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[2014] ZAGPJHC 4
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Khoza v S (P143/09) [2014] ZAGPJHC 4; 2014 (2) SACR 236 (GJ) (11 February 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE SOUTH
GAUTENG HIGH COURT
JOHANNESBURG
CASE
NO: P143/09
DPP
REF NO: JAP 2013/65
DATE:
11 FEBRUARY 2014
In the matter
between:
KHOZA,
HAMILTON
............................
Appellant
And
THE
STATE
.......................................
Respondent
J U
D G M E N T
MOSHIDI, J:
INTRODUCTION
[1] This is
essentially an application for leave to appeal against the conviction
and sentence imposed by the regional court. In
more specific terms,
the appellant seeks to appeal to the Supreme Court of Appeal against
the dismissal of his subsequent petition
for leave to appeal against
the aforesaid convictions in circumstances described below.
[2] The present
application is also accompanied by an application for condonation for
the late filing thereof. There is also a
condonation application for
the late making of a special entry in terms of the provisions of
section 317 of the Criminal Procedure
Act 51 of 1977 (“the
Criminal Code”).
SOME FACTUAL
BACKGROUND
[3] The factual
background is indispensible. The appellant was originally charged in
the Germiston Regional Court with five counts
as follows:
Count 1 - Robbery
with aggravating circumstances.
Count 2 - Unlawful
possession of firearms.
Count 3 - Escaping
from lawful custody.
Count 4 - Robbery.
Count 5 - Robbery
with aggravating circumstances.
The State alleged
that counts 1 to 5 were committed by the appellant in the Boksburg
area on 18 July 2005, 17 August 2006, 18 August
2006, 18 August 2006
and 29 July 2006, respectively. The trial commenced on 16 February
2007. The appellant pleaded guilty to
Count 3, but not guilty to all
the other charges.
[4] During March
2007, the appellant was convicted in respect of Counts 1, 3 and 5. He
was acquitted on Counts 2 and 4. On 19 March
2007, the following
sentences were imposed:
Count 1 - 15 years’
imprisonment.
Count 3 - 5 years’
imprisonment.
Count 5 - 20 years’
imprisonment.
However, the
regional magistrate ordered that the sentence imposed in respect of
Count 1 be served concurrently with the sentence
imposed in respect
of Count 5. The effective term of imprisonment was therefore 25
years. The regional magistrate later refused
an application for
leave to appeal against the convictions and sentences imposed.
APPELLANT’S
PETITION, PROCEEDINGS AND THE REASONS FOR ITS REFUSAL
[5] The appellant,
feeling aggrieved by the decision of the trial court, petitioned the
Judge President of the then Transvaal Provincial
Division in terms of
the provisions of section 309C of the Criminal Code for leave to
appeal against both convictions and sentences.
In due course, and on
11 June 2009, the petition was considered by my Brother Meyer J and
myself. The petition was refused.
However, when the instant
application was initially launched this year (2013), Meyer J was not
available as he was an acting Judge
at the Supreme Court of Appeal.
In his place, my Brother Mabesele J, was assigned to assist me.
However, Meyer J has since become
available after the application was
postponed twice.
[6] In considering
the petition, at the time, the sole consideration was whether there
were reasonable prospects of success on appeal
as set out in R v
Kuzwayo
1949 (3) SA 761
(A) at 764-765. In S v Khoasasa
2003 (1)
SACR 123
(SCA) at para [19], the consideration was stated as:
“Die aansoek
om verlof om te appelleer teen ‘n skuldigbevinding of vonnis in
a laer hof gerig aan die Regter-President
van ‘n Provinsiale
Afdeling nadat sodanige verlof deur die laer hof geweier is, word nie
in art 309C beskryf as ‘n
appèl nie maar is nogtans
daarop gerig om ‘n regstelling te verkry van wat die
aansoekdoener beskou as ‘n verkeerde
beslissing in die laer
hof. In effek is dit niks anders as ‘n appèl teen die
landdros se weiering van verlof om te
appelleer nie.”
