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[2021] ZAWCHC 105
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Appolis v S (A91/2021) [2021] ZAWCHC 105 (1 June 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case
No: A91/2021
In the matter between:
RENALDO
APPOLIS
Appellant
and
THE STATE
Respondent
Coram:
Justice J Cloete
et
Acting Justice S Hockey
Heard:
28 May 2021
Delivered
electronically:
1 June 2021
JUDGMENT
CLOETE J (HOCKEY AJ
concurring)
:
[1] On 7 June
2018 the appellant was convicted in the Kuilsriver Regional
Court
(sitting at Blue Downs) on 3 of the 4 counts he faced, namely one of
premeditated murder and two of attempted murder. During
the trial in
that court he was also discharged in terms of s 174 of the
Criminal Procedure Act
[1]
(“CPA”) on a fourth count (count 2) after the State
failed to adduce any evidence in regard thereto.
[2] On 27
September 2018 he was sentenced to life imprisonment on the murder
count and 15 years imprisonment on each of the attempted murder
counts. He approaches this court on appeal against all the
convictions
and sentences. Although he has an automatic right of
appeal in respect of the murder count in terms of s 309(1)(a) of
the
CPA this does not apply to the attempted murder counts.
[3] The
question which thus arises is whether this court may nonetheless
entertain the appeal in respect of the two attempted murder counts.
The answer is that we cannot. In
S v Chake
[2]
the Supreme Court of Appeal considered the effect of the
legislature’s amendment, by the enactment of the Child Justice
Act,
[3]
to the previous s 309(1)(a) which resulted in the automatic
right of appeal for a person sentenced to life imprisonment being
done away with.
[4] It made
clear that the effect of that amendment was that a convicted
person
sentenced to life imprisonment by a regional court first had to apply
for leave to appeal in the lower court. Approving
the findings on
this issue in
S v Alam
,
[4]
it held the conclusion reached by the high court in
Chake
that
it could entertain the appeal to be wrong. The Supreme Court of
Appeal found that:
[13]
…Judges must be careful not to submit to the temptation of
substituting what they regard
as reasonable and sensible for what was
in fact done by the legislature, and to thereby “cross the
divide between interpretation
and legislation”. Instead, a
court must determine the appropriate meaning of the words used in the
statutory provision in
question by adopting their plain meaning,
unless it would lead to a glaring absurdity. In the present case
there is no absurdity…
[16]
It is necessary to emphasise that the appellant is not without
recourse…
[and]
ought to have applied
to the regional court for leave to appeal under section 309B of the
Criminal Procedure Act and, in the event
of that application failing,
have petitioned a high court for such leave under section 309C. This
he failed to do. His appeal was
therefore not properly before the
high court, which should have declined to entertain it, and its order
dismissing the appellant’s
appeal must be set aside…
This will leave the appellant at liberty to seek to pursue an appeal
in the prescribed manner
if he is so advised.’
[5]
Section 309(1)(a) of the CPA has subsequently again been amended
and in its current form the relevant proviso reads as follows:
‘
(1)(a)…
Provided that if that person was sentenced to imprisonment for life
by a regional court under section 51 (1) of the
Criminal Law
Amendment Act, 1997 (Act No. 105 of 1997), he or she may note such an
appeal without having to apply for leave in
terms of section 309B:
Provided further that the provisions of section 302 (1) (b) shall
apply in respect of a person who duly
notes an appeal against a
conviction, sentence or order as contemplated in section 302 (1)
(a).’
[6] In addition
s 309B of the CPA stipulates that:
‘
309B.
Application for leave to appeal
.---(1)
(a) Subject to section 84 of the Child Justice Act, 2008 (Act No. 75
of 2008), any accused, other than a person referred
to in the first
proviso to section 309 (1) (a), who wishes to note an appeal against
any conviction or against any resultant sentence
or order of a lower
court,
must
apply to that court
for leave to appeal against that conviction, sentence or order.’
