oscar cc final papers aj monday 25 jan respondent
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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CC CASE NO:SCACASENO: 96/2015
GD CASE NO: CC113/13
In the matter between:
OSCAR LEONARD CARL PISTORIUS Applicant
(Accused a quo)
(Respondent in the SCA)
and
DIRECTOR OF PUBLIC PROSECUTIONS, Respondent
GAUTENG (Applicant in the SCA)
I N D E X
Document PagesRespondents Notice of Intention tooppose
001 - 002
Affidavit of A Johnson 003 - 055
Appellants Heads: SCA 056 - 098
Respondents Heads: SCA 099-149
Judgment by Masipa J 150-222
SCA Judgment 223 - 255
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mTHE CONSTITUTIONAL OF SOUTH AFRICA
CASE NO.:...........
SCA: 96/2015
In the matter between:
OSCAR LEONARD CARL PiSTORIUS Applican t
And
DIRECTOR OF PUBLIC PROSECUTIONS, Respondent
GAUTENG
RESPONDENTS NOTICE OF INTENT50N TO OPPOSE
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0 0 2
1. TAKE MOTICE THAT the Respondent intends to oppose this application
2. TAKE FURTHER NOTICE THAT the Respondent will in opposition to this
application for leave to appeal, rely on the affidavit of ANDREA JOHMSON
SIGNED at PRETORIA on this 20th day of January 2016
DEPUTY DIRECTOR OF PUBLIC PROSECUTIONS: GAUTENG
RECEIVEDRAMSAY WEBBER
WITHOUT PREJUDICE//
zzj'/it u
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CASE NO.:...........
SCA: 96/2015
In the matter between:
OSCAR LEONARD CARL PISTORIUS Applicant
and
DIRECTOR OF PUBLIC PROSECUTIONS, Respondent
GAUTENG
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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
AFFIDAVIT IN TERMS OF RULE 19(4)
E/'tA
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I, the undersigned
ANDREAJOHNSON
declare under oath as follows:
1. I am employed by the National Prosecuting Authority (NPA) as a Senior Deputy
Director of Public Prosecutions in the Office of the Priority Crimes Litigation Unit.
2. I was a prosecutor in the team that prosecuted the Applicant in this matter and
subsequently part of the team that appeared for the Appellant (State) at the Supreme
Court of Appeal (SCA). I am now part of the team that may well appear for the
Respondent before this Honourable Court.
3. The facts contained herein are, save where the context otherwise indicates, within my
personal knowledge and are true and correct, and are deposed to in consultation with
the team that may well appear for the Respondent before this Honourable Court.
4. The Applicant is Oscar Leonard Carl Pistorius.
5. The Respondent is the Director of Public Prosecutions Gauteng and I have been duly
authorised to depose to this affidavit.
6. This purpose of this affidavit is to set out the reasons why the application in terms of
the provisions of Rule 19(2) of the Rules of this Honourable Court is opposed.
2
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BACKGROUND
3
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7. On 12 September 2014 in the Gauteng High Court, Pretoria, the Honourable Justice
Masipa acquitted the Applicant (accused) on the main count of murder (count 1) but
instead found (him) guilty of culpable homicide.1
8. On application by the Respondent (State) the Court a quo reserved the following
questions of law for consideration by the Supreme Court of Appeal:
8.1 Whether the principles of dolus eventualiswere correctly applied to the accepted
facts and the conduct of the accused, including error in objecto."
8.2Whether the Court correctly conceived and applied the legal principles pertaining
to circumstantial evidence and/or pertaining to multiple defences by an accused.
8.3 Whether the Court was correct in its construction and reliance on an alternative
version of the accused and that this alternative version was reasonably possibly
true ...
9. The Supreme Court of Appeal (SCA), in a unanimous judgment of a Full Bench,
ordered that:2
1Judgment of the trial Court, attached as Annexure B.2 Judgment of the SCA, attached as Annexure A.
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9.1 The first two questions of law reserved are answered in favour of the Director of
Public Prosecutions.
9.2 The accuseds conviction and sentence on count 1 are set aside and replaced
with the following:
Guilty of murder with the accused having had criminal intent in the form of
dolus eventualis.
9.3The matter is referred back to the trial court to consider an appropriate sentence
afresh in the light of comments in the judgment.
10. The Applicant has filed an application for leave to appeal the whole of the judgment
and order of the SCA.
11.This application is opposed on the main ground that there exists no reasonable
prospect of success on Appeal. It is our respectful submission that the SCA
committed no errors of law and that the arguments by the Applicant are without merit
and contrived.
12. We will deal in particular detail with the tests which this Honourable Court has
adopted when considering granting leave to appeal and submit strongly that it is not
in the interests of justice to grant leave to appeal.
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13.1 submit that it is in the interests of justice that criminal trials ought to be finalised
without undue delay and submit that it is in the interests of justice that the Applicant
now appears before the trial Court to be sentenced on the crime he has committed.
14. The Respondent will endeavour not to be repetitive but instead will focus its
opposition on the aspects directly related to the grounds of appeal. It is our respectful
submission that the Constitutional Court will be loath to consider aspects that were
not raised in argument before the SCA. For ease of reference we attach hereto a
copy of both our and the Applicants Heads of Argument filed in the SCA.3
THE SCA JUDGMENT
15. It is respectfully submitted that the judgment of the SCA should not be dealt with
selectively but rather be read in its entirety, and in doing so it will become clear that
the Court did not act unlawfully and unconstitutionally . It is respectfully argued that
the SCA acted with great circumspection and erred on the side of caution insofar as
the right to interfere with the decision of the trial Court is concerned.
16. It is respectfully submitted that the SCA defined and conceptualised each element of
the questions before it correctly and applied the law in a logical and coherent step-
by-step fashion.
17. Scrutiny of the relevant portions of the judgment demonstrates the Courts cautious
and particular approach to the application in terms of section 319 of the Criminal
3 Heads of Argument by the Appellant (Respondent) is attached as Annexure C and the Heads ofArgument by the Respondent (Applicant) is attached as Annexure D.
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Procedure Act, No. 51 of 1977 (CPA). It is perhaps apposite to stress at this stage
that the Court not only considered the questions of law but also used its powers in
terms of the provisions of section 322(1) of the CPA to substitute the Court aquos
findings:
17.1 The SCA summarised the Applicants background and the circumstances of
the initial meeting between the Applicant and the deceased at paras [11]-
[12].
17.2 The incident was summarised at para [13].
17.3 The SCA summarised the States case at para [14] and that of the defence
at paras [15]-[16], which included a very comprehensive summary of the
Applicants evidence.
17.4 The SCA accepted the Court a quos finding on the Applicants credibility
and confirmed that:
...one really does not know what his explanation is for having fired
the fatal shots, at para [17].
17.5 The findings and sentence were summarised at paras [18][19].
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17.6 The Court crisply and succinctly dealt with its powers in assessing an
application in terms of the provisions of section 319 of the CPA at paras
[21][24].
17.7 The court, with respect, correctly stated: "... the State may not appeal
against an acquittal based solely on findings of fact ...,4 and "... this court
cannot interfere, for example, with the factual decisions of the trial court
rejecting the States version . .. ,5 and [t]he matter must therefore
proceed, as was accepted by the State, on the basis both that its rejected
version cannot be reconsidered...".6
17.8 At para [33], in dealing with the first question of law, the court found:
"... This conclusion shows the fallacy in the submission of Counsel
that the first question of law raised solely a question of fact . .. a t best
for the accused the first question reserved invokes an issue o f mixed
fact and law.
17.9 The two forms of dolus and, with respect, the correct and accepted
definition of dolus eventualiswere dealt with at paras [26][27]. Although
this will receive further elucidation, it is perhaps apposite at this point to
question the Applicants contention that there exists a so-called, or
purported, second component for dolus eventualis, namely that of
4At para [23] of the SCA judgment.
5At para [24] of the SCA judgment.
6At para [24] of the SCA judgment.
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knowledge of unlawfulness. The Applicant eschews any possible support
that this definition for dolus eventualishas received in case-law and even in
recognized and respected legal writing.
17.10 At para [28], the confused reasoning of the Court a quo in adopting a an
objective rather than a subjective approach to the question of dolusis dealt
with, and the SCA clearly stated what the test is and should have been:"...
whether he[the Applicant] actually foresaw that death might occur
17.11 The conflation of the tests for dolus directus and dolus eventualis by the
trial Court received attention at para [29].
