Director of Public Prosecutions, Gauteng v KM

• Jurisdiction: South Africa
• Judgment Date: 02 June 2017
• Citation: 2017 (2) SACR 177 (SCA)

Director of Public Prosecutions, Gauteng v KM
2017 (2) SACR 177 (SCA)

2017 (2) SACR p177

Citation	2017 (2) SACR 177 (SCA)
Case No	1101/2015; [2017] ZASCA 78
Court	Supreme Court of Appeal
Judge	Maya AP, Theron JA, Dambuza JA, Molemela AJA and Gorven AJA
Heard	February 15, 2017
Judgment	June 2, 2017
Counsel	S Mahomed SC (with CP Harmzen) for the appellant.; HL Alberts (with S Moeng) for the respondent.

Flynote : Sleutelwoorde

Appeal — By Director of Public Prosecutions in terms of s 311 of Criminal Procedure Act 51 of 1977 — Leave to appeal — Not required under section. G

Headnote : Kopnota

The Director of Public Prosecutions (the DPP) appealed in terms of s 311 of the Criminal Procedure Act 51 of 1977 (the CPA) against a decision in the High Court in an appeal to that court by the respondent against his conviction and sentence imposed in a regional magistrates' court for the rape of a 13-year-old girl. The High Court set aside the conviction and sentence based on the grounds that sexual intercourse had not been proved; the lack H of evidence proving the chain of events relating to the blood sample taken from the respondent; and the failure by the state to lead evidence to 'corroborate the samples and the authenticity of the tests conducted and to link such samples' to the respondent. The DPP argued on appeal that the failure by the court to take into account relevant evidence was an error of law — it had not considered anything other than the DNA evidence, neglecting to consider the direct evidence. I

Held, by the majority (Gorven AJA, with Maya AP and Theron JA concurring), that the High Court had simply failed to consider admissible evidence by confining itself to the DNA evidence. This was accordingly a question of law decided in favour of the respondent and the provisions of s 311 of the CPA were therefore triggered. That question of law had to be decided in favour of the appellant (see [31]). J

2017 (2) SACR p178

Held, A further, that an application for leave to appeal was not required in a matter arising from the application of s 311 (see [51]).

Held, by the minority (Dambuza JA, with Molemela AJA concurring) (both judges concurring with the majority that the High Court had failed to consider the admissible evidence and that this constituted a question of law triggering the provisions of s 311), that, although s 311 created the right of B appeal, s 16(1)(b) of the Superior Courts Act 10 of 2013 set the procedure and bench mark for all appeals to be held in the Supreme Court of Appeal, and therefore leave to appeal was required (see [24]–[25]).

The appeal was allowed and the matter remitted to the High Court for the appeal to proceed on the merits.

Cases cited

Attorney-General, C Transvaal v Nokwe and Others 1962 (3) SA 803 (T): referred to

Director of Public Prosecutions v Olivier 2006 (1) SACR 380 (SCA) ([2006] 4 All SA 224; [2005] ZASCA 121): compared

Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA) D (2016 (2) SA 317; [2016] 1 All SA 346; [2015] ZASCA 204): dicta in paras [34] and [36] applied

DPP Western Cape v Kock 2016 (1) SACR 539 (SCA) ([2015] ZASCA 197): compared

R v Bhana 1954 (1) SA 45 (A): referred to

S v Absalom 1989 (3) SA 154 (A): referred to

S v Banger 2016 (1) SACR 115 (SCA): referred to

S E v Botha 2002 (1) SACR 222 (SCA) (2002 (2) SA 680; [2002] 2 All SA 577; [2001] ZASCA 146): referred to

S v Le Grange and Others 2009 (1) SACR 125 (SCA) (2009 (2) SA 434; [2010] 1 All SA 238; 2010 (6) BCLR 547; [2008] ZASCA 102): referred to

S v Meje [2011] ZASCA 127: referred to

S F v Nabolisa 2013 (2) SACR 221 (CC) (2013 (8) BCLR 964; [2013] ZACC 17): compared

S v Naidoo 1962 (4) SA 348 (A): referred to

S v Swiegers 1969 (1) PH H110 (A): referred to

S v Tsedi 1984 (1) SA 565 (A): referred to

S v Van Wyk and Another 2015 (1) SACR 584 (SCA) ([2014] ZASCA 152): G distinguished.

Legislation cited

The Criminal Procedure Act 51 of 1977, s 311: see Juta's Statutes of South Africa 2015/16 vol 1 at 2-403 – 2-404

The Superior Courts Act 10 of 2013, s 16(1)(b): see Juta's Statutes of South Africa H 2015/16 vol 1 at 2-266.