[my emphasis]
[7] For sake of
completeness, s 302 of the CPA deals with sentences
imposed by a
magistrate’s court which are subject to review in the ordinary
course. The present case does not fall into the
ambit of s 302,
and this much is apparent from the record of the lower court. We are
accordingly confined to dealing only
with the appeal against
conviction and sentence in respect of the count of premeditated
murder, pertaining to an incident which
occurred on 26 March
2016 (the two counts of attempted murder relate to an entirely
separate incident which occurred on 29 March
2016).
[8] Finally on
this point, counsel for the parties (
Ms Adams
of Legal Aid for
the appellant and
Mr Stephen SC
for the State) were notified
prior to the hearing of the concern pertaining to us entertaining
argument on counts 3 and 4, and
both were given the opportunity to
address us thereon. They were
ad idem
, in light of
Chake
,
that the appeal in respect of those counts is not properly before us.
[9]
Mr
Stephen
suggested that the entire appeal should, in the
circumstances, be postponed
sine die
in order to afford the
appellant the opportunity to approach the lower court for the
required leave. His view was that the appeal
in respect of count 1
should properly be considered in light of the evidence led in respect
of counts 3 and 4 as well.
[10] After discussion we decided
to approach the appeal on count 1 on the basis that if, after
hearing
argument thereon, we were of the view that it could not be properly
determined without considering that other evidence,
we would order
that the matter be postponed
sine die
and re-enrolled for
hearing before us on all counts if the appellant successfully
obtained the required leave (whether from the
lower court or on
subsequent petition). After hearing full argument on count 1, we have
concluded that it is not necessary to order
such a postponement. The
reasons are apparent from what follows.
[11] The charge of premeditated
murder was count 1. It was alleged by the State that on 26 March
2016 the appellant murdered the deceased, Mr Chrishna Christo
Marais, by shooting him with a firearm. The appellant pleaded
not
guilty and denied any involvement. During the course of the State’s
case it emerged that he raised an alibi defence,
which was that on
the day in question he was with his former girlfriend, Ms Natasha
Jooste, at her home.
[12] The State relied on the
evidence of the deceased’s mother, Mrs Jacqueline Marais,
as well as the contents of certain exhibits handed in with consent of
the defence. The appellant himself testified and called his
mother,
Mrs Salome Van Reenen.
[13] The facts pertaining to the
incident itself were undisputed. Ultimately the only issue
was one of
identity, i.e. whether the State had proven beyond a reasonable doubt
that the appellant was the perpetrator. I thus
briefly set out the
relevant material facts.
[14] Mrs Marais testified that at
the time of his murder the deceased resided with her and
her husband
at their home in Potberg Street, Wesbank, Delft. His 6-year old
daughter either resided there as well or was visiting
at the time
(the record is unclear on this aspect).
[15] She had just returned home
from shopping at around 10.45am. The deceased was in his bedroom
and
came out, telling her he was hungry. As she opened a bag of fish and
chips she had bought, she looked through the kitchen window
and saw
three men entering her yard, looking for the deceased who went
outside and spoke to them briefly. She could not hear what
they said.
The deceased returned and when she asked him what they wanted he
replied ‘
nothing’
.
[16] The deceased went into his
bedroom and a few minutes later the three men returned. Two
waited at
the corner and, according to her, it was the appellant who came to
stand in the open doorway to her kitchen, telling
her that he was
looking for the deceased. She went into the deceased’s bedroom
and he told her to tell the appellant he was
not at home.
[17] She returned to the kitchen
and told the appellant, but he continued standing in the doorway.
Moments later she felt someone brush against her back in the confined
space. She turned and saw the appellant pulling out a firearm
from
behind his back. He was wearing a brown leather jacket. He proceeded
to the deceased’s bedroom and pushed the door open
wide. As
soon as she saw the firearm she ran outside screaming. Her husband,
who had been standing on the other side of the kitchen
table, stood
motionless as he did not know what was happening. Once outside she
heard three to four shots being fired and her husband
also ran
outside.
