THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 1236/2017

In the matter between:

THE DIRECTOR OF PUBLIC PROSECUTIONS,
KWAZULU-NATAL
APPELLANT

and

DONOVAN MARK RAMDASS
RESPONDENT

Neutral citation:       The Director of Public Prosecutions, KwaZulu-Natal v Ramdass
(1236/2017) [2019] ZASCA 23 (28 March 2019)
Coram:
Wallis and Swain JJA and Mokgohloa AJA
Heard:
14 March 2019
Delivered:
28 March 2019
Summary:   Criminal Procedure Act 51 of 1977 – s 319(1) – refusal by trial court to
reserve questions of law – petition in terms of s 317(5) and s 316(13)(c) for special
leave to appeal refused – Superior Courts Act 10 of 2013 – s 17(2)(f) –
reconsideration and variation of order – refusal of reservation of questions of law
confirmed – erroneous order refusing special leave varied – ordinary leave to appeal
refused.

ORDER

On appeal from: KwaZulu-Natal Division of the High Court, Durban (Ploos van
Amstel J sitting as court of first instance):

1  The order granted by this court on 16 August 2017 is varied in terms of s 17(2)(f)
of the Superior Courts Act 10 of 2013, by the deletion of paragraph 2, reading as
follows:
‘The application for special leave to appeal is dismissed on the grounds that there are no
special circumstances meriting a further appeal to this court.’
and its replacement with the following paragraph:
‘The application for leave to appeal is dismissed on the grounds that there are no reasonable
prospects of success and there is no other compelling reason why an appeal should be
heard.’

JUDGMENT

Swain JA (Wallis JA and Mokgohloa AJA concurring):
[1] The respondent, Mr Donovan Ramdass, was acquitted of the murder of the
late Ms Ashika Singh (the deceased), by the KwaZulu-Natal Local Division, Durban
(Ploos van Amstel J), on the grounds that there was reasonable doubt whether he
possessed the requisite criminal capacity, to appreciate that what he was doing was
wrongful and to act in accordance with such appreciation, when he strangled the
deceased. The respondent was also acquitted of an additional charge of robbery
with aggravating circumstances, for the same reason.
[2] The respondent maintained that he had no recollection of what had
happened to the deceased on the evening when he killed her, as he had been
drinking and smoking crack cocaine. He stated that if he had caused the death of the

deceased, he did so without realising what he was doing and without the intention to
kill her. He claimed to have no recollection of events on the evening in question. His
evidence to this effect was accepted by the trial judge. It had not been substantially
challenged by the State, which called no expert evidence to refute the claim of
amnesia, or to show that his claim not to know what happened or what he was doing
that evening, was false.
[3] Dissatisfied with the outcome of the trial, the State then requested the court
a quo to reserve a number of questions of law in terms of s 319(1) of the Criminal
Procedure Act 51 of 1977 (the CPA), for consideration by this court. The application
having been refused by the court a quo, the State then embarked upon an incorrect
jurisdictional path in order to challenge in this court, the decision of the high court.
Whether this incorrect procedure results in this court lacking jurisdiction to hear the
appeal, must be determined at the outset.
[4] The starting point in determining the correct jurisdictional path that should
have been followed by the State, is s 319 of the CPA. The relevant provisions of the
section are ss 319(1) and 319(3) which provide as follows:
‘(1)   If any question of law arises on the trial in a superior court of any person for any
offence, that court may of its own motion or at the request either of the prosecutor or the
accused reserve that question for the consideration of the Appellate Division, and thereupon
the first-mentioned court shall state the question reserved and shall direct that it be specially
entered in the record and that a copy thereof be transmitted to the registrar of the Appellate
Division.
(2) . . .
(3) The provisions of sections 317(2), (4) and (5) and 318(2) shall apply mutatis mutandis
with reference to all proceedings under this section.’
[5] If the trial judge refuses the application to reserve questions of law, the
provisions of s 317(5) of the CPA (as referred to in s 319(3)), dealing with appeals
against such a refusal, are the next step in the process and provide that:
‘If an application for condonation or for a special entry is refused, the accused may, within a
period of 21 days of such refusal or within such extended period as may on good cause
shown, be allowed, by petition addressed to the President of the Supreme Court of Appeal,

