THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 1101/2015

In the matter between:

DIRECTOR OF PUBLIC PROSECUTIONS,
GAUTENG DIVISION, PRETORIA

APPELLANT
and
KINGSLEY JAFTA MOLOI

RESPONDENT

Neutral Citation:
DPP v Moloi (1101/2015) [2017] ZASCA 78 (2 June 2017).
Coram:

Maya AP, Theron and Dambuza JJA and Molemela and Gorven

AJJA
Heard:

15 February 2017
Delivered:

2 June 2017

Summary:  Appeal in terms of s 311 of the Criminal Procedure Act 51 of 1977:
Section 311 provides for an appeal as of right, without leave: failure to have regard
to all the evidence in determining the guilt or otherwise of an accused constitutes an
error of law: question of law upheld: order of the high court set aside: conviction and
sentence imposed by the regional court reinstated and matter remitted to the high
court for the appeal to proceed on the merits.

___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Louw J and
Avvakoumides AJ sitting as a court of appeal):
1 The appeal is upheld in respect of the first question of law.
2 The order of the court a quo is set aside.
3 The conviction and sentence imposed by the regional court are reinstated.
4 The matter is remitted to the high court for the appeal to proceed on the merits.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Dambuza JA (Molemela AJA concurring):

[1] On 12 February 2014 the respondent was convicted by the Nelspruit Regional
Court on a charge of the rape of a 13 year old girl. He was sentenced to life
imprisonment. The Regional Magistrate ordered that he not be considered for parole
and that his name be entered in the register of sex offenders.

[2] On appeal the Gauteng High Court, Pretoria, (per Avvakoumides AJ with
Louw J concurring) (high court), set aside the conviction and the sentence.
Consequently, the respondent was released from imprisonment. The Director of
Public Prosecutions, Gauteng Division, Pretoria (DPP) then brought an application,
in this court, for special leave to appeal against the order of the court a quo. The
appeal was to be founded on two questions of law, as provided in s 311(1) of the
Criminal Procedure Act 51 of 1977 (CPA). This court ordered that the application for
special leave to appeal be argued in open court and that the parties be prepared to
make submissions on the merits of the appeal if invited to do so.

[3] In this judgment I set out the background facts. I then consider whether the
intended grounds of appeal fall within the ambit of s 311 of the CPA, whether such
an appeal requires special leave or is an appeal as of right, whether a proper case
has been made for special leave to appeal and whether the appeal should be
upheld.

[4] The respondent was charged in the Regional Court, Nelspruit, with the rape of
his 13 year old niece, who was his sister‘s daughter (the complainant). At the time of
the incident, which took place on 9 September 2005, the complainant shared her
home in Phola Trust, Nelspruit with her older sister G. Their mother lived in
Johannesburg where she worked. Although this is not clear from the record, it would
appear that their father lived elsewhere as well. The respondent lived with his mother
(the children‘s grandmother).

[5] The State led the evidence of the complainant, G who was 16 years old at the
time of giving evidence; Dr Megan Windvogel who examined the complainant after
the incident; Nurse Lucy Themba who drew a blood sample from the respondent and
several police officers who were involved in the safekeeping and transmission of the
forensic samples. The respondent was the sole defence witness.

[6] The complainant‘s evidence was as follows. On the afternoon preceding the
night of the incident her uncle the respondent, and his girlfriend who lived in their
locality, requested that she sleep at the girlfriend‘s home that night, to keep the
latter‘s 14 year old daughter, K, company as the couple were going out for the
evening. For this reason the couple fetched the complainant from her home during
the day and left her at the girlfriend‘s home. In the early hours of the following
morning, whilst the complainant was still at the girlfriend‘s home, the couple returned
home. They were drunk and it appeared that they had been fighting. The respondent
continued to assault the girlfriend until she ran away. He then ordered the
complainant to go to her home with him to see if G was home. They found her at
home. The respondent told the complainant that he was taking her back to his
girlfriend‘s home. On the way he told her that they should stop at his home to close a
window. At his home they went into the respondent‘s bedroom. The respondent
closed the window and the bedroom door and instructed the complainant to undress

and get into the bed. By this time he had a firearm in his hand. He promised not to
hurt the complainant. When the complainant did as she was instructed the
respondent proceeded to have sexual intercourse with her without her consent.
Thereafter he gave her R50 and warned her not to tell anyone about the incident.
The complainant went home where she immediately told G what had happened.

[7] G testified that at about 06h00 on the morning of 10 September 2005 she was
at home when the complainant arrived home crying, reporting that the respondent
had sexual intercourse with her at their grandmother‘s house and then gave her R50.
G took the money and went to her grandmother‘s home where she reported the
matter. She used the money to telephone her parents from a nearby public phone, to
report the incident. While she was phoning her parents she observed the respondent
fleeing from her grandmother‘s home. Thereafter she, together with her grandmother
and her aunt, went back home to the complainant. She gave what was left of the
money to her grandmother to take the complainant to the clinic. Prior to that morning,
she had last seen the complainant the previous evening when the respondent‘s
girlfriend came to fetch her to keep her daughter, K, company.

