Tshabalala v S (01/2016) [2019] ZAFSHC 74 (7 June 2019)

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[2019] ZAFSHC 74
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Tshabalala v S (01/2016) [2019] ZAFSHC 74 (7 June 2019)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
number:
01/2016
In
the matter between:
SIMPHIWE
TSHABALALA
Applicant
and
THE
STATE
Respondent
CORAM:
DAFFUE, J
HEARD
ON:
07
JUNE 2019
JUDGMENT
BY:
DAFFUE,
J
DELIVERED
ON:
07 JUNE 2019
[1]
The applicant was convicted on several counts with two co-accused in
March 2016 and sentenced to effective imprisonment of 18
eighteen
years.
[2]
Applicant specifically instructed his attorney, Mr Reyneke, at the
time not to apply for leave to appeal. This is apparent from
the
record. I refer to pages 83 and 84 of the transcribed record in
respect of the proceedings on 17 March 2016 and I quote:
“
Mr
Reyneke and Mr Tshabalala I understand that you have applications for
leave to appeal, do you want to have an adjournment and we
can carry
on tomorrow morning?
MR
REYNEKE
M’lord may I ask that
I can just approach accused 1 and 2 here in court and hear of those
are still my instructions, otherwise
we might postpone and then I do
not have an application, I might not have. May I ask that we take a
short adjournment so that I
can just consult them?”
After
an adjournment of 10 minutes we went back to court and I quote the
following conversation:
“
MR
REYNEKE
I have consulted accused
1 and 2. I have explained to them the legal principles applicable to
an application for leave to appeal
and my instructions are not to
proceed with an application for leave to appeal on either the
conviction or the sentence.
COURT
On
either?
MR
REYNEKE
On neither one of the
conviction or the sentence.
COURT
Thank you.
MR
REYNEKE
There will be
no application, thank you.
COURT
Mr Tshabalala?
MR
TSHABALALA
I have consulted Mr
Shezi, we are bringing no application M’lord.
COURT
You
mean you are going to come later with one?
MR
TSHABALALA
Not at all.”
[3]
Contrary to the specific instructions, the applicant now avers in
paragraph 2 of his affidavit in support of an application for
condonation as follows:
“
2.
On 16 March 2016, I was convicted and sentenced by the Honourable
Justice Daffue, seated at the Harrismith Circuit of the Free
State
High Court. At the time, I did not instruct my Attorney to Apply for
Leave to Appeal, as I wanted think about the matter and
to appoint
private Counsel to pursue a possible Application for Leave to
Appeal.“
[4]
Applicant’s present version is in direct contradiction with his
instructions three years ago.
[5]
I accept that courts lean over backwards and often close their eyes
when convicted prisoners apply for condonation, even when
relying on
flimsy reasons. In
casu
,
applicant failed to show what has been done in the period of three
years. The default has not been explained properly as is expected
by
our courts; however the application for condonation is not opposed by
the State.
[6]
Applicant’s version in paragraph 4 of his affidavit that he always
had the intention to apply for leave to appeal is contradicted
by the
transcribed record. However, I shall consider the merits of the
application.
[7]
I also find it quite unfortunate that I have to consider an
application at this late stage, based on a transcribed judgment and
sentence that were never presented to me earlier for perusal and
approval. I never had the opportunity to verify the record.
[8]
In the short time available to me since I received the application
for leave to appeal on 28 May 2019 I did my best to ascertain
the
correctness of the typed judgment and sentence. Fortunately I kept
my handwritten notes. I detected several mistakes when perusing
the
document on 6 June 2019 and there was not time to arrange for the
editing of, for example wrong quotations and referrals to authority
have not been corrected. I just mention one mistake: Heher AJA is
typed as Hare AJA.
[9]
The applicant relies on several grounds of appeal. In my questioning
of Mr Reyneke, he specifically indicated that he had communication
with the applicant in respect of the application for leave to appeal
and that the applicant instructed him that those were the only
grounds of appeal to rely on. I quote from the application:
“
1.
AD
CONVICTION
: That the
court
a quo
erred in –
Accepting
the evidence by the State witnesses despite them being unreliable,
contradicting their own – and other witnesses’
versions;
Rejecting
Applicant’s version of an alibi despite the absence of DNA or
fingerprints at the scene and the Complainant being
unable to point
Applicant out at an Identification Parade, yet he did so only in
Court. According to the Complainant he was
not at the scene of
arrest, yet the Court rejected Applicant’s version that the
Complainant had assaulted Applicant at the
said scene;
Accepting
the numbers depicted on Applicant’s warning statement to be that
of Applicant;
Accepting
the evidence of the erstwhile Accused 4, being called in terms of
Section 204 of Act 51 of 1977, without applying caution
to his
evidence.
