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[2023] ZAKZPHC 129
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Galdhari v S (AR11/2022) [2023] ZAKZPHC 129 (10 November 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR11/2022
In
the matter between:
TAYYIB
GALDHARI
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
Mossop J and Nicholson AJ
Heard:
27 October 2023
Delivered:
10 November 2023
ORDER
On
appeal from
: Ntuzuma Regional Court (sitting as the court of the
first instance):
1.
The matter is remitted to the Regional Court, Ntuzuma for a
decision
to be taken on the appellant’s application to lead further
evidence.
2.
In the event of the Regional Court granting the application,
it shall
proceed further in terms of the provisions of
s 309B(5)
(c)
(ii)
of the
Criminal Procedure Act 51 of 1977
.
JUDGMENT
Nicholson
AJ (Mossop J concurring):
[1]
On 13 August 2021, appellant was convicted of 50 counts of
contravening
sections 1
,
2
,
22
,
24C
and
30A
of the
Films and
Publications Act 65 of 1996
, read together with sections 92(2), 94
and 276 of the Criminal Procedure Act 51 of 1977 (the ‘CPA’).
The appellant’s
conviction followed upon a guilty plea which he
had tendered in terms of s 112(2) of the CPA. These sections
criminalise either
video or still images of nude minor children or
minor children performing sexual acts. In the circumstances, the
seriousness and
the gravity of the offences cannot be overemphasized.
[2]
On 20 August 2021, after the matter was adjourned for the parties to
view
some of the images and videos, and the State’s final
submission being that a term of imprisonment was essential to send a
strong message to the community, the appellant was sentenced to 7
years’ direct imprisonment. Except for noting some of the
ages
of the children in the videos, nothing more was said about the images
that were viewed.
[3]
On 21 September 2021, the appellant, after acquiring a new legal
representative,
brought the following three applications in the court
a quo
:
(a)
an application for condonation in light of the fact that 14 days had
elapsed
between sentence being imposed and the bringing of the
application for leave to appeal;
(b)
an application for leave to appeal against sentence only; and
(c)
an application to lead further evidence.
I
shall collectively refer to these applications as ‘the
applications’.
[4]
The applications were brought in terms of s 309B of the CPA,
which
reads as follows:
‘
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.
(
b
)
An application referred to in paragraph (
a
) must be
made—
(i)
within 14 days after the passing of the
sentence or order following on the conviction; or
(ii)
within such extended period as the court
may on application and for good cause shown, allow.
. .
.
(5) (
a
) An
application for leave to appeal may be accompanied by an application
to adduce further evidence (hereafter referred to
as an application
for further evidence) relating to the conviction, sentence or order
in respect of which the appeal is sought
to be noted.
(
b
)
An application for further evidence must be supported by an affidavit
stating that—
(i)
further evidence which would presumably
be accepted as true, is available;
(ii)
if accepted the evidence could
reasonably lead to a different decision or order; and
(iii)
there is a reasonably acceptable
explanation for the failure to produce the evidence before the close
of the trial.
(
c)
The court granting an application for
further evidence must—
(i)
receive that evidence and
further evidence rendered necessary thereby, including evidence
in
rebuttal called by the prosecutor and evidence called by the court;
and
(ii)
record its findings or views
with regard to that evidence, including the cogency and the
sufficiency of the evidence, and the demeanour and credibility of any
witness.
(6)
Any evidence received under subsection (5) shall for the
purposes of an appeal
be deemed to be evidence taken or admitted at
the trial in question.’
[5]
In mitigation of sentence, no evidence was led by the appellant in
the
court
a quo
. However, it was submitted that the accused
was 21 years old at the time of his arrest and was 23 years old at
the time of conviction.
His highest education is matric, he is
unmarried and gainfully employed as an assistant manager in a fashion
store. He uses
part of his salary to support his siblings,
being two sisters aged 25 and 14, and a brother aged 16. His father
had passed away
when he was young and his mother is unemployed.
Despite the appellant’s legal representative requesting a
noncustodial sentence
in the form of correctional supervision, he did
not seek to tender a probation officer’s report or a
correctional services
report into evidence.
