abrahams gave against the applicants in
the High
Court may be rendered unreliable in further
cross-examination by the defence on remittal to the High Court.
Thus, whatever
the outcome of any future cross-examination on the
veracity of Mr Abrahams’ version, it would seem that his
evidence as a
single witness would not be sufficient to sustain a
conviction against the applicants.
[99]
Accordingly, I am of the view that there is a reasonable
prospect of the Supreme Court of Appeal finding on reconsideration,
that
it is probable that the new evidence will result in a materially
different outcome of the applicants’ trial in the High Court–
as the new evidence has a direct bearing on the truthfulness of both
Mr Abrahams and Mr Arries’ testimonies, which
were
instrumental in sustaining the applicants’ convictions.
Were there
exceptional circumstances?
[100]
Prior to the new evidence of Mr Arries’ recantation
coming to the attention of the applicants, the Supreme Court of
Appeal
had already dismissed their application for leave to appeal on
conviction. That this evidence exists, and may ultimately show
that the applicants’ convictions and sentence of imprisonment
for life was based on the evidence of a state witness who committed
perjury (and may have been encouraged to do so by members of the
South African Police Service acting in breach of their constitutional
duties) would, in my view, constitute an exceptional circumstance as
contemplated in
section 17(2)(f)
of the
Superior Courts Act.
[101
]
The objective of
section 17(2)
is to provide a “safety
net” to prevent a grave injustice. The discovery of
reliable evidence, which may have
a bearing on the innocence of a
convicted person serving life imprisonment would, to my mind, be one
of the most compelling motivations
for the President to exercise her
discretion, under
section 17(2)(f)
of the
Superior Courts Act, in
favour of referring a decision refusing leave to appeal to the Court
for reconsideration. More especially where, as in this
case,
Mr Saimons, a co-accused, was acquitted, subsequent to
Mr Arries’ recantation, of the very same charges for
which
the applicants were convicted and are serving a sentence of life
imprisonment. And there is no other legal avenue save
through
the
section 17(2)(f)
process to ensure that the decision refusing the
applicants leave to appeal is reconsidered in the light of the new
evidence.
[102]
The failure to refer such a decision for reconsideration will
surely result in a grave injustice to the applicants as they will be
barred from placing this evidence before the Supreme Court of Appeal
in reconsideration of their application for leave to appeal
on
conviction, in circumstances where that Court could not have known of
the new evidence when it refused the applicants’
application
for leave to appeal. Without a reconsideration of their
application for leave to appeal in light of the new evidence,
the
applicants’ fair trial rights of appeal and, to challenge and
adduce evidence will be violated, as they will be precluded
from the
opportunity of adducing the new evidence and challenging the evidence
previously led by the state.
[103]
There are, in my view, exceptional circumstances arising from
the new evidence of Mr Arries’ recantation which, if ultimately
found to be true by the High Court on re opening of the
applicants’ trial to receive such evidence, could result
in a
material change to its outcome. These circumstances, in my
view, warrant a referral of the decision, refusing leave
to appeal to
the Supreme Court of Appeal for reconsideration
-
as a means of preventing an injustice. New evidence that has a
reasonable prospect of meeting the
De Jager
test for the
re-opening of a trial and that only comes to light after leave to
appeal is refused by the Supreme Court of Appeal
would, by its very
nature, constitute an exceptional circumstance as required by
section
17(2)(f)
of the
Superior Courts Act.
[104
]
In the circumstances, I find that the President committed a
misdirection in law and fact by dismissing the condonation
application
(as there was none before her) and the applicants’
section 17(2)(f)
application on the basis that no exceptional
circumstances were present. This justifies interference with
the order made.
Relief
[105]
A finding that exceptional circumstances are present is a
pre-condition for the exercise of the President’s discretion
under
section 17(2)(f)
of the
Superior Courts Act.
The
President did not exercise her discretion as she dismissed the
applicants’
section 17(2)(f)
application for the absence of
exceptional circumstances.
[106]
In the light of the misdirection, what should the appropriate
order be?
[107]
The applicants submit that in view of the failure of the
President to grant them the relief sought on two occasions, it would
be
appropriate for this Court to remit the matter to the High Court
to receive and hear the new evidence. The relief sought is
not
competent because it seeks to bypass the Supreme Court of Appeal,
which refused the applicants’ application for leave
to appeal
and would, pursuant to a referral in terms of
section 17(2)(f)
, be
required to reconsider it.
[108]
In the normal course, where the President has not exercised
her discretion, the appropriate relief would be to remit the
section
17(2)(f)
application to her for the exercise of her discretion in the
light of the exceptional circumstances present. This is the
relief that this Court ordered in
Liesching
I
.
[93]
But taking into account the numerous delays in finalising the
applicants’
section 17(2)(f)
application, would that be just
and equitable? The answer is simply, no.
[109]
Should the applicants’ application to adduce new
evidence on reconsideration by the Supreme Court of Appeal succeed,
the trial
in the High Court would be re-opened for the applicants to
test the veracity of the new evidence, by recalling Mr Arries,
Mr Abrahams and Sergeant Van Wyk.
[110]
The applicants’ trial in the High Court was finalised
more than five years ago in 2012. The applicants’ initial
section 17(2)(f)
application was dismissed by the President over
three years ago, in December 2014. They then came on appeal to
this Court.
The appeal was upheld and the application was
remitted to the President for reconsideration on 15 November
2016. More
than a year has elapsed from the President’s
dismissal of that application to the finalisation of the present
application.
[111]
In terms of section 172(1)(b) of the Constitution, this
Court “may make any order that is just and equitable”.
[94]
This power is sufficiently wide and flexible to allow the Court
to substitute its decision for that of the President under
section 17(2)(f)
of the
Superior Courts Act, if
it is just and
equitable to do so. Taking into consideration the delay from
the date of finalisation of the trial to the
current application, and
that the President had twice dismissed the applicants’
section 17(2)(f)
application, I consider it just and equitable
in the exercise of our wide remedial powers, under section 172(1)(b)
of the
Constitution, to substitute our decision for that of the
President, under
section 17(2)(f)
of the
Superior Courts Act, to
refer the decision refusing leave to appeal to the Supreme Court of
Appeal for reconsideration.
[112]
Exceptional circumstances are present. A referral of the
decision refusing the applicants leave to appeal for reconsideration
is warranted. But, is it in the interests of justice to do so?
