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2019
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[2019] ZAFSHC 174
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Sonnenberg v S (53/18) [2019] ZAFSHC 174 (23 September 2019)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
YES
/ NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case number:
53/18
In
the matter between:
JUAN
PIETER SONNENBERG
Applicant
and
THE
STATE
Respondent
CORAM:
MOLITSOANE, J
HEARD:
20 SEPTEMBER 2019
JUDGMENT
BY
MOLITSOANE,
J
DELIVERED:
26
SEPTEMBER 2019
[1]
The applicant seeks leave to appeal to the Full Court of
this division, alternatively, the Supreme
Court of Appeal the whole
of my judgment on both the conviction and sentences imposed. The
applicant was convicted on three counts
of murder and one count of
contravention of
s90
of the
Firearms Control Act 60 of 2000
-
possession of ammunition. He was sentenced to life imprisonment on
each count of murder and three years’ imprisonment on
the
ammunition charge. Although the applicant seeks leave to appeal
the whole of my judgment, the grounds of this application
for leave
to appeal are confined to the attack on the convictions of murder.
The submission by Counsel for the Applicant were likewise
confined to
the murder charges.
[2]
In terms of the provisions of
s17(1)
of the Superior Court’s
Act 10 of 2013 leave to appeal may only be granted if the judge
concerned is of the opinion
that :
1.
The
appeal would have a reasonable prospects of success or if there is
some compelling reason why leave should be granted;
2.
The
decision sought on appeal does not fall within the ambit of
s16(2)(a)
of the Act;
3.
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.
[3]
In
Smith
v S
[1]
the court dealt with the question of what constitutes reasonable
prospects of success as follows:
“
[7]
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts on 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.”
[1]
In
MEC for Health, Eastern Cape v Mkhitha and Another
(1221/2015[2015] ZASCA 176(25 November 2016) the court held as
follows:
“
[16]
Once again it is necessary to say that leave to appeal, especially to
this court, must not be granted unless there truly is
a reasonable
prospects of success.
Section 17(1)(a)
of the
Superior Courts Act 10
of 2013
makes it clear that leave to appeal may only be given where
the judge concerned is of the opinion that the appeal would have a
reasonable prospect of success or there is some other compelling
reason why it should be heard.
[17]
An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic
chance of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There
must be sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.”
[4]
The applicant essentially asserts that this court erred in coming to
the conclusion based on
circumstantial evidence that the three
deceased found on his farm, known as Diamant, were in their life time
killed by him.
[5] The
circumstantial evidence, inter alia, upon which this court based its
conviction may conveniently
be summarised as follows: The three
deceased men (the deceased) were residents of the town of Christiana.
The applicant resided
at Hertzogville, a town near Christiana. On the
day that the deceased were last seen in Christiana the deceased had
visited his
deceased girlfriend’s mother at Christiana. When
the applicant left the house of his deceased girlfriend’s
mother the
deceased together with other three male persons boarded
his bakkie. The applicant was the driver. The three other male
persons
alighted the bakkie of the applicant in the town of
Christiana and his car, with the deceased still on it, were last seen
driving
towards the direction of residence of the applicant at
Herzogville. The deceased were last seen alive on that day and were
reported
missing the next day.
[6]
The police began to investigate the disappearance of the
deceased almost immediately they
were reported missing. During the
investigation they also questioned the applicant about the
disappearance of the deceased. The
applicant intimated to the police
that he was never at Christiana and had never seen the deceased on
the day of their disappearance.
[7] The
remains of the deceased were discovered about a month later buried in
shallow graves
on the farm of the applicant where he also resided.
The deceased were shot on the head and their bodies crushed. The
deceased were
clearly murdered according to the expert testimony
led.
[8]
The applicant chose not to put any version to any of the witnesses.
He chose not to dispute
any statement to any of the witnesses for the
state including the fact that he was on the day of the disappearance
of the deceased
at Christiana and that the deceased boarded his
bakkie. The cross examination was confined to trying to elicit
differences in the
observations by the state witnesses. The cross
examination also centred on possible speculations about how the
deceased could have
been brought to the farm of the applicant.
[9] Against
this background it has to be borne in mind that the deceased were
last seen on the
bakkie of the applicant when it travelled
towards
the direction of the farm of the applicant.
There is no evidence before court that the deceased did indeed arrive
on the said farm or whether they alighted along the way.
The remains
were also discovered about a month later. I am of the considered view
that on these two points alone, another court
may find that the
necessary nexus tying the applicant to the murders may not exist. For
this reason, I am of the view that another
court may come to a
different finding to the one this court arrived at and consequently I
find that the applicant has prospects
of success on appeal on the
merits.
[10]
The applicant was 61 years of age at the time of his sentencing. He
also had a medical condition
which required medical attention. He was
a first time offender. The murders committed were, however, gruesome
and heinous. In view
of the advanced age and health condition of the
applicant I am of the view that another court may find that they
constitute substantial
and compelling circumstances which should have
warranted this court to have deviated from imposing the minimum
sentences of life
imprisonment. In view of the fact that no grounds
of appeal were set out in respect of contravention of
section 90
of
Act 60 of 2000 I am unable to grant leave to appeal that conviction
and sentence. I make the following orders:
[11]
ORDER
1.
The
applicant is granted leave to appeal the convictions and sentences on
three counts of murder to the Full Court of this Division;
2.
The
applicant is denied leave to appeal the conviction and sentence on a
charge of contravention of
s90
of the
Firearms Control Act, 60 of
2000
.
P.E. MOLITSOANE, J
On
behalf of the Applicant:
Adv. J.M. Rust
Instructed
by:
Haarhoffs Inc
Kimberley
On
behalf of the Respondents:
Adv.J.M. de Nysschen
Instructed by:
Deputy Director of Public
Prosecutions
BLOEMFONTEIN
[1]
2012(1) SACR 567(SCA) par [7].