THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 409/2015

In the matter between:

MATHEWS SIPHO LELAKA
APPELLANT

and

THE STATE
RESPONDENT

Neutral citation: Lelaka v The State (409/15) [2015] ZASCA 169 (26 November
2015)

Coram:
Ponnan, Shongwe, Petse and Mathopo JJA and Van der Merwe
AJA

Heard:

4 November 2015

Delivered:
26 November 2015

Summary: Criminal Procedure ─ sentence ─ whether plea of double jeopardy applicable
where accused had been convicted of assault with intent to do grievous bodily harm and where
after the conviction, the victim died and the State intends preferring charges of murder against
him.

________________________________________________________________
ORDER
________________________________________________________________

On appeal from: The North West Division of the High Court, Mahikeng (Gura J,
Matlapeng and Djaje AJJ sitting as a court of review):

1. The appeal succeeds.
2. The order of the full court is set aside and replaced with the following:
‘The matter is remitted to the Magistrate’s Court, Ga-Rankuwa for the
appellant’s trial to be finalised before another magistrate.’
________________________________________________________________

JUDGMENT
________________________________________________________________

Mathopo JA (Ponnan, Shongwe, Petse JJA and Van der Merwe AJA
concurring):

[1] On 10 February 2013, the appellant, Mr Mathews Lelaka and Mr Kgotatso
Moshe (the complainant) were on their way from a tavern. The latter took a bottle
of whisky from the appellant. This incensed the appellant, who then took the bottle
from the complainant and assaulted him by striking him in his face. The appellant
was charged with one count of assault with intent to do grievous bodily harm. On
14 February 2013 the appellant pleaded guilty to the charge. He made a detailed
statement in terms of s 112 (2) of the Criminal Procedure Act 51 of 1977 (the Act),
in which he set out his version of events. Satisfied that all of the essential elements
of the charge were admitted, the magistrate convicted him as charged. The State
then applied for a postponement of the matter to obtain a record of the appellant’s
previous convictions. The magistrate postponed the case to 28 February 2013 and

cancelled the appellant’s bail and remanded him in custody. On 28 February 2013,
the magistrate was informed that the complainant had died in the interim on 15
February 2013. In the light of this new fact, the magistrate granted the State a
postponement to obtain a post-mortem report (the report) to determine the exact
cause of the death.

[2] The report only became available after several further postponements on 27
May 2013. The report reflected the cause of death as ‘severe blunt force head
trauma’. The magistrate postponed the matter once again to enable the State to
seek a directive from the office of the Director of Public Prosecutions (DPP).
There were several other postponements whilst the appellant was kept in custody.
On 13 June 2013 the appellant appeared in court with a new legal representative,
who urged the court to sentence the appellant in terms of his plea of guilty.

[3] The State opposed the application and requested another postponement for
the DPP’s directive as to whether murder charges should be proffered against the
appellant or not. In essence the State contended that it would not be in the interest
of justice to proceed with the sentencing procedure in the light of the death of the
deceased. On 20 June 2013 and for reasons that are not clear the magistrate recused
herself from the matter. She further stated that ‘the case can start de novo, then you
can argue a bail and everything afresh when there will be no prejudice to you’. She
did not explain why she arrived at that decision. At that stage, the appellant had
been in custody for a period of four months.

[4] Some seven months after her recusal, the magistrate sent the case to the
North West Division of the High Court, Mahikeng (high court) on special review
in terms of s 304A(a) of the Act. She requested the high court to set aside the

conviction on the basis that the proceedings were not in accordance with justice.
Section 304A(a) reads as follows:
‘304A Review of proceedings before sentence
(a) If a magistrate or regional magistrate after conviction but before sentence is of the opinion
that the proceedings in respect of which he brought in a conviction are not in accordance with
justice, or that doubt exists whether the proceedings are in accordance with justice, he shall,
without sentencing the accused, record the reasons for his opinion and transmit them, together
with the record of the proceedings, to the registrar of the provincial division having jurisdiction,
and such registrar shall, as soon as is practicable, lay the same for review in chambers before a
judge, who shall have the same powers in respect of such proceedings as if the record thereof had
been laid before him in terms of section 303.’ (My emphasis.)