The relevant factors for consideration in that assessment
are
these:
(a) the prospects of success of the applicants’ application to
adduce new evidence before the Supreme Court of Appeal as
part of its
reconsideration of their application for leave to appeal;
(b) the denial of the applicants’ fair trial rights of appeal
and to challenge and adduce evidence;
(c) the dictates of fairness; and
(d) the public interest in having all evidence bearing on the
applicants’ innocence and guilt placed before the Supreme Court
of Appeal, in reconsideration of the application for leave to appeal,
as a means of preventing an injustice to the applicants as
well as to
the state.
[113]
Guided by these considerations, I consider it to be in the
overall interests of justice for this Court to refer the decision of
the Supreme Court of Appeal, refusing the applicants leave to appeal,
back to it for reconsideration.
[114]
It is important to bear in mind that success in this appeal
does not guarantee the applicants an acquittal. It only
guarantees
that the Supreme Court of Appeal will reconsider
its refusal of the applicants’ application for leave to appeal
against the High Court’s order of conviction and sentence.
Whether the applicants’ trial is re -opened
for the
High Court to receive and hear the new evidence will depend on
whether the Supreme Court of Appeal is satisfied that this
evidence
meets the
De Jager
test.
[115]
For these reasons, the appeal should succeed.
Order
[116]
In the result, I would have made the following order:
1. Leave to appeal is granted.
2. Condonation is granted for the late filing of the respondent’s
written submissions.
3. The appeal is upheld.
4. The order made by the President of the Supreme Court of Appeal is
set aside.
5. The decision of the Supreme Court of Appeal dated 6 November 2013
(SCA case number 778/2013) dismissing the applicants’
application for leave to appeal is referred to that Court for
reconsideration and, if necessary, variation in terms of
section
17(2)(f)
of the
Superior Courts Act 10 of 2013
.
6. This judgment is to be brought to the attention of the President
of the Supreme Court of Appeal in order for her to issue directions
to the applicants on the lodging of the relevant applications with
the Registrar of that Court.
THERON J (Zondo DCJ,
Cameron J, Froneman J, Jafta
J, Kollapen AJ, Madlanga J, Mhlantla J and Zondi AJ concurring)
:
Introduction
[117]
I have read the judgment of
Kathree-Setiloane AJ
(the first
judgment). I cannot agree with the reasoning and conclusion in
the first judgment.
[118]
This is essentially an application
for leave to appeal against an order made by the President pursuant
to
section 17(2)(f)
of the
Superior Courts Act. This
section
confers a discretion on the President to refer a refusal of an
application for leave to appeal to the Supreme Court of
Appeal for
reconsideration, and, if necessary, variation, in circumstances where
an applicant has been denied leave to appeal by
the Supreme Court of
Appeal on petition pursuant to the provisions of
section 17(2)(b).
The President concluded that no exceptional circumstances were shown
to exist as envisaged in that section.
[119]
Briefly stated, the first judgment holds that: (a) the new
evidence constitutes an exceptional circumstance as contemplated in
section 17(2)(f)
; (b) the failure to refer the matter for
reconsideration will result in a grave injustice to the applicants;
and (c) it is just
and equitable for this Court to substitute its
decision for that of the President and to refer the decision refusing
leave to appeal
to the Supreme Court of Appeal for reconsideration.
This judgment finds that the new evidence does not constitute an
exceptional
circumstance and that the application for leave to appeal
should be dismissed.
Issues
[120]
In this Court the applicants
principally seek an order referring the matter back to the High Court
to receive additional evidence
of, among others, Mr Arries and
granting the applicants leave to appeal to the Full Court of the High
Court against their convictions.
In the alternative, the
applicants seek an order setting aside the decision of the President
(dated 21 November 2016) dismissing
their application in terms of
section 17(2)(f)
and referring the matter back to the Supreme Court
of Appeal for reconsideration.
[121]
The applicants argue that the
President misdirected herself in concluding that they had failed to
establish that exceptional circumstances
existed. The
applicants contend that evidence exists to show that their
convictions and sentences of life imprisonment were
based on the
testimony of a witness who committed perjury, allegedly on the
encouragement of certain members of the police.
This, the
applicants argue, constitutes exceptional circumstances.
[122]
The respondent opposes the
application and asserts that not all new evidence will constitute
exceptional circumstances and it is
not in the interests of the
proper administration of justice to lightly re-open and amplify
settled issues of fact. The respondent
further argues that the
recantation does not constitute exceptional circumstances and it
would not, in any event, materially affect
the outcome as the
applicants’ convictions were also on the evidence of another
witness, Mr Marlin Abrahams.
Jurisdiction
and leave to appeal
[123]
The applicants must show that the
matter is a constitutional matter
[95]
or that it raises an arguable point of law of general public
importance,
[96]
in order for this Court’s jurisdiction to be engaged. In
addition, they must demonstrate that it is in the interests
of
justice for leave to appeal to be granted.
[124]
In
Liesching
I
this Court held that it had
jurisdiction because the issue there concerned the interpretation of
legislation and section 39(2) of
the Constitution, which necessitated
an interpretation that promoted the spirit, purport and objects of
the Bill of Rights.
[97]
It also held that the matter raised an arguable point of law of
general public importance which ought to be considered.
[98]
This matter is not on the same footing. What is at issue
is whether this Court has jurisdiction to determine an appeal
against
a decision by the President, in terms of
section 17(2)(f)
of the
Superior Courts Act that
no exceptional circumstances were shown to
exist, as envisaged in that section, to warrant a referral of a
refusal of an application
for leave to appeal to the Supreme Court of
Appeal for reconsideration.
[125]
The parties in this matter assumed
that this Court has jurisdiction to entertain an appeal against the
President’s decision
under
section 17(2)(f)
and the matter
proceeded on this basis. This may be considered an “inadvertent
legal concession” on an issue
of law that is unsettled.
[99]
There is no doubt that the nature and justiciability of such an
appeal requires detailed legal argument and thought. The
issue
is complex and it was not raised on the papers or ventilated at the
hearing.
[126]
Such a conundrum presented itself in
Aurecon
where this Court cautioned that it is undesirable to consider
important legal questions without the benefit of legal argument from
the litigants.
[100]
Mbha AJ, writing for the court added:
“
The benefit of full argument is
indispensable in the decision-making process. I am therefore of
the view that the issue ought
to be left open until the opportunity
properly presents itself. For now, determining the matter
within the strictures of
PAJA, without deciding whether the
litigants’ reliance on it is appropriate, is the way in which
this judgment proceeds.”
[101]
(Footnotes omitted.)
[127]
This Court is in a similar position
to the Court in
Aurecon.
