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[2019] ZAKZPHC 35
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Soni v S (CC29/2014P) [2019] ZAKZPHC 35 (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
ORDER
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.
JUDGMENT
HENRIQUES
J
Introduction
[1] The applicant seeks
leave to appeal to the Supreme Court of Appeal (the SCA),
alternatively
the Full Court, Pietermaritzburg, against the
convictions on all counts and sentences imposed on 19 September and
26 October 2018
respectively. In the event of leave to appeal being
granted, the applicant seeks to be admitted to bail pending
finalisation of
the appeal.
[2] A formal application
for leave to appeal was filed, albeit incomplete, on 26 October
2018,
after the sentencing proceedings had been finalised. Annexure “A”
contained the grounds of appeal on conviction,
the applicant’s
affidavit and annexures in support of the application to be admitted
to bail pending appeal as annexure “B”.
The grounds of
appeal
[1]
in respect of the sentences imposed, annexure “C”, were
subsequently filed after the matter had been enrolled for hearing
provisionally on 21 November 2018.
[3] At the outset I must
mention that it was extremely difficult to follow the grounds
of
appeal referred to in the substantial written application for leave
to appeal submitted by the applicant. There were often no
references
to specific paragraphs in the written judgment and the unedited
transcript of proceedings, which made preparation for
the application
extremely time consuming, difficult and protracted the argument,
which resulted in the matter having to proceed
over two days.
[4] Although the applicant’s legal representatives
had undertaken to provide written heads of argument on 21
November
2018, none were filed. Had heads of argument been filed and the
grounds of appeal cross-referenced with the judgment and
unedited
transcript, it would have facilitated the speedy conduct of the
proceedings and the preparation of this judgment.
The grounds of appeal in respect of conviction and sentence
[5]
The comprehensive grounds on which the applicant relies to appeal the
convictions
are contained in paras 1 to 76.11, pages 3 to 41 of the
application. The grounds on which he seeks leave to appeal the
sentences
imposed are contained in paras 1 to 5.3, pages 59 to 62 of
the application. In light of the aforegoing, it is not necessary to
repeat them for purposes of this judgment.
Summary
of submissions of the applicant
[6] At the hearing of the
matter, Mr
Howse
who appeared for the applicant, in summary
submitted the following:
(a) 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
merit the attention of the SCA.
(b) The State relied on the
evidence of a single accomplice witness, Sugen Naidoo (Naidoo),
in
the main in respect of counts 1 to 5. Naidoo was a self-confessed
liar, thief, drug addict, extortionist etc. This court failed
to
adequately apply the cautionary rules when accepting such evidence
and should have rejected same as inter alia:
(i) there was no
corroboration for his evidence.
(ii) the evidence of the
witnesses Mariamma Kisten (Kisten), Sonali Sookraj (Sookraj),
Morné
Emersleben (Emersleben) and Hoosen Shaik-Cassim (Shaik-Cassim) did
not serve as corroboration for Naidoo’s evidence;
(iii) the State failed to lead
the evidence of witnesses who were available and who could
corroborate his evidence.
(iv) these were Brian Treasurer
(Treasurer), Darryl Gounder (Gounder), Zaheer Khan (Khan),
the police
officer who recorded the applicant’s witness statement in count
3, Mfaniseni Wiseman Nxumalo (Nxumalo), Captain
Pipes Hafejee
(Hafejee), Siyabonga Zondi (Zondi), attorney Nersen Naicker
(Naicker), Nishal Maharaj (Maharaj) and Ricky Naidoo;
(v) similarly, knowing that
these witnesses were available, the court a quo ‘did
not
exercise its power’ and failed to call these witnesses to
testify as they would contradict Naidoo’s evidence, and
drew an
adverse inference from the applicant’s failure to call them,
notwithstanding that the applicant did not bear any
onus in that
regard;
(vi) the court a quo failed to
draw an adverse inference from the State’s failure to
call
these witnesses; and
(vii) at para 4 of the application for
leave to appeal, reference is made to the ‘admission’
by
Naidoo that he was diagnosed with a bipolar disorder ‘with the
result that one minute he would be honest and the next
minute he
would be dishonest and act irrationally’.
