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[2019] ZAECPEHC 31
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Peters and Another v S (CC 27/2014) [2019] ZAECPEHC 31 (14 May 2019)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
In
the matter
between:
Case No: CC 27/2014
Date
heard: 24 April 2019
Date
delivered: 14 May 2019
RODWELL
STANTON
PETERS
First Applicant
OSCAR
ALEXANDER
Second Applicant
And
THE
STATE
Respondent
JUDGMENT
Goosen
J:
[1]
The
applicants, who were accused 2 and 3 respectively in the trial, were
convicted of robbery and murder on 31 March 2016. They
were sentenced
on 16 April 2016. They now seek leave to appeal against their
conviction on the count of murder.
[2]
It appears
from the case file that the applicants timeously filed their notices
of application for leave to appeal. For reasons
not disclosed the
applications were not pursued. I was informed by Mr
Daubermann
,
who now appears for the applicants, that the applications were not
pursued because the applicants did not have funds to instruct
their
erstwhile attorney. Now, having secured such funds, they persist in
their applications.
[3]
When asked
why the delay in prosecuting the applications is not explained by way
of affidavit, Mr
Daubermann
submitted that the applicants are under no duty to explain the delay.
Having timeously initiated the applications they can prosecute
them
at any time thereafter. That submission is doubtful.
[4]
The
procedure by which an appeal against a conviction and/or sentence
imposed by a High Court is prosecuted is provided for in s
316 of the
Criminal
Procedure Act
[1]
.
That section must be read in conjunction with sections 16 and 17 of
the
Superior
Courts Act
[2]
.
Those provisions provide that an appeal against a decision of the
High Court lies only in the event that the High Court (or failing
it
the Supreme Court of Appeal on petition) grants leave to appeal.
Leave to appeal may be granted on application. The application
must
be brought within a stipulated time period, subject to condonation in
respect of non-compliance with such period.
[5]
An
application is initiated when the applicant files with the Registrar
(and serves upon the state) a notice of application for
leave to
appeal. The notice must set out the grounds upon which leave to
appeal is sought. Once leave to appeal has been granted
the
provisions of s 316(7), read with Rule 52 of the Uniform Rules and
the Rules of the Supreme Court of Appeal apply.
[6]
Section
316(7)(a) places on the Registrar an obligation to file copies of the
record of proceedings within the stipulated period.
Rule 8(3) of the
Supreme Court of Appeal Rules, which provides for the lapsing of an
appeal in the event that the record of proceedings
is not filed
timeously, does not apply to a criminal appeal. (See
S
v Carter
[3]
).
Nevertheless, while it is the Registrar’s duty to lodge the
record, both the accused and the state are under a duty to
pursue the
appeal with reasonable expedition. Heher JA noted
[4]
:
“
[10] But that is
not the end of the matter, unfortunately. Appellants in
criminal cases, whether the State or an accused,
are under a duty to
pursue their appeals with reasonable expedition. The proper
administration of justice demands that they do
so. Undue delay may in
appropriate circumstances even amount to the abandonment of an
appeal. What happened in this case falls
not far short of that
situation. It follows that the attorneys representing appellants act
to the potential detriment of
both their clients and the public
interest if they choose to ignore the expeditious prosecution of the
appeal because they do not
regard their clients as responsible for
the delay.”
[7]
If the
undue delay in the prosecution of a criminal appeal may be taken to
constitute abandonment of the appeal, then there is no
reason in
principle why an inordinate and undue delay in pursuing an
application for leave to appeal may not be taken to constitute
abandonment of the application. Whether the delay indeed evidences
abandonment is to be decided on the facts. For this reason it
is to
be expected of an applicant to explain the reason for the delay.
[8]
This is all
the more necessary in light of the provisions of the Joint Rules of
Practice of the Eastern Cape which seek to regulate
the hearing of
applications for leave to appeal. Rule 10 requires the parties to
approach the presiding judge within 10 court days
of the filing of
the application to arrange a date for the hearing thereof. In the
event that this is not done the presiding judge
may determine a date
for hearing of the matter and the matter is then set down by the
Registrar on notice to the parties. The primary
responsibility rests
upon the legal representatives to ensure that the application for
leave to appeal is prosecuted. The judge
can, however, only act if
she/he is aware that such application has been commenced and upon the
failure of the parties to comply
with the Rule.
[9]
I do not,
in this matter, intend to dispose of the application on the basis
that there has been no explanation given for the inordinate
delay in
proceeding with the application for leave. This is however not to be
taken as licence on the part of would-be appellants
that such delays
need not be properly and fully explained in the future.
[10]
The
inordinate delay in bringing this application for leave has a direct
bearing upon the merits of the application. As noted above,
the
applicants were accused 2 and 3 at trial. Their co-accused, Cedric
Johnson, also brought an application for leave to appeal.
That
application was argued before this court on 8 May 2017 and leave to
appeal was refused
[5]
. Johnson
thereafter filed a petition seeking leave to appeal
[6]
.