Though it is similarly tempting to attempt to settle the legal
question, it would be inappropriate to do so without the benefit
of
full legal argument from the litigants. Consequently, this
judgment proceeds on the assumption that this Court has jurisdiction
over an appeal to determine the meaning of “exceptional
circumstances” in
section 17(2)(f).
On that assumption, I
now proceed to deal with the meaning of that phrase and then set out
why, in my view, it is not in
the interests of justice to grant leave
to appeal.
The
meaning of exceptional circumstances in the context of
section
17(2)(f)
[128]
Section 17(2)(b)
of the
Superior
Courts Act
[102
]
prescribes the procedure to apply for leave to appeal to the Supreme
Court of Appeal where the High Court has refused to grant
leave to
appeal against a decision by the High Court pursuant to subsection
(2)(a).
[103]
An applicant must file an appeal with the Registrar of the Supreme
Court of Appeal. The application is referred to
two Judges for
consideration. If they disagree, the President may appoint a
third Judge and the decision of the majority
is the decision of the
Court.
[104]
[129]
The application may be disposed of
without the hearing of oral evidence. The Judges may refuse or
grant the application or,
they may refer it to the Court for
consideration.
[105]
If the application is referred to the Court, it may either refuse or
grant the application.
[106]
Subsection (2)(f) provides that the decision to grant or refuse an
application is final, provided that the President may
in exceptional
circumstances, whether of 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.
[130]
The words “exceptional
circumstances” have not been defined in the
Superior Courts
Act. Courts
are enjoined to construe statutes consistently with
the Constitution insofar as the language of the statute
permits.
[107]
Words in a statute must be read in their entire context and given
their ordinary grammatical meaning consistent with the
purpose of the
statute.
[108]
It is also important to note that, in conducting this interpretative
exercise, all statutes must be interpreted through the
prism of and
in order to promote the spirit, purport and object of the Bill of
Rights.
[109]
[131]
The dictionary definition of
“exceptional” must be the starting point of the enquiry.
The Oxford English Dictionary
defines exceptional as “of the
nature of or forming an exception; out of the ordinary course,
unusual, special”.
[110]
[132]
The meaning of the phrase
“exceptional circumstances” has been considered by the
courts on numerous occasions. The
courts have been reluctant to
lay down a general definition as each case is to be considered on its
own facts.
[111]
It has been held that it is neither desirable nor possible to lay
down a precise rule or definition as to what constitutes
exceptional
circumstances.
[112]
The meaning and interpretation given by the courts to the phrase has
been wide ranging.
[113]
Circumstances which may be regarded as “ordinary” in one
matter may be considered “exceptional” in
another.
[114]
Ultimately, it is the function of the presiding officers to determine
whether, on a case by case basis, the circumstances
can be found to
be exceptional.
[133]
In
MV
Ais Mamas
, Thring J undertook a
detailed analysis of the meaning of this phrase with reference to
decided cases and concluded that what emerges
from the case law,
among others, is that what is typically contemplated by the words
“exceptional circumstances” is
something out of the
ordinary, markedly unusual, rare or different, and to which the
general rule does not apply.
[115]
In
Avnit
,
the Supreme Court of Appeal concluded that the “overall
interests of justice will be the determinative feature” for
the
exercise of the President’s discretion.
[116]
[134]
In
Liesching
1
, this Court carefully scrutinised the
meaning of section 17(2)(f) and concluded that the proviso in that
section is very broad,
[117]
and that:
“
It keeps the door of justice ajar in order
to cure errors or mistakes and for the consideration of a
circumstance, which, if it
were 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.”
[118]
[135]
Although there is no case law
dealing directly with the purpose of the exceptional circumstances
requirement under section 17(2)(f),
there is case law dealing with
the requirement in respect of the
Superior Courts Act. In
Ntlemeza
[119]
the Supreme Court of Appeal considered the purpose of
section 18(1)
of the
Superior Courts Act and
the requirement that there be
exceptional circumstances in order to enforce an order pending the
outcome of an appeal, stating:
“
The primary purpose of
section 18(1)
is to
re-iterate the common law position in relation to the ordinary effect
of appeal processes – the suspension of the order
being
appealed, not to nullify it. It was designed to protect the
rights of litigants who find themselves in the position
of General
Ntlemeza, by ensuring that, in the ordinary course, the orders
granted against them are suspended while they are in
the process of
attempting, by way of the appeal process, to have them overturned. .
. .
Section 18(1)
also sets the basis for when the power
to depart from the default position comes into play, namely,
exceptional circumstances which
must be read in conjunction with the
further requirements set by
section 18(3).
”
[120]
[136]
As with
section 18(1)
,
section
17(2)(f)
prescribes a departure from the ordinary course of an appeal
process. Under
section 17
, in the ordinary course, the decision
of two or more Judges refusing leave to appeal is final.
However,
section 17(2)(f)
allows for a litigant to depart from this
normal course, in exceptional circumstances only, and apply to the
President for reconsideration
of the refusal of leave to appeal.
[137]
In
Ntlemeza
,
the requirement of exceptional circumstances is viewed as a
“controlling measure”.
[121]
In terms of
section 17(2)(f)
, the President has a discretion to
deviate from the normal course of appeal proceedings – such
discretion can only be exercised
in exceptional circumstances.
The requirement of the existence of exceptional circumstances before
the President can exercise
her discretion is a jurisdictional fact
which may operate as a controlling or limiting factor.
[138]
Without being exhaustive,
exceptional circumstances, in the context of
section 17(2)(f)
,
and apart from its dictionary meaning, should be linked to either the
probability of grave individual injustice (per
Avnit
)
or a situation where, even if grave individual injustice might not
follow, the administration of justice might be brought into
disrepute
if no reconsideration occurs. A relevant example may be the
kind of situation that occurred in
Van
der Walt
, where “contrary orders
in two cases which were materially identical” were made by the
Supreme Court of Appeal, and
considered in this Court.
[122]
[139]
In summary,
section 17(2)(f)
is not
intended to afford disappointed litigants a further attempt to
procure relief that has already been refused. It is
intended to
enable the President to deal with a situation where otherwise
injustice might result and does not afford litigants
a parallel
appeal process in order to pursue additional bites at the proverbial
appeal cherry.
Interests
of justice
[140]
The President exercises a discretion
in deciding whether a matter should be referred for reconsideration.
The scope of an
appeal court’s ability and willingness to
interfere with the decision of a lower court
[123]
is determined by the kind of discretion the lower court is
exercising.