apply to the Supreme Court of Appeal for condonation or for a special entry to be made on
the record stating in what respect the proceedings are alleged to be irregular and not
according to law, as the case may be, and thereupon the provisions of subsections (11),
(12), (13), (14) and (15) of section 316 shall mutatis mutandis apply.’
[6]     The manner in which the petition then had to be dealt with by this court,
requires a consideration of ss (11), (12) and (13) of s 316 of the CPA, (as referred to
in s 317(5)), which provide as follows:
‘(11)(a) A petition referred to in subsection (8), including an application referred to in
subsection (8)(b)(ii), must be considered in chambers by two judges of the Supreme Court of
Appeal designated by the President of the Supreme Court of Appeal.
(b)   If the judges differ in opinion, the petition shall also be considered in chambers by the
President of the Supreme Court of Appeal or by any other judge of the Supreme Court of
Appeal to whom it has been referred by the President.
(c)   For the purposes of paragraph (b) any decision of the majority of the judges considering
the petition, shall be deemed to be the decision of all three judges.
(12) The judges considering a petition may –
(a) call for any further information from the judge who refused the application in question, or
from the judge who presided at the trial to which the application relates, as the case may be;
(b) in exceptional circumstances, order that the application or applications in question or any
of them be argued before them at a time and place determined by them; or
(c) call for a copy of the record or portion of the record of the proceedings if it was not
submitted in terms of subsection (10)(c).
(13) The judges considering a petition may, whether they have acted under subsection
(12)(a) or (b) or not –
(a) . . .
(b) . . .
(c) in the case of an application for leave to appeal, subject to paragraph (d), grant or refuse
the application; and
(d) . . .
(e) in exceptional circumstances refer the petition to the Supreme Court of Appeal for
consideration, whether upon argument or otherwise, and the Supreme Court of Appeal may
thereupon deal with the petition in any manner referred to in this subsection.
(14) . . . .’

[7] Under those provisions of s 316 of the CPA the application had to be lodged
with this court and placed before two Judges in accordance with the directions
issued by the President of the court. If the two disagreed, either the President or a
third Judge nominated by her would consider the petition and the view of the majority
would prevail. The Judges considering the petition could grant it, dismiss it or refer it
to argument before the court. In all cases where direct imprisonment had been
imposed, they were required to deal with the petition as a matter of urgency. Their
decision would be final. The only appeal that would lie against their decision would
be one to the Constitutional Court with its leave.
[8]        However, the State did not apply to this court in terms of s 317(5) of the
CPA, but in terms of s 319(1) of the CPA, read with s 16(1)(b) of the Superior Courts
Act 10 of 2013 (the SC Act), asking for special leave to appeal against the refusal.
Section 16(1)(b) of the SC Act provides as follows:
‘(1) Subject to section 15(1), the Constitution and any other law –
(a) . . .
(b) 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 . . .
(c) . . . .’
[9] The application followed the incorrect procedure and was defective in two
respects:
(a) First, special leave was not required. The State only required the ordinary leave
of this court and the provisions of s 16(1)(b) of the SC Act were not applicable. That
section deals with appeals against any decision of a division of the high court taken
on appeal to it, where the special leave of this court is required.
(b) Second, the definition of ‘appeal’ contained in the SC Act provides that ‘appeal’ in
Chapter 5, which includes ss 16 and 17, does not include an appeal in a matter
regulated in terms of the CPA. As the appeal in the present matter is regulated in
terms of the CPA, it should follow that these sections of the SC Act do not apply.
[10]     The application for special leave to appeal was then considered by two
Judges designated by the President of this court. However no doubt misled by the
fact that it was couched as an application for special leave to appeal, it was

dismissed on the erroneous ground that there were no special circumstances
meriting a further appeal to this court. That was an incorrect test. As the proposed
appeal was against the high court’s refusal to reserve the suggested questions of
law, the proper question in considering the application was whether the proposed
questions of law should have been reserved for decision by this court.
[11]       Dissatisfied with this outcome, the State then applied in terms of s 16(1)(b)
and s 17(2)(f) of the SC Act, read with s 319(1) of the CPA, for a reconsideration and
variation of the refusal of special leave by this court. On its face this further
compounded the procedural irregularity.
[12]    The reference in the application to the provisions of s 17(2)(f) must be
examined in the context of ss 17(2)(a) and 17(2)(b) of the SC Act. These sections
provide that:
‘(2)(a) Leave to appeal may be granted by the judge or judges against whose decision an
appeal is to be made or, if not readily available, but any other judge or judges of the same
court or Division.
(b) If leave to appeal in terms of paragraph (a) is refused, it may be granted by the Supreme
Court of Appeal on application filed with the registrar of that court within one month after
such refusal, or such longer period as may on good cause be allowed, and the Supreme
Court of Appeal may vary any order as to costs made by the judge or judges concerned in
refusing leave.’
Section 17(2)(f) provides that:
‘The decision of the majority of the judges considering an application referred to in
paragraph (b), or the decision of the court, as the case may be, to grant or refuse the
application shall be final: Provided that the President of the Supreme Court of Appeal may in
exceptional circumstances, whether of his or her own accord or on application filed within
one month of the decision, refer the decision to the court for reconsideration and, if
necessary, variation.’
[13]    As pointed out above, the definition of ‘appeal’ contained in the SC Act
provides that ‘appeal’ in Chapter 5, which includes s 17, does not include an appeal
in a matter regulated in terms of the CPA. As the appeal in the present matter is
regulated in terms of the CPA, it should follow that s 17 of the SC Act does not apply.

