LEFA MBATHA’S HEADS OF

ARGUMENT
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I, XXX XXX, DECLARE THAT THIS IS MY OWN, ORIGINAL WORK

XXX XXX
LPRC2514
 IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

HELD AT BLOEMFONTIEN

Appeal Case no: CA89/2020

High Court Case no: CC113/2020

In the matter between:

LEFA MBATHA APPELLANT

AND

THE STATE RESPONDENT

APPELLANT’S HEADS OF ARGUMENT

INTRODUCTION
1.
1.1 The appellant was convicted of rape and murder in the Bloemfontein High court.

1.2 On the night of the murder, the appellant had met up with the deceased at a local
restaurant to discuss teaching practices. The appellant was a teacher who was
married and had two children. In the court a qou the state called a couple of
witnesses to testify.

1.3 The state’s entire case was based on the medical expert’s allegations that the
victim was raped by the victim’s lover, and the speculation that the appellant was
her lover. The state further alleged that the DNA evidence proved that the
appellant raped the victim.

1.4 The trial legal representative of the appellant was appointed on the day of the trial
and he did not ask for a postponement but proceeded to trial immediately. Mr Ming

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 was unaware of the evidence that was going to be presented against his client,
and therefore complete unprepared. He never asked for the docket from the
prosecutor. Mr Ming called no witnesses for the defence. He provided no cross-
examination of vital witnesses. The appellant misunderstood trial proceedings and
never received a chance to explain himself to his own legal representative.

LEGAL PROBLEMS TO BE SOLVED

2.
2.1 Was the appellant’s legal representative ineffective and, if so, did it lead to an
unfair trial?

2.2 Was the expert evidence that was provided by the state admissible and could it
solely constitute a conviction of murder and rape?

2.3 Did the state prove all the elements of rape and murder beyond a reasonable
doubt?

INCOMPETENT LEGAL REPRESENTATION

3.
3.1 Section 35(3) of the Constitution states that everyone has the right to a fair trial,1
this includes the right to legal representation.2 The latter right is so important that
during court proceedings the accused needs to be informed about this right
promptly. The Constitution does not touch on the competency of the legal
representation.

3.2 In the case of S v Mafu3 the appellant was represented incompetently by his legal
representative. The legal representative cross-examined the states witnesses
ineffectively.4 The court stated that effective legal representation entails that the
legal representative must act in the best interest of the client. It further stated that
section 35(3)(f) of the Constitution must be construed to include competent legal

1
Constitution of the Republic of South Africa of 1996:sec. 35(3).
2
Constitution:sec. 35(3)(f).
3
S v Mafu and others 2008 (2) SACR 653 (W).
4
S v Mafu and others 2008 (2) SACR 653 (W):par. 10.

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 assistance. In addition, the court laid down requirements that entail competent
legal assistance. These requirements are that the representation must be ‘’real,
proper and designed to protect the interests of the client’’.5 Another vital
requirement is that the legal representative must have extensive knowledge of the
facts of the case, charge and most importantly the accused’s side of the story.

3.3 The Mafu case referred to the S v Halgryn6 case when giving its judgement. The
court in the latter case stipulated that in most instances the accused person is
usually unsatisfied with the counsel’s representation. As a result, an objective test
is used to determine whether the representation by the counsel was incompetent.7

3.4 My client’s legal representation at trial was objectively ineffective because he failed
to avail himself of the appellant’s side of the story, or the full might of the state’s
case. According to the clear standards in Mafu, this is ineffective assistance. This
cannot be what the Constitution’s section 35 imagined when providing the right to
legal representation.

3.5 In the United State of America (USA) case of Burger v Kemp the court held that
no merits could be given to ineffective legal assistance.8 The USA Supreme Court
in Strickland v. Washington held that according to their Constitution, for the
counsel’s conduct to constitute ineffective assistance it must be prejudicial to the
defence.9 The court stated that the counsel’s error must deprive the accused the
right to a fair trial.10 The counsel was unsuccessful in meeting up with witnesses
and he also failed to request psychiatric inspection.11 This was prejudicial to the
sentencing of the accused as these would have served as mitigating factors.

