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[2018] ZACC 34
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Thwala v S (CCT329/17) [2018] ZACC 34; 2019 (1) BCLR 156 (CC) (27 September 2018)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
329/17
In the matter
between:
OSCAR VUSI
THWALA
Applicant
and
THE
STATE
Respondent
Neutral citation:
Thwala v S
[2018] ZACC 34
Coram:
Mogoeng CJ, Zondo DCJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman
J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and
Theron J
Judgments:
Froneman J
Decided on:
27 September 2018
Summary:
Section
35(3)(o) of the Constitution — right to a fair trial —
Res Judicata
ORDER
The following order
is made:
1. The application for condonation is granted.
2. Leave to appeal is refused.
JUDGMENT
FRONEMAN J (Mogoeng
CJ, Zondo DCJ, Basson AJ, Cameron J, Dlodlo AJ, Goliath AJ,
Khampepe J, Mhlantla J, Petse AJ and Theron
J concurring):
[1]
The applicant was convicted on two counts of abduction, three
counts of rape and two counts of possession of a firearm and
ammunition
[1]
in the High Court of South Africa, Gauteng Division, Pretoria
(High Court).
[2]
The High Court imposed three life sentences in terms of section
52(1) of the Criminal Law Amendment Act
[3]
(Minimum Sentences Act) for the charges of rape with aggravating
circumstances, and a further nine years imprisonment for the
remaining charges.
[2]
The applicant asks for both his conviction and sentence to be
set aside and to be immediately released or granted leave to appeal
to the Full Court of the High Court. He also seeks to lead
further evidence of reports from DNA tests conducted after his
conviction and sentencing.
[3]
The applicant contends that his conviction and sentencing were
substantively unfair on five main bases:
(a) The High Court made its determination without considering the DNA
evidence that was being processed, despite being notified
that the
evidence would be available within 15 weeks.
(b) The trial proceedings were held in Afrikaans when neither the
applicant nor his representative understood Afrikaans.
(c) The applicant was not informed of the applicability of the
Minimum Sentences Act until the beginning of the sentencing
proceedings.
(d) The sentencing proceedings were irregular because the presiding
Judge failed properly to consider whether substantial and compelling
circumstances existed for deviating from the prescribed minimum
sentence.
(e) The trial Judge’s hostile interventions violated the
applicant’s right to a fair trial.
[4]
The applicant alleges that each of these grounds of
substantive unfairness stems from continuous failures of the
presiding Judge,
prosecutor and defence attorney to properly inform,
advise and protect his rights as an accused person under section
35(3) of the
Constitution.
[4]
Background
[5]
This is the third time this Court has had occasion to consider
Mr Thwala’s case. His sentencing in the High Court dates
back to 2003. Leave to appeal was denied on 3 February
2005. In 2012 he applied, unrepresented, to the Supreme
Court
of Appeal unsuccessfully. He applied again in March 2015,
this time represented, and was granted leave to appeal
to the Full
Court.
[6]
The Full Court postponed Mr Thwala’s application and
ordered Legal Aid South Africa to allocate a representative to him.
Within a few days, however, the Supreme Court of Appeal withdrew its
2015 order, noting that after its 2012 order it was
functus
officio
; that is, the Court had already exercised its
jurisdiction in the matter and was not empowered to reconsider its
final decision.
[7]
The applicant, again unrepresented, applied for leave to
appeal to this Court in February 2016. His application was
dismissed
for lack of prospects of success in May 2016.
Then, on 10 October 2016, he wrote to the Court pleading for
“legal sympathy”.
The Court responded, in
February 2017, advising that he should approach the Legal Aid Board
for assistance in lodging a proper
application that could be
considered by the Court followed by instructions on the procedure for
lodging a formal application.
[8]
In the interim, Mr Thwala had engaged the services of Lawyers
for Human Rights (LHR). LHR attempted to re-enrol the
matter
at the High Court on the basis of the second Supreme Court of
Appeal order but was directed by the Acting Deputy Judge
President
to approach this Court instead.
Condonation
[9]
Owing to its convoluted litigation history, there is no clear
date by which to determine the delay in filing this application.
Mr Thwala’s attorneys calculate a delay of over 18 months from
May 2016, when this Court granted condonation to the applicant
but
refused leave to appeal. This is not without its complications,
but any delay is sufficiently explained and did not prejudice
the
state in opposing the application. As a result, condonation is
granted.
Res judicata
[10]
The
res judicata
doctrine prohibits the reconsideration
of a case already finally determined. In criminal law, this
operates as a general
rule against appealing a decision on conviction
or sentencing more than once, regardless of a change in grounds of
appeal.
[5]
Important policy considerations underlie this doctrine, including the
need for finality on conviction and to protect courts
from unending,
frivolous litigation.
