About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2019
>>
[2019] ZAKZPHC 34
|
|
Soni v S (CC29/2014P) [2019] ZAKZPHC 34 (11 April 2019)
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO. CC29/2014P
In
the matter between:
RAJIVEE
SONI
APPLICANT
and
THE
STATE
RESPONDENT
SUMMARY IN RESPECT OF THE APPLICATIONS FOR LEAVE TO APPEAL AND
BAIL PENDING APPEAL
HENRIQUES J
Introduction
[1]
The applicant seeks leave to appeal to the Supreme Court of Appeal
(SCA) against all
the convictions imposed on 19 September 2018 and
the sentences imposed on 26 October 2018. Leave to appeal is
sought to the
SCA on the basis that a number of ‘
controversial
propositions of fact and law
’ arose during the trial,
which are deserving of its attention. These controversial issues of
fact and law are dealt with
in detail in the formal application for
leave to appeal which comprises some 62 pages.
[2]
In the event of leave to appeal being granted, the applicant seeks to
be admitted
to bail pending the finalisation of the appeal. The
basis upon which he seeks to be admitted to bail is set out on pages
43 to 52 of the application for leave to appeal.
The
test in respect of leave to appeal
[3]
In
Smith v S
2012 (1) SACR 567
(SCA) the SCA dealt with the
test which is applicable when dealing with an application for leave
to appeal in a criminal matter.
It is trite that the test is
whether an applicant has reasonable prospects of success on appeal.
[4]
At paragraph 7 of the judgment, the court per Plasket AJA records the
following: ‘
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 such 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
.’
[5]
I have considered the substantive grounds of appeal advanced by the
applicant in respect
of the convictions and sentences imposed.
My detailed reasons for the convictions are contained in the written
judgment which
comprises some 301 pages. This was further
summarised in the executive summary which accompanied the judgment
and which was
read into the record. In addition I have had
regard to the transcribed judgment on sentence.
[6]
I have dealt extensively with the grounds of appeal advanced by the
applicant in the
written judgment which will be handed to the
parties, shortly hereafter and have done so after careful
consideration of the oral
submissions of the parties during the
application for leave to appeal. I have also had regard to the
unedited transcript
of the proceedings, the heads of arguments
submitted by the parties throughout the course of the trial and my
bench books. Although
I am not convinced that there is merit in all
the grounds of appeal advanced by him, I am satisfied that the
applicant has reasonable
prospects of success on appeal considering
the test in applications for leave to appeal. The detailed and
considered reasons
for this conclusion are set out in the written
judgment which accompanies this summary.
[7]
Turning now to the application for bail pending appeal, it is trite
and as conceded
by
Mr Howse
who appeared for the applicant,
the onus is on the applicant to show exceptional circumstances exist
which in the interests of
justice warrant his release on bail.
I have had regard to the relevant case authorities and considered
Mr
Howse’s
oral submissions.
[8]
In
S v Bruintjies
2003 (2) SACR 575
SCA at paragraph 5 the SCA
held that the granting of leave to appeal does not amount to an
exceptional circumstance.
In
Crossburg v The State
the court had regard to the prospects of success on appeal but noted
that there was a different emphasis in respect of bail pending
finalisation of a trial as opposed to bail pending finalisation of an
appeal.
[9]
I have given careful consideration to the grounds advanced by the
applicant in respect
of the application for bail pending appeal.
Having regard to his affidavit and annexures, the applicable case
authorities
and the relevant factors to be considered in applications
of this nature, I am not satisfied that there are exceptional
circumstances
which in the interests of justice permit his release on
bail pending an appeal. My detailed reasons for coming to this
conclusion
are similarly contained in the written judgment.
[10]
In the result the following orders will issue:
1.
In respect of the applications for leave to
appeal all the convictions (counts 1 to 6) and the sentences imposed,
the applicant
is granted leave to appeal to the Supreme Court of
Appeal.
2. The application to
be admitted to bail pending leave to appeal is refused.
HENRIQUES
J
11 April 2019
CASE
INFORMATION
Date of
argument
: 12
December 2018 & 7 March 2019
Judgment
delivered
: 11
April 2019
APPEARANCES
Counsel for
the State
: Mr J du
Toit
Instructed
by
: The Director
of Public Prosecutions
Counsel for
the Applicant
:
Mr
Howse
Instructed
by
: Ayoob
Attorneys
Suite 2, SDC Centre
495 Church Street
Pietermaritzburg