S v Liesching and Others

• Jurisdiction: South Africa
• Citation: 2019 (1) SACR 178 (CC)

S v Liesching and Others
2019 (1) SACR 178 (CC)

2019 (1) SACR p178

Citation	2019 (1) SACR 178 (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 24, 2017
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 — Further evidence — Leave to appeal from refusal by President of F Supreme Court of Appeal of application to lead further evidence — Meaning of 'exceptional circumstances' in s 17(2)(f) of Superior Courts Act 10 of 2013 — Mere recanting by state witness insufficient without more.

Appeal — Further evidence — Leave to appeal from refusal by President of G Supreme Court of Appeal of application to lead further evidence — Whether Constitutional Court has jurisdiction to hear such application — Court not deciding in matter where issue not properly ventilated and argued.

Headnote : Kopnota

The H applicants applied for leave to appeal from the refusal by the President of the Supreme Court of Appeal (the SCA) of their application to lead additional evidence in their trial in the High Court, which had already concluded with them having been convicted and sentenced on counts of murder, and the unlawful possession of firearms and ammunition. They relied for their application on an alleged recantation by a witness who had testified against them in their trial. The President had found that there were no exceptional I circumstances present to justify the application.

The parties assumed that the Constitutional Court had jurisdiction to entertain such an appeal and the matter proceeded on that basis. The majority of the court held, however, that the nature and justiciability of such an appeal required detailed legal argument but in the present case the issue had not been raised on the papers or at the hearing of the matter. In the J circumstances, although it was tempting to attempt to settle the legal

2019 (1) SACR p179

question, it was inappropriate to do so without the benefit of full legal A argument from the litigants. The judgment therefore proceeded on the assumption that the court had jurisdiction over an appeal to determine the meaning of 'exceptional circumstances' in s 17(2)(f) of the Superior Courts Act 10 of 2013. (See [127].)

Held, that 'exceptional circumstances' in the context of the section should be linked to either the probability of grave individual injustice or a situation B 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, but to enable the President to deal with a situation where otherwise injustice might result. It did not afford litigants a parallel appeal process in order to pursue C additional bites at the proverbial cherry. (See [138] – [139].)

Held, further, on the information before the court it was doubtful whether the applicants would be able to establish that there 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 D conferring a discretion on the President as envisaged in s 17(2)(f). The President was correct in finding that no such circumstances existed, and no grave injustice would result if leave to appeal were refused. (See [161].) The application for leave to appeal was accordingly dismissed.

Held, per Kathree-Setiloane AJ, dissenting, that the new evidence constituted an exceptional circumstance and the failure to refer the matter for reconsideration E would result in a grave injustice to the applicants, and 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 [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 G

Bookworks (Pty) Ltd v Greater Johannesburg Transitional Metropolitan Council and Another 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 H

Greenfields Drilling CC and Others v Registrar of the Supreme Court of Appeal and Others 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 I

Mabaso v Law Society, Northern Provinces, and Another 2005 (2) SA 117 (CC) (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 J

2019 (1) SACR p180

MV Ais Mamas Seatrans Maritime v Owners, A MV Ais Mamas, and Another 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) B (2015 (5) BCLR 509; [2015] ZACC 5): referred to

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

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

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

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

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

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 E 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

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

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

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

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 G [2014] ZASCA 186: referred to

S v Notshokovu [2016] ZASCA 112: referred to

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 H 2012 (1) SACR 567 (SCA) ([2011] ZASCA 15): referred to

S v Tofa [2015] ZASCA 26: followed

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 I 2015 (5) SA 245 (CC) (2015 (10) BCLR 1199; [2015] ZACC 22): applied

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 J at 317D – G applied

2019 (1) SACR p181

Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 All ER 722: A referred to

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

Legislation cited

Statutes

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. B

Case Information

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

SJ Khumalo for the state.

An application for leave to appeal from the refusal by the President of the C 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. D

2.

There is no order as to costs.

Judgment

Kathree-Setiloane AJ (dissenting):

[1] This application concerns the question whether a post-trial recantation by a material witness in the subsequent trial of a co-accused may be E an exceptional circumstance as contemplated in s 17(2)(f) of the Superior Courts Act. [1] Section 17(2)(f) confers a discretion on the President of the Supreme Court of Appeal (the President), in exceptional circumstances, to refer a decision of that court, refusing an application for leave to appeal, to the court for reconsideration and, if necessary, variation. It provides: F

'The decision of the majority of the judges considering an application referred to in paragraph (b), or the decision of the court, as the case may be, to...