Liesching and Others v The State

The applicants (Liesching, Swartz and Malgas) were convicted in the Gauteng High Court on three counts: murder, unlawful possession of firearms and unlawful possession of ammunition, arising from a shooting incident on 17 November 2011 in Reiger Park, Boksburg in which Renaldo Leeroy Booysens was killed. Each received life imprisonment. Their convictions were based primarily on the testimony of two witnesses: Sherwin Arries and Marlin Abrahams, who identified the applicants as occupants of a Polo from which gunshots were fired. The applicants were members of the Dogans gang, while the deceased was not a gang member. Leave to appeal against conviction was refused by the High Court and later by the Supreme Court of Appeal. Approximately four months after this refusal, a co-accused, Arthur Saimons, was tried for the same murder. At Saimons' trial, Mr Arries recanted his previous testimony, claiming he had been induced by police to falsely implicate the applicants. He testified that he did not actually see who was in the car or who shot the deceased as he ran into his yard when shooting started. As a result of this recantation, Saimons was discharged under section 174 of the Criminal Procedure Act. The applicants then applied to the President of the Supreme Court of Appeal under section 17(2)(f) of the Superior Courts Act 10 of 2013 to refer their refused leave to appeal for reconsideration. This application was dismissed twice: first by the President, then by the Acting President after the Constitutional Court set aside the first decision and remitted it back. The applicants then sought leave to appeal to the Constitutional Court.

• Whether section 17(2)(f) of the Superior Courts Act 10 of 2013 applies to convicted persons in criminal proceedings
• Whether post-trial recantation by a material witness in a subsequent trial of a co-accused may constitute 'exceptional circumstances' as contemplated in section 17(2)(f)
• Whether the President of the Supreme Court of Appeal has a duty to provide reasons when dismissing an application under section 17(2)(f)
• The meaning and interpretation of 'exceptional circumstances' in section 17(2)(f)
• Whether it is in the interests of justice to refer a decision refusing leave to appeal to the Supreme Court of Appeal for reconsideration
• The requirements for re-opening a criminal trial to adduce further evidence (De Jager test)
• Whether this Court has jurisdiction over an appeal against a decision by the President under section 17(2)(f)
• The appropriate remedy where the President has not exercised her discretion

The application for leave to appeal was dismissed with no order as to costs. The majority judgment prevailed.

The binding principles from the majority judgment are: (1) "Exceptional circumstances" in section 17(2)(f) of the Superior Courts Act should be linked to either the probability of grave individual injustice or situations where the administration of justice might be brought into disrepute if no reconsideration occurs. (2) Section 17(2)(f) is not intended to afford disappointed litigants a further attempt to procure relief already refused or a parallel appeal process for additional attempts at appeal. (3) A mere recantation by a witness, without external verifying indicators or circumstances showing the original evidence was suspect and the recantation more plausible, will generally not constitute exceptional circumstances. (4) Where a President exercises discretion in the "true sense" under section 17(2)(f), an appellate court should be slow to substitute its discretion and would require good grounds to interfere. (5) Courts must be cautious about re-opening trials based on recanted evidence, particularly where there are concerns about fabrication, witness coercion, or the recantation lacks credibility. (6) The requirement of exceptional circumstances in section 17(2)(f) operates as a jurisdictional fact and controlling or limiting factor on the President's discretion.

The majority judgment made several obiter observations: (1) The question whether this Court has jurisdiction over appeals against decisions by the President under section 17(2)(f) is complex, unsettled, and should be left open until properly argued. (2) If such jurisdiction exists, an applicant must demonstrate why it would be in the interests of justice for this Court to entertain such an appeal given the nature of the President's discretion. (3) The issue whether the President must give reasons for decisions under section 17(2)(f) was left open, though the majority noted there may be nothing more the President could have said in this case. (4) This Court should be careful not to pronounce on issues that should properly be considered by the High Court or Supreme Court of Appeal if reconsideration is granted, such as whether the De Jager test for admitting new evidence is met. The minority judgment offered extensive obiter on: (1) The duty to provide reasons when dismissing section 17(2)(f) applications that engage constitutional jurisdiction. (2) The appropriate standard for assessing prima facie likelihood of truth of evidence (reasonable possibility standard). (3) When reasons should ideally be provided by the Supreme Court of Appeal. (4) The principle that new evidence meeting the De Jager test and coming to light after leave to appeal is refused would, by its nature, constitute exceptional circumstances.

This case is significant in South African criminal procedure law for several reasons: (1) It confirms (from Liesching I) that section 17(2)(f) of the Superior Courts Act applies to criminal proceedings, not only civil matters. (2) It provides important guidance on the meaning of "exceptional circumstances" in section 17(2)(f), with the majority holding that this phrase should be linked to either grave individual injustice or situations where the administration of justice might be brought into disrepute, and is not intended to afford disappointed litigants additional appeal opportunities. (3) It addresses (albeit leaving the ultimate question open) whether this Court has jurisdiction over appeals against decisions by the President under section 17(2)(f). (4) It demonstrates the difficulty of re-opening criminal trials based on recanted testimony, emphasizing the policy concerns about finality, fabrication of evidence, and witness coercion. (5) It illustrates the tension between finality in criminal proceedings and the need to correct potential injustices. (6) The split decision reflects different judicial approaches to balancing these competing considerations in cases involving potentially false convictions based on perjured evidence. The case provides important precedent for future applications under section 17(2)(f) in criminal matters.