[8] Dr Megan Windvogel‘s evidence related to the contents of the medico-legal
report she had prepared pursuant to the medical examination of the complainant
following the allegation of rape. In essence, her evidence was to the effect that the
complainant‘s private parts presented with redness and she had observed a white
discharge thereon. She took vaginal swabs from the complainant and placed them in
a crime kit which, after sealing, she handed, together with the medico-legal report, to
Inspector Nkosi.

[9] Evidence relating to the collection and transmission of forensic evidence was
also led, together with the evidence of a nurse who drew a blood sample from the
respondent. It was common cause at the trial that blood samples were obtained from
him on two occasions. Two forensic reports set out in two affidavits deposed to by
Lieutenant Colonel Catharina Botha, in terms of ss 212(4)(a) and 8(a) of the CPA,
form part of the record. Lieutenant Colonel Botha performed the forensic analysis on
the specimens obtained from the complainant and the respondent.

[10] In the first affidavit, dated 16 July 2008, she stated amongst other things, that:
‗The partial STR profile of the DNA obtained from the vaginal vault swab is the same as the
STR-profile of the DNA obtained from the control blood sample‘.
It was common cause that the blood sample referred to in this report was the one
allegedly drawn from the respondent on the first occasion. In the second affidavit,
dated 17 July 2012, she said that:
‗The STR-profile of the DNA obtained from the control blood sample is the same as the
STR-profile of the DNA obtained from the control blood sample ―KJ MOLOI‖.‘

[11] In summary, the State case was that the DNA results were obtained on an
analysis done on the first blood sample drawn from the respondent in 2007. The
second blood sample was used to confirm that the first and the second blood
samples belonged to the same person, the respondent.

[12] The respondent denied having had sexual intercourse with the complainant.
He insisted that his DNA could never have been found on the complainant.
According to him, on his arrival at his girlfriend‘s home, after the evening out, he saw
two boys leaving the girlfriend‘s house. The suggestion was that the two boys must
have been in the company of the complainant and K and that is how the complainant
had engaged in sexual intercourse. According to him the false charge of rape and
the fabricated evidence against him was motivated by a ‗vendetta‘ on the part of his
sister, the complainant‘s mother, and her children. They did not want him to
discipline them. He denied that he had requested the complainant to sleep at his
girlfriend‘s home and that he had a firearm in his possession on the night in question.

[13] In convicting the respondent the magistrate found that the chain evidence
relating to the DNA was never seriously disputed during cross-examination. He
acknowledged, however, that the respondent had denied that the first blood
specimen was drawn from him and suggested that the second blood specimen could
have been contaminated. The magistrate was of the view that the fact that the
person who drew the first blood sample from the respondent did not testify at the
trial, did not undermine the rest of the evidence relating thereto. It was sufficient, in
the view of the magistrate, that Nurse Themba who drew the second blood sample,
and Constable Simba in whose presence the second blood sample was drawn, gave

evidence. What was paramount, according to the magistrate, was that both blood
samples were proved to be from the respondent, and that the DNA from the first
blood specimen matched the partial STR profile of the DNA found in the vaginal
smear obtained from the complainant. The magistrate concluded that forensic
evidence proved that the respondent had engaged in sexual intercourse with the
complainant.

[14] As to the different versions given by the respondent and the complainant, the
magistrate found that the complainant‘s evidence was credible. He found that the
complainant did not contradict herself and that, although she was a single witness,
G‘s evidence as to the complainant‘s condition when she returned home, the report
she made to G immediately upon her arrival, together with the R50 she had in her
possession, all supported her version. On the other hand the fact that the respondent
fled from his home after the  arrival of G to report the incident, was found to be
supportive of the State case. The magistrate found the respondent to be a liar and
that his version, including his allegation of conspiracy against him by his sister and
her children, was false.

[15] On appeal, the high court set the conviction aside based on the denial of
sexual intercourse, the failure of the State to ‗sustain the chain and link of the blood
samples taken from the Appellant‘ and ‗the failure to lead evidence to ―corroborate
the samples and the authenticity of the tests conducted and to link such samples to
the Appelant‖.‘

[16] It is pursuant to the order of the high court that the DPP brought the
application in this court, seeking special leave to appeal against the decision of the
high court. The application is based on two questions of law, advanced by the DPP
as follows:
‗1. May a court of appeal set aside a conviction and sentence in circumstances where an
appellant is implicated by direct eye witness evidence without evaluating, referring (to) or
rejecting such evidence in the judgment?
2. Is there a duty on the prosecution to tender viva voce evidence of an analyst who
deposed to an affidavit in terms of section 212(4) of Act 51 of 1977 in circumstances where

an accused does not lay a basis for his mere denial that it was his DNA found in the
specimen obtained from the complainant?‘

