Ek het gedurende Julie vanjaar oorgeskakel na Word Press as gasheer van my web blaaie en in die proses sommige dokumente verloor. Ek is besig om dit weer op te laai so wees asseblief geduldig. Sover het ek die engelse pleite opgedateer.

Ek beplan om later die web blaaie te stroomlyn. Hou solank in gedagte dat nuwe beslissings slegs op die engelse blad volledig gepubliseer word.



Prosecution — Discontinuance — Decision to discontinue prosecution — National Prosecuting Authority basing decision on abuse-of-process doctrine — Court of law appropriate authority to deal with such doctrine, not extra-judicial process — Legal authorities, of which NPA should have been aware, not supporting decision taken by NPA — Decision not to refer complaint of abuse of process to court irrational — When Acting National Director announced decision to discontinue prosecution, no discussion held with senior members of NPA to source their views — Such failure also irrational — Acting National Director having acted impulsively and irrationally in making decision — Matter should have been dealt with by court — Application to review and set aside decision granted.

The third respondent, the present President of the Republic of South Africa, had in 2007 been indicted in a High Court on various criminal charges. On 6 April 2009 the first respondent, following written and oral representations by the third respondent’s legal representative, and relying on the abuse-of-process doctrine, decided to discontinue the prosecution of the third respondent on the indictment served upon him. The reason given for the discontinuance of the prosecution was that the second respondent, the head of the Directorate of Special Operations, had ‘manipulated the legal process for purposes outside and extraneous to the prosecution itself’ and ‘used the legal process for a purpose other than that which the process was designed to serve, ie for collateral and illicit purposes’. The first respondent was of the opinion that ‘(a) (i)t will not be possible to give the accused a fair trial; or (b) (i)t will offend one’s sense of justice, integrity and propriety to continue with the trial of the accused in the particular case. Discontinuation is not a disciplinary process undertaken in order to express one’s disapproval of abuse of process; it is an expression of one’s sense of justice and propriety.’ The following day the applicant launched an application for an order ‘(r)eviewing, correcting and setting aside the decision of the first respondent, taken on or about 6 April 2009, to discontinue the criminal prosecution of [Mr] Zuma, in accordance with charges contained in an indictment of 27 December 2007’ and ‘(d)eclaring . . . the decision of the first respondent referred to . . . above to be inconsistent with the Constitution of the Republic of South Africa, 1996, and invalid . . .’. It appeared from the affidavits in the application that, prior to the first respondent’s decision to discontinue the prosecution, he had been satisfied that the state had a strong case on the merits. The first respondent, his deputies and the prosecution team had no doubt that the prosecution would proceed. It was after the first respondent and his deputies had listened to certain audio tapes of telephone conversations between the second respondent and a former National Director of Public Prosecutions that the first respondent changed his mind and decided to discontinue the prosecution.

The applicant contended that the first respondent’s decision should be reviewed, corrected and set aside on the ground of illegality and irrationality. The first and second respondents contended in essence that, having regard to the second respondent’s conduct, the first respondent was justified in deciding to discontinue the prosecution and that his decision was rational. The third respondent’s counsel argued that, even if the merits of the state’s case were strong, the decision to discontinue was rational and justified because, according to the contents of the recorded conversations, the National Prosecuting Authority’s (NPA’s) independence would be affected and it would be seen to be meddling in political decisions. It was further submitted that the fact that the plan of the second respondent, to negatively influence the election of the third respondent as president of the ANC, was unsuccessful, was immaterial. The abuse was of such a serious nature that the decision not to prosecute was rational.

Held, that a court of law was the appropriate forum to deal with the abuse-of-process doctrine, not an extra-judicial process. Prior to his decision to discontinue the prosecution, the first respondent subscribed to the view that the allegations raised in the tape recordings and the representation by the third respondent’s legal team had to be subjected to judicial process, if anything, to test the veracity thereof. But he inexplicably and irrationally abandoned this view.