[14]       Furthermore, it is a basic rule of interpretation of statutes that a proviso must
be read and considered in relation to the principal matter to which it is a proviso. It is
not a separate and independent enactment and the words of the proviso are
dependent on the principal enacting words, to which they are attached as a proviso.
The words of the proviso cannot be read as divorced from their context. In Mphosi v
Central Board for Co-operative Insurance Ltd 1974 (4) SA 633 (A) at 645B-F, the
following was stated:
‘This argument altogether overlooks the true function and effect of a proviso. According to
Craies, Statute Law, 7th ed., at p. 218 –
"the effect of an excepting or qualifying proviso, according to the ordinary rules of
construction, is to except out of the preceding portion of the enactment, or to qualify
something enacted therein, which but for the proviso would be within it; and such proviso
cannot be construed as enlarging the scope of an enactment when it can be fairly and
properly construed without attributing to it that effect”.
In R. v Dibdin, 1910 P. 57, Lord FLETCHER MOULTON at p. 125, in the Court of Appeal,
said -
"The fallacy of the proposed method of interpretation (i.e. to treat a proviso as an
independent enacting clause) is not far to seek. It sins against the fundamental rule of
construction that a proviso must be considered in relation to the principal matter to which it
stands as a proviso. It treats it as if it were an independent enacting clause instead of being
dependent on the main enactment. The Courts, as for instance in such cases as Ex parte
Partington, 6 Q.B. 649; In re Brockelbank, 23 Q.B. 461, and Hill v East and West India Dock
Co., 9 App. Cas. 448, have frequently pointed out this fallacy, and have refused to be led
astray by arguments such as those which have been addressed to us, which depend solely
on taking words absolutely in their strict literal sense, disregarding the fundamental
consideration that they appear in a proviso."’
This passage was quoted with approval by Mahomed J in the majority judgment in S
v Mhlungu & others 1995 (3) SA 867 (CC) para 32.
[15]      The proviso to s 17(2)(f) qualifies the finality of a decision by two Judges in
dealing with an application for leave to appeal under s 16, whether it is an application
for leave or special leave. It does so by providing for the President of this court to
review the decision and, in exceptional circumstances, refer it for reconsideration by
the court. There is no equivalent provision in the provisions of s 316 cited earlier and
there is no principle of statutory interpretation permitting a proviso to a section in the

SC Act, qualifying appeals in civil cases and appeals from courts composed of more
than a single Judge in the high court, to be transplanted to the provisions of the CPA
governing appeals in criminal cases originating in the high court. On the terms of the
SC Act therefore it would seem that the order by the President, referring the decision
by two Judges to refuse the petition for special leave to this court for reconsideration,
would not involve a reconsideration of the merits of the application to reserve
questions of law for determination by this court. Precisely what it would involve
beyond upholding the dismissal of that petition, but possibly on the different ground
that it was an irregular proceeding, need not be decided for the reasons that follow.
[16]     Despite these difficulties, the Constitutional Court in S v Liesching & others
[2016] ZACC 41; 2017 (2) SACR 193 (CC) held that s 17(2)(f) applied in the
following circumstances. Leave to appeal against conviction by the high court had
been refused by two Judges under s 316(13)(c) of the CPA. The President of this
court was approached some two years later under s 17(2)(f) to reconsider the refusal
on the grounds that the principal witness at the trial had, at a subsequent trial of
another accused, recanted his evidence. The application for reconsideration was
accompanied by an application to lead further evidence on appeal. The President
held that he had no jurisdiction to reconsider the previous order under s 17(2)(f). On
further appeal to the Constitutional Court it held that he had such jurisdiction and
referred the matter back for reconsideration.1
[17]     The reasoning of the Constitutional Court requires careful scrutiny. It held that
where the CPA regulates a matter, chapter 5 of the SC Act has no application (para
37). Having considered s 316(5) of the CPA, which dealt with the ordinary
circumstance, where an application to lead further evidence on appeal accompanies
the application for leave to appeal, it held that there was no provision of the CPA

1 The President refused the application under s 17(2)(f) and the Constitutional Court subsequently
held that there were no exceptional circumstances justifying the exercise of the President’s discretion.
S v Liesching & others [2018] ZACC 25; 2018 (11) BCLR 1349 (CC); 2019 (1) SACR 178 (CC).