[17] Section 311 provides that:
‗Where the provincial or local division on appeal, whether brought by the attorney-general or
other prosecutor or the person convicted, gives a decision in favour of the person convicted
on a question of law, the attorney-general or other prosecutor against whom the decision is
given may appeal to the Appellate Division of the Supreme Court, which shall, if it decides
the matter in issue in favour of the appellant, set aside or vary the decision appealed from
and, if the matter was brought before the provincial division in terms of-
(a) section 309(1), re-instate the conviction, sentence or order of the lower court
appealed from, either in its original form or in such a modified form as the Appellate
Division may consider desirable; or
(b) section 310(2), give such decision or take such action as the provincial or local
division ought, in the opinion of the Appellate Division, to have taken (including any
action under section 310(5), and thereupon the provisions of section 310(4) shall
mutatis mutandis apply.
(2) If an appeal brought by the attorney – general or other prosecutor under this section
or section 310 is dismissed, the court dismissing the appeal may order that the
appellant pay the respondent the costs to which the respondent may have been put
in opposing the appeal, taxed according to the scale in civil cases of that court:
Provided that where the attorney – general is the appellant, the costs which he is so
ordered to pay shall be paid by the State.‘

[18] It is trite that the term ‗question of law‘ relates to the application of a legal
principle to an established set of facts and determination of whether or not a crime
has been committed. Recently this court, in Director of Public Prosecutions, Gauteng
v Pistorius1 considered, comprehensively, the disregarding, by a court, of relevant
evidence in considering whether the commission of a crime has been proved. This
court found that the failure by the trial court to take into account all the relevant
evidence as to the presence or otherwise of dolus eventualis constituted an error of
law. Leach JA reasoned that:

1 Director of Public Prosecutions, Gauteng v Pistorius 2016 (2) SA 317 (SCA).

‗[34]
It is thus trite that a trial court must consider the totality of the evidence led to
determine whether the essential elements of a crime have been proved. As Nugent J stated
in Van der Meyden, a passage oft cited with approval in this court:
―The proper test is that an accused is bound to be convicted if the evidence establishes his
guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is
reasonably possible that he might be innocent. The process of reasoning which is
appropriate to the application of that test in any particular case will depend on the nature of
the evidence which the court has before it. What must be borne in mind, however, is that the
conclusion which is reached (whether it be to convict or to acquit) must account for all the
evidence. Some of the evidence might be found to be false; some of it might be found to be
unreliable; and some of it might be found to be only possibly false or unreliable; but none of
it may simply be ignored.‖
. . .
[36] There seems to me to be no difference in principle between the exclusion of relevant
evidence by ruling it inadmissible and excluding such evidence, once admitted, by not taking
it into account to decide the issues in dispute. In either event the judicial process becomes
flawed by regard not being had to material which might affect the outcome. As much as
excluding evidence on the basis of admissibility is a legal issue, it seems to me to also be a
legal issue should account not be taken of any evidence placed before court which ought to
be weighed in the scales.‘
As contended by the DPP, failure by any court to take into account relevant evidence
is an error of law. Since the high court did not consider anything other than the DNA
evidence, it failed to take into account relevant and admissible evidence. This means
that the first question of law is in fact one which was decided in favour of the
respondent and that s 311 applies. That being the case it is not necessary to deal
with the second question of law.

[19] The question of law, having been decided in favour of the convicted person
(the respondent), as envisaged in s 311(1)(a) of the CPA, the next issue for
consideration is whether the applicable test in relation to prospects of success was
met. The contentious issue of whether leave of court is required to prosecute an
appeal under this section, was introduced, rather obliquely, in the parties‘ heads of
argument. Notably, although the section provides for the right of appeal by the DPP

under s 311, nowhere does the CPA prescribe a procedure for prosecuting such
appeal. Furthermore, s 1 of the Superior Courts Act provides that:
‗―appeal‖ in Chapter 5, does not include an appeal in a matter regulated in terms of the
Criminal Procedure Act, 1977 (Act 51 of 1977), or in terms of any other criminal procedural
law.‘
The contention was that in terms of this definition appeals under s 311 of the CPA
are excluded from the procedure set under ss 16(1)(b) and 17(3) of the Superior
Courts Act. More specifically, s 311(1)(a) of the CPA provides for an automatic right of
appeal to this court from a decision of the high court given on appeal to that court.

[20] In Attorney General, Transvaal v Nokwe & others,2 Trollip J considered,
comprehensively, the question whether leave of the court was required for the
Attorney-General (the predecessor-in-title of the DPP) to prosecute appeals on a
question of law. The right to appeal on a question of law was, at that time, provided
for under s 105 of the Magistrates Courts Act, 32 of 1944. The learned Judge held:
‗Sec 105(1) enables the Attorney-General to appeal to the Appellate Division from a decision
given on appeal from a magistrate‘s court by a Provincial Court in favour of an accused on a
matter of law. No mention is made therein that such an appeal is subject to leave being first
granted. Section 114(3) of that Act, however, provides that nothing in the Act must be
construed as affecting the provisions of sec. 105 of the South Africa Act, 1909, relating to
appeals to the Appellate Division. That latter section, as amended, made special provision to
the effect that an appeal to the Appellate Division from a judgment on appeal by a Provincial
Division, only lay if leave was first granted by the latter Division.‘3

[21] The learned Judge considered the provisions of s 21(2)(a) of the Supreme
Court Act of 1959 (the predecessor to the Superior Courts Act in its earlier form –
prior to the 1982 amendment) and concluded that under that Act leave to appeal was
necessary to enable the Attorney-General to prosecute an appeal on a question of
law. That section provided that:
‗there shall be no appeal to the appellate division against … any decision given by a division
on appeal to it except with the leave of the court against whose decision the appeal is to be
made‘.