Held, further, that legal authorities, of which the first respondent should have been aware or so advised, did not support the decision taken by him in an instance such as this under review, where the abuse-of-process doctrine is applied in an extra-judicial exercise of public power, when the prosecution against an accused is discontinued. In this instance the basis of the alleged abuse of process rested on legally untested allegations which were unrelated to the trial process and the charges. Therefore, the conduct of the first respondent, by not referring the complaint of abuse of process, and the related allegations against the second respondent, to court, rendered his decision irrational.


Held, further, that the first and third respondents had brought into their answering affidavits the previous conduct of the second respondent, but that only served to describe the character of the second respondent as an officer who was inclined to meddle in political affairs, nothing more. It was information well known to the first respondent, even before he heard the tapes of the conversations. It was irrational to argue that it constituted the basis upon which the prosecution was to be discontinued.


Held, further, that, when the first respondent announced his decision on 1 April 2009 to senior members of the NPA, no discussion was held with them to source their views on the matter. This omission was critical, considering that up to 31 March 2009 they had been collectively discussing it and had agreed to continue with the prosecution. They had been briefed on the content of the tape and, on the evening of 31 March 2009, they had heard the tape with the first respondent. It was to be expected that they individually would have formed some views on the matter. Failure to source their views under the circumstance was irrational.


Held, further, that the first respondent had failed to explain how the information he had heard on the tape could be said to have affected, compromised or tainted the envisaged trial process and the merits of the intended prosecution. In fact, in his media address announcing his decision, he conceded that the alleged conduct of the second respondent had not affected the merits of the charges against the third respondent. There was thus no rational connection between the need to protect the integrity of the NPA and the decision to discontinue the prosecution against the third respondent.


Held, further, that the first respondent, in his own words on 1 April 2009, stated that he felt angry and betrayed by what he had heard on the tape recordings. His feelings of anger and betrayal caused him to act impulsively and irrationally, considering the factors as set out above. He did not allow himself time to consider the question whether the very decision he was about to take could be regarded by other people, facing similar charges throughout South Africa, as a breach of the principles of equality before the law, or that it would be an abuse of process to discontinue charges against people of high profile or standing in the community. The conflict between the third respondent’s defence and the prosecution’s evidence could only be determined if all the evidence the prosecution and the third respondent wished to adduce was presented and tested in a court of law.


Held, accordingly, that, having regard to the evidence before the court, the first respondent found himself under pressure and he decided to discontinue the prosecution of the third respondent, and consequently made an irrational decision. Considering the situation in which he found himself, the first respondent ignored the importance of the oath of office which demanded of him to act independently and without fear or favour. The envisaged prosecution against the third respondent was accordingly not tainted by the allegations against the second respondent. The third respondent should face the charges as outlined in the indictment. Application granted. 



Animal protection offences — Societies for the Prevention of Cruelty to Animals — Power to bring private prosecution — Restriction in s 7 of CPA of private prosecutions to direct infringement of human dignity and exclusion of juristic persons other than those mentioned in s 8 of Act rationally related to legitimate governmental purpose of limitation of private prosecution and hence not unconstitutional — SPCA not entitled to bring private prosecution — Criminal Procedure Act 51 of 1977, s 7 read with s 8.

The National Society for the Prevention of Cruelty to Animals appealed against the dismissal by the High Court of its constitutional challenge to s 7(1)(a) of the Criminal Procedure Act 51 of 1977 (the CPA), to the extent that it allowed only private persons, and not a juristic person such as the appellant, to institute a private prosecution.

Held, that private prosecutions in terms of s 7 of the CPA were only permitted on grounds of direct infringement of human dignity. This was the reason for s 7(1)(a) of the CPA (which permitted private prosecutions only where private and personal interests were at stake) and for the exclusion of juristic persons, other than those mentioned in s 8, from instituting private prosecutions. Human dignity was a foundational value of our Constitution and to allow for private prosecutions, other than in terms of s 8 of the CPA, only on grounds of direct infringement of human dignity was rationally related to the legitimate governmental purpose of limitation of private prosecutions. Therefore s 7(1)(a) of the CPA was not unconstitutional.