THE STATE’S
EVIDENCE AT THE TRIAL
[7] Having in mind
the above approach, the merits of the petition were considered at the
time. In regard to Count 1, Mr Elias Mokwana
(“Mokwana”),
testified how he was robbed of his truck at about 15h00 on 18 July
2005. He was driving the truck and
had just finished deliveries,
with his assistant, a Mr Ledwaba. A white Corolla motor vehicle
appeared and activated a siren.
The occupants of the Corolla flashed
police appointment cards and ordered Mokwana to stop, which he did.
He was accused of having
disobeyed a red traffic light. Mokwana
denied the accusation. Mokwana and Mr Ledwaba were removed from the
truck and placed in
the Corolla motor vehicle. They were taken to a
squatter camp situated behind the Boksburg Prison. The truck drove
away with two
of the assailants. At the house Mokwana and Ledwaba
were guarded by another suspect who was armed with a firearm. Mokwana
was
relieved of his possessions including his cellphone. Mokwana and
Ledwaba were ordered not to leave the house for some time and were
left alone.
[8] During the same
afternoon, and as soon as he could do so, Mokwana contacted his
employer telephonically and reported the incident.
The truck was
later recovered as stated below. At the trial, Mokwana identified
the appellant as one of the robbers of the Corolla
motor vehicle. He
said that it was the appellant who demanded his cellphone. When the
truck was robbed, Mokwana resisted to be
transferred to the Corolla
motor vehicle and there was some argument between him and the robbers
and he observed the appellant
for about 10 minutes, and the argument
delayed the robbery slightly. He was pointed with firearms by the
robbers and accused of
being too talkative. Between the time of the
incident and the trial, Mokwana had not seen the appellant again. It
was common cause
that Ledwaba, the assistant, was not called to
testify, and for which the State was eventually severely criticised.
The State
prosecutor informed the court that this witness could not
identify any of the perpetrators.
[9] The evidence of
Mokwana was corroborated by police officer B M Semenya (“Semenya”),
who testified that he was stationed
at the Dawn Park, Benoni, Police
Station. On the same day of the robbery, Semenya and a colleague Sgt
Maisela, were on duty patrolling
when they noticed Mokwana’s
truck. It was about 18h00. The truck was ordered to stop. The
driver complied. It had two
occupants. It was common cause that the
appellant was one i.e. the passenger. The driver escaped. The
appellant attempted also
to escape but was deterred by a warning shot
fired by Semenya. The appellant was arrested. The appellant could
not provide a reasonable
explanation for his presence in the truck.
In cross-examination the version of the appellant that he had in fact
told the police
that he had obtained a lift from the occupants of the
truck since his own motor vehicle had broken down, was denied by
Semenya.
According to the latter, the appellant said that he had
been in the company of three other persons, two of whom were left at
a
nearby petrol station.
[10] In regard to
Count 5, both Mr and Mrs Coombs, the complainants, testified. On
Saturday 27 July 2006 at about 20h00, Mr Coombs
arrived back at his
home. He parked his motor vehicle in front of the gate whilst Mrs
Coombs alighted to open the gate. In the
motor vehicle were also his
two grandchildren aged 3 years and 6 years, respectively. Mr Coombs
observed two men. One of the assailants,
who was armed with a pistol,
approached him, whilst the other accosted Mrs Coombs at the gate. Mr
Coombs identified the appellant
as the assailant who ran in front of
his motor vehicle and cut Mrs Coombs on the arm when she tried to
open the gate. The appellant
wielded a pistol.
[11] Mr Coombs was
ordered out of his motor vehicle. The appellant entered the front
passenger side of the vehicle, whilst the other
suspect drove the
vehicle away. This, in spite of the fact that the grandchildren were
still in the vehicle. In desperation, Mr
Coombs flung himself in
front of the moving vehicle. The robbers stopped. Mr Coombs managed
to retrieve his grandchildren. The
place of the robbery was well-lit
with electrical lights and the lights of the motor vehicle were also
switched on.