The Supreme Court of Appeal granted Johnson leave to appeal against
his conviction on count 4 i.e. the murder conviction. It was
directed
that the appeal be heard by the Full Bench of this Division. Johnson
prosecuted his appeal before the Full Bench. The
appeal was heard on
29 October 2018 and on 5 February 2019 judgment was delivered
[7]
.
[11]
The Full
Bench dismissed the appeal
[8]
. I
was informed from the Bar that the applicants had sought the advice
of Mr
Daubermann
at a stage before the appeal judgment was handed down. They were
however only able to provide him with so-called “
financial
instructions
”
after judgment was delivered, hence the timing of this application.
[12]
In this
application the applicants seek leave to appeal only against their
conviction on the count of murder
[9]
.
The grounds of appeal set out in the applications are essentially
threefold. The first is that this court erred and/or misdirected
itself in respect of the test to determine
dolus
eventualis
.
Secondly, it is contended that the court misdirected itself in
finding as a fact that the applicants had foreseen the possibility
of
a shooting occurring. Thirdly, it is submitted that the court erred
in imputing intention on the basis of what a reasonable
person in the
position of the applicants might consider would occur when conducting
a house robbery, thereby confusing the test
for
dolus
with that of
culpa
.
[13]
The grounds
of appeal, compositely viewed, are premised upon this court’s
alleged error, both in fact and law, in finding
that the accused at
trial had the requisite
mens
rea
and
accordingly convicting them of murder.
[14]
A perusal
of the notice of application for leave to appeal; the petition filed
on behalf of Cedric Johnson; and the notice of appeal
prosecuting his
appeal indicates that the same essential grounds of appeal were
advanced. A reading of the judgment of the Full
Bench indicates that
these issues were canvassed in the appeal and are comprehensively
dealt with in the judgment of the Full Bench.
[15]
Mr
Daubermann
argued that in the light of the Supreme Court of Appeal’s
decision to grant leave to appeal this court ought to find that
there
is indeed a reasonable prospect of success on appeal. The argument
was premised upon the fact that this court’s previous
finding
to the effect that there was no reasonable prospect had been
overruled.
[16]
When asked
what the effect of the Full Bench finding on appeal has upon the
present application, Mr
Daubermann
submitted that it ought to be disregarded. He founded the argument
upon the basis that to hold the Full Bench decision as decisive
would
effectively deny the applicants a right to appeal. He also submitted
that it cannot be taken into account since that judgment
may itself
be overturned on appeal. He went so far as to suggest that it was (as
was this court’s original judgment) “
patently
wrong
”.
He developed the argument to suggest that this court is not bound by
the Full Bench decision. That court applied a different
test in
deciding the appeal to that to be applied in deciding this
application. This application is to be decided on the basis
that
there is a “
reasonable
prospect
”
rather than that there is a ground for appellate interference.
[17]
I am unable
to discern the logic in this latter argument. The threshold for
granting leave to appeal requires only that a reasonable
prospect of
success be established in relation to one or more of the grounds of
appeal. This threshold does not require a decision
that the appellant
will succeed. When an appellate court sits and considers the grounds
of appeal it decides whether on that basis
it can interfere with the
decision. The appellate court considers whether the trial court erred
or misdirected itself either in
respect of fact or law. Thus, when
the appellate court deals with an appeal on an issue which the trial
court considered that another
court may decide differently, its
finding in that regard necessarily disposes of the question one way
or the other.
[18]
The
argument that the applicants will be denied their right to appeal if
the Full Bench decision is taken into consideration also
holds no
water. The right to appeal against the decision of a High Court is
limited by the requirement that leave must be obtained
from that
court. Whether or not leave is to be granted is to be decided
dispassionately by the trial court with reference to extant
decisions
of courts (whether of equal or higher status) on relevant legal
principles and their application to the facts.
[19]
This is a
fundamental principle of adjudication and the concept of
stare
decisis
.
The judgment of the Full Bench constitutes one such decision (as it
turns out a highly relevant decision) of a superior court.
It simply
cannot be disregarded. Mr
Daubermann
suggested that the Full Bench decision cannot be determinative since
the applicants were not parties to that decision. The argument
is
without substance. It frequently happens that the judgment of another
court on an issue is decisive before another court. In
this instance
what is to be decided is whether there is a prospect that another
court will decide an issue differently to how this
court determined
the issue. If there is a judgment of another court precisely on point
it can hardly be ignored.
[20]
The
argument that the Full Bench decision may itself be overturned on
appeal also does not assist. As matters presently stand there
is no
appeal lodged in respect of the Full Bench judgment.
