Mokoena v Minister of Justice and Another

• Jurisdiction: South Africa
• Judgment Date: 01 October 1968
• Citation: 1968 (4) SA 708 (A)

Mokoena v Minister of Justice and Another
1968 (4) SA 708 (A)

1968 (4) SA p708

Citation	1968 (4) SA 708 (A)
Court	Appellate Division
Judge	Steyn CJ, Rumpff JA,Botha JA, Jansen JA and Muller AJA
Heard	September 9, 1968
Judgment	October 1, 1968

Flynote : Sleutelwoorde

Criminal procedure — Action for restitution — Re-opening of finally disposed of case to prove that accused convicted on false evidence — Such procedure not permissible.

Headnote : Kopnota

E Our common law does not allow a convicted person whose case has been finally disposed of, by simply instituting an action for restitution, to have his case re-opened in order to prove that he had been convicted on false evidence. The special procedure under mandate from or on the authority of the Sovereign, has never been followed in this country and is to be regarded as having been abrogated by disuse. F

Case Information

Application for condonation of the late lodging of the record in an appeal, the application itself and for leave to appeal from a judgment in the Witwatersrand Local Division (VILJOEN, J.). The facts appear from the judgment of STEYN, C.J.

G F. Zwarenstein (with him N. H. Katz), for the applicant: The petitioner seeks condonation in respect of the late lodging of the record and the late presentation of the present petition. The matter is clearly one of vital importance to the petitioner and to the administration of justice. The petitioner has reasonable grounds of appeal. See Melane v Santam Insurance Co. Ltd., 1962 (4) SA at pp. 532 - 533; Saloojee and H Another, NN.O v Minister of Community Development, 1965 (2) SA at pp. 138H, 140H, 141 et seq; S v Yusuf, 1968 (2) SA 52. The powers of the State President in relation to convicted persons are set out in sec. 7 (2) (f) of Act 32 of 1961 and sec. 372 of the Criminal Code. These powers are restricted to the exercise of clemency. The benefits of sec. 24 of Act 9 of 1968, which amended the Criminal Code and introduced a new sec. 363 into the Criminal Code, are not available to the petitioner as the new sec. 363 cannot operate retrospectively, more particularly where a convicted person has exhausted all remedies

1968 (4) SA p709

under previous law. There have been frequent instances in which resort has been made to civil procedures in connection with criminal matters and the Courts have expressed their approval of this means of seeking relief. Schlosberg v The Attorney - General of the Transvaal and the A Additional Magistrate, Johannesburg; In re Rex v Sandig and Others, 1936 W.L.D. 59 at p. 61; Ramsay v Attorney - General of the Transvaal and Additional Magistrate, Germiston, 1937 W.L.D. 70 at p. 73; Solomon v Magistrate, Pretoria, and Another, 1950 (3) SA 603 at p. 607; Behrman v Regional Magistrate, Southern Transvaal, and Another, 1956 (1) SA 318 at p. 319H. The trend of the Roman - Dutch and the later B authorities appears to favour restitutio in integrum as a remedy in criminal cases.

D. M. Williamson, for the respondents: The exception taken in the Court a quo, was rightly upheld. See Solomon v Rex, 1905 T.S. 711; R v Wetton, 1912 T.P.D. 334; R v Zavetsanas, 1912 T.P.D. 908; R. v. C Schiff, 1913 T.P.D. 17; R v D., 1953 (4) SA 384; Makings v Makings, 1958 (1) SA 338; Sibande v Minister of Justice, 1958 (2) SA 114; R v Maharaj, 1958 (4) SA 246; S v E., 1965 (4) SA 526; S v Kaplan, 1967 (1) SA 634; Sita v Olivier, 1967 (2) SA 442; Voet, 48.23.1; Gane, vol. 7, p. 544.

Zwarenstein, in reply, referred to an article by Prof. Scholtens D entitled 'Res Judicata Pro Veritate Accipitur', 1958 S.A.L.J., p. 252. A judgment procured by fraud of one of the parties, either by forgery, perjury or in any other way such as fraudulently withholding documents, cannot be allowed to stand. Herbstein and van Winsen, Civil Practice of the Superior Courts in S.A., 2nd ed., p. 423.

Cur adv vult.

E Postea (October 1st).

Judgment

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.

1968 (4) SA p710

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...