17.12 The SCA correctly identified the fundamental errormade by the trial Court
that because the Applicant believed that the deceased was in the bedroom
he could not have had dolus eventualisas to her death and thus could not
be convicted of murder. This is dealt with at para [30]. It is remarkable to
note, and indeed remains inexplicable, that the Applicant nevertheless
continues to endorse and persists with this line of, with respect, flawed
reasoning.7 At para [31], the SCA discussed dolus indeterminatus and at
para [32] correctly applied the legal principles of dolus eventualis, finding
that ... the accuseds incorrect appreciation as to whowas in the cubicle is
not determinative o f whether he had the requisite criminal intent....
7See paras 35-37 of the Affidavit in Support of Application for Leave to Appeal.
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17.13 The finding of the SCA on the first question of law follows at para [33] and
the SCA clearly states that as there was an incorrect application of the
legal issue the first point of law must be determined in favour of the State.
17.14 The SCA discussed the trial Courts error in law in excluding relevant
circumstantial evidence at paras [34]-[40]. It is our respectful submission
that there is no real attack on the SCAs finding in this regard,8 and for
purposes of our argument we can do no better but to support the SCAs
finding at para [40]:
All of this was circumstantial evidence crucial to a decision on
whether the accused, at the time he fired the fatal shots, must have
foreseen, and therefore, did foresee, the potentially fatal
consequence of his actions ... [Tjo seemingly disregard it must be
regarded as an error in law.
17.15 The SCA demonstrated its cautious approach as to its powers in relation to
an application in terms of section 319 of the CPA and in doing so, at para
[41], refused to entertain the third question, regarding it as unclear or a
factual decision.
17.16 The SCA at paras [43]-[44] dealt with its powers in terms of the provisions
of sections 322 and 324 of the Act. It found that based on practical
9 O i l
8See para 88 of the Affidavit in Support of Application for Leave to Appeal.
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considerations and the argument by the Applicant and the Respondent, it
would not be in the public interest to order a trial de novo.
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17.17 The SCA then embarked on a second phase of the application by
considering whether on the facts found proved, the trial Court erred in
drawing the inferences it did as to dolus eventualis.9 Likewise there is no
serious challenge to the SCAs decision to follow the procedure as
prescribed in section 322(1 )(b)of the CPA, that is, of giving such judgment
as the trial Court ought to have given.
17.18 With regard to its powers in terms of section 322(1) of the CPA, the SCA
captured the essence of its task at para [47], as follows:
whether on [1] the primary facts found proved, [2] considering a\[
the evidence relevant to the issue and [3] applying the correct legal
test the inference has to be drawn that the accused acted with dolus
eventualis when he fired the fatal shots ...10
17.19 The SCA identified and discussed the crux of an evaluation of the
Applicants reliance on a defence at para [49], and succinctly put it as:
.. he fired four shots through the door. And he never offered an
acceptable explanation for having done so.
9At paras [46]-[51] of the SCA judgment.
10Emphasis added.
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17.20 After dealing with the primary facts relating to the nature of the firearm and
ammunition as well as the extremely limited space into which the shots
were fired, the SCA reached the conclusion at para [51] that the accused
acted with dolus eventualis.
17.21 The Applicant relies on the purported SCAs error in law of rejecting his
defence of putative private defence, but has totally ignored the
insurmountable hurdle that he on his own version "... had not intended to
shoot the person whom he felt was the intruder... [which] immediately
placed [him] beyond the ambit of the defence.11 The SCA continued to
emphasise with reference to S v De Oliveira12 that the defence of putative
private defence implies rational but mistaken thought.13
17.22 The above-mentioned hurdles remain standing and have not been
addressed in the Applicants application.
THE APPLICATION
18. In the founding affidavit of Andrew Fawcett (Fawcett), deposed to in support of the
Applicants application for leave to appeal, it is argued that:
11At para [53] of the SCA judgment.
121993 (2) SACR 59 (A) at 65d.
13At para [53] of the SCA judgment.
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18.1The SCA exceeded its powers in terms of section 319 of the CPA.
18.2 The SCA committed three errors of law, namely:
18.2.1 it failed to apply the second component of dolus eventualiswhich the
Applicant argues is knowledge of unlawfulness;
18.2.2 it failed to consider the Applicants knowledge of unlawfulness as far
as error in objecto is concerned;
18.2.3 it introduced an objective consideration of the rational person into
the subjective test to be applied in regard to knowledge of
unlawfulness and in particular putative private defence, and
reintroduced the defunct presumption that an accused intends the
natural and probable consequences of his or her actions, when it
(impermissibly) reconsidered putative private defence.
NOTABLE ASPECTS
19.lt is with respect important to stress the glaring absence of any reference to case-law
and/or respected legal writing on the purported second component of dolus
eventualis
EiVA
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20. The Applicant fails to consider or acknowledge that the SCA indeed concerned itself
with the element of knowledge of unlawfulness by evaluating the Applicants defence
of putative private defence.
21.The crux of our opposition to the first argument by the Applicant lies in his failure to
comprehend the two-tiered approach by the SCA. The SCA firstly considered the
questions of law, and then secondlyacted in terms of section 322(1 ){b)of the CPA to
give such judgment as ought to have been given at the t ria l.. .
22. The Applicant fails to show that the SCA in reaching the conclusion on the questions
of law, erroneously amended or substituted any of the primary factual findingsof the
trial Court.
23. We argue that the inevitable consequence of substituting the judgement of the trial
Court must be an application of the correct legal principles to the primary facts found
by the trial court.
24.The insurmountable hurdle for the Applicant to overcome in convincing this
Honourable Court to even consider the second basis of his application is twofold:
24.1 The trial Courts finding on credibility was accepted, and in considering all
the evidence and applying the correct legal prescripts, such was amplified
by the SCA;
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24.2 The Applicants reliance on putative self-defence does not get out of the
starting-blocks, since on his own version he never intended to shoot at the
perceived danger.
25. At the risk of being unduly repetitive, it is worth mentioning that the Applicant has
himself to blame for the Court a quo and the SCAs negative comments about his
credibility. The end result is that there exists no credible explanation by the Applicant
for the killing of the deceased, which is compounded by the SCAs correct approach
in considering the evidence which the trial Court erroneously ignored. The
Applicants failure in this respect is exacerbated by the following remarks of the SCA
in S v Boesak:14
"... one o f the main and acknowledged instances where it can be said that a prima
facie case becomes conclusive in the absence of rebuttal is where it lies
exclusively within the power of the other party to show what the true facts were
and he or she fails to give an acceptable explanation
26.The Respondent does not respond to each paragraph of the Applicants application
as set out in the founding affidavit of Fawcett, but deals in more detail with the
grounds of appeal to demonstrate that there is no merit in any of the grounds of
appeal as formulated by the Applicant.
27. We will, with respect, commence our argument with a detailed analysis of the test for
appealability that this Court has applied and prescribed for the granting of leave to
appeal.
142000 (1) SACR 633 (SCA) at para [47] (emphasis added).
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28. In the founding affidavit of Fawcett, it is incorrectly stated on several occasions that
the jurisdiction of this Honourable Court lies in section 169(3)(/?)(i) and (ii) of the
Constitution.15
29.lt is submitted that the jurisdiction of this Honourable Court is in fact governed by
section 167(3)(jfc>)(i) and (ii) of the Constitution. Section 167(3)(c) of the Constitution
goes on to provide that / t]he Constitutional Court... makes the final decision whether
a matter is within its jurisdiction" This Court affirmed same in S v Boesak:16
The Constitution declares that the Constitutional Court is the highest court in all
constitutional matters. Its jurisdiction is dealt with in s 167(3)(b)... The
Constitution offers no definition of a constitutional matter, or an issue connected
with a decision on a constitutional matter. Section 167(3)(c) leaves that ultimately
to the Constitutional Court to decide.
30.lt is conceded by the Respondent that [t]he powers and functions of the courts are
constitutional /sstves.17 Moreover, in S v Basson, Chaskalson CJ in a concurring
judgment appositely pointed out in respect of the powers of the SCA in relation to a
THE TEST FOR APPEALABILITY AND JURISDICTION
15See paras 14.4, 25 and 28 of the Affidavit in Support of Application for Leave to Appeal.
162001 (1) SACR 1 (CC) at para [13]..