dealing with applications to lead further evidence on appeal after a petition had been
refused (para 44). Accordingly, it held chapter 5 of the SC Act applied in that
situation. It then concluded that, because s 17(2)(f) does not distinguish between
civil and criminal cases and the proviso is couched in extremely broad terms aimed
at preventing injustice, the President could refer any refused petition to the court for
reconsideration under the section (para 57). It pointed out that the President had
previously done so in several criminal cases.2
[18]    The effect of this was to divorce the proviso to s 17(2)(f) from its context,
referring back to an application for leave to appeal under s 16 of the SC Act, and to
treat it as a general enacting provision. In reaching that conclusion the court did not
refer to the rules governing the interpretation of provisos referred to above.
[19]    In my view, it must necessarily follow from this line of reasoning that the
proviso to s 17(2)(f) is now to be understood as conferring on the President of this
court a power, to be used in exceptional circumstances, for reconsideration of any
application for leave to appeal or petition, whether brought in terms of s 16 of the SC
Act or s 316 of the CPA, that has been refused. That leaves only the question
whether this court can condone the irregularities on the part of the appellant in
pursuing the application for leave to appeal under s 16 of the SC Act instead of
under the applicable provisions of the CPA. The procedure in dealing with a petition
under s 316 essentially mirrors that to be followed in dealing with an application for
leave to appeal under s 17 of the SC Act. In my view, the fact that the incorrect
section was cited as the source of this court’s authority to grant leave to appeal can
therefore be condoned, and the dismissal of the application be treated as a dismissal
of a petition under s 316(13)(c) of the CPA. That is what the President referred for
reconsideration. In dealing with it, however, the test to be applied is that applicable in

2 Notshokovu v S [2016] ZASCA 112; S v Ntlanyeni [2016] ZASCA 3; 2016 (1) SACR 581 (SCA).

any case of an appeal against the refusal of a trial court to reserve a question of law
for this court’s consideration, not the test for the grant of special leave to appeal.
[20]    I turn to the merits of the appeal. The questions of law that the State requested
the court a quo to reserve in terms of s 319(1) of the CPA were based on the
following proven facts relating to the conduct of the accused before, during and after
the death of the deceased:
‘3.1 The accused had been drinking prior to the offence.
3.2 The accused was taken to a place allegedly where he had purchased drugs in the past.
3.3 The deceased was killed between the hours of 20h30 and 21h12.
3.4 The deceased’s semi-naked body had her head wrapped in plastic and a ligature
(extension cord) tied around her neck.
3.5 The accused left the residence within 40 minutes of having been left alone with the
deceased.
3.6 The residence was locked and the drive-way gate was jammed with a stone. The
accused drove the deceased’s motor vehicle to the Point Area, CBD from Merebank.
3.7 The accused subsequently travelled from the Durban CBD to the Umhlanga area during
the early hours of the morning following the murder.
3.8 The accused was found by relatives in the Umhlanga area.
3.9 The accused had been using his cellular phone throughout the night until 11h00 the next
morning’.
[21]     It was also recorded that the court a quo had found as a proven fact that the
respondent had caused the death of the deceased. However, as correctly pointed
out by the court a quo, the evidence did not prove that the deceased had been found
with an extension cord tied around her neck.
[22]    The questions of law that the State sought to have reserved were the
following:
‘1. Did the court err when applying the principle relating to criminal capacity as set out in S v
Chretien 1981 (1) SA 1097 (A)?
2. Did the court err in not applying the binding authority as set out in S v Eadie 2002 (3) SA
719 (SCA)?
3. In view of its acceptance of previous physical altercations between the deceased and the
accused during arguments, did the court err in over-emphasising alternatively, incorrectly

evaluating the absence of a motive and/or conduct out of character, given the accused’s
drinking/consumption of alcohol?
4. Did the court err in applying the test regarding inferences to be drawn from circumstantial
evidence, in reaching a conclusion that the accused lacked criminal capacity in
circumstances indicative of goal-directed conduct, patchy recollection and the absence of a
“trigger”?
5. Did the court err when:
(a) interpreting s 1(1) of the Criminal Law Amendment Act (CLAA) 1 of 1988, and/or
(b) applying the proven facts of this matter to this section?
6. Did the court err in denying the State the opportunity to re-open its case, when it is
accepted practice (the only way) in dealing with defences of this nature where the accused
has to lay a basis, the full extent of which is only known following his evidence’?
[23]     Before dealing with the merits of whether the court a quo should have
reserved these issues as questions of law for consideration by this court, it is
necessary to examine what the court a quo considered when deciding this issue. In
respect of each of the questions sought to be reserved, in addition to determining
whether they were questions of law, the court a quo decided that none of them had
‘reasonable prospects of success’.
[24]     However, all that the court a quo had to decide was whether the issues
sought to be reserved by the State were questions of law. Whether any of the
questions sought to be reserved possessed reasonable prospects of success in this
court, did not constitute part of the enquiry before the court a quo. As decided by this
court in S v Basson 2003 (2) SACR 373 (SCA) paras 10 and 11, when a question of
law arises, the trial court, or, where it refuses to do so, this court, has to decide on
application by the State, whether to reserve a question of law for consideration by
this court. When this court considers an application by the State for leave to appeal
against a refusal to reserve a question of law by the trial court, as with any other
application for leave to appeal, it will only exercise its discretion in favour of the
State, where there is a reasonable prospect that a mistake of law was made. In
addition, there must at least be a reasonable prospect that if the mistake of law had
not been made, the accused would have been convicted.