2 Attorney-General, Transvaal v Nokwe & Others 1962 (3) 803 (T).
3 Ibid at 804.

[22] In 1982 certain provisions relating to appeals under both the CPA and
Supreme Court Act were amended.4 In its amended form s 20 of the Supreme Court
Act read in the relevant part:
‗(4) No appeal shall lie against a judgment or order of the court of a provincial or local
division in any civil proceedings or against any judgment or order of that court given on
appeal to it except-
(a) in the case of a judgment or order given in any civil proceedings by the full court of
such a division on appeal to it in terms of subsection (3), with the special leave of
the appellate division;
(b) in any other case, with the leave of the court against whose judgment or order the
appeal is to be made, or where such leave has been refused, with the leave of
the appellate division.‘5 (My emphasis.)

[23] The purpose of these amendments was to ensure that appeals based purely
on fact should not unnecessarily take up the time of this court, which is more
profitably devoted to issues of law. Matters of pure fact, or of fact and law, where the
law is not really controversial, must be heard by a full court of the provincial division
concerned. Thus, the legislature demonstrated an intention to maintain the
qualitative limitation on appeals coming to this court. This principle and the
concomitant requirement for leave to appeal endured after the Superior Courts Act
10 of 2013 came into effect in respect of both civil and criminal appeals. Section
16(1)(b) of the Superior Courts Act provides that:
‗… [a]n appeal against any decision of a Division on appeal to it, lies to the Supreme Court
of Appeal upon special leave having been granted by the Supreme Court of Appeal.‘
(My emphasis.)

As the court remarked in Nokwe, the conclusion that leave of the court is necessary
to prosecute an appeal on a point of law is consistent with the general principle to
limit appeals to this court from superior courts.6 The wording in s 16(1)(b) conveys
an intention, on the part of the legislature, to intensify the qualitative control over
appeals to this court from appeal decisions of the superior courts.

4 Appeals Amendment Act 105 of 1982.

5 The Supreme Court Act 59 of 1959 has since been repealed and replaced by the Superior Courts
Act 10 of 2013.
6 R v Bhana 1954 (1) SA 45 (A).

[24] Section 311 of the CPA and ss 1 and 16(1)(b) of the Superior Courts Act are
not inconsistent. The former only creates the right of appeal to this court and the
latter sets the procedure and benchmark for all appeals to be heard in this court.
Section 1 of the Superior Courts Act becomes applicable where a criminal law
provision, such as s 309 of the CPA regulates both the jurisdictional requirements
and the benchmark for prosecuting appeals in this court. It seems to me that against
the entrenched qualitative control principle set out above, if the Legislature had
intended to effect the suggested fundamental change in procedure it would have
expressed such intention explicitly. Direct access by the State to this court is
inconsistent with the intention denoted in the more stringent test set under the
Superior Courts Act. It also seems that such right of direct access unfairly tilts the
balance of power in criminal proceedings in favour of the State against ordinary
persons in whose favour superior courts find on appeal.

[25] I am, therefore, of the view that this appeal is not excluded from Chapter 5 of
the Superior Courts Act and that s 311(1)(a) of the CPA does not provide an
automatic right of appeal to this court. Put otherwise, the provisions of ss 16(1)(b)
and 17(3) apply and special leave of this court is therefore required.

[26] As to whether special leave should be granted in this instance I am satisfied
that there are special circumstances which merit an appeal to this court.  In regard to
the first point of law the record shows that the high court simply ignored relevant
evidence, including the evidence of the complainant and her sister. It also
disregarded the findings of the magistrate. This is impermissible.

[27] If allowed to stand the incorrect approach by the high court would uproot the
long established legal principles in our law in relation to evaluation of evidence. The
high court is a precedent setting court. The incorrect approach would result in
extensive miscarriage of justice to members of the public. Therefore the matter is of
importance, not only to the parties in this case, but to the members of the general
public. These factors constitute special circumstances and I would therefore grant
leave to appeal.

[28] Further, having found that the high court disregarded relevant evidence and
ignored the findings of the trial court, the appeal on the first question of law must
succeed. That being the case, it is unneccessary to deal with the second question of
law.