17See Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC) at para
[51], citing Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae) 2003 (2) SA363 (CC) at para [17]; Phillips and Others v National Director of Public Prosecutions 2006 (1) SACR
78 (CC) at para [31].
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State appeal in terms of section 319 of the Criminal Procedure Act 51 of 1977
("CPA), that:18
Section 319 deals with the powers of the SCA to hear appeals in criminal cases.
The power of the courts is derived from the Constitution. In Bannatyne v
Bannatyne this Court held that any issue as to the nature and ambit of the
powers of the High Court necessarily raises a constitutional question. This
applies equally to issues concerning the nature and ambit of the powers of the
SCA. An interpretation o f s 319 of the Criminal Procedure Act, which precludes
an appeal to the Supreme Court of Appeal against a decision of the High Court
quashing a charge in an indictment, has a material bearing on the powers of the
SCA. The interpretation of that section is accordingly a constitutional matter.
31. In the decision of this Court of Phillips and Others v National Director of Public
Prosecutions, which the Applicant cites as authority,19 it was pertinently held by
Skweyiya J, delivering the unanimous judgment of the Court, that a finding that an
application for leave to appeal raises a constitutional issue is not... decisive of the
question of whether leave to appeal to the Court ought to be granted.20 Skweyiya J
proceeded to reaffirm that [IJeave to appeal may be refused if it is not in the interests
of justice that this Court hear the appeal.21 In S v Boesak, this Court, per Langa DP,
pertinently observed in this regard:22
182004 (1) SACR 285 (CC) at para [111] (footnotes omitted).
19See para 20 of the Affidavit in Support of Application for Leave to Appeal.
20 2006 (1) SACR 78 (CC) at para [32] (parallel citation: Phillips and Others v National Director of
Public Prosecutions 2006 (1) SA 505 (CC)) (emphasis added).21 Ibid at para [32], endorsing S v Boesak supra at para [12]; National Education Health and Allied
Workers Union v University of Cape Town and Others 2003 (3) SA 1 (CC) at para [25] (emphasisadded).22S v Boesak supraat para [12] (footnotes omitted).
E M
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A finding that a matter is a constitutional issue is not decisive. Leave may be
refused if it is not in the interests of justice that the Court should hear the appeal.
The decision to grant or refuse leave is a matter for the discretion of the Court,
and in deciding whether or not to grant leave, the interests o f justice remain
fundamental. In considering the interests of justice, prospects of success,
although not the only factor, are obviously an important aspect of the enquiry. An
Applicant who seeks leave to appeal must ordinarily show that there are
reasonable prospects that this Court will reverse or materially alter the decision of
the SCA.23
32. As is demonstrated below, it is the Respondents respectful submission that even
though the first ground on which the Applicant bases his application for leave to
appeal raises a constitutional issue, or could conceivably raise an arguable point of
law of general public importance", in that it relates to the powers of the SCA in terms
of section 322 of the CPA, there are no reasonable prospects of success of an appeal
to this Honourable Court on such ground, and thus it is not in the interests of justice
that leave to appeal be granted on that basis. As is pertinently dealt with in more
detail below, the Respondent argues in essence that the SCA did not exceed its
powers in terms of section 322(1) of the CPA in the process of giving such judgment
as the trial Court ought to have given and in this respect in altering the conviction of
culpable homicide to a conviction of murder with dolus eventualis.
23Emphasis added.
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33. The Applicant also contends that the second main ground on which the application for
leave to appeal is predicated, that is, in relation to the SCAs alleged erroneous legal
approach to the questions of dolus eventualis and knowledge of unlawfulness,
including that of error in objecto, and putative private defence,24 raises an arguable
point of law of general public importance within the purview of section 169(3)(b)(ii)
[sic] of the Constitution", which as the Respondent submits above, ought to read
section 167(3)(jb)(ii) of the Constitution.25
34. In the recent decision of this Court of Paulsen and Another v Sl ip Knot
Investments 777 (Pty) Ltd, Madlanga J (with Jafta J and Nkabinde J concurring, and
the majority Court agreeing with his analysis of the aspect), explored and crisply
articulated the meaning and scope of a matter that raises an arguable point o f law o f
general public importance which ought to be considered by[the Constitutional Court] ,
that is, in relation to the Courts new jurisdiction in terms of 167(3)(jb)(ii) of the
Constitution that extends beyond constitutional matters so as to embrace any other
matter where it grants leave to appear or to matters which the Court has come to
regard as non-constitutional,26 Madlanga J also dealt with the test for the granting of
leave to appeal on a matter that raises an arguable point of law of general public
importance.27
34.1 In respect of the meaning of the phrase arguable point of law, it was held:28
24 See paras 41.2 and 49-71 of the Affidavit in Support of Application for Leave to Appeal.
25Ibidat para 28.
262015 (3) SA 479 (CC) at paras [20]-[28].27Ibidat paras [12]-[19] and [29]-[31 ].
28Ibid atpara [20].
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This is a bifurcated requirement The point must be one of law; and it must be
arguable. Starting with the first prong, quite axiomatically, the point must not be
one of fact This courts jurisprudence on purely factual matters, developed in the
context of what constitutes a constitutional, as opposed to a factual issue, is an
instructive guide on this.29
34.2 Pertaining to the instructive distinction between a purely factual matter and what
constitutes a constitutional matter, Madlanga J30 cited with approval inter aliaS v
Boesak, where, insofar as it is relevant, this Court found in this regard:31
One of the questions to be determined is which of the issues raised by the
Applicant relate to constitutional matters. This requires, amongst other things, a
purposive approach to the harmonising of s 167(3)(a) and (b) of the Constitution
which constitutes the Constitutional Court as the highest court in constitutional
matters and s 168(3) which constitutes the SCA as the highest Court of appeal
except in constitutional matters. Certain broad principles for criminal cases can be
identified:
(a) A challenge to a decision of the SCA on the basis only that it is wrong on
the facts is not a constitutional matter.
19 0 2 1
In the context of s 167(3) of the Constitution the Question whether evidence
is sufficient to justify a finding of guilt beyond reasonable doubt cannot in
itself be a constitutional matter. Otherwise, all criminal cases would be
29Emphasis added.30Ibidat para [20] n 31.
31S v Boesak supraat para [15] (footnotes omitted).
T\N\
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constitutional matters, and the distinction drawn in the Constitution between
the jurisdiction of this Court and that of the SCA would be illusory. There is
a need for finality in criminal matters. The structure of the Constitution
suggests clearly that finality should be achieved by the SCA unless a
constitutional matter arises. Disagreement with the SCAs assessment of
the facts is not sufficient to constitute a breach of the right to a fair trial. An
Applicant for leave to appeal against the decision of the SCA must
necessarily have had an appeal or review as contemplated by s 35(3)(o) of
the Constitution. Unless there is some separate constitutional issue raised
therefore, no constitutional right is engaged when an appellant merely
disputes the findings of fact made by the SCA.
(c) The application of a legal rule by the SCA may constitute a constitutional
matter. This may occur if the application of a rule is inconsistent with some
right or principle of the Constitution.32
20 ' 0 2 2
34.3 Madlanga J33 also cited Minis ter of Safety and Security v Luiters, where this
Court, per Langa CJ, appositely observed:34
To recap, I have found that the Ministers primary submission raised in oral
argument does raise a constitutional issue, as does his second contention, while
the third submission relating to the factual finding of the Supreme Court o f Appeal
as to the subjective intention of Constable Siljeur does not. It is therefore
32Emphasis added.33Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd supraat para [20] n 31.342007 (2) SA 106 (CC) at para [28],
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necessary to consider whether it is nonetheless in the interests of justice to grant
leave to appeal.35
34.4 Madlanga J proceeded to discuss the meaning of the term arguable, insofar as it
pertains to what point of law ought to be considered by the Court. It was
importantly held as follows, which remarks, with respect, are highly germane to the
present matter:36
Moving on to the second facet, not infrequently, even in a most hopeless case a
skilful arguer may ingeniously craft an argument on a point of law which. at first
blush, may appear convincing. That is not necessarily enough for purposes o f this
jurisdictional reguirement. It cannot be any and every argument that renders a
point of law arguable for purposes of s 167(3)(b)(ii). Surely, a point o f law which,
upon scrutiny, is totally unmeritorious cannot be said to be arguable. Indeed, in
Baloi Centlivres JA said there are very few cases which are not arguable in the
wide meaning of that word. The notion that a point of law is arguable entails
some degree of merit in the argument. Although the argument need not, of
necessity, be convincing at this stage, it must have a measure of plausibility ...in
Beatley & Co Tindall AJP held that the word arguable is used in the sense that
there is substance in the argument advanced.
