The Law Society of South Africa (LSSA) in its commitment to the rule of law cautions against uninformed criticisms of our courts, commissions and tribunals held under the authority of judges. This comes after the LSSA has noticed public outcry following the recent Supreme Court of Appeal (SCA) judgment on the ‘Coligny sunflower case’.
Pieter Doorewaard and Phillip Schutte were acquitted on 27 November 2020 when their appeal was upheld in the SCA. The pair had been convicted of the murder of Mathlomola Jonas Mosweu in April 2017 in the North West Division of the High Court, Mahikeng. It was an emotive case that resulted in public violence and was referred to as the ‘sunflower murder’ due to the ill-fated and tragic death of the young boy caught stealing sunflowers, as a country we still mourn and are coming to terms with this.
Some politicians are urging the National Prosecuting Authority (NPA) to appeal the acquittal to the Constitutional Court. Many members of the public are disappointed and angered by the decision of the SCA with some questioning the motive of the three judges who presided over the appeal.
‘Judges do not make decisions on appeal to suit the polemics of the day. They make their decisions on the law and the facts presented to them. This is done via the jurisprudence developed by our courts over many years,’ says LSSA President, Mvuzo Notyesi, adding that ‘when any litigant, like the NPA in this appeal, feels the decision of a court is wrong, such litigant has a right to appeal. The NPA will assess the SCA judgment and decide whether to appeal to the Constitutional Court.’
It is also clear from some comments by members of the public that the appeal process is not readily understood. Judges who deal with appeals do not hear evidence. The evidence is presented at the trial court. The trial court judge determines what evidence is admissible and what is not. Ultimately the trial court judge will make findings on the evidence presented. The appeal court must deal with the evidence contained in the records of appeal and consider the application of law based on those facts.
The trial court judge is bound by the law. As in this case, when the state prosecutor presented evidence of a single witness, the common law requires judges to assess that evidence very carefully.
Often on the application of the law, reasonable disagreements arise between lawyers. Some may recall the SCA disagreed with the trial court judge’s determination on dolus eventualis (legal intent) in the Oscar Pistorius trial and upheld the appeal by the NPA against the ‘lenient sentence’ and increased his jail term to 13-years.
In this case, all three judges of the SCA disagreed with the trial court judge’s assessment of the state’s single witness. One of the judges opined that the state should have sought a conviction on culpable homicide analogous to motor vehicle accidents. Culpable homicide is always a competent verdict on an indictment (charge) of murder. The NPA will assess the SCA judgment with a view to a further and final appeal. The NPA will make its assessment without fear, favour or prejudice as it is bound to do in terms of our law.
‘We support the independence of judges and the rule of law, but as clearly illustrated in this matter, judges are not infallible, but we have mechanisms which allow us to seek redress. As with any legal matter adjudicated by our courts, people are entitled to have differing views. However, attacks on the court’s integrity are unwarranted and we condemn the use of such opportunistic attacks for political gain. We urge everyone, including the public to make use of the correct mechanisms and not take the route of uninformed public criticism of the court process,’ Mr Notyesi concludes.
ISSUED ON BEHALF OF THE PRESIDENT OF THE LAW SOCIETY OF SOUTH AFRICA, MVUZO NOTYESI
Nomfundo Jele nomfundom@LSSA.org.za Tel: (012) 366 8800 or 072 402 6344