[29] Counsel for both parties urged us to consider the merits of the appeal in the
event that the application for leave to appeal was granted. However this court does
not have the benefit of properly considered views of the full court on the submissions
made to it on the merits. The respondent has not had the benefit of consideration of
the merits of his appeal by the high court. This court would, in essence, be
considering the merits of the findings made by the magistrate. It is appropriate
therefore that the matter revert to the high court for a proper determination of the
issues on the merits.

[30] I would therefore grant the State special leave to appeal on a question of law,
uphold the appeal, reinstate the conviction and sentence and remit the appeal to the
high court for consideration on the merits.

____________________
N DAMBUZA
JUDGE OF APPEAL

Gorven AJA ( Maya AP and Theron JA concurring):

[31] I have read the judgment of my colleague Dambuza JA. The high court simply
failed to consider admissible evidence by confining itself to the DNA evidence. The
failure to do so was accordingly a question of law decided in favour of the
respondent as is explained in the minority judgment. The provisions of s 311 of the
CPA are therefore triggered. The first question of law must be decided in favour of
the appellant. It is unnecessary to decide the second question. The appeal must be

allowed. The error of law committed by the high court, in the exercise of its appeal
jurisdiction, was fundamental and of so gross a nature as to vitiate the proceedings
in that court.7 The result is that the respondent‘s appeal has not been heard on the
merits. The conviction and sentence of the respondent must be re-instated in their
original form as imposed by the trial court. It follows that the matter must be remitted
to the high court for it to properly exercise its appeal jurisdiction.8 I thus concur in the
order granted in this matter.

[32] I write because it is my view that special leave to appeal is not required in a
matter arising from s 311 of the CPA. This section provides for an appeal as of right,
without leave. An appeal under s 311 of the CPA is also an appeal ‗regulated in
terms of the Criminal Procedure Act‘.9 It is therefore one to which the provisions of
Chapter 5 of the Superior Courts Act,10 and in particular s 16(1)(b) thereof, do not
apply.

[33] Paragraph 24 of the minority judgment holds that s 311 of the CPA ‗only
creates the right of appeal to this court‘ whereas s 16(1)(b) of the Superior Courts
Act ‗sets the procedure and benchmark for all appeals to be heard in this court‘. It
goes on to hold in paragraph 25 that:
‗[T]his appeal is not excluded from Chapter 5 of the Superior Courts Act and that s 311(1)(a)
of the CPA does not provide an automatic right of appeal to this court. Put otherwise, the
provisions of ss 16(1)(b) and 17(3) [of the Superior Courts Act] apply and special leave of
this court is therefore required.‘
I respectfully differ from this approach.

[34] The introduction of the definition of an appeal in s 1 of the Superior Courts Act
has given rise to a new situation. This must prompt fresh enquiries on matters settled
under the previous legislation. Certain appeals are now excluded from the operation
of Chapter 5 of the Superior Courts Act. This was not the position under the

7 S v Naidoo 1962 (4) SA 348 (A) at 353D-E; S v Le Grange and Others (040/2008) [2008] ZASCA
102; 2009 (1) SACR 125 (SCA) 2009 (2) SA 434 (SCA); [2010] 1 All SA 238 (SCA); 2010 (6) BCLR
547 (SCA) para 30.
8 S v Meje (248/11) [2011] ZASCA 127 (13 September 2011) para 12.
9 From s 1 of the Superior Courts Act 10 of 2013 – this section will be dealt with more fully below.
10 Superior Courts Act 10 of 2013.

Supreme Court Act.11 The enquiry which must be made prior to concluding that
s 16(1)(b), which requires special leave to appeal, applies, is whether the appeal in
question is subject to the provisions of Chapter 5. I now turn to that enquiry.

[35] Section 1 of the Superior Courts Act provides that an appeal in Chapter 5
‗does not include an appeal in a matter regulated in terms of the Criminal Procedure
Act . . . or in terms of any other criminal procedural law‘. Chapter 5 of the Superior
Courts Act comprises ss 15-20. This means that, if an appeal is ‗regulated in terms
of‘ the CPA, the provisions of s 16(1)(b) requiring special leave to appeal do not
apply. The crisp issue in this regard is whether an appeal under s 311 is one
‗regulated in terms of the Criminal Procedure Act‘.12

[36] Section 311 of the CPA reads:
‗(1) Where the provincial or local division on appeal, whether brought by the attorney-general
or other prosecutor or the person convicted, gives a decision in favour of the person
convicted on a question of law, the attorney-general or other prosecutor against whom the
decision is given may appeal to the Appellate Division of the Supreme Court, which shall, if it
decides the matter in issue in favour of the appellant, set aside or vary the decision appealed
from and, if the matter was brought before the provincial or local division in terms of-
(a)   section 309(1), re-instate the conviction, sentence or order of the lower court appealed
from, either in its original form or in such a modified form as the said Appellate Division may
consider desirable; or
(b)   section 310(2), give such decision or take such action as the provincial or local division
ought, in the opinion of the said Appellate Division, to have given or taken (including any
action under section 310(5)), and thereupon the provisions of section 310(4) shall mutatis
mutandis apply.
(2) If an appeal brought by the attorney-general or other prosecutor under this section or
section 310 is dismissed, the court dismissing the appeal may order that the appellant pay
the respondent the costs to which the respondent may have been put in opposing the
appeal, taxed according to the scale in civil cases of that court: Provided that where the
attorney-general is the appellant, the costs which he is so ordered to pay shall be paid by the
State.‘

11 The Supreme Court Act 59 of 1959 was repealed by the Superior Courts Act.
12 It has not been contended that such an appeal is regulated by any other criminal procedural law.