35Emphasis added.35 Paulsen and Ano ther v Slip Knot Investments 777 (Pty) Ltd supra at paras [21]-[22] (footnotes
omitted).
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I make bold to say in order to be arguable , a point o f law must have some
prospects of success. Support for this is to be found in decisions of this court,
albeit made in a different context."37
34.5 Madlanga J pertinently added on this score after enumerating various, but not
exhaustive, examples of instances where a point of law may be arguable,that:38
Ultimately, whether a point of law is arguable depends on the particular
circumstances o f each case."39
34.6 In the context of Paulsens case, Madlanga J appositely pointed out that where
there was confusion inherent in the National Credit Act (NCA), it was at least
arguable that the Act could be interpreted as the Paulsens proposefd]"40
34.7 Madlanga J then dealt with the question of when a point of law would qualify as a
matter of general public importance.41 The Justice stated with regard to the
meaning of the phrase general public importance:42
This court has yet to lay a standard as to when a point of law qualifies as being of
general public importance. There are other jurisdictions where apex courts grant
leave to appeal only where a matter is of general public importance. It would be
useful to consider what the courts of those jurisdictions have said on the standard.
37Emphasis added.
38Ibidat para [23],
39Emphasis added.
40Ibidat para [24] (emphasis added).
41 Ibidat paras [25]-[26],
42Ibidat paras [25]-[26] (footnotes omitted).
E m
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For example, the Constitution of Kenya provides for appeals to the Supreme Court
in any other case in which the Supreme Court, or the court of Appeal, certifies
that a matter of general public importance is involved. With the exception of the
reference to a matter of fact, the interpretation o f the relevant provision by the
Supreme Court of Kenya is instructive:
Before this court a matter of general public importance warranting the
exercise of the appellate jurisdiction would be a matter of law or fact,
provided only that: its impacts and consequences are substantial, broad-
based, transcending the litigation-interests of the parties, and bearing upon
the public interest.
This does not mean the requirement will be met only if the interests o f society as a
whole are implicated. English courts have found that an issue is of general public
importance when it is likely to arise again in other cases and where its
determination would affect a large class of persons rather than merely the
litigants. As stated in Wiltshire Primary Care Trust, issues do not have to be of
importance to all citizens or the whole nation in order to be of general public
importance, it is enough to be of importance to a sufficiently large section of the
public . In sum, for a matter to be o f general public importance, it must transcend
the narrow interests o f the litigants and implicate the interest of a significant part of
the general public. It will serve a litigant well to identify in clear language what it is
that makes the point o f law one of general public importance.43
43Courts and the Respondents emphasis.
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24 0 2 6
34.8 Again by way of example, in the context of Paulsens case, Madlanga J observed
that:44
It is manifest that both the proper interpretation of the NCA on the issues raised
and determination of the question whether the in duplum rule is suspended
pendente lite will have a significant impact on the general populace. As noted in
Kubyana, the NCA -
regulates commercial activity undertaken by many people and institutions
on a daily basis. The issues at stake are therefore of fundamental
importance to many South Africans.
Charging interest on commercial transactions is so widespread as to affect a large
number of members of society. Likewise, there are countless people and entities
that charge and derive a financial benefit from interest. A pronouncement either
way on whether the in duplum rule is suspended pendente lite will affect many on
either side of the scale "45
34.9 In dealing with the question of whether leave to appeal could be granted to this
Court in Paulsen, and in this regard in considering the import of the words which
ought to be considered by that Court in s 167(3)(b)(ii)",Madlanga J found that:46
Although a point o f law may be both arguable and of general public importance,
there may be factors that militate against its receiving the attention o f this court. It
44 Ibidat para [27] (footnote omitted).45Emphasis added.
46 Ibidat paras [17]-[18] and [29]-[30] (footnotes omitted).
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25 ' 0 2 7
seems to me that, on this, some of the factors that are of relevance to the
interests-of-iustice factor in the context o f our jurisdiction based on constitutional
matters may find application... [A ] holding that a matter raises an arguable point of
law of general public importance does not inexorably lead to a conclusion that the
matter must be entertained. Whether the matter will, in fact receive our attention
will depend on the interests o f justice...
Where, in an application for leave to appeal founded on a constitutional
matter, this court holds that there is indeed a constitutional issue, that does not
automatically lead to the grant of leave. This court has a discretion and on this the
fundamental criterion is the interests of justice. In Boesak we held:
A threshold requirement in applications for leave relates to the issue of
jurisdiction. The issues to be decided must be constitutional matters or
issues connected with decisions on constitutional matters...
A finding that a matter is a constitutional issue is not decisive. Leave
may be refused i f it is not in the interests o f justice that the court should
hear the appeal. The decision to grant or refuse leave is a matter for the
discretion o f the court and, in deciding whether or not to grant leave, the
interests of justice remain fundamental. In considering the interests of
justice, prospects of success, although not the only factor, are obviously an
important aspect of the enquiry. An Applicant who seeks leave to appeal
must ordinarily show that there are reasonable prospects that this court will
reverse or materially alter the decision o f the SCA.
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The interests-of-justice factor aims to ensure that the court does not entertain any
and every application for leave to appeal brought to it. Coming to this courts non
26 028
constitutional appellate jurisdiction, the guestion arises: do interests of justice not
come into the equation? I think they do. This is what the words which ought to
be considered by that Court in s 167(3)(b)(ii) of the Constitution are directed a t j f
- for whatever reason - it is not in the interests of justice for this court to entertain
what is otherwise an arguable point o f law of general public importance, then that
point is not one that jought to be considered by fthis1 Court. The interests-of-
justice criterion is firmly entrenched in this courts jurisprudence on applications for
leave to appeal involving constitutional matters. Whatever its true provenance in
respect of applications for leave to appeal on constitutional matters from the
Supreme Court of Appeal, I cannot conceive o f any basis why it should not be
applicable here. On the non-constitutional appellate jurisdiction we must borrow
from this courts existing jurisprudence on interests o f justice.
With the exception of the last, the points the Paulsens raise have some
prospects of success. On this I need do no more than refer to the ensuing
discussion on the merits. Without doubt, the points are of import. Clamantly, it is
in the interests of justice that this appeal be entertained. I grant leave to
appeal."47
35.lt is submitted that these findings and observations in Paulsen on what the meaning
and scope are of a matter that raises an arguable point of law of general public
importance which ought to be considered by this Court and when leave to appeal can
be granted to the Court on such a point of law, are highly instructive in the present
47Emphasis added.
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270 2 9
matter particularly in respect of the second main ground of the Applicants
application.48
36.As is demonstrated by the Respondent below, there is no confusion or legal
uncertainty as to what the trite and applicable common-law principles or elements are
in relation to dolus eventualis and error in objecto, as discussed by Leach JA in
casu,49 There is a vast body of authoritative case-law and academic literature that
exists in our common law on the matters. The points of law raised by the Applicant
are also, as is shown below by the Respondent, totally unmeritorious"50 It cannot
therefore be said that the Applicants issues pertaining to dolus eventualisand error in
objecto raise points of law that are arguable for consideration by this Court. There
are accordingly no prospects of success on appeal on these points of law. In other
words, with respect, the Applicant has failed to show that there are reasonable
prospects that this court will reverse or materially alter the decision of the SCA51 on
the points of law and thus it is not in the interests of justice that the Applicant be
granted leave to appeal to this Court on those aspects; a fortioriwhere the Applicant
raises for the first time in this Court the legal question of whether
knowledge/foresight of unlawfulness is a so-called second component of dolus
eventualis.52
48 Compare also the as-yet unreported judgment of this Court in Mashongwa v Passenger Rail Agencyof South Africa [2015] ZACC 36 (CC) at para [14], where it was held that u[t]he safety and security o f thepoor people who rely on our train network to go to work or move from one place to another does raise an arguable po int o f law of general public importance",and that even though the relevant point of law in casuwas not "novel in our jurisprudence, it was nevertheless still necessary to address it because i t [did] raisean arguable point o f law o f general public im p o rta nce [t]he public needfed] a pronouncement by thisCourt on whether PRASA can be held delictually liable for its failure to provide safety and security
measures
See also, DE v RH 2015 (5) SA 83 (CC) at paras [8]-[10].