3.6 The appellant’s legal representative was ineffective. The trial attorney rushed into
trial without reading the docket, which means he had inadequate knowledge of

5
S v Mafu and others 2008 (2) SACR 653 (W):par. 24.
6
S v Halgryn 2002 (2) SACR 211 (SCA).
7
S v Halgryn 2002 (2) SACR 211 (SCA):par. 14.
8
Burger v Kemp 483 US 776 (1987):par. 800.
9
Strickland v. Washington, 466 US 668 (1984):par. 692.
10
Strickland v. Washington, 466 US 668 (1984):par. 687(III).
11
Strickland v. Washington, 466 US 668 (1984):par. 673.

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 the facts and he could not possibly have anticipated or known what evidence the
state would lead. Consequently, he to fulfil the requirements of effective legal
representation as stated in S v Mafu.

3.7 The trial attorney also failed to consult with the appellant. This resulted in two areas
of disadvantage to the appellant. Since legal representatives are normally charged
with ensuring their clients understand the trial processes, this was not the case
and the appellant was left to observe his own trial without any understanding of
what was happening. He was therefore robbed of any chance to voice objection
where he perceived injustice to occur.

3.8 The lack of prior consultation also resulted in the violation of the most important
facet of legal representation: knowing the client’s side of the story. The trial lawyer
could not possibly offer a reasonable defence or test the version of the witnesses
without offering his client’ defence. This is a gross violation of the appellant’s trial
rights.

3.9 The trial attorney failed to discredit witnesses by cross-examination and did not
call witnesses to testify on behalf of the defence. Subsequently, Mr Ming failed to
comply with the requirement set out in Strickland v. Washington. In our own
Constitution, at section 35(3)(i), challenging evidence is a basic trial right. Thus,
the appellants constitutional right to a fair trial was violated.

3.10 The appellants legal representative disadvantaged the appellants case to a great
extent. When judging from an objective perspective as stipulated in S v Halgryn,
a reasonable legal representative would have taken steps to prevent the
conviction of the appellant. In this case, steps were untaken by Mr Ming and this
led to the unfair conviction of the appellant

ADMISSABILTY OF EXPERT EVIDENCE

4.

4.1 In this case the expert evidence was unjustly admitted.

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4.2 In Holtzhauzen v Roodt,12 the court set out the requirements for expert evidence to be
admissible. The requirements are:

4.2.1 The matter must need specialised skills and knowledge.

4.2.2 The courts capabilities and responsibilities are still important and
considered even though expert evidence is provided.
4.2.3 Judge must determine that the expert is qualified, or they have
experience; expert evidence must testify on the existence of facts.
4.2.4 The evidence must be relevant to the issue.
4.2.5 It is impermissible for the expert to usurp the function of the court.

4.3 The court did not adhere to the requirements set out above. The pathologist took over
the function of the court, a clear violation of expert witnesses’ duties. The expert also
testified on matters of psychology which is far removed from her expertise as a
pathologist. Considering these violations, the evidence should have been disregarded
as admissible.

4.4 In the case of Motswai v Road Accident Fund,13 the court stated that expert witnesses
lack impartiality and for that reason the United Kingdom’s legal system requires the
courts to control the leading of experts.14 Dr Manyiyi’s evidence was highly biased
considering that she said that the murderer was a person who holds a trusted position
in the community. This means that she had already reached the conclusion that the
appellant was the murderer before conducting the post-mortem report.

