Director of Public Prosecutions, Limpopo v Kagiso Kodishi Mokgotho

The respondent was charged with four counts: murder (read with s 51(1) of the Criminal Law Amendment Act 105 of 1997), contraventions of ss 3 and 90 of the Firearms Control Act 60 of 2000, and robbery with aggravating circumstances. He pleaded not guilty to all counts. In his s 115 statement, he claimed that he and two companions were traveling in the deceased's minibus taxi when one of his companions shot the deceased in the head. He admitted the firearm used belonged to him but denied firing the shot. Two State witnesses (Morena and Malepe) gave incriminating evidence that they were passengers in the taxi with the respondent. When the taxi stopped, they heard a gunshot and the deceased slumped over the steering wheel. The respondent did not testify in his defence or call any witnesses. The trial court acquitted the respondent on all counts, finding that the State failed to prove guilt beyond reasonable doubt. The State applied to reserve a question of law under s 319 of the Criminal Procedure Act, which was refused by the trial court. The State then applied to the SCA for leave to appeal.

• Whether the trial court applied the correct test in evaluating evidence where the accused did not testify in his defence
• Whether an error in applying the wrong test for evaluating evidence constitutes a question of law under s 319 of the Criminal Procedure Act 51 of 1977
• Whether the State can appeal against an acquittal on a question of law
• What is the correct approach to evaluating evidence where the accused has not testified but only provided a plea explanation

1. The application for leave to appeal is granted. 2. The appeal is upheld. 3. It is declared that the issue raised by the State encapsulated in para 27 of the judgment is a question of law and is answered in favour of the Director of Public Prosecutions. 4. The respondent's acquittal on the count of murder is set aside. The matter is left to the Director of Public Prosecutions to decide whether to institute fresh proceedings against the respondent before another judge.

Where an accused does not testify in a criminal trial, there is no 'accused's version' to evaluate, and the court cannot apply the test of whether the accused's version is reasonably possibly true. The correct test is whether the State's evidence establishes a prima facie case on which the court, acting carefully, might convict. A plea explanation and questions put to State witnesses in cross-examination cannot be equated with an accused's version when the accused has not testified. Applying the wrong test for evaluating evidence in such circumstances constitutes an error of law, not merely an error of fact, and is therefore a question of law that may be reserved for consideration under s 319 of the Criminal Procedure Act 51 of 1977. While the State cannot appeal an acquittal based on a trial court's erroneous evaluation of facts or drawing of inferences, it may do so where the acquittal resulted from the application of a wrong legal test.

The Court noted that the decision to reserve a question of law under s 319 should not be an academic one but should have a practical effect on the conviction of the accused. The Court expressed that in determining guilt or innocence, a trial court may have regard to an accused's statement in substantiation of a plea of not guilty and must consider both incriminatory and exculpatory material in the plea explanation, but cannot equate this with a tested version in evidence. The Court referenced with approval the principle from Magmoed that the traditional policy and practice of South African law is that an acquittal by a competent court is final and conclusive and may not be questioned in subsequent proceedings, except on questions of law. The Court observed that it cannot avail a party to clothe a challenge that is not a question of law 'in constitutional garb' or, in this case, as a question of law under s 319. The Court also noted in passing that the State had conceded at trial that it had not proved its case on three of the four counts and expressed reservations about whether the State could later seek to widen its appeal to include the robbery count.

This case clarifies the proper test for evaluating evidence in criminal trials where an accused has not testified. It distinguishes between cases where the accused testifies (creating two competing versions) and cases where the accused does not testify (requiring evaluation of whether the State's evidence establishes a prima facie case). The judgment emphasizes that a plea explanation and cross-examination questions are not equivalent to an accused's version given in testimony. The case is significant for establishing that applying the wrong evidentiary test constitutes a question of law appealable under s 319 of the CPA. It reinforces the principle from S v Francis that an accused's failure to testify cannot remedy deficiencies in the State's case, but the State must still establish a prima facie case of apparently credible evidence. The case provides important guidance on the circumstances in which the State may appeal an acquittal under s 319 of the CPA - specifically, where there is an error of law (such as applying the wrong test) rather than merely an error in evaluating facts or drawing inferences.