Case Information

S Mahomed SC (with CP Harmzen) for the appellant.

HL Alberts (with S Moeng) for the respondent.

An appeal by the Director of Public Prosecutions against a decision in I the Gauteng Division, Pretoria (Louw J and Avvakoumides AJ), in a matter on appeal against a conviction and sentence in a regional magistrates' court for rape.

Order

1.

The appeal is upheld in respect of the first question of law.

2.

J The order of the court a quo is set aside.

2017 (2) SACR p179

3.

The conviction and sentence imposed by the regional court are A reinstated.

4.

The matter is remitted to the High Court for the appeal to proceed on the merits.

Judgment

Dambuza JA (Molemela AJA concurring):

[1] On B 12 February 2014 the respondent was convicted by the Nelspruit Regional Court on a charge of the rape of a 13-year-old girl. He was sentenced to life imprisonment. The regional magistrate ordered that he not be considered for parole and that his name be entered in the register of sex offenders. C

[2] On appeal the Gauteng High Court, Pretoria (per Avvakoumides AJ, with Louw J concurring) (High Court), set aside the conviction and the sentence. Consequently, the respondent was released from imprisonment. The Director of Public Prosecutions, Gauteng Division, Pretoria (the DPP), then brought an application, in this court, for special leave to D appeal against the order of the court a quo. The appeal was to be founded on two questions of law, as provided in s 311(1) of the Criminal Procedure Act 51 of 1977 (the CPA). This court ordered that the application for special leave to appeal be argued in open court and that the parties be prepared to make submissions on the merits of the appeal if invited to do so. E

[3] In this judgment I set out the background facts. I then consider whether the intended grounds of appeal fall within the ambit of s 311 of the CPA, whether such an appeal requires special leave or is an appeal as of right, whether a proper case has been made for special leave to appeal and whether the appeal should be upheld. F

[4] The respondent was charged in the regional court, Nelspruit, with the rape of his 13-year-old niece, who was his sister's daughter (the complainant). At the time of the incident, which took place on 9 September 2005, the complainant shared her home in Phola Trust, Nelspruit, with her elder sister G. Their mother lived in Johannesburg where she worked. Although G this is not clear from the record, it would appear that their father lived elsewhere as well. The respondent lived with his mother (the children's grandmother).

[5] The state led the evidence of the complainant; G who was 16 years H old at the time of giving evidence; Dr Megan Windvogel who examined the complainant after the incident; Nurse Lucy Themba who drew a blood sample from the respondent; and several police officers who were involved in the safekeeping and transmission of the forensic samples. The respondent was the sole defence witness.

[6] The complainant's evidence was as follows. On the afternoon I preceding the night of the incident her uncle, the respondent, and his girlfriend who lived in their locality, requested that she sleep at the girlfriend's home that night, to keep the latter's 14-year-old daughter, K, company, as the couple were going out for the evening. For this reason the couple fetched the complainant from her home during the day and J

2017 (2) SACR p180

Dambuza JA

left A her at the girlfriend's home. In the early hours of the following morning, whilst the complainant was still at the girlfriend's home, the couple returned home. They were drunk and it appeared that they had been fighting. The respondent continued to assault the girlfriend until she ran away. He then ordered the complainant to go to her home with B him to see if G was home. They found her at home. The respondent told the complainant that he was taking her back to his girlfriend's home. On the way he told her that they should stop at his home to close a window. At his home they went into the respondent's bedroom. The respondent closed the window and the bedroom door and C instructed the complainant to undress and get into the bed. By this time he had a firearm in his hand. He promised not to hurt the complainant. When the complainant did as she was instructed the respondent proceeded to have sexual intercourse with her without her consent. Thereafter he gave her R50 and warned her not to tell anyone about the incident. The complainant went home where she immediately told G D what had happened.

[7] G testified that at about 06h00 on the morning of 10 September 2005 she was at home when the complainant arrived home crying, reporting that the respondent had sexual intercourse with her at their grandmother's house E and then gave her R50. G took the money and went to her grandmother's home where she reported the matter. She used the money to telephone her parents from a nearby public phone, to report the incident. While she was phoning her parents, she observed the respondent fleeing from her grandmother's home. Thereafter she, together with her grandmother and her F aunt, went back home to the complainant. She gave what was left of the money to her grandmother to take the complainant to the clinic. Prior to that morning, she had last seen the complainant the previous evening when the respondent's girlfriend came to fetch her to keep her daughter, K, company.

[8] G Dr Megan Windvogel's evidence related to the contents of the medico-legal report she had prepared pursuant to the medical examination of the complainant following the allegation of rape. In...