About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2021
>>
[2021] ZAGPPHC 691
|
|
Oliphant and Another v S (CC158/2018) [2021] ZAGPPHC 691 (10 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER
JUDGES:
YES
/NO
(3)
REVISED: YES/
NO
10/6/2021
Case number:
CC158/2018
In the matter
between:
ALOGEN
OLIFANT
4
th
Applicant
NEALANE
PETERSON
5
th
Applicant
v
THE
STATE
Respondent
JUDGEMENT
MOSOPA,
J
1.
In this matter, five
accused were arraigned before me on multiple counts, including
murder, read with the provisions of section
51(1) of Act 105 of 1997,
attempted murder and unlawful possession of firearm(s) and
ammunition. On 30 November 2020, I convicted
all the accused on all
charges proffered against them and eventually sentenced them on 7
December 2020.
2.
Application for leave
to appeal against both conviction and sentence was then brought by
the current applicants. I must mention
here that the application for
leave to appeal was supposed to be heard in respect of the remaining
three applicants too, but after
their application for condonation of
late filing of the application for leave to appeal was refused, I
proceeded to hear the application
of the current applicants. After
hearing argument on 3 June 2021, I reserved judgment.
3.
Section 316(1)(a) of
the Criminal Procedure Act 51 of 1977 (“CPA”) provides;
“
(1)(a)
Subject to
section 84
of the
Child Justice Act, 2008
, any accused
convicted on any offense by a High Court may apply to that court for
leave to appeal against such conviction or against
any resultant
sentence or order.”
4.
Section 17(1)(a)
-(c) of
the
Superior Courts Act 10 of 2013
provides;
“
(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)
,
or
(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.
From the above, it is
clear that leave to appeal may only be granted when certain
“jurisdictional facts” exist, namely;
5.1.
the appeal would have
reasonable prospects of success, or
5.2.
it should be heard for
some other compelling reason, such as conflicting judgments on a
particular point of law raised.
6.
The test of “reasonable
prospects of success” was dealt with in the matter of
S
v Smith
2012 (1) SACR 567
(SCA)
at para 7, which reads as follows;
“
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the
appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote, but have a
realistic chance of succeeding. 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 categorized as
hopeless. There must, in other words, be
a sound, rational basis for
the conclusion that there are prospects of success on appeal.”
7.
It is against this
backdrop that the test of a reasonable prospect of success can be
found to have the effect that the court will
refuse an application
for leave in this cases where absolutely no chance of a successful
appeal exists; or where a court is certain
beyond reasonable doubt
that the appeal will fail (see
R
v Ngubane and Others
1945 AD 185
at
186-7). On the other hand, it is trite that it is not necessary for
the trial court to satisfy itself that the appeal court would
come to
a different conclusion, but what is necessary is that there should be
a reasonable prospect that the appeal may succeed
(
S
v Ackerman en ‘n ander
1973 (1) SA 765
(A)
at 767G-H).
8.
The nature of the
argument made by Mr Peterson on behalf of the fourth and fifth
applicants can be summarized as follows;
8.1.
That I misdirected
myself in the evaluation of the facts and evidence presented in
respect of the surrounding facts of the scene,
namely;
8.1.1.
the identification of
the vehicle, and
8.1.2.
the identification of
the individuals (perpetrators)
8.2.
That I misdirected
myself in the application of the law in respect of;
8.2.1.
alibi, and
8.2.2.
the doctrine of common
purpose.
9.
Mr Peterson contended
that I erred in holding that the visibility at the time of this
incident was clear enough for one to make
an observation. The attack
was levelled against the admitted evidence of Ms Anna van Schalkwyk
and Constable Kolobe, who attended
the scene as a photographer. I
mentioned inconsistencies in the state witnesses’ evidence in
my judgment and made a ruling
in respect thereof. I also admitted
evidence that there was sufficient light for one to make an
observation. In admitting this
evidence, I not only considered the
state witnesses but also witnesses on behalf of the accused, namely
Mr Lucas and Mr Levanian
Olifant, the younger brother of the fourth
applicant.
10.
The existence of the
garage light at Mr Mohamed’s place is not disputed and its
illumination of the place is visible on the
crime scene photo album,
indicating that it was switched on at the time of the commission of
the offense. Mr Levanian testified
about the appolo lights at
Slawerboom which the complainants referred to in evidence as the
other source of light, and which was
in working condition and
illuminated the scene. Mr Kolobe, who attended the scene as a
photographer, also had occasion to testify
about the visibility at
the scene. According to him, the light was sufficient for him to make
an observation about 200 meters from
the scene. He does not deny that
he had to use a flashlight, as it was night. Mr Lucas, also a witness
on behalf of the defense,
observed the visibility at the scene where
the shooting incident took place. Before he could even arrive at the
exact scene of
the shooting, he saw the bodies lying on the ground
and he could see blood. This shows that visibility at the scene was
sufficient
for one to make an observation. He later went on to change
his evidence that the scene was dark and he had to make use of bright
lights in order to see.