[37] It can be seen that s 311 gives jurisdiction to this court when a high court ‗on
appeal . . . gives a decision in favour of the person convicted on a question of law‘.
Jurisdiction is founded on s 311 itself and is clear and express. The present matter
was brought before the high court by way of an appeal in terms of s 309(1) of the
CPA. We have found that, on appeal, the high court decided the first question of law
in favour of the respondent. Accordingly, the provisions of s 311(1)(a) find
application. In those circumstances, this court‘s jurisdiction is established under
s 311.

[38] As mentioned, the introduction of the definition of appeal in s 1 of the Superior
Courts Act has brought about a new situation requiring the consideration of whether
an appeal is regulated by the CPA. In S v Van Wyk & another,13 in the context of an
appeal by an accused person, this court held that ‗[t]he CPA does not contain any
provision dealing with a right of appeal to this court from a decision of the high court
taken on appeal to it from a magistrates‘ court.‘14 Accordingly, it was held, such an
appeal is not regulated by the CPA and is not excluded from the operation of
Chapter 5 of the Superior Courts Act. As a result, the provisions of s 16(1)(b) govern
such an appeal.15 This requires the grant of special leave to appeal by this court. In
contrast to the position dealt with in Van Wyk, s 311 of the CPA clearly does ‗contain
[a] provision dealing with a right of appeal to this court from a decision of the high
court taken on appeal to it from a magistrates‘ court.‘16 This distinguishes the
position under s 311 from that dealt with in Van Wyk. Applying the dictum in Van
Wyk, because s 311 of the CPA gives a right of appeal, such an appeal is excluded
from the operation of Chapter 5 of the Superior Courts Act.

[39] In DPP Western Cape v Kock,17 this court held that, where the state seeks to
appeal against sentence under the provisions of s 316B(1) of the CPA, that right of
appeal ‗is specifically regulated by the CPA, therefore the provisions of s 16(1)(b) do
not find application.‘18 And in Director of Prosecutions v Olivier,19 this court held that

13 S v Van Wyk & another [2014] ZASCA 152; 2015 (1) SACR 584 (SCA).
14 Van Wyk para 18.
15 Van Wyk para 20.
16 Van Wyk para 18.
17 DPP Western Cape v Kock [2015] ZASCA 197; 2016 (1) SACR 539 (SCA).
18 Para 18.

it only has jurisdiction to deal with an appeal against sentence brought by the state
under s 316B of the CPA where the high court acted as a court of first instance and
not as an appeal court.20 These both dealt with attempts to appeal against sentence
in this court where that sentence had been imposed by the high court sitting as a
court of appeal. In both of those matters this court held that it had no jurisdiction to
entertain such an appeal. In each of those cases the appeal was struck from the roll,
which is the appropriate order when there is a lack of jurisdiction to adjudicate an
appeal. Neither of those matters dealt with an appeal brought under s 311 of the
CPA.

[40] The context of s 311 must be considered. Most other sections of the CPA
which allow for an appeal require applications for leave to appeal. These include
s 309(1)(a), s 309B(1)(a), s 310A(1), s 316(1)(a) and s 316B(1) of the CPA. It is clear
that these are appeals ‗regulated in terms of‘ the CPA. They give the right of appeal
and deal with the procedure for the exercise of that right. In all cases, the procedure
requires an application for leave to appeal.

[41] Leaving aside s 311 for the moment, the exceptions to the requirement of
leave to appeal in the CPA are twofold. The first is the proviso to s 309(1)(a):
‗Provided that if that person was sentenced to imprisonment for life by a regional court
under section 51(1) of the Criminal Law Amendment Act, 1997 (Act 105 of 1997), he or she
may note such an appeal without having to apply for leave in terms of section 309B‘.
There is therefore an explicit provision that an accused person in the circumstances
set out in the proviso to s 309(1)(a) ‗may note such an appeal without having to
apply for leave‘. The reason for specifying this is clear. It is stated as an exception to
the general provision in that section requiring leave to appeal. In this section, the
right to appeal is given, it is expressly stated that no leave to appeal is required and
the person is directed to exercise that right by simply noting an appeal.