[6]
It is relevant to mention that it is common cause that while the
video
images were sent to appellant’s phone via WhatsApp, he
did not solicit them. Furthermore, there was no evidence led in
aggravation
as to how many of the 50 images were actually viewed by
anyone, or even by the appellant.
[7]
The State did not prove any previous convictions, nor lead any
evidence
in aggravation, but submitted that considering the
seriousness of the offence, a term of imprisonment was unavoidable.
[8]
From a perusal of the record, it appears that the applications were
properly
before the court
a quo,
which was common cause
between the parties.
[9]
It further
emerges from the record that during argument, the appellant’s
legal representative submitted that the decision
on the application
to adduce further evidence lay with the appeal court because the
court
a
quo
was
functus
officio.
This
view was shared by the learned magistrate.
[1]
Persuaded by the argument for condonation, and the application for
leave to appeal, the court
a
quo
granted the application for leave to appeal against sentence;
however, nothing more was said about the application to adduce
further
evidence.
[2]
Accordingly, no decision was made on the application to adduce
further evidence.
[10]
In
S v WR
,
[3]
the court observed:
‘
In
ruling that the application to receive further evidence should be
heard by this court on appeal, the regional magistrate erred.
In my
view the decision whether or not to receive further evidence under s
309B(5)(c)(i) is that of the court which has tried the
applicant.
Section 309B(5)(c)(ii) requires the court granting an application for
further evidence to evaluate that evidence, with
reference, amongst
other things, to the cogency and sufficiency of the evidence and the
demeanour and credibility of the witnesses
who gave it. An appeal
court hears such evidence only rarely and does not enjoy the
well-known advantages of a trial court in relation
to the evaluation
of the evidence in the context of the trial as a whole.’
[11]
Although
only conceded to in the alternative by the respondent,
[4]
it further emerges as common cause that the matter should be remitted
back to the court
a
quo
to
consider the application to lead the further evidence.
[5]
[12]
It is apposite to mention here that it appears that the further
evidence sought to be led
by appellant is medical evidence in
mitigation of sentence, which alleges that appellant was sexually
abused, from a very young
age and throughout his teens, by older boys
with whom he attended school. The reason why this evidence was not
initially tendered
in mitigation is not clear from the record but
perhaps there is an acceptable reason for this.
[13]
It is trite
that sentences are determined on the facts and circumstances known at
the time of their imposition. Facts that become
known after the
imposition of sentence can only in exceptional circumstances be taken
into account on appeal
[6]
.
Further, in S v Bezuidenhout,
[7]
the court held:
'[While]
finality in litigation is an important consideration, this should not
be at the expense of an accused person’s fair
trial rights.’
[14]
Having perused s 309B of the CPA together with the various
authorities, and having
heard argument from both the appellant and
the respondent, I share the views expressed by them that the matter
must be remitted
back to the court
a quo
to consider the
application for the reception of the further evidence. This matter,
obviously, should be dealt with expeditiously.
Order
[15]
In the result, I propose the following order:
1.
The matter is remitted to the Regional Court, Ntuzuma for a
decision
to be taken on the appellant’s application to lead further
evidence.
2.
In the event of the Regional Court granting the application,
it shall
proceed further in terms of the provisions of s 309B(5)
(c)
(ii)
of the
Criminal Procedure Act 51 of 1977
.
NICHOLSON AJ
I
agree, and it is so ordered:
MOSSOP J
APPEARANCES
For
the appellant:
Ms Z
Anastasiou
Instructed
by:
Legal
Aid South Africa
Pietermaritzburg
For
the respondent:
Mr K
Radyn
Instructed
by:
Director
of Public Prosecutions
Pietermaritzburg
Date
heard:
27
October 2023
Date
handed down:
10
November 2023
[1]
Record
at page 40, lines 5 to 23.
[2]
Record
at page 65, lines 10 to 12.
[3]
S v WR
2015 (1) SACR 571
(GP) para 33.
[4]
Respondent’s
heads of argument paras 39 and 40.
[5]
Appellant’s
heads of argument para 5 to 7.
[6]
S v EB
2010 (2) SACR 524
(SCA) at [5] and
cf
Reddi (2010) 2 SACJ 227.
[7]
S v
Bezuidenhout
[2021] ZASCA 52
(unreported, SCA case no 41/2020, 23 April 2021) at
para 32.