11.
Mrs van Schalkwyk was
not called to testify about the visibility at the scene where the
shooting incident took place, but mainly
to refute the second
applicant’s alibi. It is in response to the court’s
questioning that she testified about the visibility
at the scene. She
mentioned light coming from the shopping complex in corroboration of
some state witnesses’ evidence in
this respect, the appolo
light situated next to her residence and the street lights on
Caledonia Curve, which is street where the
shooting incident took
place. All the witnesses who testified about the visibility at the
scene, with the exception of Mr Lucas
who changed his version, their
evidence can be relied upon and I am not of the view that I
misdirected myself in relying on this
evidence.
12.
The fifth applicant and
his mother, Mrs Peterson, both testified that the original petrol cap
of the vehicle used by the fifth applicant,
was black and was
damaged. It was then replaced with a white petrol cap. The
eyewitnesses gave a different colour to the petrol
cap, with some
saying that it was white and others saying it was a grey petrol cap.
They were all consistent in respect of the
colour of the vehicle
being black and that it was a VW Polo vehicle. This fact was also
admitted by the fifth accused as well as
Mrs Peterson. They all
agreed that the vehicle had a silver trim on the boot. The
eyewitnesses were all consistent in saying that
it was the only
vehicle like that in the area and that the driver of the vehicle
always played loud music. This was also confirmed
by the fourth and
fifth applicants.
13.
Mr Kemp was once a
passenger in the vehicle described above. Mr Zayn Mohamed provided
the court with the registration number of
the vehicle which attacked
them. However, this registration number was not correct as he had
confused certain letters. Criticism
was levelled against his evidence
as to why this registration number was not mentioned in his statement
to the police. However,
the identification of the vehicle is not the
only evidence linking the applicants to the commission of the
offence, as all the
applicants were placed inside the vehicle, with
the fifth applicant as the driver. I have already dealt with the
issue of visibility
and that allowed the complainants to identify the
applicants inside the vehicle. All the witnesses who identified the
fourth applicant,
indicated that they never saw him shooting and
further stated that he was seated on the back passenger seat.
However, this does
not exclude the liability of the fourth applicant,
as the state relied on the doctrine of common purpose to secure a
conviction
against all the applicants. All the state witnesses placed
the fifth applicant at the scene and confirmed that he was the driver
of the vehicle which was used in the commission of the offense,
namely the black VW Polo Vivo vehicle, which belongs to him.
14.
In contention, Mr
Peterson, on behalf of the applicants, further contended that I
applied the doctrine of common purpose incorrectly
and most
importantly, that I misdirected myself, in that I did not make a
finding in respect of a planning enterprise, yet I convicted
the
applicants on common purpose. This contention is completely misplaced
as I dealt with this point in my judgment and held as
follows:
“…
The
liability requirements of a joint criminal enterprise fall into two
categories. The first arises where there is a prior agreement,
express or implied, to commit a common offense. In the second
category, no such agreement exists or is proved…”
15.
Further, that,
“
The
State could not prove the existence of a prior agreement amongst the
accused before the crime was committed in order to hold
the accused
liable for murder. However, what the State managed to prove is the
fact that all the accused on the 6 April 2018 were
together in the
vehicle which belongs to accused 5, who was also the driver of that
vehicle. The accused knew that some of the
members of their group
were in possession of the firearms and such firearms would be used to
kill the deceased and injure the complainants
and they actively
associated themselves with such intention. They have manifested their
sharing of a common purpose with the actual
perpetrators by
associating them with their conduct. They had the requisite mens rea
to kill the deceased and they had foreseen
the possibility of the
deceased being killed and they reconciled themselves with that
intention. (S v Mgedezi).”
16.
The same was said by
the Constitutional Court in the matter of
S
v Tshabalala and Another
2020 (2) SACR 38
(CC)
,
which is one of the decisions Mr Peterson relies on, where Mathopo AJ
observed,
“
[48]
The liability requirement of a joint criminal enterprise falls into
two categories. The first arises where there is a prior
agreement,
express or implied, to commit a common offense. In the second
category, no such prior agreement exists or is proved.