[124]
If it is a true discretion, interference is justified only if the
discretion was not exercised judicially; if it was exercised
capriciously or upon a wrong principle; if the decision maker did not
bring an unbiased judgment to bear on the question; or did
not act
for substantial reasons.
[125]
[141]
In my view the discretionary powers
conferred on the President in
section 17(2)(f)
is a discretion
in the “true” sense, as discussed by Khampepe J in
Trencon
:
“
A discretion in the true sense is found
where the lower court has a wide range of equally permissible options
available to it. This
type of discretion has been found by this
Court in many
instances
, including matters
of costs, damages and in the award of a remedy in terms of section 35
of the Restitution of Land Rights Act.
It is ‘true’
in that the lower court has an election of which option it will apply
and any option can never be said
to be wrong as each is entirely
permissible.”
[126]
[142]
Where a lower court exercises a
discretion in the true sense, an appellate court should be slow to
substitute its “discretion”
for that of the lower
court.
[127]
In
Trencon
,
Khampepe J cautioned that in such an instance, it would ordinarily be
inappropriate for an appellate court to interfere unless
it is
satisfied that it has good grounds to do so.
[128]
[143]
In the approach I take to this
matter, the President has not yet exercised her discretion. However,
and having regard to the
nature of the President’s discretion,
it would be required that an applicant demonstrates why, even if this
Court has jurisdiction
over a section 17(2)(f) appeal, it would be in
the interests of justice for this Court to entertain such an appeal.
Where
there is no discernible basis for interfering with the
exercise of the President’s discretion, it would not be in the
interests
of justice to grant leave to appeal, especially given that
section 17(2)(f) is not intended to afford litigants a further
attempt
to procure relief that has already been refused.
[144]
But even if, somehow, it is
appropriate to go further, there is nothing to show that there are
exceptional circumstances present
in this case.
[145]
The relief sought by the applicants,
on appeal to the Supreme Court of Appeal, is that their convictions
and sentences be set aside
and the case sent back to the High Court
for the hearing of further evidence. The President, in
considering whether
or not there are exceptional circumstances, would
no doubt have had regard to the likelihood of such relief being
granted.
It is trite that such relief will only be granted in
exceptional circumstances. Holmes JA stated the rationale for
this succinctly
in
De Jager
:
“
It 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.”
[129]
[146]
He summarised the three requirements
that need to be met before such an application can succeed:
“
(a) There should be some reasonably
sufficient explanation, based on allegations which may be true, why
the evidence which it is
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.”
[130]
Ordinarily, non-fulfilment of any one of these
requirements would be fatal to the application.
[131]
Both the applicants and the state accepted that
this was the appropriate test for re-opening a criminal trial.
[147]
There is a line of Supreme Court of
Appeal cases cautioning against the admission of recanted
evidence.
[132]
In
Nkomo
the Supreme Court of Appeal observed that:
“
[O]nce issues of fact have been judicially
investigated and pronounced upon, the power to remit a matter to a
trial court to hear
new or further evidence, should be exercised
sparingly and only when there are special or exceptional
circumstances. The
reason for this is the possibility of
fabrication of testimony after conviction and the possibility that
witnesses may be induced
to retract or recant evidence already given
by them.”
[133]
[148]
The first requirement is that there
must be an explanation, based on allegations that may be true, why
the evidence was not led
at the trial.
[134]
The explanation why the evidence was not led at the trial is to
the effect that the applicants only became aware of the allegation
that Mr Arries was coerced by the investigating team to give false
evidence against the applicants in return for certain favours
from
certain members of the police service when he recanted after their
trial had been concluded. The founding affidavit,
deposed to by
the first applicant, and confirmed by the second and third applicants
reads:
“
In Arthur’s trial, [Mr Arries]
testified that he had been arrested for housebreaking. He
further testified that the
investigating officer, whom he knew as
Maringa, had offered to help him with this housebreaking case; if he
testified that he had
seen my co-applicants and I, as being the
occupants of the Polo motor vehicle on the night of the incident. In
particular
[Mr Arries] testified as follows:
‘These
are the names that we, my friend and I who made statements, these are
the names that we received from the detective.
The detective
said we must say these are the people that we saw in the car.’
. . .
Arthur’s trial was conducted nearly two
years after ours; and this evidence was not known to us or our legal
representative
at the time when the matter was first heard by the
Trial Court, or when we petitioned the Supreme Court of Appeal for
the first
time. In the result our explanation for the failure
to adduce the evidence at the initial trial must be conclusive.”
(Footnotes omitted.)
[149]
The first requirement may usually be
satisfied by showing that the further evidence only came to light
after the trial.
[135]
The present matter is peculiar in the sense that the “new
evidence” is the evidence of a self-confessed perjurer.
Mr Arries, on his own version, deliberately gave false evidence at
the applicants’ trial. In such an instance, if it
is
proved that the applicants were not aware that Mr Arries was coerced
into telling a lie at the trial
until the
trial was over, this requirement would, in my view, be satisfied.
[150]
In the view I take of the matter,
the quality of Mr Arries’ recantation is gravely suspect.
First, it is a recantation
without more. He simply said –
at the subsequent Saimons’ trial – that he had earlier
not been speaking
the truth. There is
no
externally verifiable signifier
of
whether he was being truthful at the second trial.
[151]
This does not mean that a
recantation cannot, by itself, constitute exceptional circumstances.
It simply means that it will
not always suffice. Generally,
more will be required – specifically, some external, verifying
indicator or circumstance
showing that the original evidence was
suspect, and that the subsequent recantation is more plausible.
In this matter, Mr
Arries offered a mere repudiation of his previous
testimony. While his testimony in the trial which saw the
applicants convicted
was detailed, his recantation was essentially a
bare denial of having witnessed the shooting: “For the fourth
time, I did
not see anyone shoot, I ran into the yard. How many
times must I tell you that?”
[152]
Second, counsel for the state
submitted during the oral hearing that Mr Arries was, at the
time of the Saimons’ trial,
serving his sentence in the
Boksburg prison where Mr Saimons was also lodged while awaiting
trial. Counsel for the applicants
accepted this fact. It
gives rise to a pungent possibility that Mr Arries was “got to”
through the jail network.
Centlivres CJ in
Van
Heerden
cautions,
“
[t]o
allow such further evidence would encourage unscrupulous persons to
exert by means of threats, bribery or otherwise undue pressure
on
witnesses to recant their evidence”.
[136]
Mr Arries’
recantation reeks of all this.
