Mokoena v Minister of Justice and Another

• Jurisdiction: South Africa
• Judge: Steyn CJ, Rumpff JA,Botha JA, Jansen JA and Muller AJA
• Judgment Date: 01 October 1968
• Citation: 1968 (4) SA 708 (A)
• Hearing Date: 09 September 1968
• Court: Appellate Division

Steyn, C.J.:

This is an application for condonation of the late lodging of the record and of this application itself, and for leave to appeal in F forma pauperis against the upholding by the Court below of an exception raised by the respondents in an action brought against them by the applicant.

It appears that in August, 1966 the applicant and another were tried on a charge of murder. The applicant was convicted of the murder and G sentenced to death, his co-accused being acquitted. An appeal to this Division was dismissed in November of that year. The evidence against the applicant was that of the witnesses who identified him and of three other witnesses, William Paul, Joseph Selempi and Petrus Lehaleklane, who had been his cell mates at some stage before the trial. According to William the applicant described to him how he had shot a white woman. The details given to William were sufficient clearly to relate the H shooting to the murder of the deceased, Muriel Osterloh. It was put to him in cross-examination that his evidence had been 'schooled', but this he denied. Joseph and Petrus testified that they had overheard parts of this conversation between the applicant and William. The co-accused was acquitted because the evidence of the two identifying witnesses was considered to be unsatisfactory. In the case of the applicant, however, that evidence found support in the testimony of the other three witnesses.

Steyn CJ

In the judgment of this Court dismissing the appeal, there is the following reference to the evidence of identification:

'Die getuienis is dus nie sterk genoeg beskou om as alleenstaande 'n skuldigbevinding t.o.v. beskuldigde nr. 1 te regverdig nie. Terselfdertyd was die Verhoorhof egter nie bereid om in die geval van A die appellant die getuienis as synde van alle bewyskrag ontbloot, te verwerp nie. Begryplik in isolasie geneem sal dit nie 'n skuldigbevinding regverdig nie, maar al die getuienis as 'n geheel geneem laat geen redelike twyfel wat die skuld van die appellant betref nie.'

In January 1967 the applicant unsuccessfully petitioned the State President to commute the sentence of death. Thereafter, on 23rd January, B William, while a prisoner in a gaol at Kroonstad, declared in an affidavit:

'Dat sekere speurder van Rensburg van Johannesburg vir Joseph Tselampi, Jacob Mathe en myself meegedeel het dat hy 'n saak teen Paulos Mokwena ondersoek in verband met 'n misses wat in Johannesburg dood geskiet was. Die speurder het ons verder meegedeel dat ons die Hof moet vertel dat Paulus Mokwena aan ons gesê het dat hy die misses dood geskiet het. Die speurder het ons verder meegedeel dat indien ons so praat hy ons sal C betaal, en ons dan remissie sou verkry as ons gestraf word.

Dat Paulus Mokwena niks aan my vertel het nie, maar die rede waarom ek wel, soos hierbo genoem, in die Hof gepraat het, was omrede ek deur die speurder beïnvloed was en ek die remissie in gedagte gehad het. Ek het nie gedink hulle sou vir Paulus Mokwena tot die dood veroordeel as ek sulke verkeerde getuienis in die Hof gee nie.'

As a result of this affidavit an urgent application for a stay of execution was prepared, but on receipt of this application in the D Department of Justice the execution was postponed administratively. After further consideration and, presumably, further investigation, the applicant's attorneys were informed on 14th April. 1967 that the State President had decided against commutation. On 18th April the applicant issued a combined summons against the respondents. In his particulars of E claim he alleged in effect that his conviction had been obtained fraudulently by the perjured evidence of William, Joseph and Petrus; that this perjured evidence had been procured and instigated by Major van Rensburg, the officer who investigated the murder, while he was acting within the course and scope of his employment as the servant or agent of first respondent, and that this evidence was of such F materiality that, but for it, the trial Court would inevitably have acquitted him. On these grounds he claimed that the conviction and sentence should be set aside. In response to a request for further particulars the applicant stated that it is not alleged that the prosecutor acted fraudulently. The persons who did so were van Rensburg and the three witnesses mentioned.

G The respondents excepted to the summons on the following grounds:

'1. (a)

The Court has no power or jurisdiction in a civil action to set aside a conviction and sentence in a criminal case.

(b)

The rights of an accused person are governed entirely by the provisions of the Criminal Procedure Act, 56 of 1955, as amended, and the Court cannot exercise a civil jurisdiction to compete with or override a judgment or order or sentence given in a criminal case.

2.

The Court has no power or jurisdiction, in this particular case, to H set aside the conviction and sentence because the fraud relied on is that of a witness and not that of a party. The fraud of a servant of a party cannot in these circumstances be equated with the fraud of a party (who is in fact alleged to be quite innocent of the fraud).'

The exception was upheld with costs. Before this Court counsel for the applicant acknowledged that the prayer for the setting aside of the conviction and sentence could not have been granted in that form. The real claim is for a restitutio in integrum which would, if it should succeed, leave the Attorney - General at liberty to prosecute again on

Steyn CJ

the same charge. The Court below dealt with the matter on that basis and came to the conclusion

'that no remedy for restitutio in integrum on the ground of fraud or perjured evidence exists in our criminal law'.

Subject to a condition with which I need not deal at this stage, counsel A for the respondents did not oppose the application for condonation, but he resisted leave to appeal in forma pauperis. The question is whether an appeal would have a reasonable prospect of success.

In our law, restitution in integrum is, of course, a well-known civil remedy, but, on the whole, our reported cases do not reflect its acceptance as an available procedure in criminal cases. In Prince Albert B Board of Management v Jooste and Others, 4 S.C. 400 at p. 403, DE VILLIERS, C.J., expressed the opinion, with reference to a criminal case, that the corruption of a magistrate or gross irregularity in the proceedings induced by fraud or misconduct of the defendant, would clearly justify the Court in setting aside the proceedings as utterly C null and void, but from the rest of the judgment it would appear that he had in mind the wide powers of review conferred by the Cape statute rather than the remedy here in question. In the unnamed case reported in 15 S.C. 228, a procedure analogous to restitutio was adopted, where in another case it had transpired that the theft of which the accused had D been convicted had been committed by others, but that also was on review. The case against the accused was quashed on the ground that after the discovery of the fresh evidence it would be impossible to certify that the proceedings were in accordance with substantial justice. In Solomon v R., 1905 T.S. 71, there was a petition, inter alia, for a new trial, on the ground that the applicant had been E convicted of theft on perjured evidence. With reference to the order sought for a new trial, INNES, C.J., observed (at p. 713):

'That would involve quashing the proceedings in the Court below. Now under the common law, if a judgment is obtained by corrupting the tribunal it is null and void; if it is obtained by fraud it may be possible to set it aside by way of proceedings for restitutio in integrum. The authorities are clear that if one...