[5] Upon receipt of the review, Landman J requested the DPP for an opinion,
which was to the effect that a grave injustice would occur if murder charges were
not preferred against the accused, and submitted that the high court could invoke
its inherent power in terms of s 173 of the Constitution to set the proceedings
aside. The two reviewing judges, Landman J and Hendricks J, could not agree on
the matter, with the result that the Judge President of that division directed that the
review be placed before the full court for argument. After hearing the argument,
the full court (per Gura J, Matlapeng and Djaje AJJ) held that it would not be in the
interests of justice if the appellant was sentenced on a lesser charge where the
victim had died as a result of the appellant’s unlawful actions arising from the
same facts. Consequently, acting purportedly in terms of s 173 of the Constitution,
it set aside the conviction and ordered that the trial should commence de novo. The
appeal by the appellant against that order is with the special leave of this court.

[6] It is a general rule of the common law that a person may not be punished
twice for the same offence. This common law rule is now entrenched in the

provisions of s 35(3)(m) of the Constitution.1 In terms of the rule, an accused may
raise the plea of autrefois convict or acquit. This principle is grounded in the
maxim that no person is to be brought into jeopardy more than once for the same
offence. This principle finds expression in the rule of law that if someone has been
either convicted or acquitted of an offence he or she may not later be charged with
the same offence or with what was in effect the same offence.2 According to Lord
Devlin in Connelly v Director of Public Prosecutions 1964 (2) All ER 401 ‘[t]he
word offence embraces both the facts which constitute the crime and the legal
characteristics which make it an offence.’3 Lord Morris elaborated:
‘It matters not that incidents and occasions being examined on the trial of the second indictment
are precisely the same as those which were examined on the trial of the first. The Court is
concerned with charges of offences and crimes. The test is, therefore, whether such proof as is
necessary to convict of the second offence would establish guilt of the first offence or of an
offence for which on the first charge there could be a conviction.
In R v Long4 Schreiner JA said the following:
‘It is not enough to support the plea that the facts are the same in both trials. The offences
charged must be the same, but substantial identity is sufficient. If the accused could have been
convicted at the former trial of the offence with which he is subsequently charged there is
substantial identity, since in such a case acquittal on the former charge necessarily involves
acquittal on the subsequent charge. Another way of putting it is that he must legally have been in
jeopardy on the first trial of being convicted of the offence with which he was charged on the
second trial.’

1 This subsection provides that an accused has the right not to be tried for an offence in respect of an act or omission
for which that person has previously been either acquitted or convicted.
2 S v Ndou & others 1971 (1) SA 668 (A ) at 676C-E.
3 At 433G-H.
4 1958 (1) SA 115 (A) at 117F-H.

[7] However, our law has long recognised that a plea of autrefois convict is not
available when it was impossible at the previous trial to prefer the more serious
charge later presented.5 Voet 48.2.12 puts it thus:
‘One convicted (but not one acquitted) of light crime can be charged again with serious crime
arising out of the same act─
Finally nothing prevents one who has been charged with and punished for a somewhat light
crime from being afterward charged in turn with a heavier crime which is proved to have sprung
from the same act. An instance would be when a person has been first punished as having
inflicted a wound and it later becomes clear that the wounded man perished from such wound as
being a lethal wound, and therefore he is account afresh as a homicide. It would be otherwise if
one who was accused of wounding a person has not been convicted by the judgment, but has
been acquitted, since his innocence has already been approved by the Judge in respect of the very
act from which the ensuing.’
It follows that a conviction for assault is no bar to a prosecution for murder or
culpable homicide where the victim has died since the conviction ‘for the fact of
the death has altered the essential nature of the crime’.6 Put somewhat differently,
‘the death is a new fact’.7 See also S v Gabriel 1971(1) SA 646 (RA) and S v Ndou
supra. In Ndou (at 676C) the general principle was expressed as follows: ‘it is clear
that a plea of autrefois convict or acquit is not available to an accused charged with
murdering A on a stated occasion notwithstanding that he has previously been
acquitted or convicted of assaulting A on that occasion’.

[8] It follows that both courts below misconceived the position in their approach
to the matter. Reverting to the facts of this case, the deceased was assaulted on 10
February 2013. The appellant pleaded guilty and was convicted on 14 February
2013. The deceased died on 15 February 2013 from what appears to be assault

5 F Gardiner and C Landsdown South African Criminal Law and Procedure 5ed (1946) p297.
6 See 5 above.
7 WM Russel KNT A Treatise on Crimes and Misdemeanors 8ed (1923) p1817.

related injuries. When the appellant was convicted the deceased was still alive. It
was thus not possible at that stage to charge him with murder. A case on all fours
with the present case is that of R v Stuurman (1863) 1 Roscoe 83. In that case an
accused had been convicted of common assault and the man assaulted
subsequently died. It was held that this conviction was no bar to his subsequent
trial and conviction for culpable homicide. It follows that nothing stops the state
from instituting a charge of murder against the appellant, if so inclined. In the
result there was no basis for setting aside the conviction and the trial should be
finalised.

