oscar cc final papers aj monday 25 jan respondent

7/25/2019 Oscar Cc Final Papers Aj Monday 25 Jan Respondent

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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CC CASE NO:SCACASENO: 96/2015

GD CASE NO: CC113/13

In the matter between:

OSCAR LEONARD CARL PISTORIUS Applicant

(Accused a quo)

(Respondent in the SCA)

and

DIRECTOR OF PUBLIC PROSECUTIONS, Respondent

GAUTENG (Applicant in the SCA)

I N D E X

Document PagesRespondents Notice of Intention tooppose

001 - 002

Affidavit of A Johnson 003 - 055

Appellants Heads: SCA 056 - 098

Respondents Heads: SCA 099-149

Judgment by Masipa J 150-222

SCA Judgment 223 - 255


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mTHE CONSTITUTIONAL OF SOUTH AFRICA

CASE NO.:...........

SCA: 96/2015


OSCAR LEONARD CARL PiSTORIUS Applican t

And


GAUTENG

RESPONDENTS NOTICE OF INTENT50N TO OPPOSE


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0 0 2

1. TAKE MOTICE THAT the Respondent intends to oppose this application

2. TAKE FURTHER NOTICE THAT the Respondent will in opposition to this

application for leave to appeal, rely on the affidavit of ANDREA JOHMSON

SIGNED at PRETORIA on this 20th day of January 2016

DEPUTY DIRECTOR OF PUBLIC PROSECUTIONS: GAUTENG

RECEIVEDRAMSAY WEBBER

WITHOUT PREJUDICE//

zzj'/it u


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CASE NO.:...........

SCA: 96/2015


OSCAR LEONARD CARL PISTORIUS Applicant

and


GAUTENG

' - 0 0 3

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

AFFIDAVIT IN TERMS OF RULE 19(4)

E/'tA


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I, the undersigned

ANDREAJOHNSON

declare under oath as follows:

1. I am employed by the National Prosecuting Authority (NPA) as a Senior Deputy

Director of Public Prosecutions in the Office of the Priority Crimes Litigation Unit.

2. I was a prosecutor in the team that prosecuted the Applicant in this matter and

subsequently part of the team that appeared for the Appellant (State) at the Supreme

Court of Appeal (SCA). I am now part of the team that may well appear for the

Respondent before this Honourable Court.

3. The facts contained herein are, save where the context otherwise indicates, within my

personal knowledge and are true and correct, and are deposed to in consultation with

the team that may well appear for the Respondent before this Honourable Court.

4. The Applicant is Oscar Leonard Carl Pistorius.

5. The Respondent is the Director of Public Prosecutions Gauteng and I have been duly

authorised to depose to this affidavit.

6. This purpose of this affidavit is to set out the reasons why the application in terms of

the provisions of Rule 19(2) of the Rules of this Honourable Court is opposed.

2

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BACKGROUND

3

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7. On 12 September 2014 in the Gauteng High Court, Pretoria, the Honourable Justice

Masipa acquitted the Applicant (accused) on the main count of murder (count 1) but

instead found (him) guilty of culpable homicide.1

8. On application by the Respondent (State) the Court a quo reserved the following

questions of law for consideration by the Supreme Court of Appeal:

8.1 Whether the principles of dolus eventualiswere correctly applied to the accepted

facts and the conduct of the accused, including error in objecto."

8.2Whether the Court correctly conceived and applied the legal principles pertaining

to circumstantial evidence and/or pertaining to multiple defences by an accused.

8.3 Whether the Court was correct in its construction and reliance on an alternative

version of the accused and that this alternative version was reasonably possibly

true ...

9. The Supreme Court of Appeal (SCA), in a unanimous judgment of a Full Bench,

ordered that:2

1Judgment of the trial Court, attached as Annexure B.2 Judgment of the SCA, attached as Annexure A.


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9.1 The first two questions of law reserved are answered in favour of the Director of

Public Prosecutions.

9.2 The accuseds conviction and sentence on count 1 are set aside and replaced

with the following:

Guilty of murder with the accused having had criminal intent in the form of

dolus eventualis.

9.3The matter is referred back to the trial court to consider an appropriate sentence

afresh in the light of comments in the judgment.

10. The Applicant has filed an application for leave to appeal the whole of the judgment

and order of the SCA.

11.This application is opposed on the main ground that there exists no reasonable

prospect of success on Appeal. It is our respectful submission that the SCA

committed no errors of law and that the arguments by the Applicant are without merit

and contrived.

12. We will deal in particular detail with the tests which this Honourable Court has

adopted when considering granting leave to appeal and submit strongly that it is not

in the interests of justice to grant leave to appeal.

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13.1 submit that it is in the interests of justice that criminal trials ought to be finalised

without undue delay and submit that it is in the interests of justice that the Applicant

now appears before the trial Court to be sentenced on the crime he has committed.

14. The Respondent will endeavour not to be repetitive but instead will focus its

opposition on the aspects directly related to the grounds of appeal. It is our respectful

submission that the Constitutional Court will be loath to consider aspects that were

not raised in argument before the SCA. For ease of reference we attach hereto a

copy of both our and the Applicants Heads of Argument filed in the SCA.3

THE SCA JUDGMENT

15. It is respectfully submitted that the judgment of the SCA should not be dealt with

selectively but rather be read in its entirety, and in doing so it will become clear that

the Court did not act unlawfully and unconstitutionally . It is respectfully argued that

the SCA acted with great circumspection and erred on the side of caution insofar as

the right to interfere with the decision of the trial Court is concerned.

16. It is respectfully submitted that the SCA defined and conceptualised each element of

the questions before it correctly and applied the law in a logical and coherent step-

by-step fashion.

17. Scrutiny of the relevant portions of the judgment demonstrates the Courts cautious

and particular approach to the application in terms of section 319 of the Criminal

3 Heads of Argument by the Appellant (Respondent) is attached as Annexure C and the Heads ofArgument by the Respondent (Applicant) is attached as Annexure D.

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Procedure Act, No. 51 of 1977 (CPA). It is perhaps apposite to stress at this stage

that the Court not only considered the questions of law but also used its powers in

terms of the provisions of section 322(1) of the CPA to substitute the Court aquos

findings:

17.1 The SCA summarised the Applicants background and the circumstances of

the initial meeting between the Applicant and the deceased at paras [11]-

[12].

17.2 The incident was summarised at para [13].

17.3 The SCA summarised the States case at para [14] and that of the defence

at paras [15]-[16], which included a very comprehensive summary of the

Applicants evidence.

17.4 The SCA accepted the Court a quos finding on the Applicants credibility

and confirmed that:

...one really does not know what his explanation is for having fired

the fatal shots, at para [17].

17.5 The findings and sentence were summarised at paras [18][19].

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17.6 The Court crisply and succinctly dealt with its powers in assessing an

application in terms of the provisions of section 319 of the CPA at paras

[21][24].

17.7 The court, with respect, correctly stated: "... the State may not appeal

against an acquittal based solely on findings of fact ...,4 and "... this court

cannot interfere, for example, with the factual decisions of the trial court

rejecting the States version . .. ,5 and [t]he matter must therefore

proceed, as was accepted by the State, on the basis both that its rejected

version cannot be reconsidered...".6

17.8 At para [33], in dealing with the first question of law, the court found:

"... This conclusion shows the fallacy in the submission of Counsel

that the first question of law raised solely a question of fact . .. a t best

for the accused the first question reserved invokes an issue o f mixed

fact and law.

17.9 The two forms of dolus and, with respect, the correct and accepted

definition of dolus eventualiswere dealt with at paras [26][27]. Although

this will receive further elucidation, it is perhaps apposite at this point to

question the Applicants contention that there exists a so-called, or

purported, second component for dolus eventualis, namely that of

4At para [23] of the SCA judgment.




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knowledge of unlawfulness. The Applicant eschews any possible support

that this definition for dolus eventualishas received in case-law and even in

recognized and respected legal writing.

17.10 At para [28], the confused reasoning of the Court a quo in adopting a an

objective rather than a subjective approach to the question of dolusis dealt

with, and the SCA clearly stated what the test is and should have been:"...

whether he[the Applicant] actually foresaw that death might occur

17.11 The conflation of the tests for dolus directus and dolus eventualis by the

trial Court received attention at para [29].