[18] The appellant thereafter
emerged from the open kitchen doorway, holding the firearm. He
calmly
put it away behind his back, straightened his clothing and walked
away as if nothing had happened. She went back into the
house and
found the deceased lying in his bedroom in a pool of blood.
[19] The forensic report of
Warrant Officer Mlalandle, who attended the scene and which was
handed in by agreement as Exhibit “B”, reflects that he
found one spent cartridge and a bullet on the bedroom floor
as well
as a spent cartridge on the bed. The post mortem report of Dr Bjorn
Swigelaar, handed in by agreement as Exhibit “A”,
reflects that the deceased succumbed to two gunshot wounds to the
neck. One of these exited on the right lateral aspect of the
neck,
perforating the spinal column and jugular vein. The other perforated
the left lung. It is therefore clear that the perpetrator
intended to
kill the deceased.
[20] As to the issue of identity,
Mrs Marais testified that a week or so before his murder
the deceased
told her that he had been instructed by certain members of the 28’s
gang to murder his own brother, a member
of the rival 26’s
gang, but he refused. The day of the incident was the first time she
had encountered the appellant. A few
days thereafter she identified
him from a set of photographs shown to her by the police.
[21] She explained in
cross-examination that while the appellant was previously unknown to
her she did know his two accomplices, Boetie and Markie. When the
incident occurred the appellant had not covered his face or head.
She
was able to see his face clearly, both as he stood in the entrance to
the house and when he walked right past her after the
shooting. Her
other son later told her that his name was ‘
Naldo’
.
When asked if the perpetrator had any distinguishing features, she
replied that he had a tear-shaped tattoo below his one eye.
She was
adamant that he was the one who murdered the deceased.
[22] In his testimony the
appellant maintained that he did not even know the deceased. He also
initially denied knowing Boetie and Markie. The latter was proved to
be demonstrably false. In later cross-examination he conceded
that
during an earlier stint in prison in 2014 he shared a cell with both
of them. He also eventually conceded that at the time
of his prior
incarceration he was a member of the 28’s gang, as were both
Boetie and Markie, but claimed that after his release
he ceased being
a member of that gang and did not associate with these two
individuals. It was however never put to Mrs Marais
that the
appellant did not associate with Boetie or Markie when she testified.
[23] The record revealed that the
appellant has a tear-shaped tattoo below his one eye. He
conceded,
importantly in my view, that it is faded and that someone would have
to be in close physical proximity to him to observe
it properly.
[24] The appellant’s alibi
was also demonstrated to be false. His mother in her testimony
claimed that he had been looking after his two younger brothers at
her home on the day of the incident and not, as the appellant
had
alleged, that he was with his former girlfriend at her home at the
time.
[25] In argument it was submitted
on behalf of the appellant that the identification made by
Mrs Marais
was unreliable for the following reasons. First, when initially asked
about distinguishing facial features she did not
mention any. Second,
she first testified that the police showed her a set of three
photographs, but later that she was shown a
lot more. Third, she was
in a state of shock at the time of the incident and had limited
opportunity to observe the perpetrator,
only coming to learn of his
name after the offence was committed.
[26] I am unable to agree that
any of these grounds have merit. In my view the State correctly
submitted in argument that Mrs Marais’ opportunity to observe
the appellant’s face was not limited merely to a passing
glance.
[27] Clear visibility at the
scene was not placed in issue. Mrs Marais had sufficient opportunity
in close enough proximity to look at the appellant’s face which
he did not try to disguise during the incident. That she
must have
been in close proximity to him is supported by the appellant’s
concession that, in order to observe the tear-shaped
tattoo on his
face, she would have needed to be. Moreover, Mrs Marais was also
close enough to observe that the appellant was wearing
a brown
leather jacket (although he denied owning such an item). She did not
try to embellish her testimony, candidly conceding
that although she
thought he was also wearing jeans, she had not noticed his footwear.