[153]
Third, the issue which could defeat
a finding of exceptional circumstances is the fact that Mr Arries’
testimony was corroborated
– in materially important respects –
by the equally detailed testimony of Mr Abrahams and this testimony
was not recanted.
Mr Abrahams corroborated Mr Arries materially
with regard to the shooting incident and, in particular, with regard
to the identity
of the applicants as the persons who shot and killed
the deceased. The High Court judgment carefully analysed the
complexities
of the evidence presented.
[137]
[154]
The recantation appears to present a
free ride that seems to me of almost no value at present. This
becomes more evident when
regard is had to certain aspects of Mr
Arries’ evidence in the Saimons’ trial. Before he
was declared a hostile
witness, his opening evidence in chief reads:
“
What happened on the 17
th
of November 2011 at around 20:30 in the evening? – I cannot
remember, it was a long time ago.
About the shooting of Renaldo Booysens – I remember he was shot
a few years ago.
And you witnessed the incident, is that correct? – I did
see, yes.
Yes, tell us, tell the court – I have just told this court that
I cannot remember what happened that day.
. . .
It was in May 2012 when you testified against the
others – Yes, I know that I testified, but it was a long time
ago.
I cannot remember what I said in my testimony before court
as I have said before this court I cannot remember.” (Emphasis
added.)
[155]
In a similar vein he later said:
“
What did you say in your testimony in court
against Pietertjie, Naas and Zagars? [The applicants.] –
Now you are asking
something else now, I cannot remember what I said
that day.”
[156]
This is not indicative of a witness
who recognises that he previously gave false testimony and wishes to
“come clean”
and tell the court the truth. He
repeatedly says that he cannot remember the events of the day the
shooting occurred.
It does not inspire confidence or a belief
that he “will tell the truth on the second occasion”.
[138]
Nor does it demonstrate that he was “anxious to tell the
truth”.
[139]
[157]
Mr Arries did, however, subsequently
manage to recall some details of the events of that fateful day.
Though it may have been
a proverbial slip of the tongue, it is
a slip that casts doubt on the veracity of his recantation.
“
So are you telling this court
that the Arthur you saw shooting at the deceased is not this one?
–
M’Lord, the Arthur that I was talking about to the police was
the other Arthur, not this man before court. I do
not know this
man.”
and
“
When I testified about Arthur
who alighted from the car who shot the deceased, I was talking about
Arthur that I know who stays
in Reiger Park and he is all the time in
the company of Pietertjie.”
[158]
It may be a challenge to reconcile
Mr Arries’ evidence in the preceding paragraph with his
testimony that he did not see the
occupants of the vehicle and could
not “tell who was shooting because [he] was running into the
yard”.
[159]
Centlivres CJ in
Van
Heerden
noted that a self-confessed
liar, who says he previously told a lie but now wishes to tell the
truth, would not usually be accepted
as credible.
[140]
He added:
“
To justify the reception of the fresh
evidence some good reason must be shown why a lie was told in the
first instance,
and a good ground given
for thinking the witness will tell the truth on the second
occasion
.”
[141]
(Emphasis added.)
[160]
This Court must be careful not to
deal with and pronounce on issues that should be properly considered,
if ultimately an order of
reconsideration is granted, by the High
Court or Supreme Court of Appeal. I refer here specifically to
the issue whether
the applicants have met the requirements set out in
De Jager
for re-opening a criminal trial. Obviously, this Court, like
the President, can and should, in determining the merits of
the
application, consider whether there is a reasonable likelihood that
the applicants can meet such requirements. It is
not for this
Court to determine whether the test for the admission of new evidence
has been met. Similarly, that issue was
not before the
President.
[161]
In my view, and for the reasons
already given, I doubt whether the applicants would be able to
establish that there is a prima facie
likelihood of the truth of the
evidence and that the evidence is materially relevant to the outcome
of the trial. This was,
in all probability, also the view of
the President. On the narrow point before us, my conclusion is
that Mr Arries’
simple about-turn, without any externally
verifiable signifier, does not constitute exceptional circumstances
conferring a discretion
on the President as envisaged in section
17(2)(f). The President was correct in finding that no
exceptional circumstances
existed. No grave injustice would
result if leave to appeal is refused. For these reasons, it
would not be in the interests
of justice to grant leave to appeal.
[162]
It follows, in light of the view I
take regarding the existence of exceptional circumstances, that it is
not necessary to make a
determination whether the matter should be
remitted to the President and whether she is obliged to give reasons
for her decision.
In respect of the latter, there is no more
she could have said. In any event, it may be incumbent on this
Court, before it
directs that the President give reasons for her
decision, to ascertain whether that is practically possible.
Conclusion
[163]
In the event that a decision under
section 17(2)(f) is appealable, there are no exceptional
circumstances in this matter which trigger
the discretion of the
President in terms of section 17(2)(f). The President correctly
dismissed the application on the basis
that “no exceptional
circumstances have been shown to exist”.
Order
[164]
The following order is made:
1.
The
application for leave to appeal is dismissed.
2.
There
is no order as to costs.
For the Applicants:
H L Alberts and E Guarneri instructed by Legal Aid South Africa,
Pretoria Justice Centre
For the Respondent:
S J Khumalo instructed by the Director of Public Prosecutions,
Johannesburg
[1]
10 of 2013.
[2]
S v Liesching
[2016] ZACC 41; 2017 (2) SACR 193 (CC); 2017
(4) BCLR 454 (CC).
[3]
51 of 1977.
[4]
Where the President refers a decision refusing
leave to appeal to the Court for reconsideration, she generally does
so to three
judges. The general practice seems to be that the
reconsideration application is heard in open court.
[5]
Section 327(1) provides that a convicted person, who has exhausted
all his legal appeal and review procedures, may petition the
Minister of Justice to refer his matter to a court, where new
evidence has come to light that may materially affect his
conviction.
[6]
Section 35(3)(o) of the Constitution provides:
“Every accused person has a right to a fair trial, which
includes the right of appeal to, or review by, a higher court.”
[7]
Section 9(1) of the Constitution provides:
“Everyone is equal before the law and has the right to equal
protection and benefit of the law.”
[8]
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.”
[9]
Liesching I
above
n 2
at para 57.
[10]
Id at para 44.
[11]
Id at para 60.
[12]
Id at para 64.
[13]
Id at para 65.
[14]
Liesching I
above n 2 at para 61.
[15]
Superior Courts Act above
n 1
section 17(2)(c).
[16]
Id.
[17]
Avnit v First Rand Trading
[2014] ZASCA 132
; 2014 JDR 2014
(SCA) at para 2.
