S v Mzizi (524/07) [2009] ZASCA 32; [2009] 3 All SA 246 (SCA) (30 March 2009)

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[2009] ZASCA 32
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S v Mzizi (524/07) [2009] ZASCA 32; [2009] 3 All SA 246 (SCA) (30 March 2009)

THE
SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH
AFRICA
JUDGMENT
Case number: 524/07
No precedential significance
In the matter between:
EDMUND GUGULETHU
MZIZI APPLICANT
v
THE STATE
RESPONDENT
Neutral
citation:
Mzizi
v The State
(524/2007)
[2009]
ZASCA 32
(30 March 2009)
Coram:
Mthiyane,
Van Heerden, Jafta, Ponnan et Mlambo JJA
Heard: 16 March 2009
Delivered: 30 March
2009
Summary: Condonation
– good cause – the requirements of good cause restated.
Special entry in
terms of
s 317
of the
Criminal Procedure Act 51 of 1977
.
ORDER
On appeal from:
Mmabatho High Court, Bophuthatswana Provincial Division (Leeuw J)
T
he
following order is made:
1. Condonation is
refused.
2. The matter is
struck off the roll.
JUDGMENT
JAFTA
(
Mthiyane,
Van Heerden, Ponnan et Mlambo JJA)
[1] The applicant
was arraigned in the Mmabatho High Court before Leeuw J on a charge
of murder and unlawful possession of a firearm
and ammunition. He was
convicted of murder and acquitted on the other charges. On 6 February
2001 he was sentenced to 30 years
imprisonment. On 14 March 2003 his
application for leave to appeal was refused.
[2] On 26 January
2007 the applicant applied in terms of s 317 of the Criminal
Procedure Act 51 of 1977 (the Act) for four special
entries to be
made on the record by the court below. The application was heard on
2 March 2007 and judgment was delivered
on 19 July 2007.
The trial judge made only one special entry in the following terms:
‘
The admission of
the statement “That’s Gugu” uttered by the deceased
Captain Tatisi after he was shot and before he died
on the 10
th
December 1998, is hearsay which is inadmissible and that the court
ought not to have admitted it as evidence.’
[3] Although the
papers were prepared and filed in the court below earlier, the
applications were only lodged in this court during
February 2008.
The applicant asks this court to grant leave to appeal generally
against his conviction and sentence; to make
further special entries
on the record on those matters in respect of which the trial judge
had declined to do so; to allow him
to lead further evidence and to
consider the merits of the special entry already made on the record
by the trial court. As these
applications were lodged late the
applicant seeks condonation. The judges who considered his petition
in terms of s 316 of the
Act referred it to the hearing of oral
argument in open court.
THE FACTS
[4] On 10
December 1998 Captain Tatisi (the deceased) and a colleague
(Inspector Lepedi) pursued a suspect who was seen walking
past the
Mmabatho police station in the North West Province. On noticing the
policemen approaching, the suspect fled and the policemen
chased
after him. During the pursuit, Inspector Lepedi handed his fire-arm
to the deceased who fired warning shots in an attempt
to stop the
fleeing suspect. The suspect stopped running and stood in a dark spot
under a tree which overhung the street. When
the deceased was three
paces away from the suspect, the latter fired a shot which hit the
deceased, causing him to fall to the
ground. The suspect escaped
while Inspector Lepedi summoned help. Shortly thereafter Sergeant
Ramakgolo arrived at the scene in
a vehicle which was used to convey
the deceased to hospital.
[5] As he was being
lifted into the vehicle, the deceased uttered the words: ‘That’s
Gugu’. He was certified dead on arrival
at the hospital.
[6] At the trial the
only issue which was in dispute was the identity of the suspect who
had fled and thereafter fired the shot
that killed the deceased. In
seeking to establish the identity of the perpetrator, the prosecution
led the evidence of the following
three witnesses. Sergeant Mogwere
identified the suspect who had been pursued by the deceased and his
colleague as the applicant,
whom he had previously seen in the police
cells where he was detained for two weeks. Although the applicant’s
identification
occurred at night, the street on which he was walking
was illuminated by street lights and Sergeant Mogwere was about 33
paces
away from him. Inspector Lepedi stated that the deceased’s
killer was the suspect that they were chasing. Ms Modiegi Cebisa –

the applicant’s former girlfriend – testified that the applicant
had reported to her that he had shot one ‘Titus’ in self-defence.

