S v Chikiwa (5 of 2025) [2025] ZWCC 5 (6 May 2025)

REPORTABLE (3) HEBERT LEARNMORE CHIKIWA v THE STATE CONSTITUTIONAL COURT OF ZIMBABWE MAKARAU JCC, HLATSHWAYO JCC & PATEL JCC HARARE, 24 FEBRUARY 2025 & 6 MAY 2025 The applicant in person C. Muchemwa for the respondent. Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 PATEL JCC: This is an application for direct access in terms of s 167(5) of the Constitution, as read with Rule 21(2) of the Constitutional Court Rules, 2016. In essence, the application challenges the decision of the Supreme Court (the court a quo) on the grounds that it violated the applicant’s fundamental rights under ss 56(1), 69(1) and 70(1) of the Constitution, which guarantee the right to equality and non-discrimination, the right to a fair trial, and the rights of an accused person. The applicant contends that the court a quo failed to properly adjudicate the appeal before it and to uphold the presumption of innocence, by failing to adequately address concerns regarding the conduct of the trial court, the assessment of evidence and the legality of the sentence imposed. The applicant, Hebert Learnmore Chikiwa, is a private individual who was convicted of murder and sentenced to an effective 30-year term of imprisonment by the trial court. Dissatisfied with the outcome of his appeal before the Supreme Court, he now approaches this Court alleging the infringement of his fundamental rights. The respondent is the State, cited in its capacity as the prosecuting authority and the party that opposed the applicant’s case in the lower courts. The Background The events giving rise to the applicant’s conviction and sentence unfolded on the night of 21 September 2013. A group of four armed individuals forcefully gained entry into the office premises of Imperial Security Company, located in Eastlea, Harare. They accomplished this by cutting the padlock on the gate and making their way into the main office, where they proceeded to ransack the premises. Several items were stolen, including a Llama pistol, ammunition, clothing, and company documents. After this intrusion, the assailants managed to flee undetected. Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 Their criminal enterprise, however, did not end there. In the early hours of 22 September 2013, the same group targeted K and K Properties, also in Eastlea. As they attempted to gain unlawful entry into the premises, they were interrupted by a security guard Collen Julius. Sensing danger, Collen Julius immediately raised the alarm, awakening four others from a nearby cottage, including his son, Innocent Julius. Armed with nothing more than bottles and stones, the group confronted the intruders. The robbers, however, responded with gunfire. In the chaos that ensued, Innocent Julius was fatally shot. A post-mortem report later confirmed that he had succumbed to haemorrhages and shock resulting from gunshot wounds. At the crime scene, three spent 9 mm cartridges were recovered. Some weeks later, on 19 December 2013, the applicant was spotted behaving suspiciously at Waterwright Irrigation in Pomona, Borrowdale, Harare. The employees at Waterwright, fearing that he intended to rob them, raised the alarm. Sensing that his presence had been noticed, the applicant attempted to flee. However, one Moses Chari, along with other employees and members of the public, gave chase. The pursuit lasted for approximately 15 to 20 minutes, leading up to Edinburgh Road, near Vainona Primary School. In a desperate bid to escape, the applicant discharged his firearm, presumably to ward off his pursuers. However, exhaustion eventually caught up with him, forcing him to stop. It was at this moment that Moses Chari seized the opportunity, taking cover behind a tree, before tackling and disarming the applicant. The firearm, a Llama pistol, along with a pair of handcuffs found in his bag, was later handed over to the police as exhibits. Investigations revealed that the Llama pistol recovered from the applicant matched Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 the three spent cartridges retrieved from the murder scene at K and K Properties, in Eastlea. This was confirmed by a ballistic examination conducted by Detective Gundumure, a forensic firearms expert from the Criminal Investigations Department. The applicant was subsequently arrested and charged alongside three others, namely, Johane Kamudyariwa (second accused), Lawrence Makiwa Makosa (third accused) and Given Mushore (fourth accused). They faced two counts, to wit, unlawful entry in aggravating circumstances and murder. The first count related to their unlawful and intentional entry into the premises of Imperial Security Company, where various items were stolen. The second count concerned the fatal shooting of Innocent Julius during the attempted break-in at K and K Properties. At the trial, all four accused persons pleaded not guilty. The proceedings were protracted, including a trial-within-a-trial on the admissibility of confessions and indications made by the applicant’s co-accused. Notably, the applicant did not make any confessions or indications. The prosecution led evidence