Director of Public Prosecutions, Gauteng Division, Pretoria v Kingsley Jafta Moloi

The respondent (Moloi) was convicted by the Nelspruit Regional Court on 12 February 2014 of raping his 13-year-old niece on 9 September 2005 and was sentenced to life imprisonment. The incident occurred at the respondent's home where he allegedly forced the complainant to have sexual intercourse with him after threatening her with a firearm. The complainant immediately reported the incident to her older sister, G, upon returning home. The State's evidence included testimony from the complainant, her sister G, medical evidence from Dr Windvogel showing redness and white discharge in the complainant's private parts, and DNA evidence showing that the respondent's DNA matched the partial STR profile found in the vaginal swab taken from the complainant. The respondent denied the allegations and claimed his sister and her children fabricated the charge due to a family vendetta. On appeal, the Gauteng High Court (Pretoria) set aside the conviction and sentence, focusing solely on alleged deficiencies in the DNA evidence and the chain of custody of blood samples, without considering the complainant's direct eyewitness evidence or the magistrate's findings on credibility. The DPP then applied for special leave to appeal to the Supreme Court of Appeal on two questions of law.

• Whether a court of appeal may set aside a conviction and sentence without evaluating, referring to, or rejecting direct eyewitness evidence
• Whether failure to consider all relevant evidence in determining guilt constitutes an error of law
• Whether an appeal under s 311 of the Criminal Procedure Act 51 of 1977 requires special leave or is an appeal as of right
• Whether the State has a duty to tender viva voce evidence of an analyst who deposed to an affidavit under s 212(4) of the CPA when an accused merely denies DNA evidence without laying a proper basis

1. The appeal was upheld in respect of the first question of law. 2. The order of the high court was set aside. 3. The conviction and sentence imposed by the regional court were reinstated. 4. The matter was remitted to the high court for the appeal to proceed on the merits.

The binding legal principle established is that a court of appeal commits an error of law when it fails to consider all relevant and admissible evidence in determining whether to uphold or set aside a conviction. The exclusion of relevant evidence by not taking it into account is equivalent to excluding evidence by ruling it inadmissible - both render the judicial process flawed. A court must account for all evidence before it; some may be found false, unreliable, or possibly unreliable, but none may simply be ignored. Such failure to consider all evidence constitutes a "question of law" within the meaning of s 311 of the CPA, giving the DPP a right to appeal to the Supreme Court of Appeal. When an appellate court commits such a fundamental error of law that vitiates the proceedings, the appropriate remedy is to set aside the appellate decision, reinstate the original conviction and sentence, and remit the matter for the appeal to be properly heard on the merits.

The court made significant obiter observations on whether s 311 of the CPA requires special leave to appeal. The majority (Dambuza JA) expressed the view that s 311 creates only a right of appeal while s 16(1)(b) of the Superior Courts Act sets the procedure and benchmark for all appeals, and therefore special leave is required. This view was based on the principle of qualitative limitation on appeals to the SCA and legislative intention to intensify control over appeals from superior courts. The minority (Gorven AJA) disagreed, holding that because s 311 gives a right of appeal and is therefore "regulated in terms of" the CPA, it is excluded from Chapter 5 of the Superior Courts Act and no leave is required. This represents an important unresolved tension in South African appellate procedure. The court also observed that it would be inappropriate for the SCA to consider the merits of the original appeal from the regional court without the benefit of the high court's properly considered views, as this would effectively amount to the SCA reviewing the magistrate's findings directly. On the second question of law regarding the duty to lead viva voce evidence from DNA analysts, the court found it unnecessary to decide this issue given the resolution of the first question.

This case is significant for establishing important principles regarding appellate review in South African criminal procedure: (1) It confirms that failure by an appellate court to consider all relevant evidence when determining guilt constitutes an error of law, not merely an error of fact; (2) It clarifies the scope of "question of law" under s 311 of the CPA, establishing that disregarding relevant admissible evidence falls within this category; (3) The case highlights a fundamental split in the Supreme Court of Appeal regarding whether appeals under s 311 of the CPA require special leave or are appeals as of right - the majority holding that special leave is required under s 16(1)(b) of the Superior Courts Act, while the minority (which included the Acting President) held that s 311 provides an appeal as of right because it is "regulated in terms of" the CPA and thus excluded from Chapter 5 of the Superior Courts Act; (4) The case reinforces the principle established in S v Van der Meyden that a court must account for all evidence and cannot simply ignore admissible evidence; (5) It demonstrates the remedy available when an appellate court fails to properly exercise its jurisdiction - reinstatement of the original conviction and sentence, with remittal for proper consideration of the appeal on the merits.