[25] Because the questions sought to be reserved by the State require a
consideration of what constitutes a question of law, as well as the requirements
necessary to establish the defence of criminal incapacity caused by intoxication and
the consumption of drugs, these issues must be briefly examined. In Magmoed v
Janse van Rensburg & others 1993 (1) SACR 67 (A) at 94, this court stated that it is
a question of law whether the proven facts bring the conduct of the accused within
the ambit of the crime charged. This involves an enquiry as to the essence and
scope of the crime charged, by asking whether the proven facts in the particular case
constitute the commission of the crime. Where there is doubt regarding the elements
of the offence with which the accused has been charged, or doubt as to the precise
scope, nature or interpretation of the elements of the offence, the enquiry as to
whether the accused is guilty of the crime charged is a question of law. However,
where there is no such doubt, it is a question of fact whether the evidence
establishes one or more of the factual elements of a particular crime.
[26]      In S v Laubscher 1988 (1) SA 163 (A) at 166H-I, the test for criminal capacity
was formulated as follows:
(a) The accused must have been able to distinguish between right and wrong, that is
to realise he or she was acting unlawfully, and
(b) To act in accordance with that realisation by resisting the temptation to act
unlawfully.
[27]    In S v Eadie 2002 (3) SA 719 (SCA) para 2, this court held that when an
accused person raised a defence of temporary non-pathological criminal incapacity,
that is, criminal incapacity due to factors such as intoxication, provocation, drug use
and severe emotional stress, the State bore the onus of proving that he or she had
criminal capacity at the relevant time. This court emphasised that it had repeatedly
been stated that:
‘(i) In discharging the onus the State is assisted by the natural inference that, in the absence
of exceptional circumstances, a sane person who engages in conduct which would ordinarily
give rise to criminal liability, does so consciously and voluntarily;
(ii) an accused person who raises such a defence is required to lay a foundation for it,
sufficient at least to create a reasonable doubt on the point;
(iii) evidence in support of such a defence must be carefully scrutinised;

(iv) it is for the Court to decide the question of the accused’s criminal capacity, having regard
to the expert evidence and all the facts of the case, including the nature of the accused’s
actions during the relevant period.’
[28]      Before the court a quo dealt with the questions of law that the State sought to
have reserved, it stated the following:
‘There was no dispute at the trial that criminal capacity was a factual ingredient of the crimes
charged. I found that the evidence did not establish this particular ingredient beyond a
reasonable doubt. That, in my view, was a finding of fact . . . My view is that my finding that
the State failed to prove criminal capacity on the part of the accused was a factual finding
and that the State is not entitled to appeal against the acquittal on the basis that my factual
finding was wrong.’
Counsel for the appellant, although conceding that criminal capacity was a factual
ingredient of the crimes charged and that the finding by the court a quo that the
evidence did not prove this issue beyond a reasonable doubt, was a question of fact,
nevertheless argued that the questions sought to be reserved were questions of law.
[29]      It is against this background that I turn to consider the issues that the State
sought to have reserved as questions of law. The first issue is; whether the court
erred when applying the principle relating to criminal capacity, as set out in Chretien?
The court a quo stated that counsel for the State did not develop this point and made
no submissions as to how the court a quo had erred. It held that ‘although on the
face of it’ the question posed was one of law, it had no reasonable prospects of
success.
[30]   The State submitted that the relevance of the decision in Chretien to a
determination of whether the issue sought to be reserved was a question of law, lay
in the first leg of the test for criminal capacity, namely the ability of the respondent to
distinguish between right and wrong. It was submitted that the decision exonerated
an accused person from criminal liability in circumstances where the accused as a
result of intoxication, was not aware of what he or she was doing. It presupposed an
involuntary action on the part of the accused.

[31]     In support of this submission, the State referred to a number of aspects in the
evidence, maintaining that this evidence showed that the respondent was able to
distinguish between right and wrong, at the relevant time. Accordingly, the criticism
of the State lay not in the fact that the court a quo had wrongly applied the legal
principles in Chretien, but rather that it should have reached a different factual
conclusion in the light of those principles.
[32]    The ability of the respondent to distinguish between right and wrong was an
issue of fact, to be considered in deciding whether the State discharged the onus of
proving beyond reasonable doubt that the respondent possessed the requisite
criminal capacity, at the relevant time. The conclusion by the court a quo that the
State had failed to discharge this onus was based upon a finding that the respondent
had established a sufficient foundation in fact for this defence. It concluded that on
the totality of the evidence there was a reasonable doubt whether the respondent
had the requisite criminal capacity, when he strangled the deceased. This was not a
conclusion of law, because whether the evidence established one or more of the
factual elements of the particular crime, namely criminal capacity, was a question of
fact. Consequently, although framed as a question of law, the issues sought to be
raised were purely factual in nature and cannot be reserved as a question of law.
[33]      The second issue that the State sought to have reserved as a question of law
was; whether the court a quo erred in not applying the binding authority as set out in
Eadie? The court a quo stated that what it had said in regard to the first question
sought to be reserved, applied equally to this question. In other words, ‘although on
the face of it a question of law’ the point had no reasonable prospects of success.
[34]  The State submitted that the relevance of the decision in Eadie to a
determination of whether the issue sought to be reserved was a question of law, lay
in the second leg of the test for criminal capacity, namely that of self-control. It was
submitted that the important aspect of the applicable test was that the respondent
had to prove that he was unable to exercise self-control in order for his defence to
succeed. In support of this submission, the State referred to a number of aspects in
the evidence and again maintained that this evidence showed, that the respondent