from ten witnesses and also relied on evidence admitted under s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. A key piece of evidence was the ballistic report linking the applicant’s firearm to the murder scene. The applicant advanced a defence of alibi, asserting initially that he had been in Botswana at the time of the murder. When confronted with passport records that disproved this claim, he altered his version, stating that he had been in Bulawayo preparing to travel to Botswana. He further alleged that he had been visiting CABS bank in Bulawayo daily to withdraw funds for the purchase of an engine in Botswana. His account regarding the possession of the firearm was also inconsistent at first, claiming that the weapon had been Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 buried in his garden in Bulawayo, only to later assert that he had handed it over to a dealer for repairs before collecting it on 18 December 2013. The trial court found his defence riddled with inconsistencies and contradictions. It dismissed his alibi defence as "manifestly false" and concluded that the prosecution had proved its case beyond a reasonable doubt. Accordingly, the applicant and his co-accused, Given Mushore, were convicted of both unlawful entry in aggravating circumstances and murder. However, Johane Kamudyariwa and Lawrence Makiwa Makosa were acquitted due to lack of corroborative evidence. For the offence of unlawful entry, the applicant was sentenced to three years imprisonment. For the murder conviction, he was sentenced to thirty years imprisonment. The sentences were ordered to run concurrently. Dissatisfied with both his conviction and sentence, the applicant appealed to the Supreme Court. He argued that the trial court had erred in its reliance on the prosecution's evidence and that the sentences imposed were excessive. In response, the respondent maintained that the conviction and sentence were well-grounded in the evidence presented. The applicant, despite acknowledging that the firearm found in his possession had been linked to the murder through ballistic analysis, sought to discredit the forensic evidence. He advanced several unsubstantiated claims, including that the spent cartridges had been tampered with and that his firearm had been altered by replacing certain parts with those from a different weapon. He also alleged, without elaboration, that the same evidence had been used against him in a previous prosecution. The respondent countered that the trial court had properly assessed and relied upon Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 the ballistic evidence. It was further argued that, since the applicant had not challenged the credibility of the expert witness during trial, he could not raise such a challenge for the first time on appeal. In respect of the unlawful entry charge, the respondent conceded that the conviction was not supported by sufficient evidence. The appeal on this count was therefore not opposed. On the murder charge, the Supreme Court found that the trial court’s conclusions were supported by the evidence. The Llama pistol found in the applicant’s possession was positively identified as the murder weapon. The court rejected the applicant’s attempts to cast doubt on the ballistic evidence, noting that his explanations were speculative and unsubstantiated. Furthermore, his alibi defence was dismissed as false. The Supreme Court emphasised that an appellate court will only interfere with factual findings where there is a clear misdirection. In this case, no such misdirection was found. The circumstantial evidence, coupled with the applicant’s inconsistent statements, led to an irresistible inference of his involvement in the crime. In the result, the Supreme Court upheld the applicant’s conviction and sentence for murder while allowing the appeal against conviction for unlawful entry. The sentence of thirty years imprisonment for murder remained undisturbed. The Application for Direct Access The applicant, aggrieved by the decision of the Supreme Court, has approached this Court with an application for direct access, alleging the infringement of his fundamental rights. He seeks to institute a constitutional application in terms of s 85(1) of the Constitution, alleging violations of his fundamental rights as enshrined in Chapter 4 of the Constitution, in Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 particular, rights under ss 56(1), 69(1) and 70(1)(n) of the Constitution. Specifically, he claims that his rights to equality and non-discrimination, a fair trial, and the rights of an accused person have been violated. In the event that he succeeds in the main substantive application, the relief that he seeks is essentially twofold: firstly, an order that the conduct of the Supreme Court violated his right to a fair hearing; secondly, an order setting aside the proceedings in the High Court and the Supreme Court and, consequently, that he be acquitted. In the instant application for direct access, the issues that he seeks to have determined by this Court are as follows: 1. Whether the Supreme Court failed to uphold the applicant's right to a fair hearing by not effectively addressing appeal grounds that were deemed partly defective and susceptible to striking out, thereby causing an irregularity in the proceedings as required by Practice Direction 3 of 2013. 