S v Liesching and Others

• Jurisdiction: South Africa
• Judgment Date: 15 November 2016
• Citation: 2017 (2) SACR 193 (CC)

S v Liesching and Others
2017 (2) SACR 193 (CC)

2017 (2) SACR p193

Citation	2017 (2) SACR 193 (CC)
Case No	CCT 245/15; [2016] ZACC 41
Court	Constitutional Court
Judge	Mogoeng CJ, Nkabinde ADCJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and Zondo J
Heard	September 6, 2016
Judgment	November 15, 2016
Counsel	HL Alberts and EA Guarneri for the applicants, instructed by Legal Aid South Africa.; SJ Khumalo for the first respondent.; DJ Joubert SC for the second respondent.

Flynote : Sleutelwoorde

Appeal — Leave to appeal — Refusal of by Supreme Court of Appeal — Reconsideration of — Applicability of s 17(2)(f) of Superior Courts Act 10 of 2013 to criminal appeals — Definition of 'appeal' in s 1 not excluding all criminal matters from scope of ch 5 of Act — Section 17(2)(f) applicable in present matter. C

Headnote : Kopnota

A High Court had found that the three applicants had been involved in an assassination-style killing of the deceased. They were sentenced to life imprisonment. A fourth person was subsequently charged with the same offence, but in his trial, the witness, upon whom the state had relied in the D earlier trial, recanted his testimony and this accused was then acquitted.

When the applicants became aware of this development, they approached the President of the Supreme Court of Appeal with an application to refer the refusal of their petition to the court for reconsideration in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013 (the SC Act) — this was based on the further evidence that came to light in the subsequent trial. E

The President dismissed the application on the basis that the evidence was discovered after they had exhausted all their recognised appeal procedures. He noted that s 1 of the SC Act provided that the word 'appeal' in ch 5 of the Act did not include matters regulated in terms of the Criminal Procedure Act 51 of 1977 (the CPA). He found that s 327(1) of the CPA made provision for cases where a convicted person wanted to adduce further evidence that became available after all the recognised legal procedures pertaining to appeal F had been exhausted, and that ch 5 was therefore not applicable to their case.

The applicants then applied in the present proceedings for leave to appeal against this dismissal.

Held, that it was incorrect that ch 5 of the SC Act did not apply at all to criminal proceedings, as this was not textually supported by a careful reading of s 1 of the Act. The President had correctly, on numerous occasions, applied s 17(2)(f) to criminal proceedings (see [62]). G

Held, further, that the President's interpretation created an anomaly, in that a litigant in a civil matter, who wanted to adduce further evidence after a petition had been dismissed, could utilise s 17(2)(f), whereas a convicted person in the same position could not (see [63]).

Held, further, that the interpretation, that s 17(2)(f) could be utilised by litigants H in criminal or civil proceedings to adduce further evidence after a petition had been dismissed, eradicated that anomaly. It also preserved the applicants' right to equal treatment before the law and was in conformity with the command in s 39(2) of the Constitution (see [64]).

Held, further, that the President had not considered whether the further evidence sought to be adduced was an exceptional circumstance, as required by the I section, and had therefore not made a determination whether the matter presented an exceptional circumstance that warranted its referral to the court for reconsideration or variation in the interests of justice (see [65]) . The court accordingly granted leave to appeal and upheld the appeal, and remitted the matter to the President of the Supreme Court of Appeal to consider the application. J

2017 (2) SACR p194

Cases cited

Southern Africa

Avnit v First Rand Bank Ltd [2014] ZASCA 132: considered

Bakgatla-Ba-Kgafela Communal Property Association v Bakgatla-Ba-Kgafela Tribal Authority and Others 2015 (6) SA 32 (CC) (2015 (10) BCLR 1139; B [2015] ZACC 25): 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): applied

Bhagwan's v Swanepoel 1963 (4) SA 42 (E): dictum at 43C – E applied

Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile 2010 (5) BCLR 422 (CC) ((2010) 31 ILJ 273; [2010] 5 BLLR 465; [2010] ZACC 3): C referred to

Brummer v Gorfil Brothers Investments (Pty) Ltd and Others 2000 (2) SA 837 (CC) (2000 (5) BCLR 465; [2000] ZACC 3): referred to

Canca v Mount Frere Municipality 1984 (2) SA 830 (Tk): dictum at 832B – G applied

Chagi D and Others v Special Investigating Unit 2009 (1) SACR 339 (CC) (2009 (2) SA 1; 2009 (3) BCLR 227; [2008] ZACC 22): referred to

Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) (2004 (7) BCLR 735; [2004] ZACC 14): referred to

De Beer NO v North-Central Local Council and South-Central Local Council and Others (Umhlatuzana Civic Association Intervening) 2002 (1) SA 429 (CC) (2001 (11) BCLR 1109; [2001] ZACC 9): referred to