She also said that the applicant was also known by the name Gugu. The
applicant denied that on the day in question he had walked
past the
police station or fired shots at the deceased. He was on the day
referred to by Ms Cebisa
[7] The trial court
accepted the evidence of the state witnesses, including the report
given by Ms Cebisa, as proof of the fact
that the applicant was the
person who had shot and killed the deceased. It also accepted that
the utterance made by the deceased
referred to the applicant and
admitted this as part of the evidence material to establishing his
guilt. He was convicted on the
basis of all of the evidential
material including hearsay evidence, namely the utterance ‘that’s
Gugu’.
CONDONATION
[8] In so far as the
application for leave to appeal is concerned, the applicant was
obliged to lodge such application in this court
within 21 days from
the date on which the order refusing leave issued.
1
An application made outside the prescribed period can only be
entertained upon good cause for the delay being shown by the
applicant.
The same requirement applies to applications for special
entries, following upon a refusal by the trial court.
2
In the case where a special entry was made on the record, the
applicant had to appeal to this court within 21 days from the date
of
such order, failing which the appeal lapses unless the period is
extended upon good cause shown.
3
Since none of the present applications had been timeously made,
condonation was necessary. The granting of condonation depends
on
whether the applicant has established good cause for the delay in
each instance.
[9] Good cause is a
well-known test applicable to condonation applications. It has two
requirements. First, the applicant must furnish
a satisfactory and
acceptable explanation for the delay. Secondly, he or she must show
that there are reasonable prospects of success
on the merits of the
appeal.
4
If there are no prospects of success the court may refuse leave even
if the explanation given is satisfactory, for it would be
futile for
the court to grant condonation where it is clear that, on the merits,
the case would fail.
[10] The applicant
gave the following explanation for the delay. Although he could not
afford to pay for legal services and he had
been represented by
advocates appointed by the Legal Aid Board at his trial and at the
application for leave to appeal stage, he
had dismissed those
advocates because he had lost confidence in them. He does not furnish
any reason for losing confidence in Advocate
Benjamin who represented
him in the application for leave to appeal. With regard to Advocate
Kneen, who represented him at the
trial, his complaint was that he
‘handled the mater completely incompetently and ineffectively as is
apparent from the trial
record’.
[11] According to
the applicant he only became aware of Mr Kneen’s incompetence and
ineffectiveness when he perused and discussed
the record of the trial
– apparently with his current legal representatives – after the
dismissal of the two advocates had
occurred. He said:
‘
[A]part from
[Kneen’s] incompetent handling of the case he did not properly
consult with me and take full instructions, so he
was not properly
prepared for the case. I [am] not a professional person with any
knowledge of law or legal procedure, and I did
not appreciate this at
the time. Indeed as I said it was only after I had discussed after
reading the transcription of the record,
that I realised how poorly
my case was handled, and how at fault Mr Kneen was in not arranging
to take proper and full instructions
from me’.
[12] As the
applicant only became aware of Mr Kneen’s alleged incompetence
after the termination of the latter’s mandate, that
could not have
been the reason for his dismissal. The fact that the applicant was
unable to raise funds to timeously engage a legal
representative does
not constitute a reasonable excuse in the circumstances of the
present case.
[13] Following the
dismissal of Messrs Kneen and Benjamin the applicant, so he alleged,
could not engage counsel of his choice for
two reasons. First, he had
no funds from which he could pay legal fees. He relied on the
financial support of his mother who was
only able to pay the final
instalment for fees on 5 October 2006. Secondly, Mr Shapiro
– counsel of his choice –
was also not available to take up his
case until 6 October 2006. He was advised that, as soon as
counsel became available,
the application would be lodged because he
was already out of time and that an application for condonation was
necessary.
[14] But there was a
further delay before the application for the special entries to be
made on the record was lodged on 26 January 2007.
As stated
earlier, the application was heard on 7 March and judgment was
delivered on 19 July 2007. The applicant
ought to have
lodged the present applications in this court within 21 days from the
date of delivery of the judgment in the court
below. The explanation
for his failure to do so is the following:
‘
My Attorney and
Advocate practise in Johannesburg. Orders of Court had to be obtained
from Mmabatho, and I understand that the Registrar
of the
Bophuthatswana High Court took some considerable time to provide the
Orders of Court which were only obtained on 3
rd
August 2007. Once the papers had been prepared they had to be served
on the Registrar of the High Court in Mmabatho and Director
of Public
Prosecutions in Mafikeng respectively, as well as the Registrar of
this Honourable Court in Bloemfontein, and so the
logistics are very
complicated. Accordingly, I respectfully maintain that we have acted
with as much due diligence as we could
in the circumstances and that
there has been no negligence or fault by anyone concerned with my
side of the appeal.’