2. Whether the Supreme Court failed to uphold the applicant's presumption of innocence, considering the evidence suggesting that the applicant was in Bulawayo and en route to Botswana at the time the alleged offence was committed. 3. Whether the Supreme Court failed to uphold the applicant's right to equal protection of the law in its assessment of the ballistic report evidence, which had been properly challenged. 4. Whether the Supreme Court infringed the applicant’s right to a fair hearing by upholding the findings of the lower court without considering that the trial judge allegedly descended into the arena, thereby failing to comply with s 175(4) of the Constitution. 5. Whether the Supreme Court further infringed the applicant’s right to a fair trial by imposing a sentence that was not competent in terms of the law and was not in force at the time the offence was committed or at the time the applicant was charged. Submissions by the Parties before the Court Regarding the first issue referred to above, the applicant noted that the Supreme Court had found that the applicant’s grounds of appeal were patently defective and that he had failed to comply with Practice Direction 3 of 2013. However, notwithstanding these defects, the Supreme Court proceeded to formulate its own issues for consideration, based on the Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 applicant's grounds of appeal. Despite acknowledging the defects in his grounds of appeal, the court a quo relied on non-existent rules of practice and proceeded to determine the appeal without affording him an opportunity to amend or rectify those defects. This approach, so he argued, discriminated against him and violated his right to a fair hearing. In this respect, the Court explained that, had the Supreme Court struck out the defective grounds of appeal, they would have ceased to exist and would not have been considered at all. The decision of the court a quo to consider both valid and defective grounds had, in fact, benefitted rather than disadvantaged the applicant by ensuring a full and fair hearing. The applicant eventually understood and conceded the point that this was in the best interests of justice. The applicant further submitted that the trial judge had descended into the arena, an issue which he argued had been overlooked by the Supreme Court in its determination of the appeal. However, when questioned whether this issue had been raised before the Supreme Court, the applicant admitted that it had not. The Court observed that the Supreme Court could not be faulted for not addressing an issue that had not been included as a ground of appeal. In the event, the applicant conceded this issue could not form a proper basis for challenging the decision a quo. Regarding the ballistic evidence, the applicant contended that the Supreme Court had simply adopted the findings of the trial judge. He questioned the relevance of this ballistic report, as no ballistic report for the murder charge was available on record. He contended that the evidence used against him was unlawfully obtained from an unknown source. He further claimed that, by the time of his arrest, three cartridges had already been in the possession of Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 the expert witness, who had confirmed that they were in his possession before the applicant's arrest. The applicant thus argued that his conviction was based on illegal evidence. He also questioned the credibility of the ballistic evidence, highlighting apparent discrepancies. He contended that the Supreme Court had failed to adequately review the record, which he argued resulted in a miscarriage of justice. Furthermore, the applicant raised concerns about the sentencing law applied in his case. He argued that his rights, specifically the right to a fair hearing and his rights as an accused person under s 70(1)(n) of the Constitution, had been violated. He submitted that the Supreme Court should have applied s 47(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as at 2016, which prescribed a shorter period of imprisonment, rather than s 47(4), which is the current provision pursuant to its amendment in 2016. Following an exchange with the Court, the applicant accepted that, in practical terms, there was no meaningful difference between the sentences imposable under both provisions, to wit, death or imprisonment for life or for a shorter period. (Nevertheless, in the interests of constitutional clarity, I shall revert to this aspect later in this judgment). Mr Muchemwa, for the respondent, submitted that this application was essentially a disguised appeal, as all the issues raised had already been determined by the Supreme Court. In other words, the applicant sought a re-evaluation of matters already decided by the Supreme Court. He also argued that the assessment of evidence does not constitute a constitutional matter and that an incorrect factual