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[2022] ZAFSHC 111
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Mokoena v S (81/2019) [2022] ZAFSHC 111 (23 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 81/2019
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
GLEN
DIPHAPHANG MOKOENA
Applicant
and
THE
STATE
Respondent
DELIVERED
ON:
23 MAY 2022
JUDGMENT
BY:
C REINDERS, ADJP
APPLICATION
FOR LEAVE TO APPEAL
[1]
INTRODUCTION:
This
is an application for leave to appeal against the sentence imposed by
Murray AJ on 18 November 2019 in terms of a s105A
[1]
plea-and- sentence agreement (“the plea agreement”). Such
leave is sought to the full bench of this Division.
[2]
In terms of s 316(1)(b) of the CPA the application for leave to
appeal must have been
filed within 14 days after the passing of
sentence.
In casu
the application was filed on 26 April 2021,
just over 17 months out of time. The application for leave to appeal
is consequently
accompanied by an application for condonation for the
late filing of the aforementioned application for leave to appeal.
The respondent
opposes the condonation application and the
application for leave to appeal.
[3]
It was agreed that the application(s) would be adjudicated on heads
of arguments to
be filed by the parties on dates as specified. I am
indebted to the legal representatives of both parties for their able
heads
of arguments. An administrative oversight regrettably caused
this application to be dealt with later than was anticipated, but
same can by no means be attributed to counsel.
[4]
THE SUMMARISED FACTS
:
4.1
The applicant was arraigned on two counts of murder and one count of
robbery with aggravating
circumstances, all three counts read with
the provisions of
s 51(1)
of the
Criminal Law Amendment Act 105 of
1997
as amended (hereafter Act 105 of 1997). According to the
indictment he stood accused of the said counts together with two
co-accused.
He enjoyed legal representation throughout the
proceedings.
4.2
As mentioned, applicant entered into a formal sentence agreement with
the state. His conviction
and sentences are resultant of this
agreement, and having been convicted on all three charges to which he
pleaded guilty, he was
sentenced to imprisonment for 30 years in
respect of each of the two counts of murder, and 15 years’
imprisonment on the
count of robbery with aggravating circumstances.
The sentences on counts 2 and 3 were ordered to run concurrently with
the sentence
on count 1, rendering an effective sentence of 30 years
imprisonment.
[5]
THE s105A PLEA AGREEMENT:
5.1
In the plea agreement
[2]
the
applicant admitted the following facts:
“
1.1
That on or about 30 September 2018 to 1 October 2018 he acted in
common purpose with his erstwhile
co-accused as mentioned above, by
unlawfully and intentionally killing N [....] R [....] G
[....], the deceased in count
1;
1.2
That on or about 30 September to 1 October he acted in common purpose
with his erstwhile
co-accused as mentioned above, by unlawfully and
intentionally killing S [....] A [....] T [....], the deceased in
Count 2;
1.3
That the facts and findings of the post-mortem reports recorded by dr
Daniel Francois Humphris,
attached hereto as annexures E and F are
true and correct.
1.4
That the cause of death of the deceased in Count 1 and 2 are
correctly recorded as:
“
HAEMORRHAGIC
SHOCK AND STAB WOUND NECK”
That
the Accused are guilty of the offence of robbery with aggravating
circumstances as they unlawfully and intentionally assaulted
the
deceased with the intend
(sic)
to induce their submission and
did there and with the intent to steal take the items listed in the
indictment (Annexure C).”
5.2
Under the heading “Personal Circumstances of the Accused”
the following was recorded
[3]
:
The applicant was 30
years old when he committed the offences, and 32 years old at the
time of sentencing. He is married, and has
three minor children, two
sons respectively 12 and 2 years old and a girl of 5 years old. At
the time of the commissioning of the
offences applicant was employed
with the South African Police Services as a constable in Welkom from
2011 to 2018. He passed grade
12 in 2005. He has no previous
convictions and stated that he is remorseful.
5.3
The mitigating circumstances are recorded as follows
[4]
:
After his arrest he
played open cards with the members of the SAPS and confessed to a
magistrate. He pleaded guilty to the charges
and was prepared to
testify against his co-accused who denied their involvement in the
commission of the crimes. He was remorseful
and had been in custody
since his arrest on 1 October 2018 awaiting trial.