[42] The second is s 310, the relevant parts of which provide:
‗(1) When a lower court has in criminal proceedings given a decision in favour of the
accused on any question of law . . . the attorney-general . . . may require the judicial officer

19 Director of Public Prosecutions v Olivier 2006 (1) SACR 380 (SCA) approved in S v Nabolisa [2013]
ZACC 17; 2013 (2) SACR 221 (CC).
20 Olivier para 81.

concerned to state a case for the consideration of the provincial or local division having
jurisdiction, setting forth the question of law and his decision thereon and, if evidence has
been heard, his findings of fact, in so far as they are material to the question of law.
(2) When such case has been stated, the attorney-general or other prosecutor, as the case
may be, may appeal from the decision to the provincial or local division having jurisdiction.
(3) The provisions of section 309(2) shall apply with reference to an appeal under this
section.‘
Section 309(2) provides that such an appeal must be noted and prosecuted
according to the rules of court. Section 310 thus gives a right of appeal. Unlike
s 309(1)(a), it does not provide in terms that no leave to appeal is required. It does
specify that the right to appeal must be exercised by noting and prosecuting the
appeal according to the rules of court. It is clear that leave to appeal is not first
required and that it is also an appeal as of right.

[43] The wording of s 311 is similar to that of s 310(2). Section 311 says that ‗the
attorney-general or other prosecutor against whom the decision is given may
appeal‘.  Both sections allow this when a decision in favour of the accused on any
question of law has been made. The right to appeal is given. As is the case with
s 310(2), the section does not state in terms that no leave to appeal is required.
Sections 310 and 311 differ in two respects. Section 310(3) imports the provisions of
s 309(2), which specifies that the noting and prosecution of the appeal must take
place as ‗prescribed by the rules of court‘. There is no equivalent provision in the
CPA concerning an appeal under s 311 and an appeal under s 310(2) does not lie to
this court.

[44] Dealing with the second of these first, an objection has been raised that
appeals without leave do not lie to this court. This is not so. In the context of an
appeal by an accused against a refusal by the high court of condonation for the late
noting of an appeal, this court has consistently recognised appeals as of right without
leave in certain circumstances.21 Until the coming into effect of the Superior Courts
Act, this was also the case for appeals against the refusal of bail or the imposition of

21 S v Swiegers 1969 (1) PH H110 (A); S v Tsedi 1984 (1) SA 565 (A) at 570A-C; S v Absalom 1989
(3) SA 154 (A) at 162D-E; S v Botha en ’n ander 2002 (1) SACR 222 (SCA) para 13.

a condition of bail by a high court sitting as a court of first instance.22 The Superior
Courts Act also brought about a change of approach in this regard.23

[45] Section 315(4) of the CPA is of some significance:
‗An appeal in terms of this Chapter shall lie only as provided in sections 316 to 319 inclusive,
and not as of right.‘
This section is part of Chapter 31 of the CPA, comprising ss 315 to 324, and deals
with appeals in cases of criminal proceedings in superior courts. Chapter 30,
comprising ss 302 to 314, must thus be taken to allow for appeals as of right. This
chapter deals with reviews and appeals in cases of criminal proceedings in lower
courts. We have seen that both the proviso to s 309(1)(a) and s 310(2) fall into the
category of appeals as of right. Section 311 is part of this chapter.

[46] Section 311(2) ties ss 310 and 311 together. It provides that, if an appeal
arising from these two sections is dismissed, ‗the court dismissing the appeal may
order that the appellant pay the respondent the costs to which the respondent may
have been put in opposing the appeal‘. This provides a check against abusive
appeals which might otherwise arise from such a provision.

[47] Similar provisions are found in ss 310A(6) and 316B(3). These allow the State
to apply for leave to appeal against a sentence and, if given leave, to appeal against
sentence. What is significant is that, in addition to providing for an ‗order that the
State pay the accused concerned the whole or any part of the costs to which the
accused may have been put in opposing‘ the appeal, they also provide for an ‗order
that the State pay the accused concerned the whole or any part of the costs to which
the accused may have been put in opposing‘ the application for leave to appeal. The
absence of a similar provision in s 311(2) for costs of an application for leave to
appeal fortifies an interpretation that no such application is necessary.

[48] As mentioned, s 310(3) specifies that the appeal must be noted and
prosecuted in terms of the rules of court. This provision does not find echo in s 311.

22 S v Botha en ’n ander [2001] ZASCA 146; 2002 (2) SA 680 (SCA); 2002 (1) SACR 222; [2002] All
SA 577.
23 S v Banger 2016 (1) SACR 115 (SCA).

As such, no procedure for the prosecution of the appeal is set out in the CPA. The
question is whether the absence of a provision setting out the procedure to exercise
the right of appeal means that it is not one ‗regulated in terms of‘ the CPA.

[49] The minority judgment holds that s 311 of the CPA ‗creates the right of
appeal‘ but that s 16(1)(b) of the Superior Courts Act ‗sets the procedure and
benchmark for all appeals to be held in this court.‘ However, s 16(1)(b) provides that:
‗an appeal against any decision of a Division on appeal to it, lies to the Supreme Court of
Appeal upon special leave having been granted by the Supreme Court of Appeal‘.
What this means is that, until granted by this court, there is no right to appeal. The
right to appeal can be withheld or granted by this court. But s 311 of the CPA already
gives that right if the circumstances specified in it are met. In addition, it also
specifies that such an appeal lies to this court. What the minority judgment does not
explain is why, if a right of appeal is given by s 311, leave is required in order to
obtain that right.