[28] Her testimony that she
identified the appellant from photographs shown to her by the police
was not disputed. During cross-examination it also became clear that
she was not only shown three photographs, but rather about
two pages
of them, and that she identified not only the appellant but also
Boetie and Markie, hence her reference to three photographs.
[29] The trial court’s
credibility finding in preferring the evidence of Mrs Marais over
that of the appellant was not challenged on appeal. Nor was there any
suggestion that he failed to apply the cautionary rules pertaining
to
a single witness, as well as a single witness identification. In my
view the failure to make these challenges was wise, since
the
magistrate’s approach and reasoning cannot be faulted on this
score. I have already explained why the attack on the reliability
of
the identification has no merit. It follows that the appellant was
correctly convicted on count 1.
[30] Turning now to sentence. It
is of some concern that the State failed to procure the appellant’s
SAP 69 and that sentencing was approached by the trial court on the
assumption that he is a first offender. The reference in the
pre-sentence report of the probation officer, handed in by agreement
as Exhibit “E” to his ‘
previous offences’
was also not explored. However we are bound by the record and must
therefore consider the sentence of life imprisonment imposed
on count
1 on the basis that the appellant is a first offender.
[31] At the time the offence was
committed the appellant was 19 ½ years old.
[5]
The pre-sentence report paints a picture of an individual who grew up
in a stable, loving home until the age of 12 or 13 years,
when his
great-grandparents passed away and he had to move from Beaufort West
to Cape Town. The appellant had difficulty adjusting
and was also the
victim of bullying. He explained to the probation officer that
because of the constant bullying he felt forced
to join a rival gang
for protection. Despite these difficulties, on his own account, the
home provided to him by Mrs Van Reenen
and her husband was also a
stable one. When the family relocated to Parow (a safer area), the
appellant instead chose to live with
his girlfriend in Wesbank where
the gang culture became more entrenched in his behaviour.
[32] The appellant left school in
grade 9 due to his gang involvement and his step-father tried
to
motivate him to live a positive lifestyle by offering him employment
in his own construction business. The appellant did not
seize this
opportunity to better himself but rather became addicted to drugs and
robbed people in the community to support this
habit. He admitted to
the probation officer that he is still a member of the 28’s
gang.
[33] It is convenient to quote
from the comprehensive pre-sentence report in which the probation
officer, Mr J Kessie, set out his opinion:
‘
It is the view of the
probation officer that even though the accused appeared to have been
a victim of unfortunate circumstances,
he was presented with
opportunities to redirect his life in a positive manner when the
family moved out of the gang-ridden community
and he was surrounded
with strong support from his mother and her life partner but chose to
succumb to the social pathologies of
gangsterism.
The coldblooded nature in
which the offence was committed is also indicative of the deep-seated
anger within the accused which unless
he is able to deal with through
a process of introspection and honesty will remain ingrained with him
and thus place a high risk
on re-offending. It is the opinion of the
probation officer that the accused would be better suited with a
custodial sentence as
to prevent him from continued offences within
the community and give him opportunity for self-reflection and
possible healing…’
[34] In his judgment the
magistrate considered the brazen, callous manner in which the murder
was committed by the appellant. He also highlighted the devastating
effect of the murder on Mrs Marais and other family members,
including the deceased’s young daughter, and the scourge of
rampant gangsterism in the area. Although he took into account
the
appellant’s youth, he concluded that there were no substantial
and compelling circumstances to justify a deviation from
the minimum
sentence of life imprisonment.
[35] This court can only
interfere with the sentence if satisfied that the magistrate made
a
material misdirection or that the sentence imposed is shocking,
startling or disturbingly inappropriate. In
S v Malgas
[6]
it was made clear that although the prescribed minimum sentences are
‘
ordinarily appropriate’
where there is no strong
justification to impose a lesser sentence, courts nevertheless have a
duty to approach sentencing on an
individualised basis. Accordingly,
if a court is satisfied, for objectively convincing reasons, that the
circumstances of a particular
case would result in the minimum
sentence being disproportionate to the crime concerned, the offender
and the legitimate needs
of society, such circumstances will be
considered to be ‘
substantial and compelling’
.