17.12 The SCA correctly identified the fundamental errormade by the trial Court

that because the Applicant believed that the deceased was in the bedroom

he could not have had dolus eventualisas to her death and thus could not

be convicted of murder. This is dealt with at para [30]. It is remarkable to

note, and indeed remains inexplicable, that the Applicant nevertheless

continues to endorse and persists with this line of, with respect, flawed

reasoning.7 At para [31], the SCA discussed dolus indeterminatus and at

para [32] correctly applied the legal principles of dolus eventualis, finding

that ... the accuseds incorrect appreciation as to whowas in the cubicle is

not determinative o f whether he had the requisite criminal intent....

7See paras 35-37 of the Affidavit in Support of Application for Leave to Appeal.


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17.13 The finding of the SCA on the first question of law follows at para [33] and

the SCA clearly states that as there was an incorrect application of the

legal issue the first point of law must be determined in favour of the State.

17.14 The SCA discussed the trial Courts error in law in excluding relevant

circumstantial evidence at paras [34]-[40]. It is our respectful submission

that there is no real attack on the SCAs finding in this regard,8 and for

purposes of our argument we can do no better but to support the SCAs

finding at para [40]:

All of this was circumstantial evidence crucial to a decision on

whether the accused, at the time he fired the fatal shots, must have

foreseen, and therefore, did foresee, the potentially fatal

consequence of his actions ... [Tjo seemingly disregard it must be

regarded as an error in law.

17.15 The SCA demonstrated its cautious approach as to its powers in relation to

an application in terms of section 319 of the CPA and in doing so, at para

[41], refused to entertain the third question, regarding it as unclear or a

factual decision.

17.16 The SCA at paras [43]-[44] dealt with its powers in terms of the provisions

of sections 322 and 324 of the Act. It found that based on practical

9 O i l

8See para 88 of the Affidavit in Support of Application for Leave to Appeal.


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considerations and the argument by the Applicant and the Respondent, it

would not be in the public interest to order a trial de novo.

i o * 0 1 2

17.17 The SCA then embarked on a second phase of the application by

considering whether on the facts found proved, the trial Court erred in

drawing the inferences it did as to dolus eventualis.9 Likewise there is no

serious challenge to the SCAs decision to follow the procedure as

prescribed in section 322(1 )(b)of the CPA, that is, of giving such judgment

as the trial Court ought to have given.

17.18 With regard to its powers in terms of section 322(1) of the CPA, the SCA

captured the essence of its task at para [47], as follows:

whether on [1] the primary facts found proved, [2] considering a\[

the evidence relevant to the issue and [3] applying the correct legal

test the inference has to be drawn that the accused acted with dolus

eventualis when he fired the fatal shots ...10

17.19 The SCA identified and discussed the crux of an evaluation of the

Applicants reliance on a defence at para [49], and succinctly put it as:

.. he fired four shots through the door. And he never offered an

acceptable explanation for having done so.

9At paras [46]-[51] of the SCA judgment.

10Emphasis added.


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17.20 After dealing with the primary facts relating to the nature of the firearm and

ammunition as well as the extremely limited space into which the shots

were fired, the SCA reached the conclusion at para [51] that the accused

acted with dolus eventualis.

17.21 The Applicant relies on the purported SCAs error in law of rejecting his

defence of putative private defence, but has totally ignored the

insurmountable hurdle that he on his own version "... had not intended to

shoot the person whom he felt was the intruder... [which] immediately

placed [him] beyond the ambit of the defence.11 The SCA continued to

emphasise with reference to S v De Oliveira12 that the defence of putative

private defence implies rational but mistaken thought.13

17.22 The above-mentioned hurdles remain standing and have not been

addressed in the Applicants application.

THE APPLICATION

18. In the founding affidavit of Andrew Fawcett (Fawcett), deposed to in support of the

Applicants application for leave to appeal, it is argued that:


121993 (2) SACR 59 (A) at 65d.



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18.1The SCA exceeded its powers in terms of section 319 of the CPA.

18.2 The SCA committed three errors of law, namely:

18.2.1 it failed to apply the second component of dolus eventualiswhich the

Applicant argues is knowledge of unlawfulness;

18.2.2 it failed to consider the Applicants knowledge of unlawfulness as far

as error in objecto is concerned;

18.2.3 it introduced an objective consideration of the rational person into

the subjective test to be applied in regard to knowledge of

unlawfulness and in particular putative private defence, and

reintroduced the defunct presumption that an accused intends the

natural and probable consequences of his or her actions, when it

(impermissibly) reconsidered putative private defence.

NOTABLE ASPECTS

19.lt is with respect important to stress the glaring absence of any reference to case-law

and/or respected legal writing on the purported second component of dolus

eventualis

EiVA


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20. The Applicant fails to consider or acknowledge that the SCA indeed concerned itself

with the element of knowledge of unlawfulness by evaluating the Applicants defence

of putative private defence.

21.The crux of our opposition to the first argument by the Applicant lies in his failure to

comprehend the two-tiered approach by the SCA. The SCA firstly considered the

questions of law, and then secondlyacted in terms of section 322(1 ){b)of the CPA to

give such judgment as ought to have been given at the t ria l.. .

22. The Applicant fails to show that the SCA in reaching the conclusion on the questions

of law, erroneously amended or substituted any of the primary factual findingsof the

trial Court.

23. We argue that the inevitable consequence of substituting the judgement of the trial

Court must be an application of the correct legal principles to the primary facts found

by the trial court.

24.The insurmountable hurdle for the Applicant to overcome in convincing this

Honourable Court to even consider the second basis of his application is twofold:

24.1 The trial Courts finding on credibility was accepted, and in considering all

the evidence and applying the correct legal prescripts, such was amplified

by the SCA;

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24.2 The Applicants reliance on putative self-defence does not get out of the

starting-blocks, since on his own version he never intended to shoot at the

perceived danger.

25. At the risk of being unduly repetitive, it is worth mentioning that the Applicant has

himself to blame for the Court a quo and the SCAs negative comments about his

credibility. The end result is that there exists no credible explanation by the Applicant

for the killing of the deceased, which is compounded by the SCAs correct approach

in considering the evidence which the trial Court erroneously ignored. The

Applicants failure in this respect is exacerbated by the following remarks of the SCA

in S v Boesak:14

"... one o f the main and acknowledged instances where it can be said that a prima

facie case becomes conclusive in the absence of rebuttal is where it lies

exclusively within the power of the other party to show what the true facts were

and he or she fails to give an acceptable explanation

26.The Respondent does not respond to each paragraph of the Applicants application

as set out in the founding affidavit of Fawcett, but deals in more detail with the

grounds of appeal to demonstrate that there is no merit in any of the grounds of

appeal as formulated by the Applicant.

27. We will, with respect, commence our argument with a detailed analysis of the test for

appealability that this Court has applied and prescribed for the granting of leave to

appeal.

142000 (1) SACR 633 (SCA) at para [47] (emphasis added).


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28. In the founding affidavit of Fawcett, it is incorrectly stated on several occasions that

the jurisdiction of this Honourable Court lies in section 169(3)(/?)(i) and (ii) of the

Constitution.15

29.lt is submitted that the jurisdiction of this Honourable Court is in fact governed by

section 167(3)(jfc>)(i) and (ii) of the Constitution. Section 167(3)(c) of the Constitution

goes on to provide that / t]he Constitutional Court... makes the final decision whether

a matter is within its jurisdiction" This Court affirmed same in S v Boesak:16

The Constitution declares that the Constitutional Court is the highest court in all

constitutional matters. Its jurisdiction is dealt with in s 167(3)(b)... The

Constitution offers no definition of a constitutional matter, or an issue connected

with a decision on a constitutional matter. Section 167(3)(c) leaves that ultimately

to the Constitutional Court to decide.

30.lt is conceded by the Respondent that [t]he powers and functions of the courts are

constitutional /sstves.17 Moreover, in S v Basson, Chaskalson CJ in a concurring

judgment appositely pointed out in respect of the powers of the SCA in relation to a

THE TEST FOR APPEALABILITY AND JURISDICTION

15See paras 14.4, 25 and 28 of the Affidavit in Support of Application for Leave to Appeal.

162001 (1) SACR 1 (CC) at para [13]..

17See Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC) at para

[51], citing Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae) 2003 (2) SA363 (CC) at para [17]; Phillips and Others v National Director of Public Prosecutions 2006 (1) SACR

78 (CC) at para [31].