49See paras [26]-[33] of the SCAs Judgment.
50Paulsen and Ano ther v Slip Knot Investments 777 (Pty) Ltd supraat para [21],51 Ibidat para [29].
52See para 49 of the Affidavit in Support of Application for Leave to Appeal.
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28
37. The last-mentioned aspect is particularly significant, with respect, when it is borne in
mind that this Honourable Court has repeatedly underscored that the SCA has
particular expertise in the common law.53 The litigants are therefore disadvantaged
because they have not had the opportunity of reconsidering or refining their
respective arguments in the light o f a prior judgment o f the SCA"54on the point. The
following remarks by this Court in Bruce and Another v Fleecytex Johannesburg
CC and Others, are particularly apposite on this score:55
It is, moreover, not ordinarily in the interests of justice for a court to sit as a court
of first and last instance, in which matters are decided without there being any
possibility of appealing against the decision given. Experience shows that
decisions are more likely to be correct if more than one court has been required to
consider the issues raised. In such circumstances the losing party has an
opportunity of challenging the reasoning on which the first judgment is based, and
of reconsidering and refining arguments previously raised in the light of such
judgment
38.The question also arises whether it can validly be claimed that the said legal points
raised by the Applicant pertaining to dolus eventualis and error in objectotranscend
the narrow litigation-interests of the parties and implicate or affect the interest of a
significant part of the general public, when it is considered that the Applicant draws an
53See Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies
intervening) 2002 (1) SACR 79 (CC) at para [55]. See also, for example, Amod v Mult il ateral MotorVehicle Accidents Fund 1998 (4) SA 753 (CC) at para [33]; Masiya v Director of Public Prosecutions,Pretoria and Another (Centre for Applied Legal Studies and Another, Amici Curiae) 2007 (2) SACR
435 (CC) at para [17]; Lee v Min ister for Correctional Services 2013 (1) SACR 213 (CC) at para [115].54Carmichele supraat para [59].
551998 (2) SA 1143 (CC) at para [8].
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inextricablenexus between these points of law and the factual question of whether
he acted in putative private defence. During argument before the SCA, the Applicant
deals with dolus eventualisand error in objecto in the context of whether he acted in
putative private defence.56
39. It is, moreover, demonstrated by the Respondent below that the point of law posited
by the Applicant with regard to putative private defence57 is equally unmeritorious,
with little - if any - substance and with nothing substantial hinging thereon, and there
are no prospects of success on appeal on the aspect. It is submitted that the
Applicant has failed to show that there are reasonable prospects that this court will
reverse or materially alter the decision o f the SCAon the point.
POWERS OF THE SUPREME COURT OF APPEAL
40. The gravamen of the first basis on which the Applicant applies for leave to appeal to
this Court is that the SCA exceeded its so-called limited jurisdiction in terms of
section 319 of the Criminal Procedure Act 51 of 1977 (CPA), in that, as averred, the
SCA acted unlawfully and unconstitutional1/ when it rejected the factual finding of
the trial Court that the Applicant acted in putative private defence and replaced it with
a contrary factual finding of its own, namely that the Applicants reliance on putative
private defence could not be sustained and was thus no bar to a finding that he
acted with dolus eventualis in causing the death o f the deceased.58
56See paras 49-61 of the Affidavit in Support of Application for Leave to Appeal.
57See paras 62-71 of the Affidavit in Support of Application fo r Leave to Appeal.58 See paras 13, 41.1 and 42-48 o f the Affidavit in Support of Application for Leave to Appeal. See also the
SCAs findings in this respect at paras [53]-[54] of its Judgment.
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41.lt is averred in the founding affidavit of Fawcett, that the SCA impermissibly
reconsidered the factual finding of the trial court concerning putative private
defence",and in so doing the SCA exceeded its jurisdiction under section 319 o f the
CPA and acted in breach of section 168(3)(c) [sic] of the Constitution. Insofar as it
may be relevant, section 168(3)(jb) of the Constitution provides as follows:
The Supreme Court of Appeal may decide only-
(i) appeals;
(ii) issues connected with appeals; and
(Hi) any other matter that may be referred to it in circumstances defined
by an A ct of Parliament.
42. It is in essence contended by Fawcett that since an appeal by theState on questions
of law in terms of section 319 of the CPA is limited to questions of law only, it was
impermissible for the SCA to reconsider any factual findings not pertaining to the
reserved legal questions, even if the SCA was of the opinion that the factual finding
was incorrectly decided."59 Fawcett states that the matter of the legal requirements
for putative private defence was not embodied in a question of law reserved for
consideration of the SCA, and therefore the SCA had no statutory authority to
interfere with either the trial courts legal or factual finding of putative private
defence."60
43. As mentioned earlier, it is not contended by the Applicant that the SCA could not act
in terms of section 322(1) of the CPA, once the first two questions of law reserved in
59 Ibidat para 43.60Ibidat para 46.
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casuwere answered in the States favour. Indeed, counsel for the Applicant argued
in the SCA that it was not in the interests of justice that a trial de novobe instituted in
terms of section 324 read in conjunction with section 322(4) of the CPA, given that
the accused ha[d] already served the period of direct imprisonment envisaged by the
period of correctional supervision imposed upon him by the trial court.61 However,
counsel for the Applicant submitted that the SCA should exercise its discretion under
s 322 to make no further order62
44.The only question therefore is whether the SCA could deal with the issue of putative
private defence when it gave the judgment that the trial court ought to have given in
terms of section 322(1 )(b)of the CPA, which issue the Applicant avers fell outside the
ambit or purview of the States appeal in terms of section 319 of the CPA.
45.The procedure in an appeal by the State in terms of section 319 of the CPA is two-
tiered: it falls on the SCA firstlyto decide whether the question of law reserved for the
Courts consideration should be answered in the States favour or whether the appeal
should be dismissed.
46 .Secondly, if the question of law is decided by the SCA in the States favour, in other
words, where the court of appeal has given a decision in favour of the prosecutorJ,
the SCA may set aside an acquittal or conviction on a competent verdict or alternative
charge, that is to say, a less serious offence than that which the accused was
61See para [45] of the SCAs judgment.
62Ibidat para [45].
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originally charged with,63 and order that a trial de novo be instituted in terms of
section 322(4) read with section 324 of the CPA.64
47. The SCA, however, instead of ordering a trial de novo, may exercise any of the
powers conferred upon it by section 322(1) of the CPA, the provisions of which read
as follows:65
In the case of an appeal against a conviction or of any question of law
reserved, the court of appeal may -
(a) allow the appeal if it thinks that the judgment of the trial court should
be set aside on the ground of a wrong decision of any question of
law or that on any ground there was a failure ofjustice; or
(b) give such judgment as ought to have been given at the trial or
impose such punishment as ought to have been imposed at the trial;
or
(c) make such other order as justice may requ ire:..
48.The Court of Appeal, then, in the case of any question of law reserved, may in terms
of section 322(1 )(b) of the CPA give such judgment as ought to have been given at
the trial,whichincludes setting aside the conviction of the trial court and convicting
the accused on a more serious crime, provided that the accused was originally
charged therewith.66
63Ibidat paras [5]-[9] and [46], as conceded by Counsel for the Applicant in the SCA.
64 Compare, for example, Director of Public Prosecutions, Transvaal v Mtshweni 2007 (2) SACR 217
(SCA) at para [34].
65See paras [43]-[47] of the SCAs judgment.66Compare S v E 1979 (3) SA 973 (A) at 976A-B, 977D-E; E du Toit, FJ de Jager, A Paizes, A St Q Skeen& S van der Merwe (gen ed) Commentary on th e Criminal Procedure Act (RS 54 2015) 31-42A.
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49.lt is submitted that there is nothing from the wording of section 322(1) of the CPA to
suggest that the SCAs power of giving such judgment as ought to have been given at
the trial, in the case of... any question of law reserved, is confined or limited in a
State appeal solely to questions of law reserved in terms of section 319 of the CPA
and that the Court of Appeal is precluded in such substituted judgment from
reconsidering factual findings made by the trial court.67 This was not the argument of
the Applicant during the hearing of the appeal in the SCA, not in viva voceargument
and neither in its Heads of Argument. It is reiterated that it is an ineluctable
consequence that the correct application of the legal principles and the consideration
of facts that were erroneously ignored by the trial Court will impact on the secondary
factual findings of the trial Court.