[7]
[36] In
S v Vilakazi
[8]
this principle was again emphasised but an important qualification
added, namely that in cases of serious crime the personal
circumstances
of the offender, by themselves, will of necessity carry
less weight, although they are nonetheless relevant in another
respect,
which is whether the accused can be expected to offend
again.
[9]
Our law is also that it is appropriate to take into account, as one
of the factors, the period of imprisonment spent by an accused
awaiting trial.
[10]
In the present case the appellant was incarcerated as an awaiting
trial prisoner from the time of his arrest on 10 April 2016,
i.e.
just over 2 years, but this was not only as a result of count 1 but
also counts 3 and 4.
[37] This was an extremely
serious crime with equally serious aggravating factors, and the
appellant’s personal circumstances, to the extent they can be
considered favourable (i.e. youth and a first offender) must
therefore necessarily recede into the background. It was argued by
Ms
Adams
that, given his age and that he is a first offender, the
trial court misdirected itself in failing to attach appropriate
weight
to his prospects of rehabilitation. While the appellant may
have such a prospect, what must also be weighed into the balance is
that on the uncontested contents of the pre-sentence report the
indications are that, at least for a lengthy period going forward,
this is unlikely to be the case.
[38] It bears emphasis that
merely because we might have imposed a different sentence, this
is
not the test on appeal (as set out above). Having considered all
relevant factors I cannot find that the trial court materially
misdirected itself, or that the sentence imposed was disturbingly
inappropriate or disproportionate in the sense set out in
Malgas
.
It follows that the appeal against sentence on count 1 must also
fail.
[39] As matters stand at present
the sentences in respect of counts 3 and 4 automatically run
concurrently with the sentence of life imprisonment in terms of
s 39(2)(a)(i) of the Correctional Services Act.
[11]
We are mindful that the appellant might subsequently successfully
petition the Supreme Court of Appeal and that a sentence less
than
life imprisonment on count 1 might ultimately be imposed.
[40] We have carefully considered
the potential ramifications of such a course of events, and
have
arrived at the conclusion that, should that turn out to be the case,
there will be no prejudice to the appellant in respect
of the
sentences imposed on counts 3 and 4 since the court dealing with that
appeal will already be apprised of the outcome of
that process. The
logistics pertaining to the enrolment of any appeal to the high court
on counts 3 and 4 can be arranged between
counsel for the parties,
who are both senior experienced practitioners.
[41]
The following order is
made:
1.
The appeal against conviction
on count 1, namely premeditated murder, is dismissed and the
conviction is confirmed.
2.
The appeal against sentence in
respect of count 1 is dismissed and the sentence of life imprisonment
is confirmed.
3.
The matter is referred back to
the trial court should the appellant wish to apply for leave to
appeal against the convictions and/or
sentences imposed on counts 3
and 4.
J I CLOETE
S HOCKEY
[1]
51 of 1977.
[2]
2014 (1) SACR 177 (SCA).
[3]
75 of 2008.
[4]
2011 (2) SACR 553 (WCC).
[5]
There was some confusion about his age in the lower
court but Exhibit “E” reflects his date of birth
as
22 August 1996.
[6]
2001 (1) SACR 469
(SCA) at paras [22] to [25].
[7]
Confirmed by the Constitutional Court in
S v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC) at para
[40]
.
[8]
2009 (1) SACR 52
(SCA) at para [18].
[9]
At para [58].
[10]
See
inter alia
Director of Public Prosecutions, North
Gauteng, Pretoria v Gcwala and Others
2014 (2) SACR 337
(SCA) at
paras [15] to [19].
[11]
111 of 1998.