Director of Public Prosecutions: Limpopo v Molope and Another

Two respondents (Molope and Letsoalo) and three other accused were charged in the Limpopo High Court with two counts of kidnapping and two counts of murder. The charges arose from incidents on 11 October 2017 where two young men, Thato Present Maake (28) and Mmakelesti William Maake (33), lost their lives. The indictment alleged that the accused and other community members believed the deceased were responsible for robberies in the area. The deceased were kidnapped, taken to a mountain and brutally assaulted. Thato died on the scene and Willy succumbed to injuries in hospital two weeks later. Post-mortem reports attributed deaths to blunt force injuries. At the end of the State's case, the trial court discharged the respondents on the main counts of kidnapping and murder in terms of s 174 of the Criminal Procedure Act, despite finding there was sufficient evidence for assault with intent to do grievous bodily harm. The respondents were subsequently convicted of assault GBH and given suspended sentences. The State applied to reserve a question of law under s 319 of the CPA.

• Whether the question of law was properly reserved in terms of s 319 of the Criminal Procedure Act 51 of 1977
• Whether the requirements of s 319 were met: accurate framing of the legal question, clarity on facts, and full setting out of facts in the record
• Whether the evidence at the close of the State's case constituted a prima facie case against the respondents on all counts
• Whether the trial court erred in discharging the accused under s 174 despite finding sufficient evidence for assault GBH
• Whether the conduct of the accused fell within the ambit of the offences of kidnapping and murder committed in furtherance of a common purpose
• Whether contradictions in the State's evidence justified discharge under s 174

The appeal was dismissed. The order of the trial court discharging the respondents on the main counts of kidnapping and murder stood, as did their convictions for assault with intent to do grievous bodily harm with suspended sentences of four years' imprisonment.

A question of law is not properly reserved under s 319 of the Criminal Procedure Act 51 of 1977 unless: (1) the question is framed accurately by the trial court leaving no doubt what the legal point is; (2) the facts upon which the point hinges are clear; and (3) those facts are set out fully in the record together with the question of law. Where it is unclear from the judgment of the trial court what its findings of fact are, it is necessary for the State to request the trial court to clarify its factual findings. If this is not done, the point of law is not properly reserved. The requirements of s 319 are peremptory and must be strictly complied with. An appeal court has no jurisdiction to reformulate a defective question of law. A complaint about how a trial court assessed evidence raises a question of fact, not a question of law, and does not confer a right of appeal under s 319.

Cachalia JA in dissent observed that the trial court's judgment was not a model of clarity and contained perplexing contradictions - finding there was sufficient evidence for assault GBH but discharging on murder, yet later finding the respondents initiated 'mob justice' that caused the deaths. He noted it was incomprehensible that a court could find beyond reasonable doubt that respondents initiated mob justice involving kidnapping and assault causing death, yet conclude there was no evidence upon which a court might reasonably convict on the main charges. The majority expressed concern about the deficiencies in the trial court's judgment but noted these aspects did not arise for adjudication. The majority acknowledged that the State's complaint about the evidence assessment may be valid, but emphasized this Court was precluded from entertaining appeals on factual matters. Both the majority and dissent criticized the trial court for failing to properly perform its duties under s 319 and emphasized that trial courts must be meticulous in formulating stated cases and questions of law.

This case reaffirms the strict requirements for the reservation of questions of law under s 319 of the Criminal Procedure Act. It emphasizes that: (1) the question must be framed accurately by the trial court; (2) the facts upon which the legal point depends must be clearly stated in the record; (3) where a trial court's judgment lacks clarity on factual findings, the State must request clarification before reserving a point of law; (4) an appeal court cannot reformulate a defective question of law; (5) the State's right of appeal is limited to questions of law, not questions of fact or the trial court's assessment of evidence. The case demonstrates the consequences of both the State and the trial court failing to comply meticulously with s 319 requirements. It also highlights the tension between effective prosecution of serious crimes and maintaining proper legal procedures that restrict State appeals.