(c) The court a quo
misdirected itself in accepting the evidence of Naidoo and the
State’s
witnesses given the contradictions in their evidence in
court when compared with their statements and the contradictions in
their
evidence with each other.
(d) In respect of count 1, this
court erred in the application of the doctrine of common purpose
and
erred in finding that the applicant had conspired with others (like
Naidoo, Dlamini, Nxumalo and Treasurer) in furtherance
of a common
purpose which resulted in the death of the deceased. The court erred
in accepting the evidence of Dlamini and rejecting
the evidence of
Anesh Premchund regarding the cellphone call that was made by
Treasurer.
(e) In respect of count 2, there
was no evidence to sustain the conviction as the State relied
on the
evidence of Naidoo and Kisten who did not corroborate each other and
Gounder was not called to corroborate Naidoo given
that Kisten
testified she had no contact with Naidoo.
(f) In respect of count 3,
there was no evidence to sustain the conviction as the State
relied
on the evidence of Naidoo, the contents of the docket which contained
the statement of the applicant which was never proved
and the diary
entries in the docket. In addition, the court a quo ignored the
concession by Naidoo that the ‘[a]pplicant
may have been
genuinely assaulted by the deceased’.
(g) In respect of count 4, there
was no evidence to sustain the conviction as the State relied
on the
evidence of Naidoo and Sookraj only where their evidence corroborated
each other’s and failed to have regard to the
contradictions in
their evidence. The court did not draw an adverse inference from the
State’s failure to call Sookraj’s
step-father Khan and
attorney Nersen Naicker. The court erred in not accepting the
evidence of Devan Panday who corroborated the
evidence of the
applicant that Naidoo extorted the sum of R20 000 from him in
relation to the false charge of sexual assault laid
by Sookraj.
(h) In respect of count 5, the
court erred in convicting the applicant as:
(i) it relied solely
on the evidence of Naidoo and rejected the applicant’s
‘solid
alibi’ that he was in Pietermaritzburg for the entire day;
(ii) it ignored the
statements of Maharaj and Ricky Naidoo; and
(iii) it ignored the evidence of
Colonel Jones that Maharaj and Ricky Naidoo complained about
the
manner in which their initial statements were obtained.
(i) In respect of
count 6, this court misdirected itself in:
(i) allowing the
evidence of Professor Mlungisi Sithebe (Sithebe) to form part
of the
admissible evidence sustaining the conviction as his
cross-examination was incomplete. The applicant submits that he has
been prejudiced as this witness died before he could recall Sithebe
and further cross-examine him;
(ii) admitting the video
recording made by Sithebe on his cellular telephone as Sithebe
was
‘not fully cross examined on the vitally important veracity
issues regarding the occasion and circumstances in which
the video
was recorded’. The applicant maintains that these issues were
not fully canvassed with Sithebe as there was an
‘understanding’
that the veracity issues would stand over;
(iii) not ruling the evidence of
Sithebe inadmissible in its entirety and in finding that the
cellphone video recording corroborated Sithebe’s version;
(iv) not applying the legal
requirements to prove the offence of conspiracy to commit murder
correctly and ought to have found that there was not a concurrence of
minds to commit the offence in question.
(j) The court misdirected itself in
rejecting the evidence of the applicant, his witnesses Ricky
Ganhes,
Devan Panday, Anesh Premchand and Colonel Jones, the photographic
evidence and the applicant’s evidence in relation
to the
cellphone video recording.
[7] Mr Howse submitted that
the SCA will in light of the above re-assess the evidence
and there
are reasonable prospects it will set aside the court a quo’s
findings of fact and law and the convictions.
