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Formulation of the test for putative private defence and an accused’s state of mind

Tuta v The State[2022] ZACC 19 Case CCT 308/20 Constitutional Court of South Africa Kollapen, Madlanga, Majiedt, Mathopo, Mhlantla, Theron and Tshiqi, JJ; Mlambo and Unterhalter, AJJ May 31, 2022 Reported by Faith Wanjiku

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Constitutional law –fundamental rights and freedoms- right to fair hearing –putative private defence – formulation of the putative private defence test – what was the difference and distinction between private defence and putative private defence – where the trial court’s extempore judgment formulated the test for putative private defence as a defence which related to the accused’s state of mind and where the test was objective – Constitution of the Republic of South Africa, 1996, section 35(3)

Criminal law– judgments-ambiguity in judgment from the trial court – whether an appeal based on ambiguous judgment raised an arguable point of law – where the record before the court had an unsigned extempore judgment significantly differed from the signed transcript – whether the trial court formulated and misapplied the test for putative private defence in the revised judgment hence negating the trial court’s sentence – Constitution of the Republic of South Africa, 1996, section 35(3)

Brief facts:

The applicant accompanied his friend to his residence in Sunnyside, Pretoria when they noticed they were followed by an unmarked red polo motor vehicle. The applicant and his friend then ran in different directions. The two occupants of the unmarked motor vehicle were in fact two police officers, Constables Makgafela and Sithole, who were on duty, patrolling in Sunnyside, Pretoria.

Before the trial court, Constable Makgafela, testified that he and Constable Sithole wore South African Police Service (SAPS) bullet proof vests over their civilian clothing, which had the SAPS insignia, on the night of the incident. They suspected the applicant to be in possession of a stolen laptop. When the applicant and his friend started running, Constable Makgafela gave chase on foot and removed his bullet proof vest so that he could run faster. According to the evidence of Constable Makgafela, he shouted at the applicant, to alert him to the fact that he under police pursuit . The applicant was apprehended.

The applicant testified that he did not know that his assailants were police officers. Since he feared for his safety, he stabbed the police officer who held him down. When the second police officer came to the aid of his colleague, the applicant stabbed him as well and fled the scene. As a result, Constable Makgafela was seriously wounded, and Constable Sithole was killed. The applicant testified that the next day reported the incident to a police station, but the police declined to open a case because the applicant could not identify his attackers. He left his contact details and residential address at the police station and was arrested later that day at his residence.

The applicant alleged that he acted in putative private defence, in that he subjectively thought that he was in danger and that the two “assailants” intended to cause him harm. The applicant was convicted on a count of murder and a further count of attempted murder. The applicant was sentenced to life imprisonment on the count of murder and 15 years’ imprisonment on the count of attempted murder. The applicant approached the instant court to seek leave to appeal, and an order to set aside his conviction and sentence.

The trial court, in the extempore judgment, formulated the test for putative private defence as a defence which related to the accused’s state of mind and where the test was objective. It held that the test to be applied in respect of the accused, he generally . . . mistakenly believed that he acted in lawful self-defence, or whether his belief was also held on reasonable doubt. The judgment was not signed by the trial judge. The revised judgment formulated the test for putative private defence as a subjectivetest, namely what the accused had in mind, objectively considered. That judgment was signed by the trial judge.

The trial court rejected the applicant’s submission that he acted in putative private defence and held that the State had proven its case beyond reasonable doubt and that the applicant’s version should be rejected. It found the applicant’s version to be improbable to the extent that it could not be found to be reasonably, possibly true.

The applicant made an application to the trial court for leave to appeal against his conviction which was refused. The Supreme Court of Appeal dismissed the applicant’s application for leave to appeal on the basis that it had no reasonable prospects of success and later dismissed the applicant’s application for reconsideration.