Department E of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) (2007 (10) BCLR 1027; [2007] ZACC 12): dictum in para [51] applied

Greater Johannesburg Transitional Metropolitan Council v Absa Bank Ltd t/a Volkskas Bank 1997 (2) SA 591 (W): dictum at 607E – F applied

Hoban F v Absa Bank Ltd t/a United Bank and Others 1999 (2) SA 1036 (SCA) ([1999] 2 All SA 483; [1999] ZASCA 12): applied

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2000 (2) SACR 349 (CC) (2001 (1) SA 545; 2000 (10) BCLR 1079; [2000] ZACC 12): dictum in G para [22] applied

Minister of Defence and Military Veterans v Thomas 2016 (1) SA 103 (CC) ((2015) 36 ILJ 2751; 2015 (10) BCLR 1172; [2015] ZACC 26): dictum in para [20] applied

Minister of Mineral Resources and Others v Sishen Iron Ore Company (Pty) Ltd and Another 2014 (2) SA 603 (CC) (2014 (2) BCLR 212; [2013] ZACC 45): H dictum in para [40] applied

Mkrola v Samela 1981 (1) SA 925 (A): dictum at 941G applied

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): dictum in para [18] applied

President I of the Republic of South Africa and Another v Hugo 1997 (1) SACR 567 (CC) (1997 (4) SA 1; 1997 (6) BCLR 708; [1997] ZACC 4): dictum in para [12] applied

R v Sibande 1958 (3) SA 1 (A): compared

Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (2) SA 359 (CC) (2005 (4) BCLR 301; [2004] ZACC 20): J referred to

2017 (2) SACR p195

S v De Jager 1965 (2) SA 612 (A): referred to A

S v Marais 2010 (2) SACR 606 (CC) (2011 (1) SA 502; 2010 (12) BCLR 1223; [2010] ZACC 16): referred to

S v N 1988 (3) SA 450 (A): referred to

S v Notshokovu [2016] ZASCA 112: referred to

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

S v Swanepoel 1983 (1) SA 434 (A): referred to

S v Van Wyk and Another 2015 (1) SACR 584 (SCA) ([2014] ZASCA 152): dictum in para [18] applied

S v W 1975 (3) SA 841 (T): dictum at 844A – C applied

S v Zuma and Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401; [1995] ZACC 1): dictum in para [17] applied C

Turffontein Estates Ltd v Mining Commissioner, Johannesburg 1917 AD 419: dictum at 431 applied

Van Vuren v Minister of Correctional Services and Others 2012 (1) SACR 103 (CC) (2010 (12) BCLR 1233; [2010] ZACC 17): referred to

Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) 2008 (2) SA 472 (CC) (2008 (4) BCLR 442; D [2007] ZACC 24): referred to.

Australia

Burrell v The Queen [2008] HCA 34 (238 CLR 218; 248 ALR 428; 82 ALJR 1221): considered.

Legislation cited

The Constitution, 1996, s 39(2): see Juta's Statutes of South Africa 2015/16 vol 5 at 1-32

The Criminal Procedure Act 51 of 1977, s 327(1): see Juta's Statutes of South Africa 2015/16 vol 1 at 2-408

The Superior Courts Act 10 of 2013, ss 1, 17(2)(f) and ch 5: see Juta's F Statutes of South Africa 2015/16 vol 1 at 2-162 and 2-266 – 2-267.

Case Information

HL Alberts and EA Guarneri for the applicants, instructed by Legal Aid South Africa.

SJ Khumalo for the first respondent. G

DJ Joubert SC for the second respondent.

An application for leave to appeal from the dismissal of their application to the President of the Supreme Court of Appeal for the reconsideration of their earlier dismissal of leave to appeal against convictions and sentences for murder. H

Order

1.

Condonation is granted.

2.

Leave to appeal is granted.

3.

The appeal is upheld. I

4.

The decision of the President of the Supreme Court of Appeal, refusing to refer the applicants' application in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013, is set aside.

5.

The matter is remitted to the President of the Supreme Court of Appeal to consider the applicants' application. J

2017 (2) SACR p196

Judgment

Musi AJ (Mogoeng CJ, Nkabinde ADCJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Mbha AJ, Mhlantla J and Zondo J concurring):

Introduction

[1] B The President of the Supreme Court of Appeal (the President) dismissed the applicants' application to refer the refusal of their petition to the Supreme Court of Appeal for reconsideration. The applicants approached this court seeking leave to appeal against that decision.

Background

[2] C On 17 November 2011 between 20h00 and 20h30, Messrs Sherwin Arries, Marlin Abrahams, Gordon Swiegers and Renaldo Leeroy Booysens (deceased) were standing in front of house No [. . .] Bluebell Street, Reiger Park, Boksburg.

[3] D A Volkswagen Polo...