5.4
The aggravating circumstances as they appear from the record
were:
That the offences
committed were of a violent and dangerous nature prevalent in the
Republic of South Africa. The deceased in counts
1 and 2 were
attacked, robbed and killed in the safety of their home and the
applicant was well known to both the deceased.
5.5
The parties agreed on the following substantial and compelling
circumstances as warranting a deviation from the prescribed minimum
sentences, to wit life imprisonment in respect of all three
charges:
“
a)
Accused pleads guilty to all charges and made a confession after his
arrest;
b)
Accused did not waste the court’s time and played open cards;
c)
Accused is remorseful, which is indicative of his rehabilitation
prospects;
d)
Accused has been in custody since his arrest on 01 October 2018
awaiting trial;
e)
Accused is prepared to testify against his co-perpetrator-accused no
4 Thabiso
Sthabi Makha and assist the State.”
[6]
THE GROUNDS FOR LEAVE TO APPEAL
The
notice for leave to appeal can be summarised as follows:
6.1
The applicant was not advised about the provisions of to Act 105 of
1997 prior
to his plea and by neglecting to inform the applicant
personally of these provisions, the court acted irregularly.
6.2
Applicant was blindly led by his attorney and the investigating
officer to enter
into the plea bargain as the sentence of 30 years’
imprisonment on counts 1 and 2 was not explained to him by his
previous
attorney of record. He was couched by his previous attorney
to confirm the contents of the agreement and confirm further that he
entered into the said agreement freely and voluntary without any
influence.
6.3
The sentence imposed on counts 1 and 2 of 30 years’
imprisonment is shockingly
inappropriate and out of proportion with
the totality of the accepted facts in mitigation.
6.4
The court erred in sentencing by:
·
not giving proper consideration to the personal circumstances of the
applicant;
·
not giving enough weight to the fact that the applicant was a first
offender and immature;
·
overemphasising the interests of the community and the seriousness of
the crime;
·
not giving due consideration to the element of mercy and gave the
element of retribution way too much weight;
·
not giving due consideration on the fact that the applicant was
relatively young and had spent a considerable period in custody
awaiting trial;
6.5
Although the court correctly deviated or departed from the prescribed
minimum
sentence of life in respect of counts 1, the court erred in
not
informing the applicant
of the provisions of Act 105 of 1997 regarding the fact that
applicant could, if found guilty, be sentenced
to life imprisonment.
6.6
Applicant however admits “that despite this, it appears that
the agreement that was
entered into between parties, complied with
all of the requirements as set out in s105A.”
[7]
THE RECORD
7.1
From a perusal of the record of the proceedings before Murray
AJ, it
is evident that the entire contents of the agreement was read into
the record.
7.2
The record also reveals that the learned judge, before asking
the
applicant to plead, requested of the applicant the following:
COURT
: Mr Mokoena
do you confirm that such a plea and sentence agreement has been
concluded between yourself and the state
ACCUSED
: Yes
M’Lady
COURT
: Do you
confirm that you entered into this agreement voluntarily of your own
free will and without undue influence?
ACCUSED
:
Correct so M’Lady.
[5]
And later:
COURT
: And you
re-confirm that all these admissions and the agreements were made
freely, voluntarily while you were in your sober senses
and that you
admitted all of this without any undue influence?
ACCUSED:
I do confirm M’Lady.
[6]
7.3
The record reflects that the trial judge gave a short judgment
on
conviction confirming her satisfaction that the appellant according
to the agreement admitted all the elements of the three
offences he
was charged with, finding him guilty on all the charges. Hereafter
she proceeded in sentencing the applicant. She alluded
to the fact
that appellant had made common cause with his co-accused to kill and
rob the two deceased, adding that “killing
someone to rob them
of their possession in the safety of their homes is a very serious
offence. What makes it worse is that these
two people were related to
you and well known to you. That you are a police officer who is
supposed to protect people, not kill
and rob them.” She
stressed that “violence has become prevalent and pandemic in
the area of the court’s
jurisdiction, the community looks to
the courts to defend it by punishing such offences appropriately and
preventing others from
committing such crimes.” The trial judge
stated that the court has to ensure that whatever sentence is being
imposed would
be proportional and justifiable in view of the
circumstances. “You have [indistinct] to your deeds by making a
confession
and furthermore by not pleading guilty. You have shown
that you are remorseful…” Finally, the trial judge
concluded
that she had considered all the factors stated in the
agreement (including the mitigating and aggravating circumstances),
and the
sentence agreed to are appropriate and just.