Director of Public Prosecutions, Gauteng v Pistorius [2016] 1 All SA 346 (SCA)
Criminal law – Murder – Defence – Putative private defence – A defence of putative private defence implies rational but mistaken thought – Respondent failing to establish a factual foundation for his alleged genuine belief of an imminent attack upon himself.
Criminal law – Murder – Intention – Dolus eventualis – Whether, on the primary proven facts, considering all of the evidence relevant to the issue, and applying the correct legal test, the inference had to be drawn that the respondent had acted with dolus eventualis when he fired fatal shots – Court was satisfied that in firing the fatal shots, respondent must have foreseen, and therefore did foresee, that whoever was behind door through which shots were fired might die, but reconciled himself to that event occurring – Shooting in such circumstances establishing dolus eventualis on his part, and identity of victim was irrelevant to his guilt.
Criminal law – Murder – Intention – Whether perpetrator must know or appreciate the identity of the victim at relevant time – Although a perpetrator’s intention to kill must relate to the person killed, that does not mean that a perpetrator must know or appreciate the identity of the victim – Incorrect appreciation of identity of victim not determinative of whether perpetrator had the requisite criminal intent.
Criminal procedure – Appeal – Reserved points of law – Section 319 of the Criminal Procedure Act 51 of 1977 – State can only have a question of law reserved should there be an acquittal – Previous limitation on the State’s right to appeal on a point of law as applying only where there has been a total acquittal no longer considered to be good law.
What was common cause in this case was that the respondent had shot and killed his girlfriend at his home in a secured complex. What was at issue was whether in doing so, he had committed the crime of murder (involving the intentional killing of another), or the lesser offence of culpable homicide (involving the negligent killing of another). The trial court found him guilty of the lesser offence.

The appellant contended that the trial court erred on certain legal issues, and appealed on reserved questions of law. The appeal related solely to count 1 of the indictment, viz the alleged murder of the deceased.
In terms of section 258 of the Criminal Procedure Act 51 of 1977 (the “Act”), culpable homicide is a competent verdict on a charge of murder. Therefore, having found that the State had not proved that the accused was guilty of murder but had shown that he was guilty of culpable homicide, the trial court relied on section 258 to convict him on the latter charge.
The reserved questions of law were whether the principles of dolus eventualis were correctly applied to the accepted facts and the conduct of the accused, including error in objecto; whether the court correctly conceived and applied the legal principles pertaining to circumstantial evidence and/or pertaining to multiple defences by an accused; and whether the court was correct in its construction and reliance on an alternative version of the accused – and that such alternative version was reasonably possibly true.

Held – Section 319 of the Act provides for the reservation of a question of law for consideration by the Appellate Division. The section makes it clear that the State can only have a question of law reserved should there be an acquittal. The court has previously held that the acquittal envisaged by the section must be a total acquittal, and did not include a case in which a competent verdict had been entered in place of the charge upon which the accused had been arraigned. The respondent in this case was convicted on the competent verdict, with the result that there was no total acquittal. However, the limitation on the State’s right to appeal on a point of law as referred to above was held by the Constitutional Court not to be good law. There was therefore no objection to the appeal proceeding on the points of law reserved by the trial court.