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State appeal in terms of section 319 of the Criminal Procedure Act 51 of 1977

("CPA), that:18

Section 319 deals with the powers of the SCA to hear appeals in criminal cases.

The power of the courts is derived from the Constitution. In Bannatyne v

Bannatyne this Court held that any issue as to the nature and ambit of the

powers of the High Court necessarily raises a constitutional question. This

applies equally to issues concerning the nature and ambit of the powers of the

SCA. An interpretation o f s 319 of the Criminal Procedure Act, which precludes

an appeal to the Supreme Court of Appeal against a decision of the High Court

quashing a charge in an indictment, has a material bearing on the powers of the

SCA. The interpretation of that section is accordingly a constitutional matter.

31. In the decision of this Court of Phillips and Others v National Director of Public

Prosecutions, which the Applicant cites as authority,19 it was pertinently held by

Skweyiya J, delivering the unanimous judgment of the Court, that a finding that an

application for leave to appeal raises a constitutional issue is not... decisive of the

question of whether leave to appeal to the Court ought to be granted.20 Skweyiya J

proceeded to reaffirm that [IJeave to appeal may be refused if it is not in the interests

of justice that this Court hear the appeal.21 In S v Boesak, this Court, per Langa DP,

pertinently observed in this regard:22

182004 (1) SACR 285 (CC) at para [111] (footnotes omitted).


20 2006 (1) SACR 78 (CC) at para [32] (parallel citation: Phillips and Others v National Director of

Public Prosecutions 2006 (1) SA 505 (CC)) (emphasis added).21 Ibid at para [32], endorsing S v Boesak supra at para [12]; National Education Health and Allied

Workers Union v University of Cape Town and Others 2003 (3) SA 1 (CC) at para [25] (emphasisadded).22S v Boesak supraat para [12] (footnotes omitted).

E M

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17

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A finding that a matter is a constitutional issue is not decisive. Leave may be

refused if it is not in the interests of justice that the Court should hear the appeal.

The decision to grant or refuse leave is a matter for the discretion of the Court,

and in deciding whether or not to grant leave, the interests o f justice remain

fundamental. In considering the interests of justice, prospects of success,

although not the only factor, are obviously an important aspect of the enquiry. An

Applicant who seeks leave to appeal must ordinarily show that there are

reasonable prospects that this Court will reverse or materially alter the decision of

the SCA.23

32. As is demonstrated below, it is the Respondents respectful submission that even

though the first ground on which the Applicant bases his application for leave to

appeal raises a constitutional issue, or could conceivably raise an arguable point of

law of general public importance", in that it relates to the powers of the SCA in terms

of section 322 of the CPA, there are no reasonable prospects of success of an appeal

to this Honourable Court on such ground, and thus it is not in the interests of justice

that leave to appeal be granted on that basis. As is pertinently dealt with in more

detail below, the Respondent argues in essence that the SCA did not exceed its

powers in terms of section 322(1) of the CPA in the process of giving such judgment

as the trial Court ought to have given and in this respect in altering the conviction of

culpable homicide to a conviction of murder with dolus eventualis.

23Emphasis added.


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33. The Applicant also contends that the second main ground on which the application for

leave to appeal is predicated, that is, in relation to the SCAs alleged erroneous legal

approach to the questions of dolus eventualis and knowledge of unlawfulness,

including that of error in objecto, and putative private defence,24 raises an arguable

point of law of general public importance within the purview of section 169(3)(b)(ii)

[sic] of the Constitution", which as the Respondent submits above, ought to read

section 167(3)(jb)(ii) of the Constitution.25

34. In the recent decision of this Court of Paulsen and Another v Sl ip Knot

Investments 777 (Pty) Ltd, Madlanga J (with Jafta J and Nkabinde J concurring, and

the majority Court agreeing with his analysis of the aspect), explored and crisply

articulated the meaning and scope of a matter that raises an arguable point o f law o f

general public importance which ought to be considered by[the Constitutional Court] ,

that is, in relation to the Courts new jurisdiction in terms of 167(3)(jb)(ii) of the

Constitution that extends beyond constitutional matters so as to embrace any other

matter where it grants leave to appear or to matters which the Court has come to

regard as non-constitutional,26 Madlanga J also dealt with the test for the granting of

leave to appeal on a matter that raises an arguable point of law of general public

importance.27

34.1 In respect of the meaning of the phrase arguable point of law, it was held:28

24 See paras 41.2 and 49-71 of the Affidavit in Support of Application for Leave to Appeal.

25Ibidat para 28.

262015 (3) SA 479 (CC) at paras [20]-[28].27Ibidat paras [12]-[19] and [29]-[31 ].

28Ibid atpara [20].


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This is a bifurcated requirement The point must be one of law; and it must be

arguable. Starting with the first prong, quite axiomatically, the point must not be

one of fact This courts jurisprudence on purely factual matters, developed in the

context of what constitutes a constitutional, as opposed to a factual issue, is an

instructive guide on this.29

34.2 Pertaining to the instructive distinction between a purely factual matter and what

constitutes a constitutional matter, Madlanga J30 cited with approval inter aliaS v

Boesak, where, insofar as it is relevant, this Court found in this regard:31

One of the questions to be determined is which of the issues raised by the

Applicant relate to constitutional matters. This requires, amongst other things, a

purposive approach to the harmonising of s 167(3)(a) and (b) of the Constitution

which constitutes the Constitutional Court as the highest court in constitutional

matters and s 168(3) which constitutes the SCA as the highest Court of appeal

except in constitutional matters. Certain broad principles for criminal cases can be

identified:

(a) A challenge to a decision of the SCA on the basis only that it is wrong on

the facts is not a constitutional matter.

19 0 2 1

In the context of s 167(3) of the Constitution the Question whether evidence

is sufficient to justify a finding of guilt beyond reasonable doubt cannot in

itself be a constitutional matter. Otherwise, all criminal cases would be

29Emphasis added.30Ibidat para [20] n 31.

31S v Boesak supraat para [15] (footnotes omitted).

T\N\


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constitutional matters, and the distinction drawn in the Constitution between

the jurisdiction of this Court and that of the SCA would be illusory. There is

a need for finality in criminal matters. The structure of the Constitution

suggests clearly that finality should be achieved by the SCA unless a

constitutional matter arises. Disagreement with the SCAs assessment of

the facts is not sufficient to constitute a breach of the right to a fair trial. An

Applicant for leave to appeal against the decision of the SCA must

necessarily have had an appeal or review as contemplated by s 35(3)(o) of

the Constitution. Unless there is some separate constitutional issue raised

therefore, no constitutional right is engaged when an appellant merely

disputes the findings of fact made by the SCA.

(c) The application of a legal rule by the SCA may constitute a constitutional

matter. This may occur if the application of a rule is inconsistent with some

right or principle of the Constitution.32

20 ' 0 2 2

34.3 Madlanga J33 also cited Minis ter of Safety and Security v Luiters, where this

Court, per Langa CJ, appositely observed:34

To recap, I have found that the Ministers primary submission raised in oral

argument does raise a constitutional issue, as does his second contention, while

the third submission relating to the factual finding of the Supreme Court o f Appeal

as to the subjective intention of Constable Siljeur does not. It is therefore

32Emphasis added.33Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd supraat para [20] n 31.342007 (2) SA 106 (CC) at para [28],


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21 0 2 3

necessary to consider whether it is nonetheless in the interests of justice to grant

leave to appeal.35

34.4 Madlanga J proceeded to discuss the meaning of the term arguable, insofar as it

pertains to what point of law ought to be considered by the Court. It was

importantly held as follows, which remarks, with respect, are highly germane to the

present matter:36

Moving on to the second facet, not infrequently, even in a most hopeless case a

skilful arguer may ingeniously craft an argument on a point of law which. at first

blush, may appear convincing. That is not necessarily enough for purposes o f this

jurisdictional reguirement. It cannot be any and every argument that renders a

point of law arguable for purposes of s 167(3)(b)(ii). Surely, a point o f law which,

upon scrutiny, is totally unmeritorious cannot be said to be arguable. Indeed, in

Baloi Centlivres JA said there are very few cases which are not arguable in the

wide meaning of that word. The notion that a point of law is arguable entails

some degree of merit in the argument. Although the argument need not, of

necessity, be convincing at this stage, it must have a measure of plausibility ...in

Beatley & Co Tindall AJP held that the word arguable is used in the sense that

there is substance in the argument advanced.