[21]
What must
be decided in this application is whether, on the grounds set out in
the notice of application, the applicants enjoy reasonable
prospects
of success on appeal. Mr
Daubermann
conceded that the applicants, on the facts found to be proved by the
state at trial, are in precisely the same position as their
co-accused, Cedric Johnson. Mr
Daubermann
also conceded that the contentions raised in the application to found
a reasonable prospect are the same contentions advanced before
and
considered by the Full Bench. No doubt it was for this reason that Mr
Daubermann
argued that in the event that leave is granted it should, in terms of
s 17 of the
Superior
Courts Act
[10]
,
be to the Supreme Court of Appeal. No purpose, he said, would be
served by an appeal to the Full Bench since it has already pronounced
upon the issues on appeal.
[22]
This latter
submission in my view effectively disposes of the question as to the
prospects of success. I shall, however, nevertheless
consider the
broader arguments advanced.
[23]
A careful
reading of the judgment of the Full Bench demonstrates that it was
called upon to consider precisely the same grounds
which are now
advanced by the applicants. The full court stated that
[11]
:
“
5.
The crisp issue in this matter is whether or not the state had
established that the appellant had the requisite
mens rea in respect
of the count of murder of his co-perpetrator as found by the court a
quo.”
[24]
At
paragraph 5(f) the full court sets out the facts as found and the
arguments in relation thereto. It is not for this court
to
comment on the full court findings. It is however bound to accept its
determination that upon consideration of the facts and
the relevant
legal principles it decided that the trial court’s finding was
not assailable. The effect of such finding, therefore,
must be that
on the same grounds of appeal as now advanced, there is no reasonable
prospect of success on appeal.
[25]
Mr
Stander
,
for the respondent, went further in argument to suggest that in any
event this court was correct in its prior refusal of leave
to appeal
and that it should again refuse leave having regard to the merits of
the application. With reference to authorities referred
to in
argument at trial
[12]
he
argued that this court’s approach to foreseeability cannot be
faulted. He submitted that properly considered there is
no prospect
that another court would come to a different conclusion.
[26]
Mr
Daubermann
,
however, argued that the finding by the Supreme Court of Appeal that
there is a reasonable prospect of success cannot be ignored.
I agree.
That finding exists as fact and must of necessity be taken into
account. But in doing so it must be considered in the
light of the
subsequent appeal. The decision of the Supreme Court of Appeal on
petition served no more than to overrule my previous
decision not to
grant leave to appeal. It cannot now determine how this application
is to be decided.
[27]
Different
considerations would, of course, apply if the appeal had not yet been
prosecuted to finality. In that event, this court
would have to
consider that the Supreme Court of Appeal had determined the
existence of reasonable prospects of success on appeal.
It would
then, notwithstanding its reservations previously expressed, be duty
bound to grant leave to any co-accused who raised
the same or similar
grounds of appeal. This court would do so not merely in deference to
the Supreme Court of Appeal decision (as
is required) but also in the
interests of justice.
[28]
Wholly
different considerations apply where the appeal has been prosecuted
to finality as in this case. Provided that this court
is satisfied
that the grounds of appeal fall within the ambit of the issues
decided on appeal, as is the case here, the appeal
judgment
determines that there are, indeed, no reasonable prospects of success
on appeal.
[29]
One final
aspect to consider is whether or not overarching considerations of
justice favour granting the applicants leave to appeal.
In my view
there are none. To grant leave in the interests of justice would
necessarily require considerations of the sustainability
of the full
bench judgment. For this court to venture upon this terrain would
give rise to myriad jurisprudential problems.
[30]
In the
result the following order is made:
The
applicants’ applications for leave to appeal are dismissed.
G.G
GOOSEN
JUDGE
OF THE HIGH COURT
Obo
the Applicants:
Mr P. Daubermann
Suite 701, Oasim
South, Pearson Street, Port Elizabeth
Ref: P Daubermann
Obo
the Respondent:
Adv M. Stander
NDPP, Uitenhage Road,
North End, Port Elizabeth
Tel: (012) 842 1400
[1]
Act No, 51 of 1977
[2]
Act No 10 of 2013
[3]
2007 (2) SACR 415
(SCA) at par [9]
[4]
(supra) at par [10]
[5]
The judgment refusing leave to appeal was delivered on 9 June 2017
[6]
The petition was filed on 8 September 2017
[7]
Cedric Johnson v The State (CC27/2014) [2019] ZAECGHC 6 (5 February
2019)
[8]
Dawood J with Beshe J and Msiwa AJ concurring.
[9]
The grounds of appeal raised in their original application are
abandoned.
[10]
Act No, 10 of 2013
[11]
Cedric Johnson v The State (
supra
) at par 5
[12]
S v Reddy and Others (416/94)
[1996] ZASCA 55
(28 May 1996); Rex v
De Villiers
1944 AD 493
at 508 to 509; R v Mlambo
1957 (4) SA 727
(A) page 738A-B; S v Nkosi
2016 (1) SACR 301
SCA; S v Nhlapo and
Another
1981 (3) SA 744
(A); S v Lungile and Another
1999 (2) SACR
597
(SCA); S v Molimi and Another
[2006] ZASCA 43
;
2006 (2) SACR 8
(SCA) par 29-36