determination does not give rise to a constitutional issue. Mr Muchemwa further submitted that the Supreme Court had not misdirected itself in Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 dismissing the applicant’s appeal and that its findings were properly made. In this respect, he relied upon the decision of this Court in Lytton Investments (Pvt) Ltd v Standard Chartered Bank Ltd & Anor CCZ 11-18, emphasising that the Supreme Court’s decisions on non- constitutional matters are final and cannot be overturned by any other court. The Court, however, reminded him that the Lytton case also contemplates that a decision of the Supreme Court may be reviewed if, in the conduct of proceedings, the court violates any fundamental right. On the issue of sentencing, Mr Muchemwa maintained that the sentence imposed was appropriate but conceded that the applicant should benefit from the lesser sentence provision as enshrined in s 70(1)(n) of the Constitution. Nevertheless, he emphasised that the difference between the old and new sentencing provisions was not significant and that the applicant could have been found guilty and sentenced in the same manner regardless of the difference between the two provisions. Mr Muchemwa concluded that the Supreme Court had properly evaluated the evidence and submissions before it and had not violated any of the applicant’s fundamental rights. He moved for the dismissal of the application. The Governing Principles Direct access to the Constitutional Court is an extraordinary remedy available only in deserving cases that satisfy the requirements outlined in the Rules of Court. Rule 21(3) sets out the essential elements of such an application, in particular, the interests of justice. Additionally, r 21(8) delineates the key factors that must guide the Court's discretion, viz. the prospects of success, the availability of alternative remedies, and the resolution of any factual Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 disputes. The crux of the present application is whether the interests of justice favour granting direct access to the applicant. Failure to Strike out Defective Grounds of Appeal The applicant alleges that the Supreme Court violated his right to a fair hearing under s 69(1) of the Constitution by not disposing of defective appeal grounds in accordance with Practice Direction 3 of 2013. The applicant further claims that the court’s failure to strike out the defective grounds or allow him to amend and rectify them constituted a violation of his right to equal protection of the law under s 56(1) of the Constitution. On this issue, the applicant conceded during the hearing that the Supreme Court’s approach had, in fact, benefitted him rather than prejudiced him. The Court had identified the defects in the appeal grounds but opted not to strike them out. Instead, it proceeded to engage with the substance of the appeal, taking into account the applicant’s self-represented status. This approach demonstrated the court’s exercise of judicial discretion in favour of the applicant’s right of access to justice, rather than a rigid application of procedural rules. The decision not to strike out the appeal, despite its procedural flaws, aligned with the well- established practice of extending leniency typically afforded to self-represented litigants. Far from constituting unequal treatment, the Court’s approach favoured the applicant’s access to justice. Regarding s 56(1) of the Constitution, which guarantees equal protection and benefit of the law, the applicant must demonstrate that he was subjected to treatment different from or unequal to that afforded to others in similar circumstances. In Gonese v President of the Senate and Others CCZ 2-23, this Court adopted the Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 approach taken in earlier decisions and held that a claim under s 56(1) requires evidence of differentiation, where others in the same or similar position received favourable treatment not afforded to the claimant. The applicant failed to provide any evidence that other self- represented litigants had been granted an opportunity to amend defective appeal grounds in circumstances comparable to his own. Without such evidence, the claim of unequal treatment remains unsubstantiated. The applicant has not established that he was denied equal protection of the law or subjected to discriminatory treatment. In light of the applicable legal principles and the applicant’s failure to demonstrate unequal treatment, the claim under s 56(1) must be dismissed. To sum up, the applicant’s concession that the Supreme Court’s approach benefitted him effectively disposes of the claim under s 69(1) of the Constitution. The applicant’s reliance on s 56(1) is equally unsustainable, as no evidence of unequal treatment has been provided. The decision of the court a quo to engage with the merits of the appeal, despite procedural defects, was a measured exercise of judicial discretion aimed at promoting access to justice. The concessions by the applicant on these aspects effectively disposes of the first issue. Alleged Failure to Uphold Presumption of Innocence The