[18]
Notshokovu v S
[2016] ZASCA 112
; 2016 JDR 1647 (SCA).
[19]
Liesching I
above
n
2
at para 54.
[20]
Avnit
above
n 17
at para 5.
[21]
See
S v Basson
[2004] ZACC 13
;
2005 (1) SA 171
(CC);
2004 (6)
BCLR 620
(CC) at para 39.
[22]
See
Mabaso v Law Society, Northern Provinces
[2004] ZACC 8
;
2005 (2) SA 117
(
CC
)
[2004] ZACC 8
; ;
2005 (2) BCLR 129
(
CC
)
(
Mabaso
) at para 26.
[23]
MV Ais Mamas Seatrans Maritime v Owners, MV
Ais Mamas
2002 (6) SA 150
(C) (
MV
Ais
) at 156E-F;
S
v Mohammed
1999 (2) SACR 507
(C) at
513J-514B;
Norwich Union Life Insurance
Society v Dobbs
1912 AD 395
(
Norwich
)
at 399F-H.
[24]
S v Petersen
2008 (2) SACR
355
(C)
at paras 55-56.
[25]
MV Ais
above n
23
at 156H-157C.
The
Afrikaans expressions in paragraph 1 within the quotation mean:
‘particular’, ‘rare’ ‘exceptional’
or ‘highly unusual’.
[26]
Avnit
above n 17
at para 7.
[27]
Van der Walt v Metcash Trading
Ltd
[2002] ZACC 4
;
2002
(
[2002] ZACC 4
;
4) SA 317
(CC);
2002 (5) BCLR 454
(CC
)
(
Van der Walt
).
[28]
Ntlanyeni v S
[2016] ZASCA 3;
2016 (1) SACR 581 (SCA).
[29]
Id at para 6.
[30]
S v Malele; S v Ngobeni
[2016] ZASCA 115.
[31]
Id at para 11.
[32]
Having examined the judgment of the trial court
,
Mpati AP
found that it had failed to differentiate between Mr Mdluli’s
conduct and that of the applicants. He said
Mr Mdluli, unlike
the applicants, had taken steps to prevent further injuries to the
deceased. At para 11, he found no
merit in the applicants’
submission that Mr Mdluli was granted leave to appeal on the same
facts as their applications
because Mr Mdluli, unlike them, had
taken steps to prevent further injuries to the deceased.
[33]
Id at para 11.
[34]
Id at para 8.
[35]
Id at para 9.
[36]
Id at paras 8 and 9.
[37]
Id at para 12.
[38]
S v Gwababa
[2016] ZASCA 200
; 2016 JDR 2291 (SCA).
[39]
Id at para 5.
[40]
Id at para 15.
[41]
See
R v Kgolane
1959 (4) SA 483
(A) for an example of the
application of this inquiry.
[42]
S v Dlamini; S v Dladla; S v Joubert; S v Schietekat
[1999]
ZACC 8
;
1999 (4) SA 623
(CC);
1999 (7) BCLR 771(CC)
(
Dlamini
)
at para 76.
[43]
S v
Bruintjies
[2003]
ZASCA 4
;
2003 (2) SACR 575
(SCA) at para 6.
[44]
Dlamini
above n 42 at para 76.
[45]
Mphahlele v First National Bank of SA Ltd
[1999] ZACC 1
;
1999
(2) SA 667
(CC);
1999 (3) BCLR 253
(CC) at para 12.
[46]
Section 34 of the Constitution provides:
“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.”
[47]
Mphahlele
above n 45. Orders of the Supreme Court of
Appeal refusing leave to appeal inform the litigant that when leave
to appeal
is refused by its judges, they do so because they agree
with the judgment of the court of first instance (or the full
court),
and that there is no prospect of challenging the order on
appeal.
[48]
Id at para 14.
[49]
Greenfields Drilling CC v Registrar of the
Supreme Court of Appeal
[2010] ZACC
15
; 2010 JDR 1014 (CC); 2010 (11) BCLR 1113 (CC).
[50]
Id at para 1.
[51]
Id at para 4.
[52]
The Constitution Seventeenth Amendment Act of 2012 came into force
simultaneously with the
Superior Courts Act, on
23 August
2013 which implemented a major rationalisation and restructuring of
the judicial system.
[53]
Section 167(3) of the Constitution provides:
“
The Constitutional Court–
(a)
is
the highest court of the Republic; and
(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; and
(c)
makes the final decision whether a matter is
within its jurisdiction.”
[54]
Paulsen v Slip Knot Investments 777 (Pty) Limited
[2015] ZACC
5
;
2015 (3) SA 479
(CC);
[2015] JOL 33026
(CC) at para 13.
[55]
Mabaso
above
n
22
at para 18.
[56]
S v Smith
[2011] ZASCA 15
;
2012 (1) SACR 567
(SCA) at para 3;
Greenwood v S
[2015]
ZASCA 56
; 2015 JDR 0629 (SCA) at para 3.
[57]
Greenwood
above
at paras 3-4.
[58]
Section 316(5) of the Criminal Procedure Act
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.”
[59]
Liesching I
above n 2 para 49.
[60]
See above n 58 for section 316(5)(c) of the Criminal Procedure Act.
[61]
S v Wilmot
[2002] ZASCA 42
;
2002 (2) SACR 145
(SCA) at para
31.
[62]
S v De Jager
1965
(2) SA 616
(A);
2 All SA 290
(A) at 613A-B.
[63]
Liesching I
above n
2
at para 50.
[64]
Nkomo v S
[2014] ZASCA 186
; 2014 JDR 2506 (SCA) at para18.
[65]
S v Zondi
1968
(2) SA 653
A at 655E-G.
[66]
De Jager
above
n
62
at 613C-D.
[67]
Id at 613E. See
S v Njaba
1966 (3) SA 140
(A).
See also
S v Nkala
1964 (1) SA 493
AD;
[1964] 2 All SA 116
(A) where the appellant had been granted leave to appeal in order to
afford him an opportunity to bring an application for further
evidence to be heard. His defence had been an alibi but he did
not, at the trial, call the several witnesses who could
have
supported him in his defence. His explanation for not doing so
was that he was nervous when his counsel spoke to him
and he
distrusted him as he felt that he was not guilty and thus did not
appreciate the necessity or desirability of producing
any evidence
other than his own. Of the two eye witnesses who testified
against him, one was mentally unstable and the
other had committed
perjury at the preparatory examination. In the circumstances,
the Court accepted his reason and granted
his application for
further evidence.
[68]
Njaba
above n 67 at 143D-F and 144H.