35Emphasis added.35 Paulsen and Ano ther v Slip Knot Investments 777 (Pty) Ltd supra at paras [21]-[22] (footnotes

omitted).


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22 0 2 4

I make bold to say in order to be arguable , a point o f law must have some

prospects of success. Support for this is to be found in decisions of this court,

albeit made in a different context."37

34.5 Madlanga J pertinently added on this score after enumerating various, but not

exhaustive, examples of instances where a point of law may be arguable,that:38

Ultimately, whether a point of law is arguable depends on the particular

circumstances o f each case."39

34.6 In the context of Paulsens case, Madlanga J appositely pointed out that where

there was confusion inherent in the National Credit Act (NCA), it was at least

arguable that the Act could be interpreted as the Paulsens proposefd]"40

34.7 Madlanga J then dealt with the question of when a point of law would qualify as a

matter of general public importance.41 The Justice stated with regard to the

meaning of the phrase general public importance:42

This court has yet to lay a standard as to when a point of law qualifies as being of

general public importance. There are other jurisdictions where apex courts grant

leave to appeal only where a matter is of general public importance. It would be

useful to consider what the courts of those jurisdictions have said on the standard.

37Emphasis added.

38Ibidat para [23],

39Emphasis added.

40Ibidat para [24] (emphasis added).

41 Ibidat paras [25]-[26],

42Ibidat paras [25]-[26] (footnotes omitted).

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For example, the Constitution of Kenya provides for appeals to the Supreme Court

in any other case in which the Supreme Court, or the court of Appeal, certifies

that a matter of general public importance is involved. With the exception of the

reference to a matter of fact, the interpretation o f the relevant provision by the

Supreme Court of Kenya is instructive:

Before this court a matter of general public importance warranting the

exercise of the appellate jurisdiction would be a matter of law or fact,

provided only that: its impacts and consequences are substantial, broad-

based, transcending the litigation-interests of the parties, and bearing upon

the public interest.

This does not mean the requirement will be met only if the interests o f society as a

whole are implicated. English courts have found that an issue is of general public

importance when it is likely to arise again in other cases and where its

determination would affect a large class of persons rather than merely the

litigants. As stated in Wiltshire Primary Care Trust, issues do not have to be of

importance to all citizens or the whole nation in order to be of general public

importance, it is enough to be of importance to a sufficiently large section of the

public . In sum, for a matter to be o f general public importance, it must transcend

the narrow interests o f the litigants and implicate the interest of a significant part of

the general public. It will serve a litigant well to identify in clear language what it is

that makes the point o f law one of general public importance.43

43Courts and the Respondents emphasis.

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24 0 2 6

34.8 Again by way of example, in the context of Paulsens case, Madlanga J observed

that:44

It is manifest that both the proper interpretation of the NCA on the issues raised

and determination of the question whether the in duplum rule is suspended

pendente lite will have a significant impact on the general populace. As noted in

Kubyana, the NCA -

regulates commercial activity undertaken by many people and institutions

on a daily basis. The issues at stake are therefore of fundamental

importance to many South Africans.

Charging interest on commercial transactions is so widespread as to affect a large

number of members of society. Likewise, there are countless people and entities

that charge and derive a financial benefit from interest. A pronouncement either

way on whether the in duplum rule is suspended pendente lite will affect many on

either side of the scale "45

34.9 In dealing with the question of whether leave to appeal could be granted to this

Court in Paulsen, and in this regard in considering the import of the words which

ought to be considered by that Court in s 167(3)(b)(ii)",Madlanga J found that:46

Although a point o f law may be both arguable and of general public importance,

there may be factors that militate against its receiving the attention o f this court. It

44 Ibidat para [27] (footnote omitted).45Emphasis added.

46 Ibidat paras [17]-[18] and [29]-[30] (footnotes omitted).


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25 ' 0 2 7

seems to me that, on this, some of the factors that are of relevance to the

interests-of-iustice factor in the context o f our jurisdiction based on constitutional

matters may find application... [A ] holding that a matter raises an arguable point of

law of general public importance does not inexorably lead to a conclusion that the

matter must be entertained. Whether the matter will, in fact receive our attention

will depend on the interests o f justice...

Where, in an application for leave to appeal founded on a constitutional

matter, this court holds that there is indeed a constitutional issue, that does not

automatically lead to the grant of leave. This court has a discretion and on this the

fundamental criterion is the interests of justice. In Boesak we held:

A threshold requirement in applications for leave relates to the issue of

jurisdiction. The issues to be decided must be constitutional matters or

issues connected with decisions on constitutional matters...

A finding that a matter is a constitutional issue is not decisive. Leave

may be refused i f it is not in the interests o f justice that the court should

hear the appeal. The decision to grant or refuse leave is a matter for the

discretion o f the court and, in deciding whether or not to grant leave, the

interests of justice remain fundamental. In considering the interests of

justice, prospects of success, although not the only factor, are obviously an

important aspect of the enquiry. An Applicant who seeks leave to appeal

must ordinarily show that there are reasonable prospects that this court will

reverse or materially alter the decision o f the SCA.


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The interests-of-justice factor aims to ensure that the court does not entertain any

and every application for leave to appeal brought to it. Coming to this courts non

26 028

constitutional appellate jurisdiction, the guestion arises: do interests of justice not

come into the equation? I think they do. This is what the words which ought to

be considered by that Court in s 167(3)(b)(ii) of the Constitution are directed a t j f

- for whatever reason - it is not in the interests of justice for this court to entertain

what is otherwise an arguable point o f law of general public importance, then that

point is not one that jought to be considered by fthis1 Court. The interests-of-

justice criterion is firmly entrenched in this courts jurisprudence on applications for

leave to appeal involving constitutional matters. Whatever its true provenance in

respect of applications for leave to appeal on constitutional matters from the

Supreme Court of Appeal, I cannot conceive o f any basis why it should not be

applicable here. On the non-constitutional appellate jurisdiction we must borrow

from this courts existing jurisprudence on interests o f justice.

With the exception of the last, the points the Paulsens raise have some

prospects of success. On this I need do no more than refer to the ensuing

discussion on the merits. Without doubt, the points are of import. Clamantly, it is

in the interests of justice that this appeal be entertained. I grant leave to

appeal."47

35.lt is submitted that these findings and observations in Paulsen on what the meaning

and scope are of a matter that raises an arguable point of law of general public

importance which ought to be considered by this Court and when leave to appeal can

be granted to the Court on such a point of law, are highly instructive in the present

47Emphasis added.


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matter particularly in respect of the second main ground of the Applicants

application.48

36.As is demonstrated by the Respondent below, there is no confusion or legal

uncertainty as to what the trite and applicable common-law principles or elements are

in relation to dolus eventualis and error in objecto, as discussed by Leach JA in

casu,49 There is a vast body of authoritative case-law and academic literature that

exists in our common law on the matters. The points of law raised by the Applicant

are also, as is shown below by the Respondent, totally unmeritorious"50 It cannot

therefore be said that the Applicants issues pertaining to dolus eventualisand error in

objecto raise points of law that are arguable for consideration by this Court. There

are accordingly no prospects of success on appeal on these points of law. In other

words, with respect, the Applicant has failed to show that there are reasonable

prospects that this court will reverse or materially alter the decision of the SCA51 on

the points of law and thus it is not in the interests of justice that the Applicant be

granted leave to appeal to this Court on those aspects; a fortioriwhere the Applicant

raises for the first time in this Court the legal question of whether

knowledge/foresight of unlawfulness is a so-called second component of dolus

eventualis.52

48 Compare also the as-yet unreported judgment of this Court in Mashongwa v Passenger Rail Agencyof South Africa [2015] ZACC 36 (CC) at para [14], where it was held that u[t]he safety and security o f thepoor people who rely on our train network to go to work or move from one place to another does raise an arguable po int o f law of general public importance",and that even though the relevant point of law in casuwas not "novel in our jurisprudence, it was nevertheless still necessary to address it because i t [did] raisean arguable point o f law o f general public im p o rta nce [t]he public needfed] a pronouncement by thisCourt on whether PRASA can be held delictually liable for its failure to provide safety and security

measures

See also, DE v RH 2015 (5) SA 83 (CC) at paras [8]-[10].

49See paras [26]-[33] of the SCAs Judgment.