applicant argues that the Supreme Court failed to uphold the presumption of his innocence by disregarding his alibi defence. He contends that he was in Bulawayo and en route to Botswana at the time the offence was committed. However, the trial court found that his alibi defence was inconsistent and unreliable. The Supreme Court upheld this finding, Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 emphasising the contradictions in the applicant’s statements regarding his whereabouts and the location of his firearm at the relevant time. The trial court noted that the applicant initially claimed to have travelled to Botswana on 21 September 2013, yet his passport indicated that he only left Zimbabwe on 23 September 2013. Furthermore, while he presented ATM withdrawal slips and bank statements to support his claim of being in Bulawayo at 0800 hours, the court determined that such transactions could have been conducted by another individual and did not conclusively establish his presence in Bulawayo at that time. Equally importantly, the court assessed whether it was realistically possible for the applicant to have travelled from the crime scene to Bulawayo within the given timeframe. Since the journey was considered feasible, the alleged alibi failed to establish the physical impossibility of his involvement in the crime. The trial court further found that the applicant’s changing accounts of his whereabouts and the possession of his firearm suggested a deliberate attempt to mislead the court. Given the cumulative effect of these inconsistencies, the Supreme Court concluded that the trial court had properly assessed the evidence. In line with established appellate principles, the Supreme Court deferred to the trial court’s factual findings, as they were based on a thorough evaluation of the evidence presented. The trial court’s conclusion that the contradictions in the applicant’s statements were material enough to suggest a deliberate lie appears to be based on a careful assessment of the evidence. Inconsistencies in testimony, especially when they concern crucial aspects of a defence, are significant and can reasonably be interpreted as an attempt to mislead the court. Given the cumulative effect of the passport discrepancy and the weak support from the bank Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 statements, the trial court's conclusion that the applicant’s explanation was false is highly plausible. In this light, the Supreme Court’s endorsement of these findings aligns with the principle that appellate courts generally defer to the trial court's factual determinations, particularly when those findings are based on a proper evaluation of the evidence presented. Alleged Failure to Address Challenge to Ballistic Evidence The applicant contends that the Supreme Court failed to uphold his right to equal protection of the law by not properly addressing his challenge to the ballistic evidence. He further argues that the trial court had erred in its assessment of this evidence, thereby violating his right to a fair trial. However, as is well established in our case law, the assessment of evidence, whether relating to credibility, weight, or relevance, does not give rise to a constitutional matter. See General Council for the Bar of South Africa v Jiba and Others [2019] ZACC 23. In principle, no constitutional issue can arise from a contention that evidence was incorrectly assessed by the subordinate court. This Court does not assume jurisdiction when it is being called upon to reverse the factual findings of a court a quo on non-constitutional issues. See S v Mukondo CCZ 8-20. The Court will generally not interfere with the factual findings or the assessment of evidence by a subordinate court as it does not operate as a court of factual review or general appeal but only addresses matters where constitutional issues are at play. In casu, the Supreme Court reaffirmed the principle that appellate intervention is warranted only when a procedural or legal irregularity has occurred. The Constitutional Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 Court, in turn, does not have the jurisdiction to re-evaluate factual determinations, unless a constitutional right is shown to have been infringed. In this regard, the applicant’s reliance on ss 56(1) and 69(1) of the Constitution is unsubstantiated, as he has failed to demonstrate how the handling of the ballistic evidence resulted in any infringement of his constitutional rights. The trial court found the ballistic evidence credible and the Supreme Court upheld this finding. The proceedings followed established legal standards, with no indication of procedural unfairness. As such, the applicant’s concerns regarding the handling of evidence were more appropriately suited for an appeal based on factual grounds rather than a constitutional challenge. In this case, the applicant’s arguments focus on the handling of evidence and factual determinations, which are not issues the Constitutional Court would ordinarily address, unless the handling of that evidence infringed a constitutional right, which has not been shown to have occurred here. Thus, the