50. In the Appellate Division decision of S v E, Corbett JA (as he then was), writing for
the Court, held that where the Court of Appeal is convinced that the trial court, by
reason of a wrong factual finding or a mistake in law, convicted an accused on a less
serious offence than that which the accused was originally charged with and which
the accused ought to have been convicted of, the Court of Appeal is empowered in
terms of section 322(1 )(jb) of the CPA to alter the conviction to one on the more
serious charge accordingly.68
51.lt is axiomatic that where the SCA decides to give such judgment that the trial court
ought to have given, the SCA would be entitled to proceed to conduct a reappraisal or
reassessment of the secondary factual findings of the trial court and/or relevant legal
principles so as to ultimately give such verdict as ought to have been given by the
court a quo. As the Appellate Division pertinently affirmed, per Corbett CJ, in S v
67Emphasis added.
681979 (3) SA 973 (A) at 977D-E.
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Morgan and Others, the Court of Appeal may substitute a conviction for a different or
more serious offence generally on the basis of the facts found by the trial Court, or
the undisputed facts or the appellants own evidence"69 Corbett CJ endorsed the
approach that the Court of Appeal may in these circumstances draw a different
inference from the evidence as a whole, and remarked that this is essentially what
happened in S v E [referred to supra ]70 In other words, the SCA in exercising its
power in terms of section 322(1 )(b) of the CPA, may reach a different secondary
finding or inference based on the primary facts found proved by the trial court.71
52. In the analogous Appellate Division case of S v September,72 the appellant stood
trial in a Provincial Division on charges of murder, assault with intent to do grievous
bodily harm, theft and malicious injury to property. The trial Court found that the
appellant, at the time of the commission of the offences, was under the influence of
liquor and possibly also drugs, that the appellant lacked criminal capacity because of
his state of intoxication and that he was accordingly guilty of a contravention of
section 1(1) of the Criminal Law Amendment Act 1 of 1988. On appeal, it was argued
on behalf of the appellant that the evidence was indeed of such a nature as to cast
doubt on the appellants criminal capacity and that the trial Court correctly found that
the appellant could not be convicted. It was, however, further argued that positive
proof of a lack of criminal capacity was absent and that the appellant could
accordingly not have been convicted of contraventions of section 1(1) of Act 1 of
1988. The Court of Appeal discussed and confirmed the principles applicable to
691993 (2) SACR 134 (A) at 162e (emphasis added).
70Ibidat 162e-f (emphasis added).71 For a distinction between the inferential process directed at determining a fact (often referred to as asecondary fact),on the one hand, and a primary fact found proved, on the other, see the decision of thisHonourable Court in S v Basson 2004 (1) SACR 285 (CC) at para [49].721996 (1) SACR 325 (A).
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section 1(1) of Act 1 of 1988 and stressed the fact that it was the task of the trial
Court, in every particular case, to decide whether the accused indeed lacked the
requisite criminal capacity. The court identified certain shortcomings in the court a
quos application of the legal principles pertaining to the evaluation of evidence
relating to criminal capacity. In view of these shortcomings, the Appellate Division
invoked the provisions of section 322(1 ){b)of the CPA and applied S v E supra,73and
held that the evidence, as a whole, had accordingly to be assessed anew.74 The
legal representatives of the parties were also requested to submit argument on the
question of whether the appellant should not, in the first instance, have been
convicted on the original counts. After reassessing the evidence the Appellate Court
found that no reasonable doubt had been cast on the appellants criminal capacity.
The evidence was furthermore sufficient to lead to the conclusion that the appellant
was, beyond reasonable doubt, guilty of committing the crimes that he was originally
charged with.75 The Court of Appeal thus set aside the convictions of contraventions
of section 1(1) of Act 1 of 1988 and substituted convictions on the original, more
serious charges.76
53. The apposite Appellate Division case of R v Von Elling involved an appeal upon a
question of law reserved by a Special High Court.77 The accused, von Elling, was
charged with theft but found guilty of being an accessory after the fact to the crime of
theft. The trial Court reserved for the decision of the Court of Appeal a question of
law, namely whether that Court had jurisdiction to convict the accused of being an
accessory after the fact to the theft. The Appellate Division affirmed that the question
73Ibidat 330c-/.
74Ibid
at 330/.75Ibidat 330/-334d.
76Ibidat 334/-335a.
771945 AD 234.
jETVVA
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reserved had to be answered in the negative, but then proceeded to consider the
practical effect of this answer on the proceedings in the case. The Court, per Tindall
JA, pointed out that the accused had pleaded not guilty and that evidence was
adduced at trial which in fact implicated the accused in the theft. The State
contended on appeal that since the evidence proved that the accused played a part in
the theft, the Court of Appeal ought to substitute a verdict of guilty of the crime of theft
in the place of the incompetent verdict of guilty of being an accessory after the fact to
that crime. The Court of Appeal observed that the predecessor to section 322(1 )(>)
of the CPA empowered the Court to substitute the correct verdict for that given by the
trial Court. That being so, Tindall JA held that it was necessary to state the effect of
the evidence relevant to the liability of von Eiling which was accepted by the Special
High Court.78 The Court of Appeal thereupon proceeded to deal with the evidence
presented at trial, as well as the trial Courts factual findings, and ultimately came to
the conclusion that the evidence showed that the accused was guilty of theft. Since
the accused was charged with theft, and since, as the Court of Appeal found, his acts
showed that he committed theft, it was held by the Court of Appeal that the correct
course [was] to substitute a verdict of guilty of theft.79 The Court of Appeal therefore
made the following order: The question reserved is answered in the negative. The
verdict of guilty of theft is set aside and a verdict of guilty of theft substituted
therefor.80
54. In the present matter, the SCA answered the first two questions of law reserved in the
States favour. These questions related respectively to the trial Courts incorrect
78ibidat 243 (emphasis added).79Ibidat 251-252.
80Ibidat 252.
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application of the principles of dolus eventualis, including error in objecto, and
incorrect conception and application of the legal principles pertaining to circumstantial
evidence and multiple defences by an accused.81
55. The SCA then pertinently dealt with the question of what that Court was required to
do in the light of these findings; in other words, as in Von Elling supra, what the
practical effect was of the answers to the questions of law reserved on the
proceedings in the case.82 The SCA considered that it was required to set aside the
conviction of culpable homicide and either order that the Applicant be tried de novo
on the murder charge as framed in the indictment or to act in terms of section 322(1)
of the CPA.83 Having found that it was wholly impracticable and not in the public
interest to order that a trial de novo be instituted, and particularly where neither the
State nor the Applicant pressed for such an order,84 that meant that the SCA was
required to act in terms of section 322(1) of the CPA. As mentioned above, counsel
for the Applicant in the SCA argued that such Court should exercise its discretion
under s 322 to make no further order."85 However, the SCA found that such would
also be undesirable, holding that:86
The interests of justice require that persons should be convicted of the actual
crimes they have committed, and not of lesser offences. That is particularly so in
crimes of violence. It would be wrong to effectively think away the fact that an
81See para [42] of the SCAs judgment.
82Ibidat para [43].
83Ibidat paras [43]-[47].
84Ibidat para [44].85Ibidat para [45].
86Ibidat para [45].
61M
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380 4 0
accused person is guilty of murder if he ought to have been convicted of that
offence
56.The SCA accordingly found that the option which most read ily presented itself as
being in the interests of justicewas to set aside the conviction of culpable homicide
and to consider whether on the facts found proved, the trial court erred in drawing
the inference it did as to dolus eventualis, so as to give such judgment as the trial
Court ought to have given in terms of section 322(1 )(>) of the CPA.87 The Court, per
Leach JA, proceeded to observe in this respect:88
This is so as in an appeal of this nature this court is in as pood a position as the
trial court in drawing inferences of fact from proven facts. In my view, then, the
interests of justice require this court on an acceptance of the facts found proved, if
of the view that the incorrect conclusion was reached in respect of dolus, to set
aside the conviction of culpable homicide on count 1 [the murder charge as per
the indictment]. The pertinent issue then becomes whether, on the primary facts
found proved, considering all of the evidence relevant to the issue, and applying
the correct legal test the inference has to be drawn that the accused acted with
dolus eventualis when he fired the fatal shots.89
57.This approach adopted by the SCA in reassessing the question of whether the
Applicant had dolus eventualiswhen he shot and killed the deceased, in order to give
such judgment as the trial Court ought to have given in terms of section 322(1 ){b)of
the CPA, accords with the same procedure or approach enunciated and endorsed or
87Ibidat para [46] (emphasis added).88 Ibidat paras [46]-[47] (footnote omitted).
