Recent Case: Criminal procedure

• Author: Watney, M.
• DOI: https://doi.org/10.47348/SACJ/v34/i3a5
• Published date: 23 February 2022
• Date: 23 February 2022
• Pages: 493-506

Criminal procedure

MURDOCH WATNEY

University of Johannesburg

1 Appeal: Reservation of question of law by the state

The provisions of the Criminal Procedure Act 51 of 1977 (the Act) aim

to limit appeals by the state. The state may therefore only appeal on a

point of law from both a lower court (s 310) and a High Court (s 319)

(A Kruger Hiemstra’s Criminal Procedure (2021 SI 9) 31–34; E du Toit

et al Commentary on the Criminal Procedur e Act (2021 RS 65) 31–35).

The courts require st rict compliance with these provisions before an

appeal by the state on a question of law is allowed (see the majority

judgment in Director of Public Prosecutions , Limpopo v Molope 2020

(2) SACR 343 (SCA) at para [39] in respect of s 319; MWatney ‘Recent

cases: Criminal procedure’ (2020) 33 SACJ 761 at 769–770). Drawing a

distinction between questions of law and questions of fact is generally

recognised as a challenging task (Director of Public Prosecutions,

Western Cape v Schoeman 2020 (1) SACR 449 (SCA) at para [1]). As

a result, questions of fact have often been portrayed as questions

of law. This practice has been criticised by the courts (Magmoed v

Janse van Rensburg 1993 (1) SACR 67 (A) 101H; Director of Public

Prosecutions, KwaZulu-Natal v Ramdass 2019 (2) SACR 1 (SCA) at

paras [29]–[56]; J Joubert et al Criminal Pr ocedure Handbook (2017)

461). In the Schoem an case the Supreme Court of Appeal set the

following requirements that must be met before a question of law may

be reserved: (i) the question of law has to be framed accurately; (ii) the

facts upon which the point hinges must be clear; and (iii) the facts and

the question of law should be set out fully in the record (para [39]).

Hard on the heels of Schoeman and Molope, s 319 again received

the attention of the Supreme Court of Appeal in S v Poo e 2021 (2) SACR

115 (SCA) and, as in the Molop e case, the decision of the court was

not unanimous. In this case the respondent was prosecuted with a co-

accused in the high court on charges of murder, robbery, kidnapping

and the unlawful possession of a rearm and ammun ition. After the

respondent’s acquittal the state requested the trial court to reserve

the following four questions of law in terms of s 319 for consideration

by the Supreme Court of Appeal: (i) whether the trial court failed to

evaluate the evidence in accordance with accepted legal principles,

i.e. in totality; (ii) whether the court erred in acquitting the accused

without evaluating his version of alleged duress; (iii) whether the

court erred in disregarding the corroboration that objective evidence

https://doi.org/10.47348/SACJ/v34/i2a5

493

(2021) 34 SACJ 493

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