[50] It is, of course, instructive that, unlike other sections in the CPA, s 311 does
not in terms specify that any form of leave to appeal must be obtained. All of the
sections requiring leave specify this requirement. In my view there is no need to
specify the procedure to exercise the right because rule 7(1)(a) of the rules of this
court does so:24
‗(1) An appellant shall lodge a notice of appeal with the registrar and the registrar of the court
a quo within one month after the date of—
(a)   the granting of the judgment or order appealed against where leave to appeal is not
required‘.
Rule 7(1)(a) thus deals in terms with a situation where leave to appeal is not
required. Holding that s 311 deals with an appeal as of right accordingly does not
give rise to a procedural lacuna.

[51] It is my view that, because a right to appeal is given in s 311 of the CPA, such
an appeal is one ‗regulated‘ by the CPA. It is not necessary, in addition, for the CPA
to specify the procedure by which to exercise that right. The Director of Public
Prosecutions, or other prosecutor, has an appeal as of right. That being the case, an

24 Rules Regulating the Conduct of the Proceedings of the Supreme Court of Appeal of South Africa.

appeal under s 311 is excluded from the operation of Chapter 5 of the Superior
Courts Act. As such, the provisions of s 16(1)(b) of the Superior Courts Act do not
apply. An appeal under s 311 accordingly does not require special leave to appeal.

[52] Arising from this conclusion, accordingly, no application for special leave to
appeal was necessary in this matter. It follows that an order granting special leave to
appeal is neither necessary nor competent.

[53] In the result, the following order is made:
1 The appeal is upheld in respect of the first question of law.
2 The order of the court a quo is set aside.
3 The conviction and sentence imposed by the regional court are reinstated.
4 The matter is remitted to the high court for the appeal to proceed on the merits.

_______________________
T R Gorven
Acting Judge of Appeal

APPEARANCES:

For the Appellant:

S Mahomed SC (with C P Harmzen )
Instructed by:
Office Director of Public Prosecutions, Pretoria
c/o Director of Public Prosecutions, Bloemfontein

For the Respondent:

H L Alberts (with S Moeng)
Instructed by:
Legal Aid South Africa, Pretoria
c/o Bloemfontein Justice Centre, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
2 June 2017
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.

DIRECTOR OF PUBLIC PROSECUTIONS
v
MOLOI

Today the Supreme Court of Appeal handed down judgment dealing with an
appeal under s 311 of the Criminal Procedure Act. This allows for an appeal to this
court from a high court sitting as a court of appeal where that court decided a point
of law in favour of the convicted person.

In the present matter, Mr Moloi was convicted of one count of rape in the Nelspruit
regional court and sentenced to life imprisonment. He exercised his right of appeal
which came before the Gauteng Division of the High Court, Pretoria. The high court
upheld his appeal and set aside his conviction and sentence. It did so on the basis
that DNA evidence linking Mr Moloi to the rape was unreliable. Having made this
finding, the high court did not consider the other evidence and assess whether the
other evidence was itself sufficient to convict Mr Moloi.

The Director of Public Prosecutions invoked the provisions of s 311, arguing that
the failure by the high court to consider the other evidence amounted to a question

of law and raising another question. The DPP applied for leave to appeal on those
bases and the Supreme Court of Appeal required argument on the application for
leave to appeal and indicated that the parties should be prepared to argue the
merits of the appeal at the same time.

The Supreme Court of Appeal unanimously found that the high court simply failed
to consider admissible evidence by confining itself to the DNA evidence. The
failure to do so was a question of law decided in favour of Mr Moloi. The provisions
of s 311 of the CPA were therefore triggered. The first question of law was decided
in favour of the DPP. It was held that it was unnecessary to decide the second
question. The error of law committed by the high court, in the exercise of its appeal
jurisdiction, was fundamental and of so gross a nature as to vitiate the proceedings
in that court. The result is that the respondent’s appeal had not been heard on the
merits. The conviction and sentence of the respondent were re-instated in their
original form as imposed by the regional court. The matter was remitted to the high
court for it to properly exercise its appeal jurisdiction.

The majority judgment held, in addition, that an appeal under s 311 was one
regulated in terms of the Criminal Procedure Act. The definition of ‘appeal’ in s 1 of
the Superior Courts Act excluded an appeal regulated in terms of the Criminal
Procedure Act from the provisions of the Superior Courts Act regulating appeals.
This meant that it was unnecessary to obtain the special leave of the Supreme
Court of Appeal and the appeal was one of right, without leave.

The minority judgment took the view that special leave to appeal was necessary
and that an appeal under s 311 was not one regulated in terms of the Criminal
Procedure Act. It would have granted special leave and upheld the appeal on the
same basis. It therefore concurred in the order.