Ruby Charmaine Marais v The State

Ms Ruby Charmaine Marais was convicted of the pre-meditated murder of her husband and sentenced to life imprisonment by the Western Cape High Court (Dlodlo J with two assessors). She was charged as accused 6 together with five co-accused for arranging a 'contract murder' of her husband, Mr Jacobus Petrus Marais. Two co-accused became state witnesses under section 204 of the Criminal Procedure Act. The remaining accused, including Mr Ricardo Piedt (who delivered the fatal stab wounds), were convicted as co-perpetrators. During trial, the applicant raised the defence that she was a battered woman who had suffered years of abuse, assaults and repeated rape by her husband. She testified that she had arranged for her husband to receive a 'hiding' (not to be killed) while under the influence of tranquilizers, hoping he would call her for help and thereafter treat her better. The High Court rejected this defence as improbable and untrue, finding she was not a battered woman and had committed calculated murder motivated by financial greed. The High Court refused leave to appeal on conviction but granted leave to appeal on sentence to the Full Court. The Supreme Court of Appeal refused her petition for leave to appeal on conviction on 19 May 2010 without reasons. She then approached the Constitutional Court for leave to appeal against both conviction and sentence.

• Whether the application raises a constitutional issue justifying leave to appeal to the Constitutional Court
• Whether dissatisfaction with factual findings by a trial court constitutes a constitutional matter engaging the right to a fair trial under section 35 of the Constitution
• Whether the trial court misapplied legal rules relating to the battered woman syndrome thereby compromising the fairness of the trial
• Whether the Constitutional Court has power to receive further evidence or remit a matter to lower courts after the Supreme Court of Appeal has refused leave to appeal
• Whether the trial court misdirected itself by failing to apply the rule from SARFU regarding unchallenged evidence in cross-examination

The application for leave to appeal was dismissed. The application of Tshwaranang Legal Advocacy Centre to be admitted as amicus curiae was not granted.

Dissatisfaction with factual findings made by a trial court does not, in itself, constitute a constitutional issue or engage constitutional rights, even when the dissatisfaction is framed as alleged misapplication of legal rules or principles relating to the evaluation of evidence. For an application for leave to appeal to succeed in the Constitutional Court, it must raise a constitutional issue; complaints about factual misdirections or incorrect evaluation of defences (including battered woman syndrome) are matters of fact, not constitutional law. Once the Supreme Court of Appeal has refused leave to appeal, lower courts become functus officio and cannot entertain applications for further evidence unless the conviction is set aside and remitted. The Constitutional Court lacks express statutory power to remit criminal matters to lower courts when refusing leave to appeal where no constitutional issue has been raised. An application for admission as amicus curiae is ancillary to the main application and must fail when the main application is dismissed.

The Court acknowledged the 'agonising' nature of the case, which raised 'the horrific spectre of domestic violence and, in particular, the dilemma of an abused woman who may resort to murdering her partner by engaging others to kill him.' The Court referred approvingly to the Supreme Court of Appeal's leading judgment in S v Ferreira and Others (2004 (2) SACR 454 (SCA)), which held that contract killing arranged by a battered woman may constitute self-defence depending on her subjective state of mind and motive, provided the killing is objectively justifiable. The Court noted that there is no explicit statutory or constitutional provision granting the Constitutional Court equivalent power to the Supreme Court of Appeal to remit matters when refusing leave to appeal, likely because the relevant provisions were drafted before the Constitutional Court was created. The Court observed that if the applicant wished to mount an application to set aside her conviction and seek leave to adduce further evidence, she would have to do so within the constraints of section 316(5) of the Criminal Procedure Act and would need to take legal advice on which court, if any, remains available to her for such an application. The Court noted it was 'not inappropriate to observe' that the applicant's appeal against sentence was still pending before the Full Bench of the High Court at the time of this application.

This case reinforces important principles regarding access to the Constitutional Court in criminal matters. It confirms that the Constitutional Court will not entertain appeals that amount merely to dissatisfaction with factual findings by lower courts, even when framed as alleged misapplication of legal rules or principles. The judgment clarifies the Constitutional Court's limited jurisdiction in criminal appeals and emphasizes that factual disputes, including evaluation of defences such as battered woman syndrome, do not automatically become constitutional issues simply because they relate to the fair trial right. The case also clarifies the procedural framework for leading further evidence in criminal appeals, emphasizing the statutory requirements under section 316(5) of the Criminal Procedure Act and the principle of functus officio once courts have disposed of applications for leave to appeal. It highlights a potential lacuna in the Constitutional Court's powers regarding remittal of criminal matters compared to the Supreme Court of Appeal's powers, as the relevant statutes were drafted before the Constitutional Court was established. The judgment is significant in the context of domestic violence cases, as it demonstrates that while battered woman syndrome is a recognized defence, its acceptance depends on factual findings by trial courts, and disagreement with such findings does not create a constitutional issue justifying Constitutional Court intervention.