Liesching and Others v S (CCT304/16) [2018] ZACC 25; 2018 (11) BCLR 1349 (CC); 2019 (1) SACR 178 (CC); 2019 (4) SA 219 (CC) (29 August 2018)

Liesching and Others v S (CCT304/16) [2018] ZACC 25; 2018 (11) BCLR 1349 (CC); 2019 (1) SACR 178 (CC); 2019 (4) SA 219 (CC) (29 August 2018)

The majority held that the new evidence of Mr Arries' recantation, which came to light after the applicants' trial and was tested under cross-examination in the Saimons' trial, constitutes exceptional circumstances as contemplated by section 17(2)(f) of the Superior Courts Act. The failure to refer the decision refusing leave to appeal for reconsideration would result in grave injustice, as the applicants would be denied the opportunity to challenge the evidence upon which their convictions were based. The Court found that the President of the Supreme Court of Appeal erred in failing to provide reasons for dismissing the application and in not exercising her discretion in light of the...

Citation
[2018] ZACC 25
Parties
Applicant: Pieter Pietertjie Liesching; Applicant: Malvin Naas Swartz; Applicant: Xavier Malgas; Respondent: The State
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
29 August 2018
Case Number
CCT 304/16
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Constitutional Court Following Refusal of Leave by the Supreme Court of Appeal President Under Section 17(2)(f) of the Superior Courts Act.
Outcome
Majority: Appeal upheld; decision refusing leave to appeal referred to Supreme Court of Appeal for reconsideration. Minority: Would have dismissed the application for leave to appeal.
Judges
Zondo DCJ, Cameron J, Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J, Zondi AJ
Legal Topics
Leave to Appeal, Exceptional Circumstances, Recantation of Evidence, Fair Trial Rights, Admission of New Evidence, Superior Courts Act
Criminal Law Civil Procedure Constitutional Law Leave to Appeal Exceptional Circumstances Recantation of Evidence Fair Trial Rights Admission of New Evidence +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 13 Party arguments 2
Sign in to unlock

Parties

Pieter Pietertjie Liesching

Applicant

Malvin Naas Swartz

Applicant

Xavier Malgas

Applicant

The State

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Constitutional Court Following Refusal of Leave by the Supreme Court of Appeal President Under Section 17(2)(f) of the Superior Courts Act.

Legal Issues

  1. 1 Does post-trial recantation by a material witness in a subsequent trial of a co-accused constitute exceptional circumstances under section 17(2)(f) of the Superior Courts Act?
  2. 2 Is it in the interests of justice for the President of the Supreme Court of Appeal to refer a decision refusing leave to appeal for reconsideration based on new evidence?
  3. 3 Is there a duty on the President to provide reasons when refusing an application under section 17(2)(f)?

Ratio Decidendi

The majority held that the new evidence of Mr Arries' recantation, which came to light after the applicants' trial and was tested under cross-examination in the Saimons' trial, constitutes exceptional circumstances as contemplated by section 17(2)(f) of the Superior Courts Act. The failure to refer the decision refusing leave to appeal for reconsideration would result in grave injustice, as the applicants would be denied the opportunity to challenge the evidence upon which their convictions were based. The Court found that the President of the Supreme Court of Appeal erred in failing to provide reasons for dismissing the application and in not exercising her discretion in light of the...

Court Disposition

Majority: Appeal upheld; decision refusing leave to appeal referred to Supreme Court of Appeal for reconsideration. Minority: Would have dismissed the application for leave to appeal.

Orders

  • Leave to appeal is granted.
  • Condonation is granted for the late filing of the respondent’s written submissions.