50Paulsen and Ano ther v Slip Knot Investments 777 (Pty) Ltd supraat para [21],51 Ibidat para [29].


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28

37. The last-mentioned aspect is particularly significant, with respect, when it is borne in

mind that this Honourable Court has repeatedly underscored that the SCA has

particular expertise in the common law.53 The litigants are therefore disadvantaged

because they have not had the opportunity of reconsidering or refining their

respective arguments in the light o f a prior judgment o f the SCA"54on the point. The

following remarks by this Court in Bruce and Another v Fleecytex Johannesburg

CC and Others, are particularly apposite on this score:55

It is, moreover, not ordinarily in the interests of justice for a court to sit as a court

of first and last instance, in which matters are decided without there being any

possibility of appealing against the decision given. Experience shows that

decisions are more likely to be correct if more than one court has been required to

consider the issues raised. In such circumstances the losing party has an

opportunity of challenging the reasoning on which the first judgment is based, and

of reconsidering and refining arguments previously raised in the light of such

judgment

38.The question also arises whether it can validly be claimed that the said legal points

raised by the Applicant pertaining to dolus eventualis and error in objectotranscend

the narrow litigation-interests of the parties and implicate or affect the interest of a

significant part of the general public, when it is considered that the Applicant draws an

53See Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies

intervening) 2002 (1) SACR 79 (CC) at para [55]. See also, for example, Amod v Mult il ateral MotorVehicle Accidents Fund 1998 (4) SA 753 (CC) at para [33]; Masiya v Director of Public Prosecutions,Pretoria and Another (Centre for Applied Legal Studies and Another, Amici Curiae) 2007 (2) SACR

435 (CC) at para [17]; Lee v Min ister for Correctional Services 2013 (1) SACR 213 (CC) at para [115].54Carmichele supraat para [59].

551998 (2) SA 1143 (CC) at para [8].


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inextricablenexus between these points of law and the factual question of whether

he acted in putative private defence. During argument before the SCA, the Applicant

deals with dolus eventualisand error in objecto in the context of whether he acted in

putative private defence.56

39. It is, moreover, demonstrated by the Respondent below that the point of law posited

by the Applicant with regard to putative private defence57 is equally unmeritorious,

with little - if any - substance and with nothing substantial hinging thereon, and there

are no prospects of success on appeal on the aspect. It is submitted that the

Applicant has failed to show that there are reasonable prospects that this court will

reverse or materially alter the decision o f the SCAon the point.

POWERS OF THE SUPREME COURT OF APPEAL

40. The gravamen of the first basis on which the Applicant applies for leave to appeal to

this Court is that the SCA exceeded its so-called limited jurisdiction in terms of

section 319 of the Criminal Procedure Act 51 of 1977 (CPA), in that, as averred, the

SCA acted unlawfully and unconstitutional1/ when it rejected the factual finding of

the trial Court that the Applicant acted in putative private defence and replaced it with

a contrary factual finding of its own, namely that the Applicants reliance on putative

private defence could not be sustained and was thus no bar to a finding that he

acted with dolus eventualis in causing the death o f the deceased.58

56See paras 49-61 of the Affidavit in Support of Application for Leave to Appeal.

57See paras 62-71 of the Affidavit in Support of Application fo r Leave to Appeal.58 See paras 13, 41.1 and 42-48 o f the Affidavit in Support of Application for Leave to Appeal. See also the

SCAs findings in this respect at paras [53]-[54] of its Judgment.

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41.lt is averred in the founding affidavit of Fawcett, that the SCA impermissibly

reconsidered the factual finding of the trial court concerning putative private

defence",and in so doing the SCA exceeded its jurisdiction under section 319 o f the

CPA and acted in breach of section 168(3)(c) [sic] of the Constitution. Insofar as it

may be relevant, section 168(3)(jb) of the Constitution provides as follows:

The Supreme Court of Appeal may decide only-

(i) appeals;

(ii) issues connected with appeals; and

(Hi) any other matter that may be referred to it in circumstances defined

by an A ct of Parliament.

42. It is in essence contended by Fawcett that since an appeal by theState on questions

of law in terms of section 319 of the CPA is limited to questions of law only, it was

impermissible for the SCA to reconsider any factual findings not pertaining to the

reserved legal questions, even if the SCA was of the opinion that the factual finding

was incorrectly decided."59 Fawcett states that the matter of the legal requirements

for putative private defence was not embodied in a question of law reserved for

consideration of the SCA, and therefore the SCA had no statutory authority to

interfere with either the trial courts legal or factual finding of putative private

defence."60

43. As mentioned earlier, it is not contended by the Applicant that the SCA could not act

in terms of section 322(1) of the CPA, once the first two questions of law reserved in

59 Ibidat para 43.60Ibidat para 46.

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casuwere answered in the States favour. Indeed, counsel for the Applicant argued

in the SCA that it was not in the interests of justice that a trial de novobe instituted in

terms of section 324 read in conjunction with section 322(4) of the CPA, given that

the accused ha[d] already served the period of direct imprisonment envisaged by the

period of correctional supervision imposed upon him by the trial court.61 However,

counsel for the Applicant submitted that the SCA should exercise its discretion under

s 322 to make no further order62

44.The only question therefore is whether the SCA could deal with the issue of putative

private defence when it gave the judgment that the trial court ought to have given in

terms of section 322(1 )(b)of the CPA, which issue the Applicant avers fell outside the

ambit or purview of the States appeal in terms of section 319 of the CPA.

45.The procedure in an appeal by the State in terms of section 319 of the CPA is two-

tiered: it falls on the SCA firstlyto decide whether the question of law reserved for the

Courts consideration should be answered in the States favour or whether the appeal

should be dismissed.

46 .Secondly, if the question of law is decided by the SCA in the States favour, in other

words, where the court of appeal has given a decision in favour of the prosecutorJ,

the SCA may set aside an acquittal or conviction on a competent verdict or alternative

charge, that is to say, a less serious offence than that which the accused was

61See para [45] of the SCAs judgment.

62Ibidat para [45].


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originally charged with,63 and order that a trial de novo be instituted in terms of

section 322(4) read with section 324 of the CPA.64

47. The SCA, however, instead of ordering a trial de novo, may exercise any of the

powers conferred upon it by section 322(1) of the CPA, the provisions of which read

as follows:65

In the case of an appeal against a conviction or of any question of law

reserved, the court of appeal may -

(a) allow the appeal if it thinks that the judgment of the trial court should

be set aside on the ground of a wrong decision of any question of

law or that on any ground there was a failure ofjustice; or

(b) give such judgment as ought to have been given at the trial or

impose such punishment as ought to have been imposed at the trial;

or

(c) make such other order as justice may requ ire:..

48.The Court of Appeal, then, in the case of any question of law reserved, may in terms

of section 322(1 )(b) of the CPA give such judgment as ought to have been given at

the trial,whichincludes setting aside the conviction of the trial court and convicting

the accused on a more serious crime, provided that the accused was originally

charged therewith.66

63Ibidat paras [5]-[9] and [46], as conceded by Counsel for the Applicant in the SCA.

64 Compare, for example, Director of Public Prosecutions, Transvaal v Mtshweni 2007 (2) SACR 217

(SCA) at para [34].

65See paras [43]-[47] of the SCAs judgment.66Compare S v E 1979 (3) SA 973 (A) at 976A-B, 977D-E; E du Toit, FJ de Jager, A Paizes, A St Q Skeen& S van der Merwe (gen ed) Commentary on th e Criminal Procedure Act (RS 54 2015) 31-42A.


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49.lt is submitted that there is nothing from the wording of section 322(1) of the CPA to

suggest that the SCAs power of giving such judgment as ought to have been given at

the trial, in the case of... any question of law reserved, is confined or limited in a

State appeal solely to questions of law reserved in terms of section 319 of the CPA

and that the Court of Appeal is precluded in such substituted judgment from

reconsidering factual findings made by the trial court.67 This was not the argument of

the Applicant during the hearing of the appeal in the SCA, not in viva voceargument

and neither in its Heads of Argument. It is reiterated that it is an ineluctable

consequence that the correct application of the legal principles and the consideration

of facts that were erroneously ignored by the trial Court will impact on the secondary

factual findings of the trial Court.