Before the Constitutional Court, the applicant complained of an infringement of his right to a fair trial in terms of section 35(3) of the Constitution. The applicant submitted that during his cross-examination by the prosecutor, as a result of the trial judge’s intervention, the prosecutor did not put the State’s case to the applicant with regards to his intention on the night in question. He also argued that the matter raised an arguable point of law of general public importance which should be considered by the court, since the trial court misapplied the test for putative private defence. The applicant further argued that the trial court erred in its legal approach to the minimum sentencing legislation. That, the applicant contended, raised a constitutional issue as to the nature of the sentencing court’s powers.

Provisions of the law Constitution of the Republic of South Africa, 1996

Section 35(3)

Every accused person has a right to a fair trial, which includes the right—

  1. to be informed of the charge with sufficient detail to answer it;
  2. to have adequate time and facilities to prepare a defence;
  3. to a public trial before an ordinary court;
  4. to have their trial begin and conclude without unreasonable delay;
  5. to be present when being tried;
  6. to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;
  7. to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
  8. to be presumed innocent, to remain silent, and not to testify during the proceedings;
  9. to adduce and challenge evidence;
  10. not to be compelled to give self-incriminating evidence;
  11. to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language;
  12. not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted;


  1. Whether the accused held the honest but mistaken belief that he was entitled to act in private defence?
  2. What was the difference and distinction between private defence from putative private defence?
  3. What was the nature of the putative private defence and whether the trial court formulated and misapplied the test for it?
  4. Whether an appeal based on ambiguous judgment raised an arguable point of law?

Held by majority

  1. The instant court assessed the putative private defence and set out the test thereof as followed: an accused that killed another, as they believed their life to be endangered, when, objectively, it was not, acted unlawfully. However, where such an accused killed another in the mistaken but genuinely believed that their life was endangered, the accused lacked the intention to act unlawfully. Such an accused was not guilty of murder. The accused could be guilty of culpable homicide .
  2. For an accused to be guilty of culpable homicide, it would depend upon whether their belief that their life was endangered was reasonable or not. Putative private defence was concerned with culpability and not unlawfulness. Culpability on a charge of murder was judged in accordance with what the accused believed. Culpability on a charge of culpable homicide was determined on the basis of the reasonableness of that belief.
  3. The applicant’s case relied on putative private defence was that: the two persons who subdued him and sought to place him in their vehicle turned out to be police officers. The applicant did not objectively act in self-defence. However, the applicant genuinely believed that his life was in danger at the hands of two assailants. He stabbed the assailants to protect himself, as he did not realise that they were police officers. Did the applicant know that the assailants were policemen, or did he foresee that they could be policemen and acted regardless, or that he could not have known but should have foreseen that they were policemen? His belief was both genuine and reasonable, and hence the applicant was guilty of neither murder nor culpable homicide.
  4. The record contained what was described as a transcript of the trial proceedings which had an unsigned judgment which was identified as the extempore judgment handed down by the trial judge signed on September 19, 2019. The same record also contained a judgment, signed by the trial judge, dated September 19, 2019 which the instant court identified as the signed judgment.
  5. The instant court was not able to obtain clarity from the parties as to which judgment should be referenced. Hence, it was inferred that the trial court, handed down the extempore judgment in court, then edited that judgment, and produced the signed judgment which was placed in the court file.
  6. The extempore judgment, contained a clear error of law which stated that putative self-defence related to the accused state of mind and where the test was objective which was not so. The correct analysis was when an accused on a charge of murder relied upon putative private defence, the issue for the trial court was whether the State had proved beyond reasonable doubt that the accused subjectively had the intent to commit murder.
  7. The accused was entitled to know the reasons upon which the court relied to exercise its very great and coercive powers of punishment, after a conviction. Those reasons should be clearly and precisely formulated. An accused convicted of a crime should be able to understand the basis of the court’s decision, not least so as to exercise the right to seek leave to appeal which would be properly done when the accused stood before the court and the judgment was handed down. An accused convicted and sentenced by a court should be able to rely upon the reasons a court provided when its judgment was given. A person convicted of a crime should not be required to suffer the ex-post reformulations and explanations that a trial court considered, on reflection, to best express the reasons for the judgment.
  8. The extempore judgment was a necessary part of judicial practice. No discouragement of the useful practice was warranted. Infelicities of style, grammar, spelling and word choice demanded revision; and they should be permitted. A patent error or omission could be corrected. However, the substantive reasons for the judgment, handed down in court, should stand and that should be the authoritative pronouncement of the court, conveyed to the accused. Importantly, it was through such judgment that the accused was convicted and it was also through it that the reasons for the conviction were reflected. If an extempore judgment was given, its reasons were authoritative, and they could not be altered or embellished to give further expression to what the court meant to convey.
  9. From the relevant passage of the extempore judgment, the trial court cast the test for putative private defence as objective, whereas in the signed judgment the trial court framed the test as subjective and therein was a manifest error of law which went to the heart of the applicant’s defence.

