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[2022] ZAFSHC 312
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Togowe v S (66/2017) [2022] ZAFSHC 312 (21 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 66 /2017
Reportable:NO
Of
Interest to other Judges: NO
Circulate
to Magistrates:NO
In
the matter between:
NTSANE
ISAIAH
TOGOWE
APPLICANT
AND
THE
STATE
RESPONDENT
JUDGMENT
BY:
P
MOLITSOANE,
J
DELIVERED
ON:
21
OCTOBER
2022.
[1]
The applicant was charged with one count
of murder and
one
count of robbery with aggravating circumstances. He was convicted as
charged and sentenced to life imprisonment on the murder
charge and
to 15 years' imprisonment on the robbery charge. He seeks leave to
appeal to the Full court of this Division, alternatively,
to the
Supreme Court of Appeal. This Court caused certain directives to be
issued with regard to the filing of the Heads of Arguments
with a
view to deal with the application in chambers and as a result
dispensed with oral submissions.
[2]
The application for leave to appeal is
out of time and the applicant further seeks condonation for the late
bringing of the application
for leave to appeal. The State does not
oppose the condonation application and having regard to the reasons
given by the applicant
I am of the considered view that condonation
for the late
bringing
of the application for leave to appeal should be granted.
[3]
The applicant further filed a notice to
lead further evidence in the appeal.
[4]
Section 17
of the Superior Court Act 10 of 2013
states:
"Leave
to appeal
17.
(1)
Leave
to
appeal
may
only
be
given
where
the
judge
or judges concerned are of the opinion
that-
(a)
(i
)
the appeal would have a reasonable
prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under
consideration;
(b)
the decision sought on appeal does not
fall within the ambit of section 16(2)(a); and
(c)
where the decision sought to be appealed
does not dispose of all the issues in the case, the appeal would lead
to a just and prompt
resolution of the real issues between the
parties."
[5]
Section
17(1) requires that an applicant seeking leave to appeal is required
to
convince
the court that there is a reasonable prospect of success and not
merely a possibility of success in the appeal. In
Democratic
Alliance v President of the Republic of South Africa and Others
[1]
the
Full Court held as follows:
"The
test as now set out in s17 constitutes a more formidable threshold
over which an applicant must engage than was the case.
Previously the
test was whether there was a reasonable prospect that another court
might come to a different conclusion. See, for
example,
Van
Heerden v Cronwright and Others
1985(2) SA 342 (T) at 343 H. The
fact that the Superior Courts Act now employs the word 'would 'as
opposed to 'might 'serves to
emphasise this point. As the Supreme
Court of Appeal said in Smith v S 2012(1) SACR 567 (SCA) at para 7;
'More
is required to be established than that there is a mere possibility
of success, that the case is arguable on appeal or that
the case
cannot be categorised as hopeless. There must in other words be a
sound, rational basis for the conclusion that there
are prospects of
success on appeal."'
[6]
The judgment is
assailed on the following grounds:
AD
CONVICTION
(i)
That the Court erred in finding that the
State proved its case beyond
a
reasonable doubt against the
applicant
having
regard
to the contradictions in the state case which the Court found to be
immaterial;
(ii)
That the
court erred in
not properly analyzing and evaluating
the evidence of state witnesses and further not considering inherent
improbabilities in the
state's version;
(iii)
The appellant did not enjoy proper and
adequate legal representation;
AD
SENTENCE
(i)
That an
effective term of imprisonment is
strikingly inappropriate and induced a sense of shock.
[7]
The gravamen of the attack on the
conviction lies with the submission that this court erred in finding
that the identification of
the appellant by the two state witnesses
was reliable and credible. This court, having cautioned itself of the
dangers of identification
dealt fully with the reasons for accepting
the version of
the
state and rejecting that of the appellant. The applicant seems to
labour under the impression that the acceptance of the version
of the
state in respect of the identification
was solely based on the clothing the two
witnesses described in order for this court to accept the evidence of
identification. This
cannot be correct.
[8]
This court took into account, inter
alia, the time this incident took place, the mobility of the scene,
the time the witnesses had
the applicant in sight in
order to make a reliable identification.
The facial and physical characteristics
of the applicant as described by the witnesses, the reliability of
the identification parade
evidence tendered relating to the
identification parade as well as the version of the appellant. It is
not expected of two or more
people who make an observation to give a
carbon copy of
the
evidence or observation they make, what the court has look at,
is where there are
differences in their observation,
whether such differences are so material
as to taint the reliability and credibility of their evidence. In
this case the court did
not deal with the evidence piece meal. The
acceptance of the
evidence
of the
two
witnesses was not based on
the
evidence of the clothing alone. On the ground raised I cannot find
that another court will come to a different finding.
[9]
The appellant seeks to cast aspersions
on his erstwhile legal representative by alleging that he did not
enjoy proper and /or adequate
legal representation.
