The Director of Public Prosecutions, KwaZulu-Natal v Donovan Mark Ramdass

Donovan Mark Ramdass was acquitted by the KwaZulu-Natal Division of the High Court (Ploos van Amstel J) of the murder of Ms Ashika Singh and robbery with aggravating circumstances, on the grounds that there was reasonable doubt whether he possessed the requisite criminal capacity to appreciate that what he was doing was wrongful and to act in accordance with such appreciation when he strangled the deceased. The respondent claimed to have no recollection of events on the evening in question, maintaining that he had been drinking and smoking crack cocaine. His evidence was accepted by the trial judge and not substantially challenged by the State, which called no expert evidence to refute the claim of amnesia or to show that his claim was false. The proven facts established that: the accused had been drinking and allegedly purchased drugs prior to the offence; the deceased was killed between 20h30 and 21h12; the deceased's semi-naked body had her head wrapped in plastic; the accused left the residence within 40 minutes, locked the residence, drove the deceased's motor vehicle to the Point Area from Merebank, and travelled to Umhlanga during the early hours; and the accused had been using his cellular phone throughout the night.

• Whether the trial court erred in refusing to reserve questions of law under s 319(1) of the Criminal Procedure Act 51 of 1977
• Whether the State followed the correct procedural route in challenging the refusal to reserve questions of law
• Whether s 17(2)(f) of the Superior Courts Act 10 of 2013 applies to criminal appeals regulated under the CPA
• Whether the questions sought to be reserved were questions of law or questions of fact
• Whether the trial court correctly applied the principles relating to criminal capacity as set out in S v Chretien and S v Eadie
• Whether the trial court erred in evaluating the absence of motive and conduct out of character
• Whether the trial court erred in applying the test for inferences from circumstantial evidence regarding criminal capacity
• Whether the trial court correctly interpreted and applied s 1(1) of the Criminal Law Amendment Act 1 of 1988
• Whether the trial court erred in refusing the State's application to re-open its case

The order granted by the SCA on 16 August 2017 was varied in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013. The paragraph dismissing the application for special leave to appeal was deleted and replaced with an order dismissing the application for leave to appeal on the grounds that there were no reasonable prospects of success and no other compelling reason why an appeal should be heard.

The binding principles established are: (1) Following S v Liesching, the proviso to s 17(2)(f) of the Superior Courts Act confers on the President of the SCA a power, to be used in exceptional circumstances, for reconsideration of any application for leave to appeal or petition that has been refused, whether brought under s 16 of the SC Act or s 316 of the CPA. (2) Where there is no doubt regarding the elements of an offence or the scope, nature or interpretation of those elements, the question whether the evidence establishes one or more of the factual elements of a particular crime is a question of fact, not law. (3) Whether an accused possessed criminal capacity at the relevant time is fundamentally a question of fact where the legal test for criminal capacity (the ability to distinguish between right and wrong and to act in accordance with that realization) is established and not in dispute. (4) In applications to reserve questions of law under s 319 of the CPA, the trial court must only decide whether the issues sought to be reserved are questions of law; it should not assess whether the questions have reasonable prospects of success. (5) There is no legal requirement for evidence of a 'trigger' event for a defence of criminal incapacity due to intoxication to succeed. (6) Under s 1(1) of the CLAA, for a conviction it must be positively proved beyond reasonable doubt that the accused lacked criminal capacity; if there is doubt concerning criminal capacity, the accused cannot be found guilty either at common law or under the CLAA.

The court made several non-binding observations: (1) It questioned whether the reasoning in S v Liesching, which divorced the proviso to s 17(2)(f) from its context in s 16 of the SC Act and treated it as a general enacting provision, was consistent with established principles of statutory interpretation regarding provisos, specifically the rule that a proviso must be read and considered in relation to the principal matter to which it is a proviso and cannot be read as divorced from context (citing Mphosi v Central Board for Co-operative Insurance Ltd and S v Mhlungu). (2) The court noted that on the terms of the SC Act alone, it would appear that s 17(2)(f) would not involve reconsideration of the merits of the application to reserve questions of law. (3) The court observed that the definition of 'appeal' in the SC Act provides that 'appeal' in Chapter 5 does not include appeals in matters regulated under the CPA, which should mean that ss 16 and 17 of the SC Act do not apply to criminal appeals. (4) The court noted that the procedure in dealing with a petition under s 316 of the CPA essentially mirrors that to be followed in dealing with an application for leave to appeal under s 17 of the SC Act, which facilitated condonation of the procedural irregularity in this case.

This case clarifies important procedural and substantive aspects of South African criminal law: (1) It confirms the application of S v Liesching regarding the President of the SCA's power under s 17(2)(f) to reconsider refused petitions in criminal matters, treating the proviso as a general enacting provision despite its context in civil appeals. (2) It reinforces the distinction between questions of law and questions of fact in the context of applications to reserve questions of law under s 319 of the CPA. (3) It emphasizes that whether an accused possessed criminal capacity is fundamentally a question of fact, not law, where the legal test is established and not in dispute. (4) It clarifies that there is no legal requirement for a 'trigger' event in defences of criminal incapacity due to intoxication. (5) It confirms the proper application of s 1(1) of the Criminal Law Amendment Act 1 of 1988, clarifying that a finding that the State failed to prove criminal capacity does not automatically result in a finding that the State proved lack of criminal capacity beyond reasonable doubt. (6) The case demonstrates the high threshold for appellate intervention in factual findings and the exercise of judicial discretion by trial courts.