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Section 35(3) of the Constitution guarantees the right to a fair trial. The Constitution mentions 15 aspects of the right to a fair trial in terms of s 35(3). In S v Zuma and Others 1995 (2) SA 642 (CC) the Constitutional Court (CC) held that the list in the section is not exhaustive and that the section is broader than the list of specific rights set out in paras (a) to (o) of the subsection. The right to a fair trial is not only limited to an accused person. It applies equally to the state, which represents the public. The recent decision of the SCA in Director of Public Prosecutions Gauteng Local Division, Johannesburg v Ramolefi (SCA) (unreported case no 705/2018, 3-6-2019) (Gorven AJA (Majiedt and Van der Merwe JJA (concurring)) is a classical case, which reveals a lacuna in the Criminal Procedure Act 51 of 1977 (CPA), which regulates the appeal process. This lacuna in the CPA creates a wrong impression that the right to a fair trial in terms of s 35(3) of the Constitution is limited to the accused only. I will argue below that this gap in the CPA needs to be addressed urgently in order to avoid a failure of justice similar to the one experienced in the Ramolefi case. The Ramolefi case suggests that where a High Court imposes a wrong sentence on appeal the right of the state to appeal to the SCA against such a sentence is nonexistent. This state of affairs is with respect, worrying and unconstitutional.

Summary of the case

In the Ramolefi case, the accused was convicted by the Regional Court in Alexandra on a charge of murder. The incident that led to the deceased’s death was very unfortunate. Two years before the incident, the accused caught the deceased and accused’s wife in flagrante delicto. Despite this, the accused and his wife reconciled. On the day of the incident, the accused and the deceased were at a carwash. Two state witnesses who testified at the trial did not see the start of the altercation between the accused and the deceased. They only saw the events when the deceased was fleeing out of the gate of the carwash and the accused was chasing him holding a knife. At that time, the deceased was bleeding from his back. While fleeing, the deceased stumbled and fell, whereupon the accused stabbed him once in his neck. The accused then said that he would ‘finish off’ the deceased. The deceased bled profusely and was transported to the hospital and eventually died from his injuries. The deceased sustained two stabbed wounds, one in the neck and one to the back. The post-mortem report revealed that the fatal wound was the one in the neck. According to the accused, the deceased was the aggressor in that when he was at the carwash, he went to pay and suddenly someone patted him on his back and when he turned around, the deceased hit him. He fell and the deceased was on top of him and assaulted him. He managed to get his knife and he stabbed the deceased once in the back. The deceased jumped up and ran away. He denied stabbing the deceased in his neck. He also denied that he stabbed the deceased for having an affair with his wife. The regional court accepted the version of the state witnesses and rejected the version of the accused. It found that the version of the accused was inconsistent with the proven facts and gave persuasive reasons for its findings. The trial court found the accused guilty of murder. The court did not find any substantial and compelling circumstances to deviate from the prescribed minimum sentence and it sentenced the accused to 15 years imprisonment. The accused applied for leave to appeal against the conviction and sentence. He was granted leave to appeal his sentence and his application for leave to appeal his conviction was unsuccessful.

Appeal to the High Court

On appeal, the Gauteng Local Division of the High Court per Molahlehi and Van der Linde JJ concurring, upheld the appeal on sentence. The High Court set aside the sentence imposed by the regional court and imposed a sentence of five years’ imprisonment, which was wholly suspended for a period of five years on condition that the accused is not found guilty of an offence committed during the period of suspension for which he is sentenced to a period of imprisonment without the option of a fine. The High Court set aside the sentence imposed by the regional court as it was of the view, among others, that the accused was acting under extreme provocation because of the adulterous affair that the deceased had with the accused’s wife. It found that the accused lost control over his emotions and acted completely irrationally.

Appeal to the SCA

Not satisfied with the sentence imposed by the High Court, the state was granted special leave to appeal the sentence to the Supreme Court of Appeal (SCA). On the facts, the SCA found that the findings of the High Court in setting aside the sentence imposed by the regional court were not supported by the evidence before the trial court. The SCA found that the findings of the High Court, in particular, that the accused was acting in circumstances of extreme provocation were at odds with the specific factual findings of the trial court. The SCA found that the High Court made these findings despite the fact that there was no evidence before court that the alleged provocation of the accused related to the adulterous affair between the deceased and the accused’s wife. The evidence before the court was that the accused chased the deceased because he was angry and that the deceased hit him without a reason. The SCA found that the High Court erred by making wrong observations, which eventually necessitated the setting aside of the sentence imposed by the regional court. The SCA held that the judgment of the High Court on sentence was replete with serious misdirections and that the wholly suspended sentence imposed by the High Court was ‘shockingly lenient’.