was able at the relevant time to exercise self-control. As in the case of the first
question of law sought to be reserved, the criticism of the State accordingly lay not in
the fact that the court a quo had wrongly applied the legal principles in Chretien, but
rather in the manner in which the court a quo did so having regard to the factual
findings.
[35]     In Eadie para 42, it was stated that:
‘. . . it is clear that in order for an accused to escape liability on the basis of non-pathological
criminal incapacity he has to adduce evidence, in relation to the second leg of the test . . .
from which an inference can be drawn that the act in question was not consciously directed,
or put differently, that it was an involuntary act.’
And at para 53, the second leg of the test was described in the following terms:
‘The second leg of the test . . . is read to mean that one looks to see whether in all the
circumstances of the case the accused could not resist or refrain from this act or was unable
to control himself to the extent of refraining from committing the act.’
[36]   The State bore the onus of proving that the respondent possessed the requisite
criminal capacity at the relevant time. The respondent bore no onus of proving that
he was unable to exercise self-control in order for the defence to succeed. All that
the respondent had to do was adduce evidence from which an inference could be
drawn that the strangulation of the deceased was involuntary, in the sense that the
respondent was unable to prevent himself from committing this act.
[37]   The ability of the respondent to control his conduct is again an issue of fact to
be considered when deciding as a matter of fact, whether the State discharged the
onus of proving beyond reasonable doubt that the respondent possessed the
requisite criminal capacity, at the relevant time. As in the case of the first question
sought to be reserved, the conclusion by the court a quo that the State had failed to
discharge this onus was based upon a finding that the respondent had established a
sufficient foundation in fact, from which an inference could be drawn that the act in
question was involuntary. This was not a conclusion of law but one of fact, based
upon the evidence. Consequently, although framed as a question of law, the issues
sought to be raised were purely factual in nature and cannot be reserved as a
question of law.

[38]     The third issue that the State sought to have reserved as a question of law
was; whether in view of the court a quo’s acceptance of previous physical
altercations between the deceased and the accused during arguments, the court
erred in over-emphasising alternatively, incorrectly evaluating the absence of a
motive and/or conduct out of character, given the accused’s drinking/consumption of
alcohol? The court a quo stated that counsel for the State did not point to any
material misdirection in the judgment and that the question seemed to be one of fact
and not law. If it could be said to involve a question of law, the court a quo held that it
had no reasonable prospect of success on appeal.
[39]    The State submitted that the court a quo in accepting the respondent’s
defence of criminal incapacity as reasonably possibly true, placed weight on his
character and the absence of a motive. In doing so, the court a quo failed to evaluate
material evidence which the State maintained would have affected the conclusion
reached.
[40]      As regards the weight placed by the court a quo on the apparent absence of
a motive on the part of the respondent to kill the deceased, the court a quo dealt with
the submissions of the State, in the following terms:
‘The motive suggested by counsel for the State was that the accused resented the deceased
because of her controlling and abusive behaviour, or that they may have argued because he
wanted more money to buy drugs. I see no merit in these contentions. The accused agreed
that there were problems in their relationship, but was adamant that they were working on
them and were planning to get married. This was consistent with Mrs Singh’s evidence. The
possibility of an argument over money is mere speculation and there is no evidence to
support it. It does not seem likely that if the accused was in control of his senses he would
have killed the deceased for one of the reasons suggested by counsel, especially not in the
manner in which he did. In my view no motive to kill the deceased was established even as a
reasonable possibility.’
[41]    Whether the respondent possessed a motive to murder the deceased, was
therefore considered by the court a quo in the context of determining whether the
respondent ‘was in control of his senses’, at the time. As pointed out by Professor J
Burchell Principles of Criminal Law 5 ed at 353:

