S v Liesching and Others

• Jurisdiction: South Africa
• Citation: 2019 (4) SA 219 (CC)

S v Liesching and Others
2019 (4) SA 219 (CC)

2019 (4) SA p219

Citation	2019 (4) SA 219 (CC)
Case No	CCT 304/16; [2018] ZACC 25
Court	Constitutional Court
Judge	Zondo DCJ, Cameron J, Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J and Zondi AJ
Heard	August 29, 2018
Judgment	August 29, 2018
Counsel	HL Alberts (with E Guarneri) for the applicants, instructed by Legal Aid South Africa; Pretoria Justice Centre.; SJ Khumalo for the state.

Flynote : Sleutelwoorde

Appeal — Leave to appeal — Refusal by Supreme Court of Appeal — Referral by President of Supreme Court of Appeal for reconsideration — 'Exceptional circumstances' — Meaning of — Superior Courts Act 10 of 2013, s 17(2)(f). C

Headnote : Kopnota

The applicants were convicted and sentenced in the High Court on various counts, including murder. Without success, they applied, first to the High Court, and then to the Supreme Court of Appeal (SCA), for leave to appeal. Subsequently, a further person was charged for his involvement in the same crimes for which the applicants had been convicted. A witness upon whom D the state had relied in the applicants' trial to convict them once again testified for the state. This time, however, the witness recanted his earlier testimony against the applicants. This turn of events prompted the applicants to apply, in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013, to the President of the SCA to refer the decision refusing leave to appeal to the court for reconsideration, based on new evidence. Ultimately, the President refused, on the basis that the applicants had failed to prove the E existence of 'exceptional circumstances', as demanded by the provision in question. The applicants consequently applied to the Constitutional Court for leave to appeal that refusal.

A question arose as to whether the Constitutional Court possessed jurisdiction to hear an appeal of the kind in question, ie one against a decision by the F President, in terms of s 17(2)(f) of the Act, that no exceptional circumstances existed justifying a referral for reconsideration of a refusal of an application for leave to appeal to the SCA. The parties had assumed that the court did have such jurisdiction. Given that, and the consequent lack of full argument from them on what was a complex question, the court made the same assumption, without resolving the question. It proceeded to deal with G what was meant by 'exceptional circumstances', and whether the President of the SCA was correct in finding that none were present. (See [125] – [127].)

Held, that the phrase 'exceptional circumstances' as it appeared in s 17(2)(f) of the Act could not be generally defined, as each case had to be considered on its own facts (see [132]). However, without being exhaustive, exceptional circumstances, in the context of s 17(2)(f), should be linked to either the H probability of grave individual injustice or a situation where, even if grave individual injustice might not follow, the administration of justice might be brought into disrepute if no reconsideration occurred. The section was not intended to afford disappointed litigants a further attempt to procure relief that had already been refused. It was intended to enable the President to deal with a situation where otherwise injustice might result and did not I afford litigants a parallel appeal process in order to pursue additional bites at the proverbial appeal cherry. (See [138] – [139].)

Held, that it was doubtful that the relief sought by the applicants on appeal to the SCA — ie that their convictions and sentences be set aside and their case be sent back to the High Court for the hearing of further evidence — would have been granted. That is, they would likely have failed to establish that J

2019 (4) SA p220

there A was a prima facie likelihood of the truth of the evidence, and that it was materially relevant to the outcome of the trial. The simple about-turn by the witness, without any externally verifiable signifier, did not constitute exceptional circumstances conferring a discretion on the President as envisaged in s 17(2)(f). As such, the President was correct in finding that no such circumstances existed, and no grave injustice would result if leave B to appeal were refused. (See [145] and [161].) Application for leave to appeal accordingly dismissed.

(Kathree-Setiloane AJ, dissenting, after a detailed analysis of s 17(2)(f) and the meaning of the phrase 'exceptional circumstances' (see [34] – [52]), held that the new evidence did in fact constitute an exceptional circumstance; that the failure to refer the matter for reconsideration would result in a grave C injustice to the applicants; and that it would be just and equitable for the court to substitute its decision for that of the President of the SCA. (See [112] – [113].)

Cases cited

Southern Africa

Avnit v First Rand Trading D [2014] ZASCA 132: applied

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): dictum in para [72] applied

Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC) (2011 (4) BCLR 329; [2010] ZACC 28): referred to

Bookworks (Pty) Ltd v Greater Johannesburg Transitional Metropolitan Council and Another E 1999 (4) SA 799 (W) ([1999] 4 All SA 505): applied

Cape Town City v Aurecon SA (Pty) Ltd 2017 (4) SA 223 (CC) (2017 (6) BCLR 730; [2017] ZACC 5): dictum in para [34] followed

Diale v R 1953 (1) PH H12 (A): referred to

Greenfields Drilling CC and Others v Registrar of the Supreme Court of Appeal and Others F 2010 (11) BCLR 1113 (CC) ([2010] ZACC 15): referred to

