Gwababa v S

Mr Lungisa Gwababa was the sixth accused in a criminal trial in the North Gauteng High Court, Pretoria, where he and eight co-accused were convicted on 25 August 2015 and sentenced to 15 years' imprisonment on 11 November 2015. The case arose from an incident on 26 February 2013 involving the death of a taxi driver, Mr Silvesta Jossefa Marcia. The deceased was confronted by police officers regarding a traffic violation, an argument ensued, and the deceased was handcuffed to a police bakkie. The applicant was part of the back-up police squad at the scene. During the arrest, amid a threatening crowd, the deceased was handcuffed but his body remained outside the police vehicle. The applicant then drove the bakkie, dragging the deceased behind it. The deceased sustained extensive soft tissue injuries and ultimately died in custody. The trial court found that the deceased was also assaulted in the police cell after the dragging incident. The applicant's application for leave to appeal was dismissed on 11 December 2015. On 25 August 2016, two judges of the SCA dismissed the applicant's application for special leave to appeal. The applicant then applied to the President of the SCA for reconsideration under s 17(2)(f) of the Superior Courts Act, noting that his co-accused had been successful in similar applications.

• Whether exceptional circumstances existed to warrant reconsideration of the refusal of special leave to appeal under s 17(2)(f) of the Superior Courts Act 10 of 2013
• Whether the doctrine of common purpose was properly applied by the trial court
• Whether the trial court correctly rejected the applicant's version regarding his awareness that the deceased was being dragged
• Whether the trial court correctly identified the mens rea (dolus eventualis) in respect of the applicant's conduct
• Whether a grave injustice would result if reconsideration was not granted

1. Condonation was granted for late filing of the application. 2. The decision of the SCA dated 25 August 2016 dismissing the applicant's application for special leave to appeal against conviction and sentence was referred to the court for reconsideration and, if necessary, variation, in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013. 3. The applicant was directed to lodge with the registrar six copies of his application and six copies of his initial application for special leave to appeal within one month, and thereafter to comply with the rules relating to the conduct of appeals.

A grave injustice constitutes exceptional circumstances warranting reconsideration of a decision refusing special leave to appeal under s 17(2)(f) of the Superior Courts Act 10 of 2013. Where there are substantial doubts about: (1) the proper application of the doctrine of common purpose as enunciated in S v Mgedezi and S v Thebus; (2) the reasonableness of rejecting an accused's version in the context of chaotic circumstances; and (3) the determination of mens rea (particularly dolus eventualis), such that another court might reasonably find differently, the possibility of a grave injustice arises, enabling the President of the SCA to refer the matter for reconsideration. The fact that an applicant must establish exceptional circumstances on the merits of their own case, not merely because co-accused were successful, remains a requirement, but the substantive concerns about the correctness of findings may establish those exceptional circumstances.

Acting President Maya observed that the fact that the applicant's former co-accuseds' applications for leave to appeal were successful does not necessarily mean that he should, without more, also be granted leave to appeal. Each application must be determined on its own merits. The court also made observations about the evidence relating to the assault in the cell, noting that the single witness, Warrant Officer Ngamlana, could not see what was happening when the deceased was surrounded by policemen in the cell, and therefore it was unclear whether one or more policemen actually assaulted the deceased. The court also commented on the circumstances at the scene of arrest, including the threatening crowd and quick succession of events, which should have been considered when evaluating the plausibility of the applicant's version that he focused only on the road ahead.

This case illustrates the application of s 17(2)(f) of the Superior Courts Act 10 of 2013, which provides a mechanism for reconsideration of decisions refusing leave to appeal where exceptional circumstances exist. The judgment clarifies that the possibility of a grave injustice, particularly where there are doubts about the proper application of the doctrine of common purpose and the determination of mens rea in criminal cases, constitutes exceptional circumstances warranting reconsideration. The case emphasizes the importance of proper application of the common purpose doctrine as established in S v Mgedezi, S v Jama, and S v Thebus, and demonstrates the court's willingness to intervene where previous co-accused have been successful in similar applications and there are substantial concerns about the correctness of the trial court's findings. It underscores the court's commitment to preventing miscarriages of justice in the criminal justice system.