[7]
THE APPLICATION FOR CONDONATION
:
7.1
I was called upon to adjudicate the condonation application as well
as the questions whether
leave to appeal should be granted, and if
so, to which court.
7.2
The principles in respect of the granting or refusal of condonation
have crystalized over
the years. As a point of departure it has been
confirmed in
Grootboom v National Prosecuting Authority and
Another
2014 (2) SA 68
(CC) that condonation is not a mere
formality and is not to be had for the mere asking. At para [23] it
was held that:
“
A
party seeking condonation must make out a case entitling it to the
court’s indulgence. It must show sufficient cause. This
requires a party to give a full explanation for the non-compliance
with the rules or court’s directions. Of great significance,
the explanation must be reasonable enough to excuse the default.
”
Moreover,
the standard for considering an application for condonation is the
interest of justice.
“
However,
the concept “interests of justice” is so elastic that it
is not capable of precise definition. As the two cases
demonstrate,
it includes:
the nature of the relief sought
; the extent and
cause of the delay; the effect of the delay on the administration of
justice and other litigants; the reasonableness
of the explanation
for the delay; the importance of the issue to be raised in the
intended appeal; and
the prospects of success
. It is crucial
to reiterate that both
Brummer
and
Van
Wyk
emphasise that the ultimate determination of what is in
the interests of justice must reflect due regard to all the relevant
factors but it is not necessarily limited to those mentioned above.
The particular circumstances of each case will determine which of
these factors are relevant.
” (at para [22]) (own emphasis
added)
7.4
In support of his application for condonation for the late service
and filing of this application
the applicant deposed to an affidavit
explaining the reasons for the lateness in filing an application for
leave to appeal. According
to him from the onset, it has always
been his intention to file an application for leave to appeal against
his sentence as the
trial court erred in imposing the sentence of 30
years’ imprisonment. Since he was in custody from 1 October
2018 he earned
no income and thus he could not raise sufficient funds
to instruct his attorney to proceed in bringing an application.
Although
he had knowledge of his right to appeal, his erstwhile
attorney failed to advise him about the time frame of 14 days to
bring such
an application. His family eventually managed during March
2021 to raise funds to instruct his current attorney when he became
aware of the prescribed statutory time period. He attempted to lodge
an application for leave to appeal without the assistance of
an
attorney on 5 February 2020. It should be noted that the said attempt
did not include as a ground applicant’s averred
misconduct.
7.5
I considered the applicant’s exposition of his failure to
timeously apply for leave
to appeal. There is no explanation tendered
as to why the applicant did not utilise the services of Legal Aid. Be
it as it may,
I am however willing to accept in favour of the
applicant that the explanation on face value seems reasonable. Having
said that,
I am not convinced that condonation should be granted as
the applicant’s chances of success on the merits on the papers
before
me is puny. I say so for the following reasons:
7.5.1
It is applicant’s case on the papers that he was blindly led by
his attorney and the investigating
officer to enter into the plea
bargain as the sentence of 30 years’ imprisonment on counts 1
and 2 was not explained to him
by his previous attorney of record.
Moreover, he was couched by his previous attorney (thus the attorney
of record who represented
him during the settlement negotiations) to
confirm the contents of the agreement and confirm further that he
entered into the said
agreement freely and voluntary without any
influence.
In
S
v Moamogoe
[7]
in a full bench unanimous decision per Saldulker JA the following was
held in respect of an allegation by the appellant that the
s105A
plea-and-sentence agreement did not accurately reflect the verbal
agreement between him and the state:
“
The
terms of the plea agreement are clear and were confirmed by the
appellant before Borchers J. What the appellant sought to raise
in
this court, namely that the plea agreement did not correctly record
what had been agreed in respect of sentence, is a matter
extraneous
to the record. It is trite that an appeal is decided on the record of
the proceedings in the lower court. In the absence
of an application
to adduce further evidence on appeal, this court is bound by the
record.