In the latter
instance, the liability arises from an active association and
participation in a common criminal design with the
requisite
blameworthy state of mind.
[49] It is trite
that a prior agreement may not necessarily be express but may be
inferred from surrounding circumstances. The facts
constituting the
surrounding circumstances from which the inferences are sought to be
drawn must nevertheless be proved beyond
reasonable doubt. A prior
agreement to commit a crime may invoke the imputation of conduct,
committed by one of the parties to
the agreement which falls within
their common design, to all other contracting parties. Subject to
proof of the other definitional
elements of the crime, such as
unlawfulness and fault, criminal liability may in these circumstances
be established.”
17.
When I convicted the
applicants based on the doctrine of common purpose, I relied on the
second leg of the doctrine, as I found
that the State could not prove
the existence of a prior agreement, but the surrounding circumstances
of the case infers that such
an agreement exists. For all the
applicants to be in the same vehicle at the time of the shooting
incident proves that. Evidence
is established that the applicants do
not stay in the same vicinity, but rather some distance from each
other. There was a stage
earlier on, before the shooting incident,
when accused 1 and 3 passed the complainants and were seen pointing
their fingers at
the complainants. At that stage, the rest of the
applicants were not present. Shots were fired immediately after the
vehicle driven
by the fifth applicant approached the complainants and
such shots were not fired from where the complainants were seated.
18.
It was furthermore
contended by Mr Peterson that I misdirected myself in finding that
the alibis of the applicants are false, beyond
doubt. I fully gave my
reasons for this finding in my judgment which I do not intend to
repeat at this stage and I stand by that
finding.
19.
A further attack of my
rejection of the defense of alibi of the applicants is that I drew an
inference of guilt from the applicants’
pre-trial silence
(their failure to disclose the defense of alibi at the time of their
arrest). In my judgment, when convicting
the applicants, I stated the
following;
“
It
is trite that there is no onus on the accused to establish their
alibi. It might be reasonably true that they must be acquitted
and it
does not have to be considered in isolation from other evidence. The
correct approach is to consider it in the light of
the totality of
the evidence presented before court. “(Further quoted the
dictum expressed in the matters of R v Hlongwane
[1959] 3 All SA 308
(A), R v Biya
[1952] 4 All SA 304
(A); Tshiki v The State (358/2019)
[2020] ZASCA 92
(18 August 2020).
20.
Further, that,
“
The
rights to remain silent before and during trial and be presumed
innocent are important, interrelated rights aimed at ultimately
protecting the fundamental freedom and dignity of an accused person…
It is well established that it is impermissible for
a court to draw
any inference of guilt from the silence of an accused person. Such
inference would undermine the rights to remain
silent and to be
presumed innocent. The failure not to disclose an alibi timeously is
therefore not a neutral factor. It may have
consequences and can
legitimately be taken into account in evaluating evidence as a
whole…”
21.
Further in my judgment,
that,
“
I
cannot draw any negative inference due to the late introduction of
their defenses of alibi (applicants), as it does not appear
that they
were initially appraised of that at the time of their arrest.”
It was my finding
that the applicants’ defenses of alibi should be weighed
against the totality of evidence. Further finding
that the only basis
on which a court can reject the defense of alibi is when it is proven
that it is false beyond doubt because
once it is raised, as a general
rule, it must be accepted (
S v Musiker
2013 (1) SACR 517
(SCA)
at paras 15-16).
22.
Based on the above, I
do not see any court coming to the different conclusion reached by
the trial court.
23.
On sentence, even
though Mr Peterson correctly, in my view, stated that there is not
much to present as the main emphasis was on
conviction, only legal
argument was presented. The majority of offenses I convicted the
applicants of are defined and prescribed
in the minimum sentence
regime. For a court sentencing a convicted person of such, it must be
established that there exists compelling
and substantial
circumstances for such court to deviate from the imposition of such
prescribed minimum sentences. In my judgment
on sentence, I found
that no such circumstances existed and I stand by my finding.
24.
I am of the view that
no other court could come to a different conclusion from the sentence
I imposed.
25.
Consequently, I make
the following order;
1.
The application for
leave to appeal against both conviction and sentences is refused.
MJ
MOSOPA
JUDGE OF THE HIGH
COURT, PRETORIA
Appearances:
For
the applicants:
Adv D Peterson
Instructed
by:
Luando
Vorster Attorneys
For
the respondent:
Adv M Marriott
Instructed
by:
The DPP
Date
of hearing:
3 June 2021
Date
of judgment:
10 June 2021