89Emphasis added.
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followed in the above-mentioned dictaof Von Elling, S v E, S v Morgan and Others,
and S v September. The SCA was empowered in terms of section 322(1 )(b)of the
CPA to substitute a conviction of murder for the conviction of culpable homicide (ie. to
alter the conviction on the less serious charge to a conviction on the more serious
charge in accordance with Von Elling, S v E and S v September supra), if it found,
as the trial Court ought to have found, that the Applicant had dolus eventualiswhen
he killed the deceased.
58. It follows therefore, with respect, that the Court of Appeal was required to deal with
the factual issue of whether putative private defence which excludes dolus could be
relied on by the Applicant, an aspect which was strongly pursued by the Applicant not
only at trial but also before the SCA in argument. In other words, in accordance with
the procedure enunciated in the Appellate Division decisions of Von Elling, S v E, S
v Morgan and Others, and S v September supra,the SCA in the present matter had
to reassess the primary factual findings made by the trial court or facts found proved,
as well as the relevant legal principles, in deciding whether the Applicant could rely on
the defence of putative private defence.
59. In any event, with respect, it can be argued that the matter of putative private defence
is an issue that was connected90 to the first question of law reserved pertaining to
the correct application of the principles of dolus eventualis, and consequently did not
fall outside the purview of the nature of the States appeal in casu.
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90 Section 168(3)(6)(ii) of the Constitution.
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60. In the circumstances, it is respectfully submitted that the first, main contention by the
Applicant that the SCA exercised it powers in terms of section 322(1) outside the
ambit of the States appeal in terms of section 319 of the CPA, is without merit and
contrived.
PURPORTED ERRORS OF LAW
61.The Applicants submissions as encapsulated in para [14] of Fawcetts founding
affidavit, that the SCA was mistaken as to the law on dolus eventualisand knowledge
of unlawfulness, is without merit and contrived.
62. Putting aside the other defences raised by the Applicant, it is crucial to recognise that
putative private defence in the context of this case, requires that a compound
question be considered - taking account of three considerations, which we address in
more detail below:
62.1. That the form of fault in issue is dolus eventualis;
62.2. That - on the version of the Applicant - this was a scenario of error in
objecto;
62.3. That putative private defence is a simple application of the principle that the
fault requirement of a crime must extend to all of the material requirements
of the actus reus.
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63. It is only once the compound nature of the appropriate question is appreciated that
the ultimate question can be formulated together with the manner in which this
question must be answered. This is crucial because it gives rise to questions that
were not asked by the trial court, but which were clearly engaged with and answered
by the Supreme Court of Appeal (discussed below). It is respectfully argued that
once this is appreciated, it becomes clear that the Supreme Court of Appeals
judgment is beyond reproach.
DOLUS EVENTUALIS
64.The form of fault that is in issue in this case is dolus eventualis. The requirements of
this form of fault are well recognised in our law, stretching back to 1953 in R v
Heubsh91 and 1958 in R v Horn,92 confirmed in the case of S v Ngubane,93 and
most recently in S v Hum phreys94 and again in S v Brown.95
Following Ngubane, it consists in:
64.1. Foresight;
64.2. Recklessness (also known as the volitional component), including:
91 1953 (2) SA 561 (A).92 1958 (3) SA 457 (A) at 465.93 1985 (3) SA 677 (A).94 2013 (2) SACR 1 (SCA).95 2015 (1) SACR 211 (SCA) at para [104].
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64.2.1 Reconciliation with or consent to the foreseen risk (also known as taking
the risk into the bargain); and
64.2.2 Persisting or proceeding - reckless as to whether the foreseen risk
eventuates.96
65. There is no dispute in our law that this is the accepted formulation of doius eventualis.
There is some academic debate as to the purpose served by the second requirement
(reconciliation with or consent to the foreseen risk) listed here,97 but nowhere is there
any authority in any case-law or mainstream academic literature to the effect that
dolus eventualis is or should be formulated as the Applicant argues it is or should be,
namely as follows:
65.1. Foresight and reconciliation; and
65.2. Knowledge of unlawfulness.98
66. Indeed, Jonathan Burchell correctly points out that knowledge of unlawfulness is the
second principal element of fault (mens reaj, whereas intention in whatever form
(idolus directus, dolus indirectus or dolus eventualis) is the first principal element of
fault (mens rea).99 What the Applicant seeks to do impermissibly is to confuse or
conflate the second element of fault, namely knowledge of unlawfulness, with the
first element of fault, namely dolus. It is, however, well-settled in our common law
96 S v Ngubane1985 (3) SA 677 (A) at 658F-G.
97 R C Whiting Thoughts on dolus eventualis' (1988) 1 SACJ 440; Paul T. Smith 'Recklessness in DolusEventualis' (1979) 96 SALJ 92-3.98 See paras 14.1 and 50ff of Affidavit in Support of Application for Leave to Appeal.
99J Burchell Principles o f Criminal Law 4 ed (2013) 345.
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that knowledge of unlawfulness Is a separate and distinct element to that of dolus,
and is thus not a component of dolus. Only once it is established that dolus is
present, would one then determine whether the separate element of fault, namely
knowledge of unlawfulness, is also present. If dolus is found to be absent, a
determination of whether there was knowledge of unlawfulness is naturally rendered
entirely nugatory. This is the long-established principle in South African law. The
Applicant, nonetheless, without any substantiation in law, introduces an entirely alien
and anomalous conception of dolus,and for that matter, for the first time for judicial
consideration in this Honourable Court (effectively then as a Court of first instance).
67. Furthermore, to the extent to which the submission appears to be that the Supreme
Court of Appeal failed to enquire into the knowledge of unlawfulness of the conduct in
question, it fails to observe that the Supreme Court of Appeal did indeed concern
itself with this question in considering the Applicants defence of putative private
defence.100
68.There is therefore nothing of any substance in the argument of the Applicant, save to
enable it to argue that the Supreme Court of Appeal made an error. The purpose of
this argument is to open the way for an appeal to this Honourable Court, which we
submit, ought not to be entertained.
69. It is respectfully submitted that the law is clear, that there has been no deviation from
the accepted definition of - and application of the principles of dolus eventualis. The
mere argument of the existence of a new definition of dolus eventualiswithout any
pTlN\
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100See paras [52]-[55] of the SCAs judgment.
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support in case-law or respected and accepted legal writing should not, with respect,
constitute a valid ground for appeal.
70.1 have endeavoured to focus my submissions on the stated errors of law and in the
process have dealt in more particularity with the legal principles pertaining to the
Applicants grounds of appeal. I do, however, wish at this stage to draw this
Honourable Courts attention to the primary facts found proved by the Court a quo,as
delineated in paras 18 and 19 of our Heads of Argument filed in the SCA. We
reiterate that the only conceivable inference that could be drawn on the facts found
proved and on a consideration of the erroneously ignored evidence, is that the
Applicant acted with dolus eventualis. The SCA agreed as much.101
71.1 have for purposes of this affidavit summarised the main arguments in opposition to
the Applicants application for leave to appeal, but respectfully refer this Honourable
Court to the exposition of the legal principles governing dolus eventualisand error in
objectoas set out in our Heads of Argument filed in the SCA, at paras [39]-[60].
101See paras [50] and [54] of the SCAs judgment.
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72.The scenarios of aberratio ictusand error in objecto are clearly distinguishable, and
indeed, a distinction is drawn between these two concepts in South African law.
73. In the Supreme Court of Appeal, the Applicant argued that a distinction must be
observed between being mistaken as to the identity of a victim as opposed to where
an accused mistakenly consciously excludes the prospect that a particular person
could be the actual victim.102 The reasoning is, we submit, fallacious. Our law is
clear: if A shoots and kills C, thinking that C is B, this constitutes error in objectoand
this error is no defence. The Applicant argued that it should somehow matter if A
thought that C was somewhere else (in the bedroom), and thereby consciously
excluded C (as the person in the toilet).
74. What the Applicant did not observe is that it is in the nature (indeed it is require by
definition) of being mistaken in killing C, when one thinks that one is killing B, that one
thinks that C is notB. It is essential to the mistake that one has excluded the identity
of the actual victim fromthe actual victim. This is the very essence of the mistake. It
cannot be the basis for the recognition of some exception within the settled law that
an error in objectois no defence.