‘The general rule is that a person’s motives, whether good or bad, are irrelevant to criminal
intent. However, evidence of the accused’s motive in committing a crime is admissible and
may prove important especially in implicating the accused in the commission of the crime
and even in helping to establish intention.’
In other words, the absence of a motive is a factor to be considered in determining
whether the respondent possessed criminal capacity to form the intent to murder the
deceased. The conclusion reached by the court a quo on the evidence that the
respondent did not possess a motive to murder the deceased, is clearly a question of
fact and not one of law.
[42]    As regards the character of the respondent, the court a quo concluded on the
evidence that the respondent ‘was regarded by those who knew him as a gentle and
humble person’ and ‘what he did was completely out of character’. Again, this
conclusion is clearly a question of fact and not one of law. Consequently, the issue
cannot be reserved as a question of law.
[43]      The fourth issue that the State sought to have reserved as a question of law
was; did the court err in applying the test regarding inferences to be drawn from
circumstantial evidence, in reaching a conclusion that the accused lacked criminal
capacity in circumstances indicative of goal-directed conduct, patchy recollection and
the absence of a ‘trigger’? The court a quo stated that no material misdirection was
demonstrated in argument and the question seemed to involve a finding of fact and
not law.
[44]     The State submitted that the question sought to be reserved related primarily
to the court a quo, incorrectly evaluating the proven facts. The inferences drawn by
the court a quo were not challenged, but the conclusion reached by the court a quo
based upon the inferences that were drawn, was challenged. It was submitted that
this entailed an evaluation of the discretion exercised by the court a quo when
analysing the proven facts in relation to each of the charges. It was submitted that
the court a quo failed to exercise its discretion judicially, by failing to consider all of
the facts and circumstances. The State emphasised that the court a quo had failed to
consider and evaluate the goal-directed behaviour of the respondent and more

specifically ignored the principle that a ‘trigger’, was necessary for the respondent’s
defence to succeed.
[45]   In Director of Public Prosecutions, Gauteng v Pistorius [2015] ZASCA 204;
[2016] 1 All SA 346 (SCA); 2016 (1) SACR 431 (SCA) para 36, this court stated the
following:
‘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.’
Having reached this conclusion, the court at para 37 referred with approval to the
Canadian Supreme Court case of R v B (G) (1990) 56 CCC (3d) 181 (SCC); (1990)
2 SCR 57, in which it was held that where the record including the reasons for
judgment, discloses a lack of appreciation of relevant evidence and more particularly
the complete disregard of such evidence, a court of appeal could intervene. In
addition, the following passage in R v Roman (1987) 38 CCC (3d) 385; 66 Nfld &
PEIR 319; 204 APR 319, was approved:
‘There is a distinction between reassessment by an appeal court of evidence for the purpose
of weighing its credibility to determine culpability on the one hand and, on the other,
reviewing the record to ascertain if there has been an absence of appreciation of relevant
evidence. The former requires addressing questions of fact and is placed outside the
purview of an appellate tribunal . . . the latter enquiry is one of law because if the
proceedings indicate a lack of appreciation of relevant evidence, it becomes a reviewable
question of law as to whether this lack precluded the trial judge from effectively interpreting
and applying the law.’

This court in Pistorius then concluded at para 38 that:
‘In the present instance, although the question of the accused’s intention at the relevant time
is one of fact to be determined by inference, there regrettably does appear to have been
such “an absence of appreciation of material evidence” relevant to that issue.’

[46]    In the present case there was, however, no failure on the part of the court a
quo to appreciate material evidence in relation to the goal-directed behaviour of the
respondent. It did so in the following terms:
‘Counsel for the State submitted that the accused could not have been so intoxicated that he
lacked criminal capacity having regard to his actions when he left the house. He had to
unlock and open the front door and security gate, open the driveway gate, drive the car out,
close the gate and then drive to the city centre. He also drew attention to the cupboards that
the accused opened in the house, the items he threw on the floor, and the fact that he took
the deceased’s phone, camera charger and Garmin device. There is no expert evidence to
the effect that these apparent goal-directed actions are inconsistent with the state of
intoxication in which he says he must have been.
On the contrary, Professor Mkhize expressed the view, on the assumption that his amnesia
is genuine, and with knowledge of his subsequent behaviour, that he may have lacked the
capacity to realise that what he was doing was wrong, or to act in accordance with such
appreciation, or to form the intention to kill.’
[47]    The submissions of the State in this regard simply amount to an invitation to
this court, to reassess the evidence of the goal-directed behaviour of the respondent
for the purpose of affording it different weight in the overall assessment of the
respondent’s criminal capacity.
[48]      I turn to the submission by the State that the court a quo ignored the principle
that a ‘trigger’, was necessary for the respondent’s defence to succeed. In support of
this submission, the State referred to certain dicta in Eadie in which this court, in
dealing with the evidence of two psychiatrists who testified in that case, referred to
what was described by these witnesses as an event that ‘triggered’ a ‘period of
automatism’ or which resulted in the appellant being deprived ‘of the power to make
decisions’. The court also referred to certain other decisions dealing with criminal
incapacity, in which there was evidence of a ‘trigger’ event that caused the accused’s
conduct.  However, the case is no authority for the proposition that a defence of
criminal incapacity cannot succeed, unless there is evidence of a ‘trigger event’ that
resulted in the accused lacking criminal capacity. Consequently, the issue cannot be
reserved as a question of law.