[15] The applicant’s
attempt to apportion blame to the registrar of the high court for the
delay is untenable. If the order was
available on 3 August, then
the delay is attributable to the applicant and his legal
representatives. That date fell within
the prescribed period of 21
days within which the applicant had to lodge the present
applications. They were only served on the
Director of Public
Prosecutions and the registrar of the high court on 7 January 2008
and later lodged in this court.
In my view, the explanation given for
the delay is unsatisfactory.
[16] In the
circumstances of this case the unsatisfactory explanation furnished
is however not fatal to condonation. In a matter
such as this
condonation may still be granted if there are strong prospects of
success on the merits.
5
This is the issue to which I now turn. I will consider each
application separately.
PERMISSION TO LEAD
FURTHER EVIDENCE
[17] Ordinarily this
court will permit the leading of further evidence on appeal only in
exceptional circumstances and where certain
basic requirements are
met. It is indeed not in the interest of justice that duly concluded
criminal trials be reopened to receive
further evidence at the stage
of appeal. The public is entitled to finality of criminal proceedings
and therefore the leading of
further evidence ought not to be allowed
in a case where the acceptance of such evidence will not affect the
verdict reached.
6
In
S
v De Jager
7
Holmes JA laid down the following requirements:
‘
(a) There should
be some reasonably sufficient explanation, based on allegations which
may be true, why the evidence which it is
sought to lead was not led
at the trial.
(b) There should be
prima facie likelihood of the truth of the evidence.
(c) The evidence
should be materially relevant to the outcome of the trial’.
[18] In this matter
the applicant seeks to lead the evidence of his mother to the effect
that he and Ms Cebisa were not on good
terms at the time the latter
testified. He blames his counsel for not calling his mother who was
available to testify. I am willing
to accept that the applicant and
Ms Cebisa were not on good terms and that her evidence falls to be
treated with caution. Even
so, as counsel for the applicant conceded
during argument, there was no warrant for the rejection of Ms
Cebisa’s evidence. It
follows that the evidence sought to be
adduced does not advance the applicant’s case and consequently the
leading of such evidence
cannot be allowed.
FURTHER SPECIAL
ENTRIES
[19] The applicant
seeks special entries to be made in respect of certain parts of the
evidence of Ms Cebisa, Inspector Mogwere
and Inspector Mogotsi.
First, he contends that Inspector Mogotsi was responding to a leading
question by the trial court when he
testified that the deceased was
also known as ‘Titus’. In this regard the record reads:
‘
Do you know the
name Titus? … Yes his full names are Moses Gopolang Tatisi …. but
he was commonly known as Titus.’
Plainly, that was
not a leading question.
Second, in respect
of Inspector Mogwere, the subject-matter of the proposed special
entry is the following statements: ‘He [Inspector
Lepedi] told me
that during the chase Captain Tatisi did not have his firearm with
him. As they were chasing the accused, Captain
Tatisi then took
Lepedi’s firearm and he fired shots.’ The short answer to this
alleged irregularity is that the State called
Lepedi to testify as
well and he confirmed Mogwere’s evidence on that score.
Third, with regard
to Ms Cebisa, the applicant sought a special entry on the
admissibility of her evidence in relation to the report
made to her
by him, on the basis that it was hearsay. What Ms Cebisa testified to
was an account of events given to her by the
applicant – she at
that stage was not to know the significance of the report. It is true
that that report contained an important
admission, but it was also
exculpatory and raised the spectre of the applicant having acted in
self-defence. The possibility of
him having acted in self-defence,
counsel unwisely sought to advance on appeal as an alternative to the
bare denial that had been
proferred in the trial court. Even if the
report is left out of account of the evidence implicating the
applicant, sufficient evidence
remains (on the record) which support
his conviction.
[20] While it is
true that s 317 of the Act permits a special entry to be made ‘unless
the court to which …. 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’, an appeal court
would be entitled to refuse to
make a special entry on the basis that
the irregularity concerned does not result in a failure of justice.