The only possible remedy for the
appellant would have been to launch an application for review,
setting out these allegations on
affidavit, so that the state could
have dealt with them under oath.
Even
though, prima facie, the belated allegations of the appellant appear
to be tenuous, this court should not deal with them on
appeal.”
There is no application
for a special entry on the record in terms of s 317 of the CPA and
the mere allegation in the notice of
application for leave to appeal
that applicant was misled, has no value.
7.5.2
The applicant avers that the court committed an irregularity by not
having informed him “personally”
of the provisions of Act
105 of 1997 and that the sentence of 30 years was shockingly
inappropriate. These grounds raise the question
whether an appeal
does lie against a plea-and-sentence agreement (put differently,
whether an appeal is excluded against a plea-and-sentence
agreement).
The court in
Moamogoe
referred to the different views held in
S v De Koker
2010 (2) SACR 196
(WCC)
at 204
i
–
205a
that “by following the process created by s105A, the
appellant settled the
lis
between the State and him once and
for all. (at 205
i
-
20a)
and the contrary
view taken in
S v Armugga and Others
2005 (2) SACR 259
(N)
that
“it had always been contemplated that the right of appeal in
s105A agreements would be a limited one and that relief
would be
granted only in exceptional circumstances” (at
264
f)
The Supreme Court of
Appeal held that it was inappropriate for that court to decide this
issue without the benefit of oral argument.
For the same reason as
the court in
Moamogoe
, I shall likewise refrain from
deciding on this issue.
[8]
I might mention in passing that even if I should have aligned myself
with the view
in
Armugga
that an appeal does lie against an averred irregularity by the trial
court in a plea-and-sentence agreement, I might have had difficulty
in deciding in favour of the appellant. I say so for the following
reasons: it is common cause that applicant does not dispute
that the
plea agreement that was entered into between parties complied with
all of the requirements as set out in s105A. There
is no provision in
either the wording of s105A of the CPA nor the Directives issued by
the National Director Public Prosecutions
[8]
for the presiding officer in a plea agreement, to inform an accused
of these provisions. In any event, the appellant was not sentenced
to
the prescribed minimum sentence, imprisonment for life, but to the
deviated 30 years’ imprisonment and did he not suffer
any
prejudice.
Moreover,
upon a prospectus of the papers before me it is clear that the trial
judge thoroughly considered the content of the plea-and-sentence
agreement. Annexed to the agreement is the confession that applicant
made before the magistrate on 2 October 2010. The content
thereof
paints a grim picture of the fate that befell the two deceased. On
his own version under oath the applicant and his co-accused
all
throughout adjusted their devious plan of murdering his aunt to
fulfil their end result. After an attempt to strangle her was
unsuccessful, and after applicant’s cousin phoned him (the
applicant) to inform about his shocking finding but that his (the
cousin’s) mother was still alive, the plan was merely adjusted.
This resulted in the two deceased’s to be stabbed with
knives,
causing their deaths as described in the post mortem reports. All
along the applicant, a police officer who was supposed
to protect not
only the public but even more so his own beloveds, was conniving to
see through his devious and despicable plans.
[9]
CONCLUSION:
In
my view adjudicating the matter on the record as it appears from the
proceedings before Murray AJ, there is no prospect of success
on
appeal and it would serve no purpose to then grant the application
for condonation.
[10]
I therefore make the following order:
The
application for condonation of the late service and filing of the
notice of appeal is dismissed.
C.
REINDERS, J
On
behalf of the applicant:
Mr SS Kambi
Kambi Attorneys
BLOEMFONTEIN
On
behalf of the respondent:
Adv M Strauss
NDPP
BLOEMFONTEIN
[1]
Section 105A of the Criminal Procedure Act 51 of 1977
(the CPA).
[2]
Para [7].
[3]
Para
[8].
[4]
Para
[9]
[5]
Record: p1/20 – p2/2.
[6]
Record: p8/21-25.
[7]
2021
(1)
SACR 121
(SCA) at par [10].
[8]
DIRECTIVES IN TERMS OF SECTION 105A OF THE CRIMINAL
PROCEDURE ACT,1977 (ACT 51 1977) as amended, issued on 14 March
2022.