[6]
[11]
The doctrine is not absolute. In
Molaudzi
, this
Court recognised that it could relax the doctrine and revisit its
past decisions in exceptional circumstances.
[7]
The applicant contends that his case is sufficiently exceptional to
warrant relaxation of the doctrine. His attorney
notes in her
founding affidavit that, as in
Molaudzi
, the applicant was
unrepresented in 2016 when he lodged his application with this
Court. As a result, his application failed
to raise relevant
constitutional issues and “lacked structure and clarity”.
She asserts that the application
of
res judicata
here severely
prejudices the applicant primarily because he was unrepresented when
he made his first application. This, she
says, would be a
“grave injustice”.
[12]
The State, however, considers this case a “textbook
example providing the reason for the existence of the principle of
res judicata
in the South African law”. They note
in their answering papers that, despite the applicant not being
represented, this
Court had all the necessary information to make a
decision in 2016, including a complete case record and the DNA
report.
[13]
But the applicant is correct that not all issues were fully
canvassed in the 2016 application. These include new
allegations
of the Judge “descend[ing] into the arena” of
the Court and unfairness arising from the proceedings being held in
Afrikaans.
However, these grounds are not divisible from the
remainder of the appeal on conviction for the purposes of
res
judicata
. A criminal appeal cannot be
res judicata
in some respects and appealable in others.
[8]
Our starting point, therefore, must be, as it was in
Molaudzi
,
that this matter is
res judicata
.
[14]
Still,
Molaudzi
empowers this Court to reconsider cases
in “truly exceptional circumstances” where the interests
of justice “cry
out” for a remedy.
[9]
Is Mr Thwala’s such a case?
[15]
This case is entirely distinguishable from
Molaudzi
.
There, the unrepresented applicant was invited to apply to this Court
for reconsideration after the Court overturned the
convictions and
sentences of two co-accused persons. The co-accused persons
were represented and had lodged an application
with this Court which
was successful on appeal. As a result, an arbitrary distinction
arose between Mr Molaudzi and
two others convicted of the same
crimes on the same evidence.
[16]
Though in the end it relaxed the
res judicata
doctrine,
this Court in
Molaudzi
noted in strong terms that it did so
with great circumspection. It warned:
“The rule of law and legal certainty will be compromised if the
finality of a court order is in doubt and can be revisited
in a
substantive way. The administration of justice will also be
adversely affected if parties are free to continuously approach
courts on multiple occasions in the same matter.”
[10]
[17]
In Mr Thwala’s case, this Court properly considered the
fairness of his trial in 2016. It was alerted to the Supreme
Court of Appeal’s error in reconsidering his application when
it was
functus officio
and to the Court’s withdrawal of
its second order, as it was enjoined to do. This Court also
evaluated the impact of
the DNA evidence and concluded that, in
circumstances of gang rape, the fact that spermatozoa matched a
co accused and not
the applicant is not significant.
[18]
The applicant’s attorney describes the DNA evidence as
“not exculpatory on its own . . . [but] material when
considered
within the context of the meagre evidence adduced in the
applicant’s trial”. We disagree. The
discrepancies
between the witnesses’ statements are immaterial
and the consistency between the two accomplices’ evidence and
that
of the complainant convincingly implicates the applicant.
Conversely, the applicant’s testimony was extremely poor.
He contradicted himself and faltered palpably under cross-examination
when confronted with the strong evidence of his accomplices
and the
damning testimony of the survivor. This Court rightly dismissed
the application on the basis of lack of prospects
of success.
[19]
The new grounds of unfairness now raised do not demonstrate
that “significant or manifest injustice would result, should
the
order be allowed to stand”.
[11]
We have carefully considered the trial Judge’s
interventions and comments, of which the applicant complains. To
do so, we obtained the original Afrikaans transcript, in addition to
the English translation, which the applicant provided. The
Judge’s interventions were unfortunate but nowhere nearly
provide any foundation for a finding that the trial was unfair.
Neither do the complaints about Afrikaans amount to a finding
that the trial was unfair, given that the applicant was represented
and that the proceedings were interpreted. The application
therefore falls to be dismissed because it is not in the interests
of
justice to hear it.
Sentencing
[20]
Mr Thwala’s application to this Court in 2016 was
limited to an appeal on conviction. As a result, this Court may
have
jurisdiction to consider sentencing. But this too falls to
be dismissed for lack of prospects of success and it not being
in the
interests of justice to hear it.
[21]
The applicant raises two grounds on which he seeks to appeal
his sentence:
(a) First, that he was not properly informed of the potential
applicability of the Minimum Sentences Act to his case; and
(b) Second, that his sentence was not properly considered by the
presiding Judge in keeping with the requirements of
Rammoko
.