75. In spite of the SCA correctly identifying this aspect as a fundamental error103 the
Applicant persists in the argument, before this Honourable Court, that the identity of
the victim is somehow relevant:
102 See para 61 of the Applicants Heads of Argument.103See para [30] of the SCAs judgment.
ERROR IN OBJECTO
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The Trial Court found that at the time of the discharging of the shots the Applicant
believed that the Deceasedwas in the bedroom. This negated any possibility that
the Applicant foresaw and reconciled himself with the death o f the Deceased. It is
in this respect that dolus eventualis could not be found on the facts.104
76. The Applicants submission here seeks to maintain the relevance of an error in
objectoby transferring the intention to lawfully kill the intended victim onto the actual
victim. This is contrary to the settled position that in the context of error in objecto,
the identity of the victim is entirely irrelevant. It is so at odds with settled principle that
it strays into the territory of the law relating to aberratio ictus in which, against the
weight of the prevailing authority,105 the Applicant argues that the intention to act
lawfully against one person should be transferred to the actual victim.
77.As we have argued, this submission is wrong in settled law on the several grounds
set out above, but even if correct, it appears to turn ultimately on the argument that
the Supreme Court of Appeal failed to properly consider whether the Applicant had
knowledge of unlawfulness. This, again, is, with respect, a spurious argument.
78.The SCA considered the defence of lack of knowledge of unlawfulness - which is the
defence of putative private defence towards the end of its judgment in considering
104 See para 37 of Affidavit in Support of Application for Leave to Appeal. See also paras 34 (where theApplicant submits that error in objectowas only irrelevant because he lacked knowledge of unlawfulness -
which suggests that error in objectois otherwise relevant), 35, 38, and 80 of Fawcetts affidavit.105 S v Mahunga 1981 (1) SA 57 (A); S v Mtshiza 1970 (3) SA 747 (A); Snyman Criminal Law 6ed (2014)
194.
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whether the Applicant was genuinely mistaken as to the unlawfulness of killing
whoever was in the toilet.106
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79. Therefore, the suggestion that error in objectowas or could be relevant is ill-founded,
strays into the domain of aberratio ictusand invokes the doctrine of transferred intent
or malice (against the weight of authority), and, in any event, such substance as may
be extracted from the submission was addressed by the Supreme Court of Appeal
and rejected.
80. There is nothing of any substance in the argument of the Applicant.
PUTATIVE PRIVATE DEFENCE
81. The defence of putative private defence is a simple application of the principle that
the fault requirement of a crime must extend to all of the material requirements of the
actus reusof the crime in question.107
82.The SCA, with respect, correctly found that in order to bring the accused within the
ambit of putative private defence he must have intended to shoot at the person whom
he thought posed a danger to him. The Applicant testified that he did not intend to
shoot at whoever was inside the toilet and thus he fell outside of the ambit of the
defence of putative private defence.108
106 See paras [52]-[55] of the SCAs judgment.107 J Burchell South African Criminal Law and Procedure: General Principles of Criminal Law 4 edVol 1 (2011) 220-221; A Paizes Mistake as to the Causal Sequence' and 'Mistake as to the Causal Act':Exploring the relation between Mens Rea and the Causal Element of the Actus Reus (1993) 110 SALJ
493; S v Goosen 1989 (4) SA 1013 (A); R v Mbombela 1933 AD 269; R v Churchill 1959 (2) SA 575 (A).108 See para [53] of the SCAs judgment.
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83.The fault requirement for murder, encompasses numerous requirements, including
that the accused must intend to:
83.1. kill, as opposed to merely harm;
83.2. kill a human being,as opposed to some other thing, such asa tokelosh;109
83.3. kill anotherhuman being as opposed to oneself; and
83.4. unlawfully kill another human being, as opposed tolawfully killing another
human being.
84.This is all trite and, contrary to the submission of the Applicant,110 precedes even the
decision in S v De Blom111 - which decided the point that the fault requirement must
go further and extend to the general prohibition of the crime.112
85. Given that the defence of putative private defence is a simple application of the
principle that the fault requirement of a crime must extend to all of the material
requirements of the actus reus of the crime in question, the defence of putative
private defence, in the context of murder, asks the question whether dolus, of
whatever form, extends to the unlawfulness requirement.
86.The SCA did engage in the enquiry as to whether the accuseds fault, in the form of
dolus, extended to the unlawfulness requirement. It enquired whether the Applicant
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109 R v Mbombela 1933 AD 269.
110 See para 54 of Affidavit in Support of Application for Leave to Appeal.111 S v De Blom
1977 (3) SA 513 (A).112 See, in general, the decisions of R v Mbombela 1933 AD 269; R v Church ill 1959 (2) SA 575 (A); S v Botes 1966 (3) SA 606 (O); S v Mokoena 1976 (4) SA 162 (O) for an application of the principle toknowledge of unlawfulness - all predating De Blom in 1977.
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was genuinely mistaken as to the unlawfulness of his conduct and concluded that he
was not113.
87.The Supreme Court of Appeals discussion reveals that not only did it define and
conceptualise each element of the ultimate question before it correctly, but it applied
the law in a logical and coherent step-by-step fashion. This led it to answer the
ultimate question which arises in the context of error in objecto,where the defence of
putative private defence had been raised and the form of the intention in question is
dolus eventualis: did the accused foresee the possibility that he could unlawfully kill
whoever was behind the door, and did he accept this risk and proceed nevertheless?
88.The Supreme Court of Appeal answered this question in the affirmative - he did
indeed at least foresee the risk of unlawfully killing whoever was behind the door, he
accepted that risk and proceeded nevertheless. This, the Supreme Court of Appeal
correctly found, makes the Applicant guilty of murder.
OBJECTIVE CONSIDERATION
93. The applicant also argues that the SCA impermissibly introduced objective
considerations into its enquiry for intention by referring to the rational person to
determine the subjective state of mind of the applicant114 for the purposes of judging
his claim of putative private defence. We immediately stress that the term reasonable
person was not used.
113 See para [53]-[55] of the SCAs judgment.114See paras 14.3 and 62ff of Affidavit in Support of Application fo r Leave to Appeal.
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94. However, it is, with respect, clear that the SCA rejected the defence of putative
private defence on the basis that the Applicant could not rely on such defence. The
ratio of the SCA is as follows:115
The immediate difficulty that I have with the accuseds reliance upon putative
private defence is that when he testified, he stated that he had not intended to
shoot the person whom he felt was an intruder. This immediately placed himself
beyond the ambit of the defence, although as I have said, his evidence is so
contradictory that one does just not know his true explanation for firing the
weapon. His counsel argued that it had to be inferred that he must have viewed
whoever was in the toilet as a danger. But as was pointed out in De Oliv iera,116
the defence of putative private defence implies rational but mistaken thought.
95. Reference to the rational person is obiter and must be understood in light of the
reference to De Oliv ieras decision. I submit that it is clear, with respect, that such a
reference is derived from what was said in De Oliviera, to the effect that the defence
of putative private defence is a rational defence - one in which the accused asserts
that he was mistaken but rational.117 Rational in this context connotes goal directed
conduct.
96.1submit further that the Supreme Court of Appeal clearly applied a subjective test and
concluded that the Applicant acted with dolus eventualis in causing the death of the
deceased.118
115See para [53] of the SCAs judgment.
116S v De Oliveira 1993 (2) SACR 59 (A) at 65d.
117 Ibidat 65d.
118See para [54] of the SCAs judgment.
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97.The SCA did not evaluate and assess the version of the Applicant against that of a
reasonable person standard, but by referring to the rational person, suggested the
view that the Applicants version as testified to was so preposterous or
inconceivable" that it could not be accepted. In any event, as was held in S v
Beukes en n Ander, the trial court draws an inference concerning the accuseds
state of mind from the facts which point to it being reasonably possible, objectively
seen, that the consequences would eventuate.119
98. What is material ultimately is that the SCA found as follows on the subjective state of
mind of the Applicant at the relevant tim e:120
Consequently, although frightened, the accused armed himself to shoot if
there was someone in the bathroom and when there was, he did. In doing so he
must have foreseen, and therefore did foresee that the person he was firing at
behind the door might be fatally injured, yet he fired without having a rational or
genuine fear that his life was in danger
99. These comments must