[8] In respect of the
sentences imposed, the grounds on which leave to appeal is sought
in
summary are the following:
In respect of count 1, this court:
(a) misdirected
itself in finding that a ‘crime of passion committed in
circumstances where a love triangle exists can only serve as a
mitigating feature if it is committed on the spur of the moment or
as
a result of “emotional storming”’; and
(b) erred in not
following the decision in
S v Ferreira & others
.
[2]
In respect of count 6, this court:
(a) misdirected
itself in finding that count 6 stands on its own despite the fact
that counts 2 to 5 are closely related to count 1 and treating count
6 differently for purposes of sentence from counts 2 to 5
having
regard to the summary of substantial facts;
(b) imposed a
startlingly inappropriate sentence by ordering that the sentence
on
count 6 should run consecutively with that imposed on count 1; and
(c) failed to
consider that ‘if Sithebe carried out the instructions
in count
6, count 1 would not have materialised’.
Summary of submissions by the State
[9] Mr
du Toit
, in
quoting from
S v Smith
,
[3]
reminded the court that leave to appeal ought to only be granted if
the applicant has reasonable prospects of success on appeal.
He
submitted that the applicant is required to show more than that there
is ‘a mere possibility of success’ and that
the case is
arguable on appeal. There must be a sound rational basis for the
conclusion that there are prospects of success on
appeal before a
court grants leave to appeal.
[10] In relation to the grounds of appeal, he
submitted that the applicant has adopted a ‘scatter-gun’
approach. The applicant has ‘nit-picked’ and focused on
minutiae in making his submissions for leave to appeal and
this is
borne out by the voluminous grounds of appeal which are contained in
the application for leave to appeal which run to some
44 pages.
[11] Mr
du Toit
reminded the
court that when deciding on the guilt of the applicant, the court
considered the totality of the evidence. Similarly,
when determining
the application for leave to appeal the court must likewise consider
the totality of the evidence presented.
[12] Regarding the evidence of Naidoo,
the s 204 witness and the accomplice witnesses, Mr
du Toit
indicated that the court was aware of the cautionary rules
applicable and carefully examined the evidence of both Naidoo and the
accomplice witnesses. The dangers apparent when accepting the
evidence of accomplice witnesses were taken into account by the
court. He submitted that if one considers the evidence in totality a
different picture is created as opposed to where one considers
every
minute detail of these witnesses’ evidence.
[13] At trial, Mr Sangham indicated
that the applicant’s version was that the evidence against
him
was manufactured and that the State fabricated all the evidence
against the applicant. Mr
Du Toit
acknowledged that should the
court be of the view that there is cause to question the evidence of
Sugen Naidoo, then the court ought
to grant leave to appeal.
[14] The second aspect Mr
du Toit
dealt with was the alleged failure by the State to call the
witnesses referred to in the grounds of appeal, especially Treasurer
and the witnesses referred to in para 6(b)(iv) of this judgment who
made statements. He submitted that in relation to Treasurer,
both Mr
Howse
and Mr
van Schalkwyk SC
are experienced counsel,
and they too were aware that these witnesses were available and
elected not to call them.
[15] During the early stages of the
trial Mr Sangham made mention of the fact that Treasurer was
a
possible witness for the defence. The witnesses who the State would
not be calling were made available to the defence prior to
the trial
commencing.
[16] Mr
du Toit
submitted that
the applicant was free to call these persons to testify yet elected
not to do so despite it being pertinently put
to the State witnesses
that they would be called to give evidence. It was suggested to the
State witnesses that their evidence
was untrue as the witnesses made
available to the defence would attend at court and testify about what
was contained in their statements,
contrary to the State witnesses’
evidence.
[17] Mr
du Toit
also pointed out
that in respect of Officer Gounder, it is common cause that a trap
was set for him based on the information provided
by Mr Sangham and
the applicant and Colonel Jones confirmed this when he testified. All
of the witnesses made available to the
defence, all made two
statements, namely statements in terms of s 204 of the Criminal
Procedure Act 51 of 1977 (the CPA) and retraction
statements. These
were not prosecution statements and these statements were provided to
the State by the investigating officer
and were contained in the
police docket. It is inconceivable that the State would have called
the various individuals as witnesses
after they had made retraction
statements, especially Officer Gounder, given the fact that it was
common cause a trap was set for
him. It was for this reason they were
made available to the defence at the outset.