applicant’s grievances seem to be more appropriately framed for an appeal on factual grounds rather than a constitutional challenge, and there is no clear constitutional matter that is evident in casu. Alleged Descent into the Arena The applicant alleges that the trial judge descended into the arena during proceedings in the High Court. He contends that the judge’s conduct was improper, asserting that by questioning defence counsel on whether he would be relying on specific evidence to establish the applicant’s guilt, the judge exhibited partiality and bias. The applicant argues that such conduct created a real likelihood of bias, which ought to have been called into question by the Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 Supreme Court. However, it is critical to note that this issue was never raised before the court a quo for determination. The applicant rightly conceded during the hearing that the matter had not been placed before the Supreme Court. Consequently, no violation of rights could have arisen from an issue that was not formally presented for adjudication before that court. Additionally, this issue could not be raised for the first time before this Court, as this Court is not a court of first instance. Alleged Imposition of Incompetent Sentence The applicant asserts that the 30-year sentence imposed by the trial court was both inappropriate and incompetent. He contends that had the trial court applied s 47(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter “the Code”), a lesser sentence, possibly below 20 years, could have been imposed. His argument hinges on the interpretation and application of s 70(1)(n) of the Constitution, which guarantees an accused person the right: “to be sentenced to the lesser of the prescribed punishments if the prescribed punishment for the offence has been changed between the time the offence was committed and the time of sentencing”. The applicant therefore raises concerns about the sentencing law applied in his case. He argues that his rights, specifically the right to a fair hearing and his rights as an accused person under s 70(1)(n) of the Constitution, have been violated. The applicant submits that the High Court and the Supreme Court should have applied s 47(2)(b) of the Code as at 2016, which prescribed a shorter period of imprisonment, rather than the current s 47(4) of the Code. In essence, he submits that the trial court applied the wrong law, thus resulting in an excessive sentence, when a lesser sentence could have been imposed had the correct Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 provision in force at the time of the offence been applied. When questioned by the Court about the difference between the old and the new provisions, the applicant appeared to be unclear concerning his estimation of a 20-year sentence as being the correct sentence. The Court then explained that, in practical terms, there was no real difference between the sentences imposable under the two provisions, i.e. “imprisonment for life or any shorter period” and “imprisonment for life or imprisonment for any definite period”, neither of which could be determined with any exact specificity without regard to the given circumstances of the case at hand. The applicant accepted that he had misunderstood the applicable law and conceded that his contention in this respect was not supportable. In any event, it is pertinent to underscore that this issue, as framed, was not placed before the court a quo for its determination. The issues before the Supreme Court concerning the sentence imposed were explicitly couched as follows: “1. The court a quo misdirected itself in finding that the person who fired the shot had fired it directly at the deceased and directed it to the upper part of his body. 2. The sentence for murder is manifestly excessive.” At this juncture, it must be emphasised that the Constitutional Court is not a court of first instance. Its primary function is to interpret and uphold constitutional rights rather than to entertain matters not properly raised before the lower courts. To permit new arguments to be introduced at this stage would undermine and disrupt the prescribed hierarchical judicial process and deprive the lower courts of their jurisdictional mandate to deliberate and determine such issues to the extent that it may become necessary to do so. In this regard, the principle established in Chawira & Ors v Minister of Justice, Legal and Parliamentary Affairs & Ors CCZ 3-17 is apposite and highly instructive. While it may be necessary or Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 expedient to examine the constitutional question raised, the applicant’s failure to raise it at the appropriate stage presents a significant procedural hurdle. Nevertheless, despite the applicant’s concession on the point pursuant to the Court’s intervention, it seems to me that the constitutional issue raised by the applicant necessitates an inquiry into the applicable sentencing framework in light of the relevant constitutional and statutory provisions. It is necessary to address this issue and its bearing on sentencing discretion