Turning to the issues in the appeal, the Court stated the need to have regard to the factual background to the points of law debated on appeal. The respondent was a double amputee, relying on prosthetics for mobility. He and the deceased had been involved romantically for just over three months when the fatal incident occurred. On the night in question, the deceased was sleeping over at the respondent’s home. She was fatally injured when the respondent fired four shots, with a pistol, through the door of a toilet cubicle in the bathroom adjacent to his bedroom. The State alleged that the respondent had threatened the deceased during the course of an argument, that she had locked herself into the toilet cubicle in the bathroom to escape from him, and that he had then fired the fatal shots through the door and killed her. The respondent’s version, on the other hand, was that he had risen from bed in the early hours of the morning, and was aware that the deceased was awake in the bed next to him as she had spoken to him. He got out of bed to switch off two fans which had been left running, and had just drawn the curtains when he heard the sound of a window opening in the bathroom. He alleged that he had immediately thought that there was an intruder who had entered the house through the bathroom window, and grabbed his gun, whispered to the deceased to get down and call the police, before proceeding to the bathroom door. He stated that he was overcome with fear, and was screaming at the intruder to get out of his house, and to the deceased to get down on the floor and to phone the police. He saw that the door to the toilet was closed, and hearing a noise coming from inside the toilet, promptly fired four shots at the door. It was only then that he retreated into the bedroom and realised that the deceased was not there, and it dawned on him that it could be her in the toilet. However, the respondent’s explanation for having fired at the toilet door did vary during his testimony.
The Court explained the ambit of the appeal. As a general rule, an appeal is a complete rehearing, without the leading of evidence, in which a trial court’s conclusions of both fact and law may be challenged by having regard to the evidence on record. The considerations differ somewhat in a case such as this, where the State seeks to appeal against the acquittal of an accused and the appeal is brought under the provisions of section 319 of the Criminal Procedure Act. As opposed to an accused who has the benefit of appealing against a conviction based on alleged incorrect factual findings, the State may not appeal against an acquittal based solely on findings of fact. The State has no right to appeal except where there is a statutory right bestowed on it to do so. In this instance, its right was limited to the three questions of law reserved. Thus, the main issue before the present Court was whether the trial court had erred in regard to the issue of dolus eventualis.
In order to prove murder, the State had to establish that the perpetrator committed the act that led to the death of the deceased with the necessary intention to kill, known as dolus. Mere negligence would be insufficient. The two forms of intention which apply to murder are dolus directus and dolus eventualis. Dolus directus is present where a person committed the offence with the object and purpose of killing the deceased.Dolus eventualis arises if the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that death might well occur. Significantly, the wrongdoer does not have to foresee death as a probable consequence of his actions. It is sufficient that the possibility of death is foreseen, and is coupled with a disregard of that consequence.
On the first question of law, it had to be determined whether the trial court properly applied the above principles to the facts that it had found had been proved. The trial court questioned how the respondent could reasonably have foreseen that the shots he fired would kill the deceased or whoever was behind the door. The present Court held that the trial court’s question wrongly applied an objective rather than a subjective approach to the question of dolus. The issue was not what was reasonably foreseeable when the respondent fired at the toilet door, but whether he actually foresaw that death might occur when he did so. Thus, the critical distinction was between subject foresight (what actually went on in the mind of the accused) and objective foreseeability (what would have gone on in the mind of a reasonable person in the position of the accused). That distinction must not be blurred. The Court held that the trial court’s conclusion that the respondent had not foreseen the possibility of death occurring as he had not had the direct intent to kill stemmed from the application of the incorrect test.
A further error identified in the trial court’s conclusions related to whether the respondent knew that the person in the toilet was the deceased. The trial court’s conclusion that dolus eventualis had not been established was premised upon an acceptance that the respondent, believing the deceased to be in bed, did not foresee that she was the person in the toilet. The reasoning was that as the respondent did not foresee that the person in the toilet was the deceased, he could not have foreseen that his action in shooting could cause her death and he could not be held guilty of her murder. Although a perpetrator’s intention to kill must relate to the person killed, that does not mean that a perpetrator must know or appreciate the identity of the victim. The respondent’s incorrect appreciation of who was in the cubicle was not determinative of whether he had the requisite criminal intent. Therefore, in confining its assessment of dolus eventualis to whether the respondent had foreseen that it was the deceased behind the door, the trial court misdirected itself as to the appropriate legal issue. The first point of law reserved was determined in favour of the State.
On the question of the trial court’s assessment of the circumstantial evidence, the appeal court held that in a case such as the present one, while the subjective state of mind of an accused person often only be inferred from the circumstances surrounding the infliction of the fatal injury, the inference to be properly drawn must be consistent with all the proven facts. The trial court must consider the totality of the evidence led to determine whether the essential elements of a crime have been proved. In the present case, the trial court’s assessment of material evidence was criticised. An important instance of the trial court’s disregarding of material evidence was evident in its handling of the testimony of the police forensic expert who reconstructed the crime scene. His testimony was circumstantial evidence crucial to a decision on whether the respondent, at the time he fired the fatal four shots, must have foreseen, and therefore did foresee, the potentially fatal consequences of his action. The second question of law was accordingly also answered in favour of the prosecution.
In light of the above findings, the Court had to decide on what the proper course of action should be. In terms of section 324 of the Criminal Procedure Act 51 of 1977, where there has been a misdirection of law, as was found to have occurred in this case, proceedings may be commenced afresh before another judge. That was not considered an appropriate course in this case. Instead, the Court found it to be in the interests of justice to consider whether on the facts found proved, the trial court erred in drawing the inference it did as to dolus eventualis. The question then, was whether, on the primary proven facts, considering all of the evidence relevant to the issue, and applying the correct legal test, the inference had to be drawn that the respondent had acted with dolus eventualis when he fired the fatal shots. The Court was satisfied that in firing the fatal shots, the respondent must have foreseen, and therefore did foresee, that whoever was behind the toilet door might die, but reconciled himself to that event occurring. That constituted dolus eventualis on his part, and the identity of his victim was irrelevant to his guilt.
Addressing the respondent’s reliance on putative private defence and his assertion that he had believed himself to be under threat because of the presence of an intruder in the toilet, the Court again pointed to the respondent’s contradictory explanations for having fired four shots through the door. A defence of putative private defence implies rational but mistaken thought. Although the respondent, believing that someone was behind the door, might have been anxious, the Court found it inconceivable that a rational person could have believed he was entitled to fire at such person with a heavy calibre firearm, without taking even the most elementary precaution of firing a warning shot. The respondent failed to establish a factual foundation for his alleged genuine belief of an imminent attack upon himself. He therefore acted with dolus eventualis in causing the death of the deceased.
The conclusion was that the conviction and sentence for culpable homicide were set aside and replaced with a conviction of murder. The case was remitted to the trial court for sentencing afresh.