Per Kollapen, J (Dissenting Opinion)

  1. It was the instant’ court’s duty to assess whether the trial court formulated the test for putative private defence incorrectly and whether such test was in conflict with settled law, which should constitute an arguable point of law of general public importance.
  2. Given the centrality of whether the test was correctly formulated by the trial court, a useful and necessary point to begin would be to restate the test for putative private defence.
  3. The difference and distinction between private defence from putative private defence was that a person who acted in private defence acted lawfully, provided his conduct satisfied the requirements laid down for such a defence and did not exceed its limits.
  4. The test for private defence was objective – would a reasonable man in the position of the accused had acted in the same way. In putative private defence it was not lawfulness that was in issue but culpability. If an accused honestly believed his life or property to be in danger, but objectively viewed they were not, the defensive steps he took could not constitute private defence. If in those circumstances he killed someone his conduct was unlawful. His erroneous belief that his life or property was in danger could be convicted of culpable homicide.
  5. The test for private defence was objective while that for putative private defence was subjective, the latter was concerned with culpability and was an enquiry into the state of mind of the accused.
  6. Given that putative private defence was concerned with the culpability of the accused person and the test for putative private defence was characterised as subjective, its application, depended on the charge an accused faced and could require considerations of reasonableness.
  7. The reference to reasonable grounds could carry the risk that the accused’s belief should be reasonable and could suggest that the test was not purely subjective or nuanced. Where the crime required intention, a genuinely held mistaken belief would negate intention. However, where the crime merely required negligence, the belief should be held on reasonable grounds. The test remained subjective, though, in both enquiries.
  8. The two defences belonged to two quite distinct elements of liability, namely unlawfulness and culpability (mens rea), the judgment also illustrated the important distinction between the inquiry into unlawfulness and that into culpability.
  9. On transcribed extempore judgments, they formed part of the record of proceedings and the parties to litigation placed reliance on them, in either to advance a case on appeal or for other purposes such as to prove the correctness of the contents and the findings of the judgment. Ordinarily, that should not pose a problem, but in the realm of human fallibility and imperfection, errors did occur. Those errors could occur when the officer that presided made an error in the use of language or when they articulated some proposition or conclusion; they could also do so when the transcriber did not accurately transcribe what had been correctly expressed by the officer that presided or where the recorded proceedings were inaudible. In those scenarios, the transcription could not always be a correct reflection of what was intended to be articulated, alternatively, of what would indeed be properly articulated. The law recognised the possibility of error at that level and the concomitant need to address and remedy it while the substance of the extempore judgment had to be preserved.
  10. Purely on the basis of the extempore judgment, one could not state that the trial court erred in the formulation of the test for putative private defence. The full exposition of the test accorded in every respect with the current established test for putative private defence.
  11. A cursory comparison of the transcribed and the revised passage, which the first judgment accepted as permissible revisions, revealed no more than three errors in transcription in a single sentence that dealt with the formulation of the test.
  12. If the word subjective was used, then there could be no complaint that the test was incorrectly formulated in the extempore judgment. Essentially, it came down to the use of a single word. If the court was to approach interpretation as a unitary exercise and not mechanically, and if the instant court were to give a sensible meaning to the language used, then everything militated against the conclusion that the word objective should outweigh all other considerations and lead to the conclusion that an error of law occurred in how the trial court formulated the test. At best, an error would have occurred when the test was labeled and not in its formulation and in context. That error could not constitute an error of law.
  13. The first judgment, posited two possible explanations for the words objectively considered, then concluded the argument as it stated that even though the words could have been intended to bear a more benign evidential import, the gravity of the charges should mean that any ambiguity should be resolved in favour of the applicant.
  14. There could not be any ambiguity. In the extempore judgment, the test was correctly formulated as subjective. The test was labeled as objective which could only be a patent error if indeed it was a term used by the court. Coupled with the recognition in the first judgment that the words objectively considered could be benignly intended, could reduce the scope for any ambiguity. Again, the phrase objectively considered could not be viewed in isolation.
  15. It was for those reasons that the instant court would also state that the assessment of the evidence and the reasons for conviction did not support the conclusion that either the incorrect test was used, or that considerations of reasonableness were used by the court to determine what the state of mind of the accused was at the time of the stabbing. Even if the instant court could differ with the conclusion that was reached, it did not suggest that an incorrect test was formulated or indeed applied.
  16. Finally, it was accepted by the instant court that judicial officers did err and often in serious ways with extensive consequences, the instant court exercised caution before it arrived on such conclusion. Especially where the substantial and possibly only evidence in support of it was a transcription of a judgment, which transcription was never placed before the judge and in respect of which the judge never associated himself with the correctness or otherwise of its contents.
  17. It was not possible in those circumstances to close the door to the real possibility that the judge did not use the term objective but that the error was one of transcription. In those circumstances it was manifestly unfair to the judge, to the prosecution and indeed to the broader interests of the administration of justice, to impute the error to the judge. To do so would run counter to the proper assessment of the extempore judgment, which pointed diametrically in the opposite direction. There was nothing to support the conclusion that there was an appreciable risk that the trial court incorrectly formulated the test that resulted in an unsound conviction.
  18. Neither the extempore judgment nor the revised judgment provided evidence of an error of law that was committed by the trial judge in how the test for putative private defence was formulated. There was also no constitutional matter or arguable point of law of general public importance that required determination in order to deal with the appeal. The result was that the court’s jurisdiction was not engaged and left to appeal against conviction should accordingly be refused. As such, the application for leave to appeal against sentence should fail.