[12] The evidence of
Mr Coombs was corroborated substantially by his wife, Mrs Coombs,
when she testified, in particular about the
identity of the appellant
as one of the robbers who had accosted her at the gate. Whilst Mr
Coombs testified that he identified
the appellant through general
face appearance, the shape of the face, and that he could never
forget the face of the assailant,
his wife, said more. She testified
that the appellant’s ears were very small and somewhat pressed
flat against his head.
In this regard, in the course of his
judgment, the regional magistrate observed:
“Now it is so
when you look at the accused from the front you actually do not see
his ears. This can also be seen on the photograph
that was handed
in.”
The photograph
referred to is what Mr and Mrs Coombs testified they had seen about a
month after the incident published in newspapers.
In the
publications, the appellant’s face was shown as a wanted
suspect who had escaped from the Boksburg Police Station
holding
cells on 18 August 2006. Both Mr and Mrs Coombs identified the
appellant as one of the robbers.
THE APPELLANT’S
VERSION AT THE TRIAL
[13] The appellant
testified as the only witness in his defence. His version in regard
to Count 1 came to this. On 18 July 2005
his motor vehicle broke
down. He waved to Mokwana’s truck to stop as he wanted a lift.
The truck stopped. The driver of
the truck agreed to offer him a
lift and he charged the appellant R300,00 in order to take him to his
house. The reason for this
was that the appellant did not have in
his possession the fee charged but would first fetch his bank card
from his house. Unfortunately,
on the way to the house, they were
arrested by the police as testified by Semenya. The driver of the
truck who had offered the
appellant a lift ran away. In regard to
Count 5, involving Mr and Mrs Coombs, the version of the appellant
was simply a bare denial.
He alleged that the State witnesses were
mistaken about his identity as one of the perpetrators.
THE REGIONAL
MAGISTRATE’S FINDINGS
[14] In a
well-reasoned and motivated judgment, the regional magistrate, and
with reference to some applicable case law, such as
S v Van der
Meyden
1999 (1) SACR 447
(W), and S v Mthethwa
1972 (3) SA 766
(A),
concluded that Mr and Mrs Coombs were trustworthy witnesses despite
some discrepancies between their versions. They had sufficient
opportunity to observe the appellant, and their identification of him
as one of the robbers was reliable. The same applied to the
evidence
of Mokwana in regard to Count 1. In addition, the regional magistrate
found that Mokwana even had a better opportunity
than Mr and Mrs
Coombs to observe the appellant as robbery occurred during daylight.
The appellant was in Mokwana’s truck
approximately three hours
after the robbery.
[15] On the other
hand, the regional magistrate found that the version of the appellant
was not reasonably possibly true. In particular,
that the version of
the appellant in regard to count 1, the robbery of Mokwana, did not
make sense at all. There was plainly no
conceivable reason why the
State witnesses would falsely implicate the appellant in the
commission of the crimes. For these reasons
the regional magistrate
was satisfied that the State had succeeded in proving the guilt of
the appellant beyond reasonable doubt.
[16] It is indeed an
established legal principle that since a trial court has certain
advantages which a court of appeal does not
have, appeal courts will
be slow to disturb factual findings made by courts of first instance.
Such interference can be justified
only in the face of a clear
misdirection or irregularity. See Nomandela and Others v S
[2007] 1
All SA 506
(E) at 514h-I, and S v Monyane and Others
2008 (1) SACR
543
(SCA) at para [15]. In the present matter, there is no
indication that the regional magistrate committed any misdirection in
convicting
the appellant.
[17] I now turn to
the question of sentence when the petition was considered. We held
the view that the regional magistrate took
into account all the
relevant circumstances in imposing the sentences. He, despite the
fact that the offences were committed one
a year apart, ordered the
substantial period of imprisonment in Count 1 to be served
concurrently with the sentence in Count 5.
In any event, as will
appear below, the appellant in the present application does not seek
to appeal against the sentences imposed.
Moreover, it is trite law
that the imposition of sentence is a question falling pre-eminently
within the discretion of the trial
court, and the test for
interference by an appeal court is clear. See, inter alia, Khoza and
Others
2010 (2) SACR 207
(SCA), at para [86]. In the present matter,
there was no justification at all to interfere with the imposed
sentences.