S v DAMANI 2016 (1) SACR 80 (KZP)
Trial — Language — Use of indigenous languages — Although use of indigenous languages in court should be promoted, until issue of language policy in lower-court proceedings officially resolved by competent authority, not salutary for magistrate at own discretion to conduct proceedings in indigenous language.

The accused was convicted in a magistrates’ court of assault with intent to do grievous bodily harm and was sentenced to 12 months’ imprisonment suspended for five years on certain conditions. The matter was submitted on automatic review and the reviewing judge addressed certain queries to the presiding magistrate, questioning, firstly, the motivation for conducting the whole case in isiZulu and, secondly, why it had taken almost three months to submit the matter on review. The magistrate responded that it was his decision to conduct the whole trial in Zulu as the overwhelming majority of the people of the district spoke the language and all of the participants in the trial spoke Zulu. He also mentioned that the Constitution called for recognition of the equality of all 11 official languages. It appeared further that it had taken almost two months to have the transcription prepared. In the light of this information the reviewing judge sought input on the matter from the Director of Public Prosecutions and the chief magistrate of Pietermaritzburg, as well as the acting chief magistrate of Durban. After having considered these submissions,

Held, that it was no doubt a noble idea to use any of the 11 official languages in court, and efforts that were aimed at advancing the status and the use of indigenous languages, particularly in the lower courts at this stage, were to be welcomed and encouraged. However, the process should be embarked upon in an orderly and less disruptive manner so as to ensure that the finalisation of cases was not unduly delayed. To the knowledge of the court, there did not seem to be proper structures in place that could adequately and timeously attend to the transcription of records from the nine indigenous languages for the purposes of appeals or reviews. It therefore followed that undue delays in finalising those cases would most certainly occur, which would have dire and prejudicial consequences to the accused concerned.
Held, further, that, given the fact that a decision by the magistrate, at his or her discretion, to conduct court proceedings in any of the nine indigenous official languages was likely to have administrative and/or budgetary implications on the part of the government or the office of the Chief Justice, it was not a salutary and desirable thing for any magistrate to do this at the present stage, until such time as the issue of language policy in court proceedings in the lower courts was officially resolved and determined by a competent authority. The proceedings were in all other respects certified to be in accordance with justice.


