Liesching and Others v The State and Another

The three applicants were convicted in the Gauteng Local Division of the High Court of murder, unlawful possession of firearms, and unlawful possession of ammunition arising from a drive‑by shooting in November 2011. They were sentenced to life imprisonment and additional terms. Leave to appeal was granted only against sentence, while a petition to appeal against conviction was dismissed by the President of the Supreme Court of Appeal (SCA). After all appeal procedures were exhausted, a key state witness (Arries) recanted his testimony during the later trial of an alleged fourth perpetrator, claiming the applicants were not at the scene and alleging police inducement to commit perjury. The fourth accused was acquitted. Relying on this new evidence, the applicants applied to the President of the SCA under section 17(2)(f) of the Superior Courts Act to have the refusal of their petition reconsidered. The President refused, holding that section 17(2)(f) does not apply to criminal matters and that section 327 of the Criminal Procedure Act (CPA) was the appropriate procedure. The applicants sought leave to appeal to the Constitutional Court.

The appeal was upheld; the decision of the President of the Supreme Court of Appeal refusing to refer the application under section 17(2)(f) was set aside; and the matter was remitted to the President of the Supreme Court of Appeal for reconsideration.

The case clarifies the interplay between the Superior Courts Act and the Criminal Procedure Act, confirming that section 17(2)(f) can apply in criminal matters in exceptional circumstances. It affirms an accused’s constitutional rights to access courts and fair trial by ensuring that newly discovered evidence is not procedurally excluded from judicial reconsideration.