Liesching and Others v The State and Another

Three applicants (Liesching, Swartz, and Malgas) were convicted of murder, unlawful possession of firearms, and unlawful possession of ammunition on 17 November 2011 in the Gauteng High Court. They were sentenced to life imprisonment on the murder count and additional terms for the other counts. The trial court granted leave to appeal against sentences only. Their petition for leave to appeal against convictions was dismissed on 6 November 2013. After their petition was dismissed, a fourth person (Arthur Saimons) was charged with the same offences. During Saimons' trial, the key witness (Mr Arries) recanted his testimony, stating he did not see who shot the deceased, that the applicants were not at the scene, and that he was persuaded by the investigating officer to commit perjury during the applicants' trial. Saimons was found not guilty and discharged. Armed with this new evidence, the applicants applied to the President of the Supreme Court of Appeal under section 17(2)(f) of the Superior Courts Act to refer their petition for reconsideration. The President dismissed their application on 24 December 2014, holding that section 17(2)(f) did not apply to criminal matters because of the definition of 'appeal' in section 1 of the SC Act, and that section 327 of the Criminal Procedure Act was the proper procedure.

• Whether the definition of 'appeal' in section 1 of the Superior Courts Act excludes all criminal matters from the scope of Chapter 5 of the SC Act
• Whether section 17(2)(f) of the Superior Courts Act applies to criminal proceedings
• Whether the section 327 procedure in the Criminal Procedure Act is an appeal regulated in terms of the CPA or any other criminal procedural law
• Whether adducing further evidence after a petition has been refused is a matter regulated in terms of the CPA or any other criminal procedural law
• The correct interpretation and interplay between sections 1 and 17(2)(f) of the SC Act and section 327 of the CPA

1. Condonation is granted. 2. Leave to appeal is granted. 3. The appeal is upheld. 4. The decision of the President of the Supreme Court of Appeal refusing to refer the applicants' application in terms of section 17(2)(f) of the Superior Courts Act 10 of 2013 is set aside. 5. The matter is remitted to the President of the Supreme Court of Appeal to consider the applicants' application.

The ratio decidendi is that section 17(2)(f) of the Superior Courts Act 10 of 2013 applies to criminal proceedings where the matter is not regulated by the Criminal Procedure Act or other criminal procedural law. The definition of 'appeal' in section 1 of the SC Act excludes from Chapter 5 only those appeals 'in a matter regulated in terms of the Criminal Procedure Act' or other criminal procedural law; conversely, if a matter is not so regulated, it falls within Chapter 5. Applications to adduce further evidence after a petition has been refused are not regulated by the CPA (which only regulates such applications in sections 316(5) and 316(13) at earlier stages). Section 327 of the CPA is not an appeal procedure but applies only after all recognized legal procedures pertaining to appeal have been exhausted. Therefore, the President of the Supreme Court of Appeal has power under section 17(2)(f) to refer a petition for reconsideration in criminal cases where exceptional circumstances exist, including where further evidence becomes available after petition refusal. This interpretation gives effect to section 39(2) of the Constitution by promoting equality before the law and access to justice.

The Court made several obiter observations: (1) It criticized Legal Aid South Africa's institutional bureaucracy characterized by excessively layered procedures causing unwarranted delays, urging Legal Aid to urgently review its processes. (2) The Court noted there is a limit beyond which litigants cannot hide behind legal representatives' ineptitude, but this was not such a case given the applicants were incarcerated. (3) The Court emphasized that finality in litigation, while important, is not absolute and must be balanced against correcting errors and ensuring justice. (4) The Court quoted Kirby J approvingly: 'we can love finality too much.' (5) The Court observed that 'exceptional circumstances' for purposes of section 17(2)(f) must be determined with reference to the overall interests of justice on the facts and circumstances of each case. (6) The Court noted that even after a section 17(2)(f) application is dismissed, applicants can still approach the Constitutional Court for leave to appeal and can apply to adduce further evidence in that Court. (7) The President of the SCA had correctly applied section 17(2)(f) to criminal proceedings on numerous prior occasions.

This case is significant for establishing the proper interpretation and application of section 17(2)(f) of the Superior Courts Act in criminal proceedings. It clarifies that the section applies to criminal matters where the CPA does not specifically regulate the particular procedural issue, particularly applications to adduce further evidence after a petition has been refused. The judgment harmonizes the Superior Courts Act with the Criminal Procedure Act, ensuring convicted persons have access to the same reconsideration mechanism as civil litigants when exceptional circumstances arise after petition refusal. The case reinforces the constitutional principle that finality in litigation must be balanced against justice, and that statutes must be interpreted through the prism of the Bill of Rights to promote equality before the law and access to justice. The judgment also provides important guidance on the distinct roles of section 17(2)(f) (operative during appeal processes) versus section 327 of the CPA (operative after all appeals exhausted).