50. In the Appellate Division decision of S v E, Corbett JA (as he then was), writing for

the Court, held that where the Court of Appeal is convinced that the trial court, by

reason of a wrong factual finding or a mistake in law, convicted an accused on a less

serious offence than that which the accused was originally charged with and which

the accused ought to have been convicted of, the Court of Appeal is empowered in

terms of section 322(1 )(jb) of the CPA to alter the conviction to one on the more

serious charge accordingly.68

51.lt is axiomatic that where the SCA decides to give such judgment that the trial court

ought to have given, the SCA would be entitled to proceed to conduct a reappraisal or

reassessment of the secondary factual findings of the trial court and/or relevant legal

principles so as to ultimately give such verdict as ought to have been given by the

court a quo. As the Appellate Division pertinently affirmed, per Corbett CJ, in S v

67Emphasis added.

681979 (3) SA 973 (A) at 977D-E.

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Morgan and Others, the Court of Appeal may substitute a conviction for a different or

more serious offence generally on the basis of the facts found by the trial Court, or

the undisputed facts or the appellants own evidence"69 Corbett CJ endorsed the

approach that the Court of Appeal may in these circumstances draw a different

inference from the evidence as a whole, and remarked that this is essentially what

happened in S v E [referred to supra ]70 In other words, the SCA in exercising its

power in terms of section 322(1 )(b) of the CPA, may reach a different secondary

finding or inference based on the primary facts found proved by the trial court.71

52. In the analogous Appellate Division case of S v September,72 the appellant stood

trial in a Provincial Division on charges of murder, assault with intent to do grievous

bodily harm, theft and malicious injury to property. The trial Court found that the

appellant, at the time of the commission of the offences, was under the influence of

liquor and possibly also drugs, that the appellant lacked criminal capacity because of

his state of intoxication and that he was accordingly guilty of a contravention of

section 1(1) of the Criminal Law Amendment Act 1 of 1988. On appeal, it was argued

on behalf of the appellant that the evidence was indeed of such a nature as to cast

doubt on the appellants criminal capacity and that the trial Court correctly found that

the appellant could not be convicted. It was, however, further argued that positive

proof of a lack of criminal capacity was absent and that the appellant could

accordingly not have been convicted of contraventions of section 1(1) of Act 1 of

1988. The Court of Appeal discussed and confirmed the principles applicable to

691993 (2) SACR 134 (A) at 162e (emphasis added).

70Ibidat 162e-f (emphasis added).71 For a distinction between the inferential process directed at determining a fact (often referred to as asecondary fact),on the one hand, and a primary fact found proved, on the other, see the decision of thisHonourable Court in S v Basson 2004 (1) SACR 285 (CC) at para [49].721996 (1) SACR 325 (A).

34 ' 0 3 6


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section 1(1) of Act 1 of 1988 and stressed the fact that it was the task of the trial

Court, in every particular case, to decide whether the accused indeed lacked the

requisite criminal capacity. The court identified certain shortcomings in the court a

quos application of the legal principles pertaining to the evaluation of evidence

relating to criminal capacity. In view of these shortcomings, the Appellate Division

invoked the provisions of section 322(1 ){b)of the CPA and applied S v E supra,73and

held that the evidence, as a whole, had accordingly to be assessed anew.74 The

legal representatives of the parties were also requested to submit argument on the

question of whether the appellant should not, in the first instance, have been

convicted on the original counts. After reassessing the evidence the Appellate Court

found that no reasonable doubt had been cast on the appellants criminal capacity.

The evidence was furthermore sufficient to lead to the conclusion that the appellant

was, beyond reasonable doubt, guilty of committing the crimes that he was originally

charged with.75 The Court of Appeal thus set aside the convictions of contraventions

of section 1(1) of Act 1 of 1988 and substituted convictions on the original, more

serious charges.76

53. The apposite Appellate Division case of R v Von Elling involved an appeal upon a

question of law reserved by a Special High Court.77 The accused, von Elling, was

charged with theft but found guilty of being an accessory after the fact to the crime of

theft. The trial Court reserved for the decision of the Court of Appeal a question of

law, namely whether that Court had jurisdiction to convict the accused of being an

accessory after the fact to the theft. The Appellate Division affirmed that the question

73Ibidat 330c-/.

74Ibid

at 330/.75Ibidat 330/-334d.

76Ibidat 334/-335a.

771945 AD 234.

jETVVA

35 ' 0 3 7


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reserved had to be answered in the negative, but then proceeded to consider the

practical effect of this answer on the proceedings in the case. The Court, per Tindall

JA, pointed out that the accused had pleaded not guilty and that evidence was

adduced at trial which in fact implicated the accused in the theft. The State

contended on appeal that since the evidence proved that the accused played a part in

the theft, the Court of Appeal ought to substitute a verdict of guilty of the crime of theft

in the place of the incompetent verdict of guilty of being an accessory after the fact to

that crime. The Court of Appeal observed that the predecessor to section 322(1 )(>)

of the CPA empowered the Court to substitute the correct verdict for that given by the

trial Court. That being so, Tindall JA held that it was necessary to state the effect of

the evidence relevant to the liability of von Eiling which was accepted by the Special

High Court.78 The Court of Appeal thereupon proceeded to deal with the evidence

presented at trial, as well as the trial Courts factual findings, and ultimately came to

the conclusion that the evidence showed that the accused was guilty of theft. Since

the accused was charged with theft, and since, as the Court of Appeal found, his acts

showed that he committed theft, it was held by the Court of Appeal that the correct

course [was] to substitute a verdict of guilty of theft.79 The Court of Appeal therefore

made the following order: The question reserved is answered in the negative. The

verdict of guilty of theft is set aside and a verdict of guilty of theft substituted

therefor.80

54. In the present matter, the SCA answered the first two questions of law reserved in the

States favour. These questions related respectively to the trial Courts incorrect

78ibidat 243 (emphasis added).79Ibidat 251-252.

80Ibidat 252.

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37 0 3 9

application of the principles of dolus eventualis, including error in objecto, and

incorrect conception and application of the legal principles pertaining to circumstantial

evidence and multiple defences by an accused.81

55. The SCA then pertinently dealt with the question of what that Court was required to

do in the light of these findings; in other words, as in Von Elling supra, what the

practical effect was of the answers to the questions of law reserved on the

proceedings in the case.82 The SCA considered that it was required to set aside the

conviction of culpable homicide and either order that the Applicant be tried de novo

on the murder charge as framed in the indictment or to act in terms of section 322(1)

of the CPA.83 Having found that it was wholly impracticable and not in the public

interest to order that a trial de novo be instituted, and particularly where neither the

State nor the Applicant pressed for such an order,84 that meant that the SCA was

required to act in terms of section 322(1) of the CPA. As mentioned above, counsel

for the Applicant in the SCA argued that such Court should exercise its discretion

under s 322 to make no further order."85 However, the SCA found that such would

also be undesirable, holding that:86

The interests of justice require that persons should be convicted of the actual

crimes they have committed, and not of lesser offences. That is particularly so in

crimes of violence. It would be wrong to effectively think away the fact that an


82Ibidat para [43].

83Ibidat paras [43]-[47].

84Ibidat para [44].85Ibidat para [45].

86Ibidat para [45].

61M


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380 4 0

accused person is guilty of murder if he ought to have been convicted of that

offence

56.The SCA accordingly found that the option which most read ily presented itself as

being in the interests of justicewas to set aside the conviction of culpable homicide

and to consider whether on the facts found proved, the trial court erred in drawing

the inference it did as to dolus eventualis, so as to give such judgment as the trial

Court ought to have given in terms of section 322(1 )(>) of the CPA.87 The Court, per

Leach JA, proceeded to observe in this respect:88

This is so as in an appeal of this nature this court is in as pood a position as the

trial court in drawing inferences of fact from proven facts. In my view, then, the

interests of justice require this court on an acceptance of the facts found proved, if

of the view that the incorrect conclusion was reached in respect of dolus, to set

aside the conviction of culpable homicide on count 1 [the murder charge as per

the indictment]. The pertinent issue then becomes whether, on the primary facts

found proved, considering all of the evidence relevant to the issue, and applying

the correct legal test the inference has to be drawn that the accused acted with

dolus eventualis when he fired the fatal shots.89

57.This approach adopted by the SCA in reassessing the question of whether the

Applicant had dolus eventualiswhen he shot and killed the deceased, in order to give

such judgment as the trial Court ought to have given in terms of section 322(1 ){b)of

the CPA, accords with the same procedure or approach enunciated and endorsed or

87Ibidat para [46] (emphasis added).88 Ibidat paras [46]-[47] (footnote omitted).