[69]
Id at 141H.
[70]
Id at 144H.
[71]
Liesching I
above
n 2
at para 53.
[72]
Du Toit et al
Commentary
on the Criminal Procedure Act
(Juta,
2015) 31-19.
[73]
[1954] 3 All ER 745.
[74]
R v
Van Heerden
1956
(1) SA 366
(A);
[1956] 1 All SA 254
(A) at 372B-G
.
[75]
1976 (1) SA 214
(CPD) at 216H.
[76]
1979 (3) SA 47
(A);
[1979] 4 All SA 248
(A) at
49A.
[77]
S v Naidoo
1998
(2) SACR 458 (C).
[78]
Id at 460H-461F.
[79]
Id at 461F-G.
[80]
Above n 61 at para 39.
[81]
Nkomo
above n 64
at para 26. Compare
Mulula
v S
[2014] ZASCA 103.
[82]
Id at paras 26-27.
[83]
Du Toit above n 72
31-19.
[84]
Id above n 74 at 372B-H.
[85]
Id above n 74 at 374C-E.
[86]
Caswell v Powell Duffryn Association
Collieries Ltd
[1939] All ER 722
at
733;
S v Essack
1974
(1) SA 1
(A) at 16C-D.
[87]
See above n 74
at
359E-F
.
See
also
Zondi
above
n 65
at 654F-H
.
[88]
Van Heerden
above n 74 at 369G-H.
[89]
Makate v Vodacom Ltd
[2016] ZACC 13
;
2016 (4) SA 121
(CC);
2016 (6) BCLR 709
(CC) at paras 37 and 40 (
Makate
).
[90]
See
R v Dhlumayo
1948 (2) SA 677
(A);
[1948] 2 All SA 566
(A)
and the authorities referred to therein.
[91]
Makate
above n 89 at para 40 referring to
Bernert v Absa
Bank Ltd
[2010] ZACC 28
;
2011 (3) SA 92
(CC);
2011 (4) BCLR 329
(CC) at para 106.
[92]
Sithole v S
[2006] ZASCA 173
; 2006 JDR 0739 (SCA) at para 7.
See also
S v Safatsa
[1987] ZASCA 150
;
1988 (1) SA 868
(A);
[1988] 4 All SA 239
(A) at 890F-G; and
S v Bruiners
1998 (2) SACR 432
(SE) at
439E-F.
[93]
Liesching I
above n 2 at paras 65-6.
[94]
See
Head of Department: Mpumalanga Department of Education v
Hoërskool Ermelo
[2009] ZACC 32
;
2010 (2) SA 415
(CC);
2010
(3) BCLR 177
(CC) at para 96.
[95]
Section 167(3)(b)(i) of the Constitution.
[96]
Section 167(3)(b)(ii) of the Constitution.
[97]
Liesching I
above n 2 at para 21.
[98]
Id at para 22.
[99]
See
Cape Town City v Aurecon SA (Pty) Ltd
[2017] ZACC 5
;
2017
(4) SA 223
(CC);
2017 (6) BCLR 730
(CC) (
Aurecon
) at para 34
where it was stated:
“An interesting question arose during the hearing: Is an
administrator’s right to review its own decision sourced
in
PAJA or the broader principle of legality? The position in our
law on this question is presently uncertain. Despite
this,
both the City and Aurecon were quite content to pursue the matter
within the confines of PAJA. The litigants expressly
relied
upon PAJA in the High Court, the Supreme Court of Appeal and before
this Court. In effect, this may be termed an
‘inadvertent
legal concession’. Several of this Court’s
decisions have held that it is trite that a court
is never bound by
a legal concession if it considers the concession to be wrong in
law. However, I am of the view that
this case presents a
certain nuance that militates against venturing into a judicial
inquisition. The main reason is that
it cannot be said for
certain that the litigants’ reliance on PAJA is ‘wrong
in law’ because the law on the
issue has not been settled.”
(Footnotes omitted.)
[100]
Id at para 35.
[101]
Id at para 36.
[102]
Section 17(2)(b)
of the
Superior Courts Act states
:
“If leave to appeal in terms of paragraph (a) is refused, it
may be granted by the Supreme Court of Appeal on application
filed
with the registrar of that court within one month after such
refusal, or such longer period as may on good cause be allowed,
and
the Supreme Court of Appeal may vary any order as to costs made by
the judge or judges concerned in refusing leave.”
[103]
Section 17(2)(a)
of the
Superior Courts Act
states
:
“
Leave to appeal may be granted by the
judge or judges against whose decision an appeal is to be made or,
if not readily available,
by any other judge or judges of the same
court or Division.”
[104]
Section 17(2)(c)
of the
Superior Courts Act states
:
“An application referred to in paragraph (b) must be
considered by two judges of the Supreme Court of Appeal
designated
by the President of the Supreme Court of Appeal and, in
the case of a difference of opinion, also by the President of the
Supreme
Court of Appeal or any other judge of the Supreme Court of
Appeal likewise designated.”
[105]
Section 17(2)(d)
of the
Superior Courts Act states
:
“The judges considering an application referred to in
paragraph (b) may dispose of the application without the hearing
of
oral argument, but may, if they are of the opinion that the
circumstances so require, order that it be argued before them
at a
time and place appointed, and may, whether or not they have so
ordered, grant or refuse the application or refer it to the
court
for consideration.”
[106]
Section 17(2)(e)
of the
Superior Courts Act states
:
“Where an application has been referred to the court in terms
of paragraph (d), the court may thereupon grant or refuse
it.”
[107]
Lieshing 1
above n 2 at para 30.
[108]
Id at para 30.
[109]
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) at para 72.
[110]
Simpson and Weiner (eds)
The Oxford English Dictionary
2 ed
(Clarendon Press, Oxford 1997) vol 5 at 498-9.
[111]
See
Petersen
above n 24 at para 55 and
MV Ais
above n
23 at 155H.
[112]
See
MV Ais
id at 156E-F. See also
Dlamini
above
n 42 at para 75 where this Court said that “one can hardly
expect the lawgiver to circumscribe that which is inherently
incapable of delineation” (in the context of bail where the
argument was raised that the term “exceptional circumstances”
was so vague that an applicant for bail does not know what has to be
established).
Section 60(11)(a)
of the Criminal Procedure Act, provides that an applicant (accused)
must in certain circumstances, satisfy the
court that exceptional
circumstances exist, which warrant her release on bail, in the
interests of justice.
[113]
Petersen
above n 24 at para 55.