[9] There is one aspect which requires final comment. The high court was
rightly critical of the magistrate because she recused herself. The effect of her
recusal though is that the matter must be remitted to another magistrate for the trial
to be finalised. The appellant was convicted on his plea of guilty and it should not
occasion any great difficulty for another magistrate on the strength of the present
record and such evidence as may be placed before the court in either aggravation
or mitigation to proceed to sentence the appellant.

[10] I therefore make the following order:
1. The appeal succeeds.
2. The order of the full court is set aside and replaced with the following:
‘The matter is remitted to the Magistrates’ Court, Ga-Rankuwa for the
appellant’s trial to be finalised before another magistrate.’

________________

R S Mathopo
Judge of Appeal

Appearances

For Appellant:
M L Skibi
Instructed by:
Legal Aid, Mahikeng Justice Centre, Mahikeng
Bloemfontein Justice Centre, Bloemfontein

For Respondent:

L van Niekerk

Instructed by:

The Director of Public Prosecutions, Mmabatho
The Director of Public Prosecutions, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

26 November 2015

STATUS

Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

Mathews Sipho Lelaka v The State (409/2015) [2015] ZASCA 169 (26 November
2015)

The Supreme Court of Appeal (SCA) today handed down judgment in a matter relating to whether a
plea of double jeopardy is applicable where the appellant, an accused, had been convicted of one
count of assault with intent to do grievous bodily harm and after the conviction the victim died and the
state intends to prefer charges of murder against him.

The appeal to the SCA by the accused was against the judgment of the North West Division of the
High Court, Mahikeng sitting as a court of review, which reviewed and set aside his conviction on a
charge of assault with intend to do grievous bodily harm, and referred the matter back to the
magistrate’s court to be heard de novo.

Proceedings began in the Ga-Rankuwa Magistrate’s Court (the magistrate’s court) where the
appellant pleaded guilty to a charge of assault with intent to do grievous bodily harm after he struck
the victim of the assault in the face with a bottle. The appellant made a detailed statement in terms of
s112(2) of the Criminal Procedure Act 51 of 1977 (the Act) and he was convicted as charged. The
matter was postponed to obtain a record of the appellant’s previous convictions. During this period,
the victim of the assault passed away. This information was brought to the magistrate’s attention at
the next hearing, and in light of this, the magistrate postponed the hearing to obtain the post mortem
report. Subsequently, the post mortem report became available. It reflected the deceased’ cause of
death as ‘severe blunt force head trauma’. The matter was postponed several times to enable the

State to obtain a directive from the Director of Public Prosecutions (DPP) to determine whether
murder charges should be proffered against the appellant.  The appellant was remanded in custody
during these postponements. Following several other postponements, the appellant’s newly
appointed representative urged the court to sentence the appellant in terms of his guilty plea. The
state opposed this application and requested a further postponement for the DPP’s directive. The
state contended that it would not be in the interest of justice to proceed to sentence the appellant in
light of the death of the deceased. The magistrate postponed the matter, and at the next sitting,
recused herself. Some seven months after her recusal, the magistrate referred the matter to the North
West Division of the High Court, Mahikeng on special review in terms of s304A(a) of the Act. The
matter was argued before the full court which reviewed and set aside the proceedings, and ordered
that the trial should commence de novo. The full court determined that the referral by the magistrate
in terms of s304A(a) of the Act was incompetent, but invoked its inherent powers in terms of s173 of
the Constitution, 1996 to set aside the trial. The court held that it would not be in the interest of justice
if the appellant was sentenced on a lesser charge when the victim had died as a result of the
appellant’s unlawful actions arising from the same facts. In the SCA, the state persisted that the
interest of justice would not be served if the appellant was sentenced on the lesser charge.

The SCA held that the defence raised by the appellant that he may not be punished twice for the
same offence was recognised in our common law, and has been entrenched in s35(3)(m) of the
Constitution, 1996. However, defence is not available when it was impossible at the previous trial to
prefer the more serious charge later presented. Consequently, a conviction of assault is not a bar to a
prosecution for murder or culpable homicide where the victim has died since the conviction because
the fact of death has altered the essential nature of the crime.

The SCA accordingly held that there was no basis for the full and magistrate court to set aside the
conviction.

The SCA also expressed its unhappiness at the recusal of the magistrate as her conduct had the
effect that the trial could not be finalised.

The SCA accordingly upheld the appeal and made an order remitting the matter back to the
magistrate’s court for the appellant’s trial to be finalised before a different magistrate.

--- ends ---