89Emphasis added.


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followed in the above-mentioned dictaof Von Elling, S v E, S v Morgan and Others,

and S v September. The SCA was empowered in terms of section 322(1 )(b)of the

CPA to substitute a conviction of murder for the conviction of culpable homicide (ie. to

alter the conviction on the less serious charge to a conviction on the more serious

charge in accordance with Von Elling, S v E and S v September supra), if it found,

as the trial Court ought to have found, that the Applicant had dolus eventualiswhen

he killed the deceased.

58. It follows therefore, with respect, that the Court of Appeal was required to deal with

the factual issue of whether putative private defence which excludes dolus could be

relied on by the Applicant, an aspect which was strongly pursued by the Applicant not

only at trial but also before the SCA in argument. In other words, in accordance with

the procedure enunciated in the Appellate Division decisions of Von Elling, S v E, S

v Morgan and Others, and S v September supra,the SCA in the present matter had

to reassess the primary factual findings made by the trial court or facts found proved,

as well as the relevant legal principles, in deciding whether the Applicant could rely on

the defence of putative private defence.

59. In any event, with respect, it can be argued that the matter of putative private defence

is an issue that was connected90 to the first question of law reserved pertaining to

the correct application of the principles of dolus eventualis, and consequently did not

fall outside the purview of the nature of the States appeal in casu.

39 0 4 1

90 Section 168(3)(6)(ii) of the Constitution.

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60. In the circumstances, it is respectfully submitted that the first, main contention by the

Applicant that the SCA exercised it powers in terms of section 322(1) outside the

ambit of the States appeal in terms of section 319 of the CPA, is without merit and

contrived.

PURPORTED ERRORS OF LAW

61.The Applicants submissions as encapsulated in para [14] of Fawcetts founding

affidavit, that the SCA was mistaken as to the law on dolus eventualisand knowledge

of unlawfulness, is without merit and contrived.

62. Putting aside the other defences raised by the Applicant, it is crucial to recognise that

putative private defence in the context of this case, requires that a compound

question be considered - taking account of three considerations, which we address in

more detail below:

62.1. That the form of fault in issue is dolus eventualis;

62.2. That - on the version of the Applicant - this was a scenario of error in

objecto;

62.3. That putative private defence is a simple application of the principle that the

fault requirement of a crime must extend to all of the material requirements

of the actus reus.

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41 0 4 3

63. It is only once the compound nature of the appropriate question is appreciated that

the ultimate question can be formulated together with the manner in which this

question must be answered. This is crucial because it gives rise to questions that

were not asked by the trial court, but which were clearly engaged with and answered

by the Supreme Court of Appeal (discussed below). It is respectfully argued that

once this is appreciated, it becomes clear that the Supreme Court of Appeals

judgment is beyond reproach.

DOLUS EVENTUALIS

64.The form of fault that is in issue in this case is dolus eventualis. The requirements of

this form of fault are well recognised in our law, stretching back to 1953 in R v

Heubsh91 and 1958 in R v Horn,92 confirmed in the case of S v Ngubane,93 and

most recently in S v Hum phreys94 and again in S v Brown.95

Following Ngubane, it consists in:

64.1. Foresight;

64.2. Recklessness (also known as the volitional component), including:

91 1953 (2) SA 561 (A).92 1958 (3) SA 457 (A) at 465.93 1985 (3) SA 677 (A).94 2013 (2) SACR 1 (SCA).95 2015 (1) SACR 211 (SCA) at para [104].


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64.2.1 Reconciliation with or consent to the foreseen risk (also known as taking

the risk into the bargain); and

64.2.2 Persisting or proceeding - reckless as to whether the foreseen risk

eventuates.96

65. There is no dispute in our law that this is the accepted formulation of doius eventualis.

There is some academic debate as to the purpose served by the second requirement

(reconciliation with or consent to the foreseen risk) listed here,97 but nowhere is there

any authority in any case-law or mainstream academic literature to the effect that

dolus eventualis is or should be formulated as the Applicant argues it is or should be,

namely as follows:

65.1. Foresight and reconciliation; and

65.2. Knowledge of unlawfulness.98

66. Indeed, Jonathan Burchell correctly points out that knowledge of unlawfulness is the

second principal element of fault (mens reaj, whereas intention in whatever form

(idolus directus, dolus indirectus or dolus eventualis) is the first principal element of

fault (mens rea).99 What the Applicant seeks to do impermissibly is to confuse or

conflate the second element of fault, namely knowledge of unlawfulness, with the

first element of fault, namely dolus. It is, however, well-settled in our common law

96 S v Ngubane1985 (3) SA 677 (A) at 658F-G.

97 R C Whiting Thoughts on dolus eventualis' (1988) 1 SACJ 440; Paul T. Smith 'Recklessness in DolusEventualis' (1979) 96 SALJ 92-3.98 See paras 14.1 and 50ff of Affidavit in Support of Application for Leave to Appeal.

99J Burchell Principles o f Criminal Law 4 ed (2013) 345.

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that knowledge of unlawfulness Is a separate and distinct element to that of dolus,

and is thus not a component of dolus. Only once it is established that dolus is

present, would one then determine whether the separate element of fault, namely

knowledge of unlawfulness, is also present. If dolus is found to be absent, a

determination of whether there was knowledge of unlawfulness is naturally rendered

entirely nugatory. This is the long-established principle in South African law. The

Applicant, nonetheless, without any substantiation in law, introduces an entirely alien

and anomalous conception of dolus,and for that matter, for the first time for judicial

consideration in this Honourable Court (effectively then as a Court of first instance).

67. Furthermore, to the extent to which the submission appears to be that the Supreme

Court of Appeal failed to enquire into the knowledge of unlawfulness of the conduct in

question, it fails to observe that the Supreme Court of Appeal did indeed concern

itself with this question in considering the Applicants defence of putative private

defence.100

68.There is therefore nothing of any substance in the argument of the Applicant, save to

enable it to argue that the Supreme Court of Appeal made an error. The purpose of

this argument is to open the way for an appeal to this Honourable Court, which we

submit, ought not to be entertained.

69. It is respectfully submitted that the law is clear, that there has been no deviation from

the accepted definition of - and application of the principles of dolus eventualis. The

mere argument of the existence of a new definition of dolus eventualiswithout any

pTlN\

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100See paras [52]-[55] of the SCAs judgment.


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support in case-law or respected and accepted legal writing should not, with respect,

constitute a valid ground for appeal.

70.1 have endeavoured to focus my submissions on the stated errors of law and in the

process have dealt in more particularity with the legal principles pertaining to the

Applicants grounds of appeal. I do, however, wish at this stage to draw this

Honourable Courts attention to the primary facts found proved by the Court a quo,as

delineated in paras 18 and 19 of our Heads of Argument filed in the SCA. We

reiterate that the only conceivable inference that could be drawn on the facts found

proved and on a consideration of the erroneously ignored evidence, is that the

Applicant acted with dolus eventualis. The SCA agreed as much.101

71.1 have for purposes of this affidavit summarised the main arguments in opposition to

the Applicants application for leave to appeal, but respectfully refer this Honourable

Court to the exposition of the legal principles governing dolus eventualisand error in

objectoas set out in our Heads of Argument filed in the SCA, at paras [39]-[60].

101See paras [50] and [54] of the SCAs judgment.

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72.The scenarios of aberratio ictusand error in objecto are clearly distinguishable, and

indeed, a distinction is drawn between these two concepts in South African law.

73. In the Supreme Court of Appeal, the Applicant argued that a distinction must be

observed between being mistaken as to the identity of a victim as opposed to where

an accused mistakenly consciously excludes the prospect that a particular person

could be the actual victim.102 The reasoning is, we submit, fallacious. Our law is

clear: if A shoots and kills C, thinking that C is B, this constitutes error in objectoand

this error is no defence. The Applicant argued that it should somehow matter if A

thought that C was somewhere else (in the bedroom), and thereby consciously

excluded C (as the person in the toilet).

74. What the Applicant did not observe is that it is in the nature (indeed it is require by

definition) of being mistaken in killing C, when one thinks that one is killing B, that one

thinks that C is notB. It is essential to the mistake that one has excluded the identity

of the actual victim fromthe actual victim. This is the very essence of the mistake. It

cannot be the basis for the recognition of some exception within the settled law that

an error in objectois no defence.