[12]
[22]
The applicant raises the Minimum Sentences Act for the first
time here. He alleges, and the record shows, that the presiding
Judge not only failed to notify the applicant and his co-accused of
the potential applicability of the Minimum Sentences Act,
he also failed to read the charges to them at all. Instead, he
asked the defence legal representatives whether they had read
the
charge sheets to the accused persons and whether they understood the
contents of the charge sheets. Both confirmed that
they had,
and that they did.
[23]
The Constitution requires that an accused “
be
informed of the charge [against them] with sufficient detail to
answer it”.
[13]
Whether this has occurred must be determined by a “vigilant
examination of the relevant circumstances”.
[14]
The applicant rightly notes that there is a distinction between this
case, where he was not informed of the application of
the Minimum
Sentences Act at all, and the body of precedent dealing with accused
persons being actively misinformed by being charged
under incorrect
sections of the Act.
[15]
[24]
A further hurdle for the applicant
is that the precedent on which his legal representative relies,
[16]
relates specifically to the content of the charge sheet, whereas the
application before us does not allege the charge sheet was
insufficient in any way. Even if extensive evidence were to be
led, we would be unlikely to resolve whether the applicant’s
attorney in fact informed him of the content of the charge sheet.
There is no reasonable prospect that the applicant will
be able to
prove otherwise and then satisfy the further point that this rendered
his sentencing unfair.
[25]
On the second ground of alleged unfairness in the sentencing
proceedings, the applicant has equally weak prospects of success.
He relies on
Rammoko
in arguing that the appropriateness of
his sentence was insufficiently interrogated before it was imposed.
The reliance is
misplaced. In
Rammoko
, no evidence
whatsoever was led regarding the applicant’s circumstances and,
more particularly, the effect of the crime on
the victim.
[17]
The Supreme Court of Appeal remitted the matter specifically for the
purpose of receiving a victim impact statement.
[26]
In this case, the brutal impact on the victim is clear.
In addition, the applicant took the stand in the sentencing
proceedings
to give evidence in mitigation of sentence. After
considering the applicant’s personal circumstances, the High
Court
found that there are “no true mitigating factors”
or substantial and compelling circumstances to warrant deviation from
the minimum sentence. On this ground too the applicant fails to
demonstrate prospects of success.
Order
[27]
The following order is made:
1. Condonation is granted.
2. Leave to appeal is refused.
For the Applicant: C
Ballard of Lawyers for Human Rights
For the Respondent:
K H Van Rensburg of Public Prosecutions Gauteng Division, Pretoria
[1]
Contraventions of sections 2 and 36 of the Arms and Ammunition Act
75 of 1969.
[2]
S v Raulinga and Thwala
, unreported judgment of the North
Gauteng High Court, Pretoria, Case number 79/03 (22 May 2003).
[3]
105 of 1997.
[4]
Section 35(3) in relevant part reads:
“
Every accused person has the right to a
fair trial, which includes the right—
(a)
to
be informed of the charge with sufficient detail to answer it;
(b)
to
have adequate time and facilities to prepare a defence;
. . .
(k) to be tried in a language that the accused person understands
or, if that is not practicable, to have the proceedings interpreted
in that language.”
[5]
S v Molaudzi
[2015] ZACC 20
;
2015 (2) SACR 341
(CC);
2015 (8)
BCLR 904
(CC) at para 19.
[6]
Id at para 20. See also
Bertram v Wood
(1893) 10 SC 177
at 180.
[7]
Molaudzi
above n 5 at para 45.
[8]
Id at para 19 provides:
“Thus it appears that in the criminal context the ‘cause
of action’ is more aptly regarded as the conviction
or
sentence as a whole. An accused who has been convicted and
sentenced, generally may not appeal against the decision
more than
once – despite changing the grounds for appeal.”
[9]
Id at paras 37-8.
[10]
Id at para 37.
[11]
Id at para 45.
[12]
Rammoko v Director of Public Prosecutions
[2002] ZASCA 138;
2003 (1) SACR 200 (SCA).
[13]
Section 35(3)(a).
[14]
S v Legoa
[2002] ZASCA 122
;
2003 (1) SACR 13
(SCA) at para
21.
[15]
See, for example
S v Ndlovu
[2017] ZACC 19
;
2017 (2) SACR 305
(CC);
2017 (10) BCLR 1286
(CC) (
Ndlovu 1
);
S v Kolea
[2012] ZASCA 199
;
2013 (1) SACR 409
(SCA);
S v Mashinini
[2012] ZASCA 1
;
2012 (1) SACR 604
(SCA); and
S v Ndlovu
[2002]
ZASCA 144; 2003 (1) SACR 331 (SCA).
[16]
Including:
Legoa
above n 14;
Ndlovu 1
above n 21;
Mashinini
above n 15; and
S v Makatu
[2006] ZASCA 72;
2006 (2) SACR (SCA).
[17]
Rammoko
above 12 at para 13.