Head of Department, Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another 2010 (2) SA 415 (CC) (2010 (3) BCLR 177; [2009] ZACC 32): referred to

Kgatle v Metcash Trading Ltd 2004 (6) SA 410 (T): compared

Mabaso v Law Society, Northern Provinces, and Another 2005 (2) SA 117 (CC) G (2005 (2) BCLR 129; [2004] ZACC 8): referred to

Makate v Vodacom Ltd 2016 (4) SA 121 (CC) (2016 (6) BCLR 709; [2016] ZACC 13): referred to

Mphahlele v First National Bank of SA Ltd 1999 (2) SA 667 (CC) (1999 (3) BCLR 253; [1999] ZACC 1): referred to

MV Ais Mamas: Seatrans Maritime v Owners, MV Ais Mamas, and Another H 2002 (6) SA 150 (C): referred to

Norwich Union Life Insurance Society v Dobbs 1912 AD 395: referred to

Ntlemeza v Helen Suzman Foundation and Another 2017 (5) SA 402 (SCA) ([2017] 3 All SA 589; [2017] ZASCA 93): applied

Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC) (2015 (5) BCLR 509; [2015] ZACC 5): referred to

R v Baartman I 1960 (3) SA 535 (A): followed

R v Dhlumayo and Another 1948 (2) SA 677 (A): referred to

R v Foley 1926 TPD 168: referred to

R v Kgolane 1959 (4) SA 483 (A): referred to

R v Van Heerden and Another 1956 (1) SA 366 (A): followed

S v Basson 2005 (1) SA 171 (CC) (2004 (1) SACR 285; 2004 (6) BCLR 620; [2004] ZACC 13): referred to J

2019 (4) SA p221

S v Bruiners en 'n Ander 1998 (2) SACR 432 (SE): referred to A

S v Bruintjies 2003 (2) SACR 575 (SCA) ([2003] ZASCA 4): referred to

S v De Jager 1965 (2) SA 616 (A): referred to

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (4) SA 51 (CC) (1999 (2) SACR 51; 1999 (7) BCLR 771; [1999] ZACC 8): referred to B

S v Essack and Another 1974 (1) SA 1 (A): referred to

S v Greenwood [2015] ZASCA 56: referred to

S v Gwababa [2016] ZASCA 200: considered

S v H 1998 (1) SACR 260 (SCA) ([1997] ZASCA 108): followed

S v Karrim [2011] ZASCA 230: followed

S v Lehnberg and Another 1976 (1) SA 214 (C): referred to C

S v Liesching and Others 2017 (2) SACR 193 (CC) (2017 (4) BCLR 454; [2016] ZACC 41): distinguished

S v Loubscher 1979 (3) SA 47 (A): referred to

S v Malele; S v Ngobeni and Others [2016] ZASCA 115: referred to

S v Mohammed 1999 (2) SACR 507 (C) ([1999] 4 All SA 533): dictum at 513j – 514b applied D

S v Mulula [2014] ZASCA 103: referred to

S v Naidoo 1998 (2) SACR 458 (C): considered

S v Njaba 1966 (3) SA 140 (A): referred to

S v Nkala 1964 (1) SA 493 (A): referred to

S v Nkomo [2014] ZASCA 186: referred to

S v Notshokovu [2016] ZASCA 112: referred to E

S v Ntlanyeni 2016 (1) SACR 581 (SCA) ([2016] ZASCA 3): referred to

S v Petersen 2008 (2) SACR 355 (C): considered

S v Safatsa and Others 1988 (1) SA 868 (A): referred to

S v Sithole [2006] ZASCA 173: referred to

S v Smith 2012 (1) SACR 567 (SCA) ([2011] ZASCA 15): referred to

S v Tofa [2015] ZASCA 26: followed F

S v Wilmot 2002 (2) SACR 145 (SCA) ([2002] ZASCA 42): referred to

S v Zondi 1968 (2) SA 653 (A): referred to

Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another 2015 (5) SA 245 (CC) (2015 (10) BCLR 1199; [2015] ZACC 22): applied G

Van der Walt v Metcash Trading Ltd 2002 (4) SA 317 (CC) (2002 (5) BCLR 454; [2002] ZACC 4): referred to.

England

Birkett v James [1978] AC 297 (HL) ([1977] 2 All ER 801): dictum at 317D – G applied H

Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 All ER 722 (HL) ([1940] AC 152): referred to

Ladd v Marshall [1954] 3 All ER 745 (CA): referred to.

Legislation cited

The Superior Courts Act 10 of 2013, s 17(2)(f): see Juta's Statutes of South Africa 2017/18 vol 1 at 2-255. I

Case Information

HL Alberts (with E Guarneri) for the applicants, instructed by Legal Aid South Africa; Pretoria Justice Centre.

SJ Khumalo for the state. J

2019 (4) SA p222

An A application for leave to appeal from the refusal by the President of the Supreme Court of Appeal of an application to lead additional evidence in a completed trial.

Order

1.

The application for leave to appeal is dismissed.

2.

B There is no order as to costs.

Judgment

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