4.5 It is important, as pointed in the Modise Obo a Minor v Road Accident Fund that expert
evidence should be taken as an opinion, unless the parties reach a consensus on the
evidence provided.15 The expert evidence should assist the court in adjudicating a
case and must be impartial in doing so. The court must contend expert opinion when
it is incorrect or unjustifiable. Criminal Procedure Act section 167 states that the courts
may examine a witness at any stage of the criminal proceedings.16 This means that

12
Holtzhauzen v Roodt [1997] 3 All SA 551 (W): 772-773.
13
Motswai v Road Accident Fund 2013 (3) SA 8 (GSJ).
14
Motswai v Road Accident Fund 2013 (3) SA 8 (GSJ):par. 72.
15
Modise Obo a Minor v Road Accident Fund 2020 (1) SA 221 (GP):par. 4.12.
16
Criminal Procedure Act 51/1997:sec. 167.

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there lies a duty on the court to cross-examine witnesses when the legal
representative of the any party fails to do so. In the case at hand, the court failed to
contend the evidence of the states forensic pathologist even when it was unjustifiable.
It relied on the expert evidence when giving its judgement. The courts failure to
contend such evidence led to the unfair conviction of the appellant.

ELEMENTS OF RAPE AND MURDER

5.
5.1 Rape is defined as the unlawful and intentional, sexual penetration of a person
without their consent.17 The conduct element of rape is that there must be sexual
penetration. If the state fails to prove that one penetrated the complainant then a
conviction of rape is impossible.

5.2 In his evidence, Warrant Officer Loverlace stipulated that the appellants DNA
showed a high probability in the thighs, neck and hands of the deceased. He further
stated that the DNA of the genital areas, mouth and hair of the deceased were
inconclusive. Had the DNA of the appellant been found on the genital areas of the
deceased, then a reasonable inference would have been made by the court that the
appellant raped the deceased. Since the DNA was inconclusive, the conduct element
of rape is unrecognised and, as a result, a conviction of rape is unreasonable.

5.3 Murder is defined as the unlawful and intentional killing of another human being.
The conduct element of murder is that the person must kill the other person. If the
state fails to prove that the murder was committed by the accused, then a conviction
of murder is impossible.

5.4 According to states forensic pathologist the deceased was murdered with a large
bladed weapon. The weapon that killed the deceased is missing and no evidence
leads us to believing that the weapon is in possession of the appellant. A reasonable
inference that the appellant was the murderer of the deceased would be unreasonable.
As a result, the conduct element of murder is unidentifiable and, thus, the conviction
of the appellant was unfair.

17
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32/2007:sec. 3.

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5.5 In Maqubela v S18 this court stated that for inferential reasoning to be used by a
court the murder must be consistent with the proof. If the court relied on the rule of
inferential reasoning to get to its conclusion, the inference was wrong. This is because
the evidence provided by the state for the charges of murder and rape was inconsistent
with the proof. Thus, making a reasonable inference would be contrary to the rule that
was indorsed by this very same court in the Maqubela case.

PRAYERS
6.
6.1 If the court accepts that the appellant was represented incompetently, and that the
evidence provided by the state was inadmissible and, lastly, that the elements of
murder and rape were not adhered to, the appellant must escape the conviction
of murder and rape.

6.2 Failure to the court granting the first prayer, an alternative prayer is that the court
must remit the case to the magistrate court. And this time, proper administration
of evidence and a competent legal representative must be provided for the
appellant.

Signed on the 29th of April 2020 by the appellants advocate

Advocate X XXX
Assisted by:

Advocate X XXX

18
Maqubela v S [2017] JOL 38974 (SCA):par. 17.

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CHAMBERS
PRETORIA
29 APRIL 2020.

BIBLIOGRAPHY

Legislation
Constitution of the Republic of South Africa of 1996.
Criminal Procedure Act 51 of 1977.
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

Case law
S v Mafu and others 2008 (2) SACR 653 (W).
S v Halgryn 2002 (2) SACR 211 (SCA).
Burger v Kemp 483 US 776 (1987).
Strickland v. Washington, 466 US 668 (1984).
Holtzhauzen v Roodt [1997] 3 All SA 551 (W).
Motswai v Road Accident Fund 2013 (3) SA 8 (GSJ).
Modise Obo a Minor v Road Accident Fund 2020 (1) SA 221 (GP).
Maqubela v S [2017] JOL 38974 (SCA).