[18] I conclude that
for all the above reasons, there are no reasonable prospects of
success on appeal against the refusal of the
petition.
THE PRESENT
APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT OF APPEAL
[19] I now turn to
the instant application. To restate, it is an application for leave
to appeal to the Supreme Court of Appeal
against the dismissal of his
petition as dealt with above. It is noteworthy that the appellant
now seeks leave to appeal against
the convictions in respect of
Counts 1 and 5 only and not the sentences imposed in respect thereof.
He also does not seek leave
to appeal against the conviction and
sentence imposed in regard to Count 3, i.e. escaping from lawful
custody.
THE CONDONATION
APPLICATION
[20]The starting
point is the consideration of the application for condonation for the
late filing of the present application for
leave to appeal. As
stated earlier in this judgment, the appellant’s petition for
leave to appeal against the convictions
and sentences was refused by
this Court as far back as 11 June 2009. The present application is
dated 17 September 2013, and filed
with the registrar the following
day. This was more than four years after the petition was declined.
[21] The question of
condonation in cases of this nature, is closely connected with the
pertinent issue whether there are reasonable
prospects of success on
appeal. See for example S v Brink
1973 (2) SA 571
(A) at 576F;
Immelman v Loubser
1974 (3) SA 816
(A) at 824B-C; and S v Tseli
1984
(1) SA 565
(A) at 570D-F. In S v Mantsha
2006 (2) SACR 4
(CPD), at
6f-h, the Court said:
“However,
there is a limit to the lengths to which a Court of Appeal can go in
relaxing the Rules and granting condonation
to those who flagrantly
fail to comply with them. It is not, and has never been, the
position in our law that whilst the relevant
Rules apply to
appellants who are represented, they do not apply to others who are
not. That would be a quite untenable and unjustifiable
stance to
adopt … The Rules are for all litigants. They must be
adhered to by all litigants. That is the basic principle
which
applies.”
See also S v Mantsha
2009 (1) SACR 414
(SCA) at 419.
[22] In the instant
matter, the appellant has advanced several reasons why he should be
granted condonation, including that he has
been in custody since his
conviction and sentence in March 2007. The appellant also alleges
that he lost confidence in the legal
representative who assisted him
during the trial and in the petition proceedings in the High Court.
The appellant also advances
as a further reason his lack of funds.
His friends and relatives eventually managed to raise the necessary
funds during December
2012, which enabled him to instruct his current
attorneys of record, S Shapiro Attorneys, who in turn briefed Mr P
Shapiro. The
appellant, however, omits to explain fully and
satisfactorily what steps he took to prosecute the instant
application since the
petition for leave to appeal was dismissed by
this Court during June 2009. In addition, there was a further
unexplained delay
from the time the necessary funds were allegedly
accumulated to the time of the filing of the present application,
i.e. 18 September
2013. There is also no intimation regarding any
steps taken by the appellant to seek legal representation from
institutions such
as the Legal Aid SA, which do not charge fees. For
all these reasons I conclude that the appellant has not made out a
case for
condonation to be granted.
THE APPELLANT’S
SPECIAL ENTRY AND CONDONATION THEREOF
[23] Finally, I deal
with the appellant’s application for condonation and the
special entry to be settled and to grant leave
to appeal thereon in
terms of the provisions of section 317 of the Criminal Code. Section
317 of the Criminal Code provides as
follows:
“(1) If an
accused is of the view that any of the proceedings in connection with
or during his or her trial before a High
Court are irregular or not
according to law, he or she may, either during his or her trial or
within a period of 14 days after
his/her conviction or within such
extended period as may upon application (in this section referred to
as an application for condonation)
on good cause be allowed, apply
for a special entry to be made on the record (in this section
referred to as an application for
a special entry) stating in what
respect the proceedings are alleged to be irregular or not according
to law, and such special
entry shall, upon such application for a
special entry, be made unless the court to which or the judge to whom
the application
for a special entry is made is of the opinion that
the application is not made bona fide or that it is frivolous or
absurd or that
the granting of the application would be an abuse of
the process of the court.