[49]     The fifth issue that the State sought to have reserved as a question of law
was; did the court err when:
(i) interpreting s 1(1) of the CLAA, and/or
(ii) applying the proven facts of this matter to this section?
The court a quo stated that a contravention of the section was never part of the
State’s case. It was not referred to in the charge sheet, nor was it relied on by the
State in argument and the only reason why it was referred to in the judgment, was to
try and explain to the family of the deceased, why the accused could not be
convicted of the statutory offence. The court a quo then held that the point did not
have reasonable prospects of success.
[50]    The State submitted that the court a quo failed to apply the provisions of this
statute, when in circumstances it was bound to do so. The essence of the
submission appears in the following passage from the State’s heads of argument:
‘The trial court found that the applicant failed to discharge its onus beyond reasonable doubt
that the applicant had the criminal capacity. In doing so, the trial court accepted the
respondent’s defence as being reasonably possibly true. It found that he had laid the factual
foundation for the defence. Thus, on its own reasoning, its logical conclusion is that the
applicant has proven beyond reasonable doubt that the respondent lacked criminal capacity
due to the consumption of intoxicating substances.’
It was submitted that this argument raised a substantial point of law.
[51]     What the argument illustrates, however, is a lack of understanding on the part
of the State, of the effect of s 1(1) of the CLAA. A finding that the State failed to
prove beyond reasonable doubt that the respondent possessed criminal capacity at
the time, does not automatically result in a finding that the State proved beyond
reasonable doubt, that the respondent lacked criminal capacity at the time. In terms
of the common law, the accused may be acquitted of murder if there is a reasonable
possibility that the accused lacked criminal capacity, as a result of intoxication. In
terms of s 1(1) of the CLAA the accused will also escape liability in terms of the
statute, unless the State proves beyond reasonable doubt that the accused was so
intoxicated, that he could not be criminally liable at common law. Consequently, as
pointed out by this court in S v September 1996 (1) SACR 325 (A) at 328, for a
conviction in terms of the CLAA, it must be positively proved beyond reasonable

doubt that the accused lacked criminal capacity. If there is doubt concerning the
criminal capacity of the accused, he or she cannot be found guilty either in terms of
the common law or the CLAA.
[52]     The court a quo in dealing with this issue stated the following:
‘The difficulty with a statutory offence is the requirement that the accused must have been so
drunk that he lacked criminal capacity. In a case where the accused is acquitted on a charge
of murder on the basis that there is a reasonable possibility that he was so drunk that he
lacked the required capacity he cannot be convicted of the statutory offence unless the Court
can find beyond a reasonable doubt that he did not have such capacity.’
The court a quo accordingly correctly interpreted and applied s 1(1) of the CLAA to
the facts of the case and there is no basis for the issue to be reserved as a question
of law. We were not invited to reconsider the decision in S v September.
[53]     The final issue that the State sought to have reserved as a question of law
was; did the court err in denying the State the opportunity to re-open its case, when it
is accepted practice (the only way) in dealing with defences of this nature where the
accused has to lay a basis, the full extent of which is only known following his
evidence? The court a quo stated this issue was fully dealt with in the judgment and
there was nothing further to say about it. In addition, it did not consider the point had
reasonable prospects of success on appeal.
[54]     The State submitted by reference to various aspects of the evidence that the
court a quo had misdirected itself by refusing the application by the State to re-open
its case, when it was fair and practical to do so. It was submitted that the court a quo
did not exercise its discretion judicially, as it reached a decision which could not
reasonably have been made by a court properly directing itself to all the relevant
facts and principles.
[55]    It is, however, clear from the judgment of the court a quo that it exercised its
discretion in this regard judicially and not capriciously, or upon any wrong principle,
but for substantial reasons. (Madnitsky v Rosenberg 1949 (2) SA 392 (A) at 398-
399.) There is accordingly no basis for the issue to be reserved as a question of law.

[56]    Consequently, a reconsideration of the order granted by this court on 16
August 2017, requires variation by the substitution of the order refusing special leave
to appeal to this court, with an order refusing ordinary leave to appeal to this court.
[57]       The following order is granted:
The order granted by this court on 16 August 2017 is varied in terms of s 17(2)(f) of
the Superior Courts Act 10 of 2013, by the deletion of paragraph 2 reading as
follows:
‘The application for special leave to appeal is dismissed on the grounds that there are no
special circumstances meriting a further appeal to this court.’
and its replacement with the following paragraph:
‘The application for leave to appeal is dismissed on the grounds that there are no reasonable
prospects of success and there is no other compelling reason why an appeal should be
heard.’

K G B Swain

Judge of Appeal

Appearances:
For Appellant:

Mr K L Singh (with Mr K M Shah)

Instructed by:

The Director of Public Prosecutions, Durban
The Director of Public Prosecutions,
Bloemfontein

For Respondent:

Mr P Marimuthu

Instructed by:

Legal Aid Board, Durban

Legal Aid Board, Bloemfontein