Appeal against mistakes of law
24 August 2022 21:00 by Merilyn Kader
In Director of Public Prosecutions, Free State v Mokati  2 All SA 646 (SCA), right of appeal by the state on the questions of law reserved in terms of s 319 of the Criminal Procedure Act.
By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.
Criminal procedure - Right of appeal against mistakes of law: In Director of Public Prosecutions, Free State v Mokati  2 All SA 646 (SCA), the respondent was found to have forcibly had sexual intercourse with a 21-year-old female, and robbery. The victim was prescribed antibiotics and anti-retrovirals after she reported the rape but died a few weeks later. The respondent was convicted of rape and robbery with aggravating circumstances. The Director of Public Prosecutions appealed against the sentence of 10 years’ imprisonment for the rape count. It also reserved certain questions of law in terms of s 319 of the Criminal Procedure Act 51 of 1977 (CPA), in respect of the acquittal of the respondent on the murder count and contended that a competent verdict would have been culpable homicide. The respondent cross-appealed against his conviction and sentence in respect of the rape and robbery counts.
The majority held in considering the appeal against conviction on the rape and robbery counts, that in the absence of material misdirection by the trial court, its findings of fact are taken by the appeal court to be correct and will only be disturbed if they are clearly wrong. The trial court’s conviction of the respondent on the two counts was confirmed as correct and the respondent’s cross-appeal failed.
The court then turned to the appeal by the state on the questions of law reserved in terms of s 319 of the CPA. The state has a right of appeal only against a trial court’s mistakes of law, not its mistakes of fact. Section 319(1) provides that the question of law must arise on the trial in a superior court; and the reservation may be made by the court of its own motion or at the request of the prosecutor or the accused, in which event the court should state the question reserved and direct that it be entered in the record.
The trial court’s conclusion that the state had failed to discharge the onus of proof was based on a finding that the deceased’s use of different medication could have caused clotting to cause her death. It reasoned that the respondent could not have foreseen the chain of events that ultimately led to the deceased’s death. That was not a conclusion of law. The remaining reserved questions relating to the evaluation of expert evidence and to the state’s complaint that the trial court failed to consider its concession, and submission, on the proven facts, that the respondent was guilty of culpable homicide, not murder. Those were also not questions of law, and the trial court erroneously granted leave in that regard.
In the appeal against sentence, the state submitted that the ten-year prison sentence for rape was shockingly lenient and thus inappropriate. That was the prescribed minimum sentence in terms of s 51(2)(b) of the Criminal Law Amendment Act 105 of 1997. The court agreed that the sentence was lenient and explaining its discretion to impose a sentence above the minimum prescribed one, held that for the sentence on the rape count the sentence be increased to 18 years’ imprisonment. A cross-appeal by the respondent was dismissed.
In the minority judgment, the point of departure was the substituted sentence and the reasoning underpinning it.
Merilyn Rowena Kader
Legal Editor at LexisNexis