However, the court was hamstrung to set aside the order of the High Court as its jurisdiction to hear the appeal was challenged especially when regard is had to s 316B of the CPA. This section provides that: ‘(1) Subject to subsection (2), the attorney-general may appeal to the Appellate Division against a sentence imposed upon an accused in a criminal case in a superior court.’ This section, the court found, refers to appeals where the High Court was sitting as a court of first instance not a court of appeal. In considering whether the court had jurisdiction to consider an appeal by the state against the sentence imposed by the High Court on Appeal, the SCA reviewed a number of judgments dealing with appeals from the High Court to the SCA. Despite the fact that the SCA was satisfied that the High Court erred and that there was an injustice that occurred, the SCA found that it had no jurisdiction to hear the appeal because the High Court was not sitting as a court of first instance when it imposed the sentence. The court eventually struck the appeal from the roll leaving the glaring injustice intact.

Analysis and submissions

The injustice that occurred in this case is beyond measure. The accused got away with a slap on the wrist. Murder is a serious offence. The right to life is sacrosanct in terms of our Constitution. The accused escaped a lengthy period of imprisonment because of the gap in the CPA.

It is appreciated that the SCA struck the appeal from the roll reluctantly especially taking into account the facts of this case. However, in my view, there was a remedy available for the appeal court. The SCA should have noted that justice must not only be done but must be seen to be done. The court should have noted that the limitation of the rights of the state in terms of the CPA to appeal against a sentence imposed by the High Court on appeal cannot be justified in an open and democratic society based on human dignity, equality and freedom. It is trite that courts must defer legislation to the legislature and must respect the legislation enacted by the legislature as long as the legislation is not in conflict with the Constitution. In my view, the limitation of the right of the state to appeal under these circumstances offends against the Constitution and the court had a duty to remedy the injustice.

Section 311 of the CPA allows the state to appeal against a judgment on a question of law. The limitation of the right of the state to appeal against both conviction and sentence is underpinned by constitutional and policy considerations. These constitutional principles are contained in s 35(3)(m) of the Constitution, which prohibits that an accused person be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted. The policy considerations in my view are based on the notion that, to allow the state to appeal would be to subject the accused to double jeopardy.

In my view, the right of the accused to a fair trial must not be viewed in isolation. It must be viewed against the right to fairness to the general public and the family of the deceased as they are represented by the state. In Jaipal v S 2005 (5) BCLR 423 (CC) at para 29, the CC per Van der Westhuizen J, held that the right of an accused to a fair trial requires fairness to the accused, as well as fairness to the public as represented by the state. The court stated that this right has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime. The court went on to say that the provisions of the CPA must be interpreted in line with s 35 of the Constitution and that its provisions must be interpreted to promote the ‘spirit, purport and objects of the Bill of Rights’.

From the guideline set out by the CC above, I submit that the decision of the SCA to strike the appeal off the roll notwithstanding its findings that the High Court misdirected itself in its approach on sentence, does not instil confidence in the public, especially those distressed by the horror of the murder committed by the accused. It is of concern what the deceased’s family and the general public will say of our justice system pursuant to this injustice.

Conclusion

From the above discussion, there is a lesson to be learnt. Our courts should bear in mind that the right to a fair trial is like a double-edged sword. It applies to the accused and it also applies to the state. The right of an accused person not to be tried for an offence for which they were convicted or acquitted is not absolute. Like all other rights in the Bill of rights, it can be limited in terms of s 36 of the Constitution.

I submit that the legislature should urgently remedy the gap as discussed above. While the status quo remains, I submit that the courts should deal with each matter on a case by case basis. I further submit that where the interests of justice demand that the SCA consider an appeal by the state against a sentence imposed by the High Court on appeal, as it was in Ramolefi, the state must be allowed to appeal against that judgment.

James D Lekhuleni BProc LLB (UL) LLM LLM (UP) LLD (UWC) is a regional magistrate in Cape Town.

This article was first published in De Rebus in 2020 (Jan/Feb) DR 17.