[114]
See
S v Mohammed
1999 (2) SACR 507
(C) at 513-4 and
Dlamini
above n 42 at para 76. In
Petersen
above n 24
also in the context of a bail
application, the Court held that generally “exceptional”
is indicative of something
unusual, extraordinary, remarkable,
peculiar or simply different.
[115]
MV Ais
above n 23 at 156H-J.
[116]
Avnit
above n 17 at paras 4-5.
[117]
Liesching I
above n 2 at para 54.
[118]
Id.
[119]
Ntlemeza v Helen Suzman Foundation
[2017] ZASCA 93
;
2017 (5)
SA 402
(SCA) (
Ntlemeza
).
[120]
Id at para 28. This view of the requirement of exceptional
circumstances is similarly articulated in
Norwich
above n 23
at 399:
“[T]he language of the clause shows that the exceptional
circumstances must arise out of, or be incidental to, the particular
action;
there was no intention to exempt whole classes of cases
from the operation of the general rule
. Moreover,
when
a statute directs that a fixed rule shall only be departed from
under exceptional circumstances,
the Court, one would think,
will best give effect to the intention of the Legislature by
taking a strict rather than a liberal view
of applications for
exemption, and by carefully examining any special circumstances
relied upon.” (Emphasis added.)
[121]
Ntlemeza
id at para 35 reads:
“Section 18(1) entitles a court to order otherwise ‘under
exceptional circumstances’. Section 18(3) provides
a
further controlling measure, namely, a party seeking an order in
terms of section 18(1) is required ‘in addition’,
to
prove on a balance of probabilities that he or she will suffer
irreparable harm if the court does not so order and that the
other
party will not suffer irreparable harm if the court so orders.”
[122]
See
Van der Walt
above
n 27
where t
wo Judges of the Supreme Court
of Appeal dismissed Mr Van der Walt’s application for leave to
appeal. A day later two other
Judges granted an application in an
identical matter brought by Mr Kgatle. Subsequent events show that
the error lay in the grant
of leave to appeal to Mr Kgatle.
See
Kgatle v Metcash Trading Ltd
2004 (6) SA 410 (T).
[123]
This is on the assumption that the decision made by the President is
a decision in the strict sense of a decision made by a Court
and
against which an appeal may lie.
[124]
See
Trencon Construction (Pty) Ltd v Industrial Development
Corporation of South Africa Ltd
[2015] ZACC 22
;
2015 (5) SA 245
(CC);
2015 (10) BCLR 1199
(CC) (
Trencon
). See also
Bookworks (Pty) Ltd v Greater Johannesburg Transitional
Metropolitan Council
[1999] JOL 5381
(W) (
Bookworks
).
[125]
Trencon
id at paras 85 and 88.
[126]
Id at para 85.
[127]
Birkett v James
[1978] AC 297
(HL) at 317D-G, cited with
approval in
Bookworks
above n 125 at 807A-G.
[128]
Trencon
above n 125 at para 88.
[129]
De Jager
above n 62 at 613A-B.
[130]
Id at 613C-D.
[131]
Id at 613E.
[132]
Tofa v S
[2015] ZASCA 26
;
Karrim v S
[2011] ZASCA 230
;
S v Hanuman
[1997] ZASCA 108
,
1998 (1) SACR 260
(SCA);
R v Baartman
1960 (3) SA 535
(A);
R v Van Heerden
1956
(1) SA 366 (A).
[133]
Nkomo
above n 64 at para 18.
[134]
Van Heerden
above n 74 at 371F-H;
R v Foley
1926 TPD
168
at 171.
[135]
Van Heerden
id.
[136]
Id at 372-3.
[137]
Relevant extracts from the High Court judgment at paras 14-5 and 17
read:
“In analysing the evidence of Sherwin Arries, I have taken
into consideration the discrepancies between his statement to
the
police and his evidence-in-chief. This case is about
identity. This court must be satisfied that the witness
had an
ample opportunity to observe the happenings and that further he is
not making a false charge against the accused.
. . .
Sherwin Arries was not seeing the occupants of the Polo for the
first time. He knows accused 1. Accused 1 and
his
late brother Quentin Alexander once belonged to the Serpents gang.
Accused 1 has now crossed over and joined the
Dogans. He
knows accused 1 for more than ten years. Accused 1 used to now
and then sleep at his place when he and
his late brother were
friends.
As regards accused 2, he knows him very well also. Sherwin and
accused 2’s brother are friends. He always saw
accused 2
when he went visiting accused 2’s brother. He also knows
accused 3 well, as he had seen him in Reigerpark.
He knows him
for more than 5 years. The Polo drove slowly past him with all
the windows open, that is how he saw accused
3. He even drew
the attention of Clint and Marlin to the occupants of the vehicle.
Marlin and Clint confirmed who they saw in the motor vehicle as it
drove past. Criticism against Sherwin is that he did
not in
his statement made to the police mention having seen accused number
2. Secondly in the police statement he said
Atter is the one
who jumped out of the car and shot at the deceased, this was after
accused 1 had also shot the deceased.
In court he said it was
accused 2 and Atter who shot at the deceased.
I do not find the contradictions to be material as to warrant the
dismissal of the evidence of Sherwin which he gave in court
under
oath. He was to a large extent corroborated by the other two
witnesses as to what he saw. For example all three
witnesses
describe seeing a black or dark blue Polo, all of them agreed that
it was accused 3 who was the driver and that accused
1 sat in the
front passenger seat. That accused 2 was a passenger in the
back seat of the Polo.
. . .
Mr Arries was certain that he saw accused 1 first firing shots
through the window of the moving motor vehicle and thereafter
accused 2 and Atter jumped out of the car and continued shooting at
the deceased. There was nothing obscuring the witness
from
seeing the persons who shot at the deceased and I accept his
evidence.
This court observed him throughout the days when he testified.
He gave a good impression as a witness. He did not
hide
anything and conceded where he had made mistakes. For example
in answer to a question by the state about the discrepancies
in his
statement to the police he answered: ‘Everybody makes
mistakes’.
He told the court that Clint (Shoes) is a gang member of the
Serpents and that he has tattoos. He said accused 1 does have
tattoos that show that he was a member of the Serpents. It was
put to the witness Sherwin that he hates accused 1 for having
left
the Serpents gang to go and join the Dogans. He denied that
and said he is not a gang member and he does not care
to which gang
he belongs for he has no interest in it.”
[138]
Van Heerden
above n 174 at 372E.
[139]
Id
.
[140]
Id at 372D.
[141]
Id at 372D-E.