75. In spite of the SCA correctly identifying this aspect as a fundamental error103 the

Applicant persists in the argument, before this Honourable Court, that the identity of

the victim is somehow relevant:

102 See para 61 of the Applicants Heads of Argument.103See para [30] of the SCAs judgment.

ERROR IN OBJECTO


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The Trial Court found that at the time of the discharging of the shots the Applicant

believed that the Deceasedwas in the bedroom. This negated any possibility that

the Applicant foresaw and reconciled himself with the death o f the Deceased. It is

in this respect that dolus eventualis could not be found on the facts.104

76. The Applicants submission here seeks to maintain the relevance of an error in

objectoby transferring the intention to lawfully kill the intended victim onto the actual

victim. This is contrary to the settled position that in the context of error in objecto,

the identity of the victim is entirely irrelevant. It is so at odds with settled principle that

it strays into the territory of the law relating to aberratio ictus in which, against the

weight of the prevailing authority,105 the Applicant argues that the intention to act

lawfully against one person should be transferred to the actual victim.

77.As we have argued, this submission is wrong in settled law on the several grounds

set out above, but even if correct, it appears to turn ultimately on the argument that

the Supreme Court of Appeal failed to properly consider whether the Applicant had

knowledge of unlawfulness. This, again, is, with respect, a spurious argument.

78.The SCA considered the defence of lack of knowledge of unlawfulness - which is the

defence of putative private defence towards the end of its judgment in considering

104 See para 37 of Affidavit in Support of Application for Leave to Appeal. See also paras 34 (where theApplicant submits that error in objectowas only irrelevant because he lacked knowledge of unlawfulness -

which suggests that error in objectois otherwise relevant), 35, 38, and 80 of Fawcetts affidavit.105 S v Mahunga 1981 (1) SA 57 (A); S v Mtshiza 1970 (3) SA 747 (A); Snyman Criminal Law 6ed (2014)

194.


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whether the Applicant was genuinely mistaken as to the unlawfulness of killing

whoever was in the toilet.106

6

79. Therefore, the suggestion that error in objectowas or could be relevant is ill-founded,

strays into the domain of aberratio ictusand invokes the doctrine of transferred intent

or malice (against the weight of authority), and, in any event, such substance as may

be extracted from the submission was addressed by the Supreme Court of Appeal

and rejected.

80. There is nothing of any substance in the argument of the Applicant.

PUTATIVE PRIVATE DEFENCE

81. The defence of putative private defence is a simple application of the principle that

the fault requirement of a crime must extend to all of the material requirements of the

actus reusof the crime in question.107

82.The SCA, with respect, correctly found that in order to bring the accused within the

ambit of putative private defence he must have intended to shoot at the person whom

he thought posed a danger to him. The Applicant testified that he did not intend to

shoot at whoever was inside the toilet and thus he fell outside of the ambit of the

defence of putative private defence.108

106 See paras [52]-[55] of the SCAs judgment.107 J Burchell South African Criminal Law and Procedure: General Principles of Criminal Law 4 edVol 1 (2011) 220-221; A Paizes Mistake as to the Causal Sequence' and 'Mistake as to the Causal Act':Exploring the relation between Mens Rea and the Causal Element of the Actus Reus (1993) 110 SALJ

493; S v Goosen 1989 (4) SA 1013 (A); R v Mbombela 1933 AD 269; R v Churchill 1959 (2) SA 575 (A).108 See para [53] of the SCAs judgment.


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83.The fault requirement for murder, encompasses numerous requirements, including

that the accused must intend to:

83.1. kill, as opposed to merely harm;

83.2. kill a human being,as opposed to some other thing, such asa tokelosh;109

83.3. kill anotherhuman being as opposed to oneself; and

83.4. unlawfully kill another human being, as opposed tolawfully killing another

human being.

84.This is all trite and, contrary to the submission of the Applicant,110 precedes even the

decision in S v De Blom111 - which decided the point that the fault requirement must

go further and extend to the general prohibition of the crime.112

85. Given that the defence of putative private defence is a simple application of the

principle that the fault requirement of a crime must extend to all of the material

requirements of the actus reus of the crime in question, the defence of putative

private defence, in the context of murder, asks the question whether dolus, of

whatever form, extends to the unlawfulness requirement.

86.The SCA did engage in the enquiry as to whether the accuseds fault, in the form of

dolus, extended to the unlawfulness requirement. It enquired whether the Applicant

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109 R v Mbombela 1933 AD 269.

110 See para 54 of Affidavit in Support of Application for Leave to Appeal.111 S v De Blom

1977 (3) SA 513 (A).112 See, in general, the decisions of R v Mbombela 1933 AD 269; R v Church ill 1959 (2) SA 575 (A); S v Botes 1966 (3) SA 606 (O); S v Mokoena 1976 (4) SA 162 (O) for an application of the principle toknowledge of unlawfulness - all predating De Blom in 1977.

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was genuinely mistaken as to the unlawfulness of his conduct and concluded that he

was not113.

87.The Supreme Court of Appeals discussion reveals that not only did it define and

conceptualise each element of the ultimate question before it correctly, but it applied

the law in a logical and coherent step-by-step fashion. This led it to answer the

ultimate question which arises in the context of error in objecto,where the defence of

putative private defence had been raised and the form of the intention in question is

dolus eventualis: did the accused foresee the possibility that he could unlawfully kill

whoever was behind the door, and did he accept this risk and proceed nevertheless?

88.The Supreme Court of Appeal answered this question in the affirmative - he did

indeed at least foresee the risk of unlawfully killing whoever was behind the door, he

accepted that risk and proceeded nevertheless. This, the Supreme Court of Appeal

correctly found, makes the Applicant guilty of murder.

OBJECTIVE CONSIDERATION

93. The applicant also argues that the SCA impermissibly introduced objective

considerations into its enquiry for intention by referring to the rational person to

determine the subjective state of mind of the applicant114 for the purposes of judging

his claim of putative private defence. We immediately stress that the term reasonable

person was not used.

113 See para [53]-[55] of the SCAs judgment.114See paras 14.3 and 62ff of Affidavit in Support of Application fo r Leave to Appeal.


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94. However, it is, with respect, clear that the SCA rejected the defence of putative

private defence on the basis that the Applicant could not rely on such defence. The

ratio of the SCA is as follows:115

The immediate difficulty that I have with the accuseds reliance upon putative

private defence is that when he testified, he stated that he had not intended to

shoot the person whom he felt was an intruder. This immediately placed himself

beyond the ambit of the defence, although as I have said, his evidence is so

contradictory that one does just not know his true explanation for firing the

weapon. His counsel argued that it had to be inferred that he must have viewed

whoever was in the toilet as a danger. But as was pointed out in De Oliv iera,116

the defence of putative private defence implies rational but mistaken thought.

95. Reference to the rational person is obiter and must be understood in light of the

reference to De Oliv ieras decision. I submit that it is clear, with respect, that such a

reference is derived from what was said in De Oliviera, to the effect that the defence

of putative private defence is a rational defence - one in which the accused asserts

that he was mistaken but rational.117 Rational in this context connotes goal directed

conduct.

96.1submit further that the Supreme Court of Appeal clearly applied a subjective test and

concluded that the Applicant acted with dolus eventualis in causing the death of the

deceased.118


116S v De Oliveira 1993 (2) SACR 59 (A) at 65d.

117 Ibidat 65d.


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97.The SCA did not evaluate and assess the version of the Applicant against that of a

reasonable person standard, but by referring to the rational person, suggested the

view that the Applicants version as testified to was so preposterous or

inconceivable" that it could not be accepted. In any event, as was held in S v

Beukes en n Ander, the trial court draws an inference concerning the accuseds

state of mind from the facts which point to it being reasonably possible, objectively

seen, that the consequences would eventuate.119

98. What is material ultimately is that the SCA found as follows on the subjective state of

mind of the Applicant at the relevant tim e:120

Consequently, although frightened, the accused armed himself to shoot if

there was someone in the bathroom and when there was, he did. In doing so he

must have foreseen, and therefore did foresee that the person he was firing at

behind the door might be fatally injured, yet he fired without having a rational or

genuine fear that his life was in danger

99. These comments must

oscar cc final papers aj monday 25 jan respondent

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