(2) Save as
hereinafter provided, an application for condonation or for a special
entry shall be made to the judge who presided
at the trial or, if he
is not available, or if in the case of a conviction before a circuit
court the said court is not sitting,
to any other judge of the
provincial or local division of which that judge was a member when he
so presided.
(3) …
(4) The terms of a
special entry shall be settled by the court which or the judge who
grants the application for a special entry.
(5)…”
(underlining added)
[24] In his rather
helpful heads of argument, Mr Van Wyk for the State, argues that the
provisions of section 317 quoted above,
are not applicable in respect
of a lower court trial. Further that the correct procedure to
address an alleged irregularity in
the lower court, would be of
review, whether in the form of an independent process or combined
with an appeal as provided for in
section 309(3) of the Criminal
Code. In my view, there is merit in the submission. In S v Felthun
1999 (1) SACR 481
(SCA), the Supreme Court of Appeal dealt with a
special entry in terms of sections 317 and 318 of the Criminal Code.
In ultimately
dismissing the appeal, the Court at 485f-g said:
“Section
317(1) of the Act provides that if an accused person considers that
any of the proceedings in connection with or
during his trial before
a superior Court are irregular or not according to law, he may apply
for a special entry to be made on
the record. Section 318(1)
provides that if a special entry is made on the record, the person
convicted may appeal to this Court
against his conviction on the
ground of the irregularity or illegality stated in the special entry.
In considering the appeal
regard must be had to the proviso to s
322(1) of the Act, in terms of which the accused’s conviction
and sentence are not
to be set aside by reason of any irregularity,
or defect in the record of proceedings, unless it appears to this
Court that a failure
of justice has in fact resulted from such
irregularity or defect.”
See also S v Mabasa
and Others
[2005] ZANCHC 3
;
2005 (2) SACR 250
(NC) at 253. The clear and unambiguous
wording of section 317 of the Criminal Code makes it plain that
special entries only apply
to criminal trials before a High Court.
This, in my view, should put to rest the appellant’s
application for a special entry
to be made in the present matter. It
also becomes unnecessary to detail the alleged irregularity. The mere
allegation of an irregularity
in the regional court clearly does not
present the appellant with any automatic entitlement to an appeal
(without leave thereto
from the lower court or by way of petition) or
of a review. No failure of justice has resulted from what the
appellant contends
to be the irregularities.
SUMMATION
[25] To sum up. The
appellant’s petition against the refusal of the regional
magistrate to grant leave to appeal against
the convictions and
sentences imposed, was refused by this High Court in June 2009. The
reasons for such refusal, include the
absence of reasonable prospects
of success on appeal, and as set out earlier in the judgment. That
finding stands. In regard to
the present application, the appellant
has not shown good cause for condonation of the late filing of the
application for leave
to appeal. The same applies to the condonation
application for a special entry to be made on the record of the
proceedings, as
well as the merits of the special entry itself. In
addition, it is rather significant that the grounds for leave to
appeal to
the Supreme Court of Appeal are not identical to the
grounds for leave to appeal to this High Court. Furthermore, and
most importantly,
the present appeal, for reasons stated above, has
no reasonable prospects of success on appeal. The application must
fail.
ORDER
[26] In the result
the following order is made:
1.The application
for leave to appeal as set out in the notice of motion dated 17
September 2013 is refused.
D S S MOSHIDI
JUDGE OF THE
SOUTH GAUTENG
HIGH COURT,
JOHANNESBURG
I concur:
P A MEYER
JUDGE OF THE
SOUTH GAUTENG
HIGH COURT,
JOHANNESBURG
COUNSEL FOR THE
APPELLANT ADV P SHAPIRO
INSTRUCTED BY S
SHAPIRO ATTORNEYS
COUNSEL FOR THE
RESPONDENT ADV D VAN WYK
INSTRUCTED
BY DPP, JOHANNESBURG
DATE OF
HEARING 7 FEBRUARY 2014
DATE OF
JUDGMENT 11 FEBRUARY 2014