AD
SENTENCE
:
The
sentence is shocking and severe. The Court erred in not properly
analysing Applicant’s personal circumstances;
Applicant’s
personal circumstances, including his young children and ill
mother’s care were not taken as mitigating factors
so to
ultimately sentence Applicant to a lessor sentence.“
[10]
I do not intend to deal in any detail with the grounds of appeal,
save to say the following:
10.1 I
summarised the evidence fully in the judgment and made a proper and
detailed evaluation of the evidence, the legal position
and the
submissions of the parties.
10.2 The
State witnesses collaborated each other on crucial aspects indicated
and although I detected minor discrepancies, these were
insufficient
for rejecting the versions based on unreliability as alleged.
10.3 Applicant
was indeed identified at the ID parade by Mr Maritz and the
allegation in the grounds of appeal is totally wrong.
I made a
particular finding as to why Mr Maritz identified him at the ID
parade, while his wife, Mrs Maritz, failed to identify applicant
at
the ID parade.
10.4 Mr
Dladla, the Section 204 witness and a former co-accused, testified
against applicant and his two co-accused. I accepted his
evidence as
credible and reliable, after having caution myself as the law
dictates.
10.5 It
was not necessary to rely on any DNA or fingerprint evidence in order
to convict applicant – the case against him and his
co-accused was
overwhelming.
10.6 In
the light of the totality of the evidence I rejected applicant’s
evidence and his alibi as false and thus not reasonably
possibly
true. The versions of the three accused were fanciful and so
improbable that it was rejected as false. The person, Tshepo,
who
allegedly took applicant’s car to visit his ill grandmother, he
being a friend of the applicant, returned with applicant’s
car,
laden with firearms and other stolen items. On applicant’s
version, he and accused two were innocently waiting for the food
they
had ordered at the café. Accused three was an innocent passer-by at
the stage when applicant’s car collided with a vehicle
of one of
the farmers that pursued it. Tshepo was nowhere to be seen
afterwards. The accepted evidence contradicted the applicant
and his
co-accused’s version. All three accused and Mr Dladla were
occupants in the applicant’s vehicle, laden with stolen firearms
and other items, when the collision occurred.
10.7 There
was no reason to reject the cell phone numbers on applicant’s
warning
statement as those belonging
to applicant and his mother as testified to by him the investigating
officer.
10.8 The
evidence of Mr Dladla – the section 204 witness - was most
definitely considered with caution. I made a point to stipulate
the
authorities in that regard and critically examined his evidence, also
finding that he did not explain satisfactorily why Jabulani,
Mr
Maritz’s employee, would contact him in particular to arrange the
robbery. Mr Dladla’s version was corroborated on several
expects
by several State witnesses and also objectively pertaining to the
cell phone communication between him and the accused.
10.9 Applicant
may count himself fortunate that he received an effective sentence of
18 years imprisonment only. Even Mr Reyneke,
who also appeared for
him at the trial, submitted that a sentence between 15 – 18 years
imprisonment would be reasonable. I really
considered a harsher
sentence as the record reflects, but ultimately decided against that.
10.10 The
applicant’s personal circumstances paled in comparison with the
seriousness of the crimes and the interests of the community.
In any
event, none of those circumstances can be seen to be substantial and
compelling circumstances to deviate from the prescribed
minimum
sentences.
[11]
I am of the opinion that the appeal would not have a reasonable
prospect of success. There is also no other compelling reason
why
the appeal should be heard.
[12]
Should the applicant want to petition the Supreme Court of Appeal, he
should ensure that the typed judgment and sentence be represented
to
me for verification and editing (to exclude all typing errors) and
eventual approval thereof.
[13]
The application for leave to appeal the convictions and sentences is
dismissed.
_______________
J
P DAFFUE, J
On
behalf of Applicant : Mr JD Reyneke
Instructed
by : Legal-Aid South Africa
BLOEMFONTEIN
On
behalf of Respondent : Adv DW Bontes
Instructed
by : Office of the DPP
BLOEMFONTEIN