Appeal granted; the applicant be acquitted and be released immediately.


Conviction and sentence for murder and attempted murder set aside.

Relevance to Kenya’s legal system

The Kenyan courts appear not to have a settled approach towards appealed maters that arise from extempore orders. The Kenyan courts exercise discretion to determine whether an application to appeal an extempore order was properly lodged before an appellate court.

In the case of Thomas Kimagut Arap Sambu & another v County Government of Kericho & another [2021] eKLR, the court held:

“A party can only approach the court to review orders or decrees arising from judgments and/or rulings. The order being challenged here is an extempore one made in the course of proceedings. It did not arise from any ruling or judgment. One could possibly apply to set it aside but it was not certainly an order that could be reviewed or appealed against. It fell outside the scope or ambit of review. To that extent therefore, the application is not properly set before the court and is in my view incompetent.”

In the case of Nduta Mbile v John Gachau Gitonga [2017] eKLR, the Court of Appeal entertained an appeal that arose from an extempore judgment where the trial judge wrote a judgment but did not give any reasons nor did the judge demonstrate any evaluation of the evidence before court. The extempore judgment made by the high court was set aside.

The case of Eurobank Limited v Shah Munge & Partners [2016] eKLR was an appeal from an extempore ruling and order made at the High Court where the judge stated that the appellant had not shown cause why the suit should not be dismissed for want of prosecution, consequently, the trial judge made a ruling dismissing the suit for want of prosecution.

At the Court of Appeal, the judges stated that:

“We are persuaded that the learned judge did not take into account all the relevant considerations when he exercised his discretion and dismissed the appellant’s suit for want of prosecution. In the premises we allow this appeal.”

The South African case can be instructive to the Kenyan jurisprudence as the Constitutional Court of South Africa has expanded its scope for matters that are appealable to include those arising out of extempore orders. The South African court allowed an appeal arising from an extempore order since it adversely affected the applicant’s right to fair hearing.

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