generally in the particular context of the constitutional protection governing fair sentencing. This is imperative, in my view, given the unquestionable juridical significance of s 70(1)(n) of the Constitution and the need to clarify its scope and meaning in the interests of constitutional guidance for the future. I should add that a detailed examination of s 70(1) (n) is not entirely academic or constitutionally irrelevant in the context of the present matter. This is so for the following reasons. Firstly, there was undoubtedly a change in the sentence for murder between the time when the offence was committed and the time when the applicant was sentenced. Secondly, in order to uphold the applicant’s rights as an accused person in terms of the Constitution, the Supreme Court was dutybound to ensure that the applicant was correctly sentenced to the lesser of the two sentences in question. Accordingly, the court a quo was obligated to conduct an inquiry into the applicable sentencing framework. Fortuitously, as is elaborated later in this judgment, its failure to conduct this inquiry did not entail any prejudice to the applicant or any infringement of his rights under s 70(1)(n) of the Constitution. Be that as it may, the point remains for the purposes of future practice that, where the sentencing regime changes between the commission of the offence and the date of sentencing, the requisite inquiry must ensue and the accused must always benefit where appropriate. Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 For the sake of completeness, the statutory provisions under consideration are set out as follows: Section 47 of the Code prior to 2016 “(1) Any person who causes the death of another person – (a) intending to kill the other person; or (b) realising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility; shall be guilty of murder. (2) Subject to section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07], a person convicted of murder shall be sentenced to death unless – (a) the convicted person is under the age of eighteen years at the time of the commission of the crime; or (b) the court is of the opinion that there are extenuating circumstances; in which event the convicted person shall be liable to imprisonment for life or any shorter period.” Section 47 of the Code post the 2016 amendment “(4) A person convicted of murder shall be liable – (a) subject to sections 337 and 338 of the Criminal Procedure and Evidence Act [Chapter 9:07], to death, imprisonment for life or imprisonment for any definite period of not less than twenty years, if the crime was committed in aggravating circumstances as provided in subsection (2) or (3); or (b) in any other case, to imprisonment for any definite period.” One of the major differences between the two provisions relates to the circumstances in which the crime of murder was committed – in “extenuating circumstances” under the old provision and in “aggravating circumstances” under the current provision. According to Black’s Law Dictionary (10th ed. 2014), the word “extenuating circumstance” is equated to “mitigating circumstance” and means either “a fact or situation that does not justify or excuse a wrongful act or offence but that reduces the degree of culpability and thus may reduce the damages (in a civil case) or the punishment (in a criminal case)” or “a fact or situation that does not bear on the question of a defendant’s guilt but that may bear on a court’s possibly lessening the severity of its judgment”. Conversely, the phrase “aggravating circumstance” is defined as “a fact or situation that increases the degree of liability or culpability for a criminal Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 act” or “a fact or situation that relates to a criminal offence or defendant and that is considered by the court in imposing punishment (esp. a death sentence)”. In my considered opinion, the two terms are the correlative opposites of one another, revolving around the degree of culpability of the accused or criminal conduct in question. In effect, they constitute two sides of the same coin and, as applied in sentencing practice, they would in most instances entail the same result. In any event, what is more important in the present context is the range of the sentencing discretion bestowed upon the trial court in determining the leniency or severity of the sentence to be imposed upon the convicted offender. Depending upon the circumstances in which the murder was committed, the sentence that could be imposed under the old provision was “death [or] …. imprisonment for life or any shorter period”. Under the current provision, again depending upon the circumstances in which the murder is committed, the sentence imposable is “death, imprisonment for life or imprisonment for any definite period of not less than twenty years [or] …. imprisonment for any definite period”. In either case, the sentences that may be imposed range from death at the one extreme, moving through life imprisonment, to imprisonment for any shorter or definite period at the other extreme. It is evident that there is no meaningful difference in the broad range of