Section 322 of the Act
prohibits interference on appeal with a
conviction on the basis of an irregularity, unless such irregularity
or defect leads to
a failure of justice.
[21] The other
special entries sought related to the alleged incompetence of Mr
Kneen as counsel for the applicant and the fact
that the trial court
took judicial notice of the streets where the suspect was pursued and
the shooting occurred. The latter was
not pursued with any vigour
before us – rightly so. In view of the applicant’s denial that he
was at the scene, it could not
have been irregular for the trial
court to have taken judicial notice of what must have been a
notorious fact, namely the layout
of the streets where the chase and
shooting occurred. As to the former, the fact that the applicant’s
current counsel might have
adopted different tactics and strategies
at the trial does not render the representation by Mr Kneen so
inadequate as to vitiate
the proceedings. After all, we are all wiser
after the event. None of the alleged special entries sought ought to
be made. Nor,
even if they were to be made, would they, in my view,
affect the verdict.
THE GRANTED SPECIAL
ENTRY
[22] As mentioned
earlier, the court below made a special entry in respect of its
admission of the utterance: ‘That’s Gugu’.
This was regarded as
a dying declaration by the deceased. Since s 216 of the Act – which
permitted the admission of common law
exceptions to hearsay evidence
was repealed - the admission of hearsay evidence is now governed by
s
3
of the
Law of Evidence Amendment Act 45 of 1988
. This section lays
down the requirements for admission of hearsay evidence. There can be
no doubt that the statement uttered by
the deceased, if it was
admitted to prove the identity of his killer, constitutes hearsay
evidence.
[23] Although it is
arguable that the statement in question was admitted in compliance
with the requirements of
s 3(1)(c)
, for purposes of this judgment, I
am willing to assume in the applicant’s favour that its admission
did not comply with that
section. I am willing to assume further that
such failure amounted to an irregularity. For, if the utterance by
the deceased is
discounted from the body of evidence implicating the
applicant, the remaining evidence would still be sufficient to
sustain his
conviction. It cannot therefore be argued that the
irregularity concerned nullifies the verdict. Put differently, such
irregularity
did not lead to a failure of justice and it is only in
that event that this court would be entitled to interfere with the
conviction
or the sentence imposed.
LEAVE TO APPEAL
[24] In so far as
leave to appeal generally is concerned, in respect of the conviction
no new grounds were advanced. Instead the
applicant contented himself
with a regurgitation of the alleged irregularities already alluded
to. As I have demonstrated, each
of those is without substance.
Regarding sentence, counsel for the applicant argued that it was
exceedingly harsh. But he could
not point to any misdirection
committed by the trial court in exercising its sentencing discretion.
The appeal court’s power
to interfere with a sentence imposed by
the trial court is circumscribed. Interference can only take place if
one of the recognised
grounds is shown to exist. In my view the
sentence imposed in this matter is not ‘excessively harsh’ or
‘disturbingly inappropriate’,
nor was it vitiated by any
misdirection of the kind which would justify interference by this
court.
[25] It follows that
the applicant has failed to establish that he has any prospects of
success in any of the applications. In the
result the application for
condonation must fail.
[26] T
he
following order is made:
1. Condonation is
refused.
2. The
matter is struck off the roll.
_____________________________
C N JAFTA
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: P I
Shapiro
Instructed by
Ester Resnik
Attorneys
Johannesburg
Giorgi & Gerber
Attorneys
Bloemfontein
FOR RESPONDENT: G S
Maema
Instructed by
Director of
Public Prosecutions
Mmabatho
None
Bloemfontein
1
Section 316(8)
of Act 51 of 1977.
2
Section 317(5) of Act 51 of 1977.
3
Section 318(1) of Act 51 of 1977.
4
S v Mohlathe
2000(2) SACR 530 (SCA).
5
Finbro Furnishers (Pty) Ltd v Registrar of
Deeds, Bloemfontein and Others
1985
(4) SA 773
(A);
Rennie v Kamby Farms
(Pty) Ltd
1989 (2) SA 124
(A) at
131H-J.
6
S v Nofomela
1992 (1) SACR 277
(A) and
S v M
2003 (1)
Sa 341
(SCA) para 16 and the authorities there cited.
7
1965
(2) SA 612
(A) at 613C-D.