This submission is rejected outright. Mr
Tshabalala, an
experienced
Counsel appeared for the applicant. On the first day of the hearing,
he successfully applied for the proceedings
to be
postponed at
the instance
of the
applicant in
order that he and the applicant could
have access to the bail proceedings in the lower court.
[10]
The reason for seeking the bail proceedings was to show that the
applicant was assaulted by the
police at the time of arrest.
Throughout the hearing the court had from time to time allowed him to
consult with the applicant,
most of the time at the request of the
applicant. Throughout the proceedings the applicant gave Mr
Tshabalala instructions from
time to time regarding the evidence
which was led. The appellant cannot point a single instance which
could likely point to the
ineptness of Mr Tshabalala. This submission
that the applicant had no proper representation is rejected and no
other court will
find in favour of the applicant in this regard.
[11]
With
regard
to
the
sentence the
applicant
submits that
the
sentence imposed is shockingly inappropriate. The accused simply
asserts that the court erred in finding that no substantial
and
compelling circumstances exist to warrant deviation from imposing the
prescribed minimum sentence. The applicant was convicted
on two
counts which attract the imposition of prescribed minimum sentences.
The attack of the sentence in this application is only
geared at the
murder charge. The appellant does not seem to challenge
the
finding
that
no
substantial
and
compelling circumstances exist in the
robbery charge. These offences happened at the same time and were
intertwined. The applicant
still has not demonstrated which factors
this court must take into account in finding that there exist any
substantial and compelling
circumstances warranting deviation from
imposing prescribed minimum sentences. The sentence imposed is not
shockingly inappropriate
and having regard to the fact that the
deceased was shot and killed in
his
house while still unclad after taking a shower, I am of the view that
there are no prospects that another court will decide
this matter
differently.
[12]
The applicant also implores this court
to grant him leave to lead further evidence in the appeal. The basis
for this application
is encapsulated in the following parts of the
appellant's founding affidavit:
4.
"The
basis for the application
to
lead further
evidence
will be laid by way of the
medical records of myself pertaining
to the 31st of March 2016. This
medical record indicates that I sustained facial injuries after the
30fh of March 2016 and thus
had no marks on face as testified
by
Ms
Maliehe.
5.
I
humbly request the honourable court to find that this is indeed new
evidence on the following reasons:
a.
The medical records are available and
true reflection of the treatment that I received at National Hospital
on the 31st of March
2016;
b.
I will further submit that the
acceptance of the medical records could lead to
a
different conclusion as to my guilt
on the said convicted charges;
c.
The medical records were not
tendered during the trial
as
my
legal representative did not have sufficient time to obtain the said
records
as
he
did not fully consult with myself in order to give proper
instructions.'
[13]
S
v De Jager.
[2]
laid
down the requirements the court must observe in an application where
leave to lead further evidence on appeal is sought. In
St
Clair Moor and another v Tongaat-Hulett Pension Fund and others
[3]
the
court said the following:
"[36]
The test for the admissibility of further evidence on appeal is well
established (S
v de
Jager
1965 (2) SA 612
(A) at
613C - D). An applicant must meet the following requirements:
(a)
there must be a reasonably sufficient
explanation, based on allegations which may be true, why the new
evidence was not
led
in the court a quo;
(b)
there should be a prima facie likelihood
of the truth of the new evidence; and
(c)
the evidence should be materially
relevant to the outcome of the case. Further evidence is allowed only
in exceptional cases
(De Aguiar v
Real People Housing (Pty) Ltd
[2010)
ZASCA 67
2011 (1) SA 16
(SCA)
para
11)."
[14]
Leave will only be granted for new
evidence to
be
adduced in exceptional cases only.
During the
trial the appellant
sought the copies of the record of the
proceedings
of
the
lower
court to
prove
that he was assaulted. Much time was spent by the defence
during cross examination to
prove the assault. At no stage during
the said cross examination did the
appellant confront any of the state
witnesses that he had no mark on the face. The
sole
purpose
of
cross
examination
was
to
prove
assault.
This court dealt fully with the issues
raised in paragraphs [30] to [34] of its judgment.
At
the
time
when
the
trial
started
the
medical
records
sought to
be led in evidence were already
available. There is no explanation why such evidence was not led. On
this point alone this application
is ill
fated and has to
fail. I accordingly
make
the
following order:
ORDER
1.
Condonation for
the
late
noting
and
prosecution of
the application for leave to appeal is
granted;
2.
Leave
to
appeal
against
the
conviction
and
sentence
is
refused;
3.
Leave to lead further evidence is
denied.
P.E.
MOLITSOANE, J
On
behalf of Applicant: Ms.
V ABRAHAMS
Instructed
by:
Legal Aid South Africa
BLOEMFONTEIN
On
behalf of Respondents: Adv.
DW Bontes
Instructed
by: Director
of Public Prosecutions
BLOEMFONTEIN
[1]
(21424/2020) [2020] ZAGPPHC 326(29 July 2020) paras [4] - [5].
[2]
1965 (2) SA 612
(A) at 613 C - D
[3]
2009 (3) SA 465
(SCA) at para 36