Dalindyebo v S [2015] 4 All SA 689 (SCA)
Criminal law – Arson – Whether crime of arson can be committed when a person sets fire to his own immovable property – A person may be guilty of arson if he sets fire to his own immovable property with the intent to injure another.
Criminal law – Right to fair trial – Includes right to have trial begin and conclude without unreasonable delay – Where delays were caused by appellant’s own dilatory and obstructive behaviour, objection that trial was rendered unfair was dismissed.
Criminal procedure – Appeal in respect of severity of sentence – Complaint concerning inadequacy of legal representation rejected – Accusation that trial judge acted irregularly by descending into the arena calling into question his impartiality unfounded.

The appellant was the Paramount Chief of the AbaThembu tribe in the Eastern Cape. The State’s case against him was that he had set fire to dwellings that housed the three complainants, who were his “subjects” and tenants, to secure their eviction when he considered that they had breached tribal rules. He was also alleged to have publicly assaulted three young men so brutally that some of the people present could not bear to continue to watch and had it not been for later medical intervention they might have died. The assaults were perpetrated, so the State contended, as punishment, without a trial, for criminal acts allegedly committed by the young men in question, being, inter alia, housebreaking and rape. Arising from the above, the appellant was charged and convicted of arson, kidnapping, defeating the ends of justice by unduly influencing a complainant to withdraw the arson charges, assault and culpable homicide. The sentence imposed on the various counts resulted in an effective term of 15 years’ imprisonment.
Both conviction and sentence were appealed against. Although, at the instance of the State, the questions of law were reserved by the court below, that was not persisted with on appeal.
The appellant challenged his convictions on the basis that his trial was unfair. He contended that because his trial had commenced approximately 8 years after the events on which his convictions were based, he was hindered in his ability to adduce and challenge evidence, which was in violation of his constitutional right to a speedy trial in terms of section 35(3) of the Constitution. Another challenge to the fairness of the trial was that the legal representatives that appeared on the appellant’s behalf failed to represent him competently and effectively. The appellant also accused the judge in the court below of unjustifiably descending into the arena with persistent questioning that amounted to repeated irregularities vitiating the trial.
Furthermore, the appellant challenged the merits of his conviction. In relation to his convictions on the charges of arson, his principal defence was that the two houses he had admitted to setting on fire were his property and he could therefore not rightly have been convicted of arson. In respect of the sentences, the appellant’s case was that they were shockingly severe.

Held – Our Constitution dictates that criminal trials should begin and conclude without unreasonable delay. In this case, it was true that years had passed between the commission of the alleged offences and the commencement of the appellant’s trial. Much, if not all of that delay was caused by the appellant being obstructive and employing dubious means to thwart the administration of justice, including the intimidation of complainants. Pressure had to be brought to bear by the community for the prosecution to be reinstated. The appellant’s dilatory and obstructive behaviour continued after the commencement of his trial. The Court concluded that the delay in the appellant’s prosecution was caused largely by his own bad behaviour. The Court also rejected the allegations that the legal representation of the appellant was inadequate.

The next question addressed was whether the judge in the court below breached any of the canons of good judicial behaviour. The record satisfied the Court that the judge’s interventions were not tainted by any impropriety.
On the merits, the Court began by describing the deplorable nature of the appellant’s conduct. The first question addressed was to consider whether the crime of arson can be committed when a person sets fire to his own immovable property. A primary problem for the appellant was that whilst the farm was registered in his name, the restrictions contained in the title deed were significant. The restrictions showed that the land was held by the appellant as hereditary monarch for the benefit of his tribe and subjects. Therefore, it could not be said that the property was his to set to fire to at will. In any event, the Court held that arson can be committed where a person sets fire to his own immovable property with the intention to injure another person.
The Court aligned itself with the findings of the trial court in all respects other than the conviction on the charge of culpable homicide. The evidence linking the appellant to the killing of a young man had not been proved beyond a reasonable doubt. Other than for the setting aside of the conviction and related portion of the sentence in that regard, the appeal was dismissed.