sentences imposable under either provision. As indicated earlier, the applicant concedes that the application of either provision would probably have led to the same outcome. However, the question regarding the imposition of a lesser sentence where the law changes from the time when the crime in question is committed to the time of sentencing for that crime merits further scrutiny. The principle that the applicable punishment is determined by the law in force at the Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 time of the offence is lucidly and crisply embodied in the maxim nulla poena sine lege, viz. no punishment without a law authorising it. This principle is also elaborated from a different perspective in s 70(1)(n) of the Constitution which guarantees the collateral right to be sentenced to the lesser of the punishments that may be prescribed from time to time. As explained in the South African case of Senwedi v S (CCT 225/20) [2021] ZACC 12; 2022 (1) SACR 229 (CC); 2023 (4) BCLR 449 (CC), at para 19: “It is well established in our law that criminal liability arises on the date when the particular crime is committed, and not when a person is either convicted or sentenced. Similarly, the concomitant penalty for that crime is to be determined in relation to that date, subject to the benefit conferred by section 35(3)(n) of the Constitution which guarantees the least severe sentence if punishment was changed between the time of the commission of the offence and the date of sentencing. …. . An increase in penalty will ordinarily not operate with retrospective effect in circumstances where that added sanction did not apply at the time when the offence was committed. This is a necessary corollary of the principle of legality, that no court may impose a sentence more severe than the sentence legally permitted at the time of the commission of the relevant crime (nulla poena sine lege). …. .” In the same vein, in Chologi v Chairperson Correctional Supervision and Parole Board and Another 2022 ZAGPJHC 1200, at para 18, it was observed that: “An important element of the principle of legality (nullum crimen sine lege) is that no court may impose a sentence more severe than the sentence legally permitted at the time of the commission of the relevant crime (nulla poena sine lege). This principle is entrenched in the Constitution: section 35(3)(n) determines that the right to a fair trial includes the right to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing. The common law also insists on no retrospectivity in respect of penal provisions: liability for a penalty is linked to the time of the commission of the crime and not to the date of either conviction or sentence.” The import of these two cases is a clear affirmation of the principle of legality in criminal law, which prohibits the retrospective application of harsher penalties. Criminal Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 liability is to be determined at the time that the offence is committed and not at the time of conviction or sentencing. Consequently, any change in the law that increases the prescribed penalty cannot be applied retrospectively, as this would violate the constitutional right to a fair trial. Additionally, if the penalty for an offence has been altered between the commission of the crime and the date of sentencing, convicted offenders are entitled to the benefit of the least severe punishment. This principle protects them from being subjected to more severe sentences than those applicable at the time of the offence. In short, criminal liability arises on the date of the crime and any subsequent changes in sentencing laws should benefit the accused, if they provide for a lesser sentence. This principle is consistent with the protection entrenched in s 70(1)(n) of the Constitution, ensuring that an accused person is not subjected to a more severe punishment than that which was legally permissible at the time when the offence was committed. The applicant’s challenge to the sentencing process raises a pertinent legal question regarding the intersection between sentencing discretion and constitutional safeguards. While the ultimate sentence imposed may not have differed under the older or later provision of the Code, the failure by the trial court to properly engage with the correct legal framework represents a potential procedural flaw. Nevertheless, the concession made by the applicant at the hearing of this matter diminishes the practical effect of this misdirection. Having regard to the overall analysis of the sentencing framework adverted to earlier, it cannot be said that the trial court imposed a sentence that was wholly incompetent or contrary to the interests of justice. Disposition Judgment No. CCZ 5-25 Const. Application No. CCZ 64/24 In the result, I find that the application for direct access must fail for the reasons set out above. The applicant has failed to establish a sufficient case to warrant the relief sought. Accordingly, the application is dismissed with no order as to costs. MAKARAU JCC: I agree. HLATSHWAYO JCC: I agree. National Prosecuting Authority, respondent’s legal practitioners