[18] In respect of the evidence of
Sithebe, Mr
du Toit
reminded the court of the timeline in
which he gave his evidence and was cross-examined and submitted that
he was thoroughly cross-examined
both in the main trial and the
trial-within-a-trial. He acknowledged however, that in respect of
count 6, the ‘evidence was
50/50 and count 6 is probably their
strongest argument’. He submitted that on appeal, given the
evidence, the court could
find an attempt to conspire or the
requirements for the alternative count of incitement proved.
[19] As regards the sentences imposed,
Mr
du Toit
submitted that the court properly considered the
factors when sentencing the applicant and given the facts, correctly
found that
this was not a crime of passion. It deviated from imposing
the prescribed minimum sentence and correctly found that counts 1 to
5 ought not to run concurrently with count 6.
Analysis
[20] The detailed written judgment on
conviction summarises the evidence, analyses such evidence
and the
legal principles applied. In addition, the judgment on sentence sets
out the detailed reasons for the sentences imposed.
It is however
necessary to make certain preliminary remarks concerning aspects
which arose during argument at the hearing of the
application for
leave to appeal.
[21] The applicant indicated that when
analysing the evidence of the witnesses who testified for
the State,
this court did not reject the evidence of these witnesses despite the
fact that they did not corroborate each other
and often contradicted
each other. Although the judgment does not refer to each and every
one of these contradictions and inconsistencies,
it does not mean
that they were not all considered and taken into account.
[22] As mentioned in the written
judgment several times, all these contradictions and inconsistencies
were considered. In
R v Levy
[4]
the court when dealing with corroborative evidence held the
following:
‘
It is quite true that in
the case quoted it was said that the corroborative evidence must show
“that the accomplice is a reliable
witness.” But if the
judgments be read it will be seen that the meaning of those words is
not that the corroborative evidence
must show that credence can be
attached to everything which the accomplice says in the witness box:
it is enough if the corroborative
evidence satisfies the Court that
certain particular statements which the accomplice made in the
witness box can safely be accepted
as true, and as regards those
statements he is a reliable witness
.’
[23] In addition, this court was alive
to the fact that in respect of certain counts in the indictment
the
State relied on the evidence of a single witness, Naidoo, a
self-confessed liar etc. This too has been canvassed in detail
in the
written judgment.
[24] A further criticism which emerged
during the course of argument by Mr
Howse
related to the fact
that this court in its judgment did not deal with all the evidence
presented, and that there were ‘glaring
omissions’ as the
judgment did not refer to all the evidence, consequently the court
committed several misdirections.
[25] At the outset, this court placed
on record in the judgment that all the evidence was considered
and
that it was aware of the contradictions, omissions and
inconsistencies in the evidence of the various witnesses. Given the
duration of the trial and the sheer volume of the evidence presented,
it was simply impossible to deal with each and every minute
detail of
the evidence. To quote from
R v Dhlumayo & another
:
[5]
‘(
12)
An appellate court should not seek anxiously to discover reasons
adverse to the conclusions of the trial
Judge. No judgment can ever
be perfect and all-embracing, and it does not necessarily follow
that, because something has not been
mentioned, therefore it has not
been considered.
[26] It is perhaps apposite to recall
the words of Greenberg JA where he opined as follows:
[6]
‘
I do not propose to seek
to define what is meant by a misdirection on a question of fact; it
is sufficient for purposes of this
case to say that an omission by a
trial court to refer to some fact which is relevant to the question
of the guilt of the accused
is not necessarily a circumstance which
will entitle an appeal court to disregard entirely the findings of
the trial court and
to seek to retry the case independently of such
findings. It is said that in this case there have been such omissions
by the trial
court as to require us entirely to disregard its
findings; as the importance of these omissions can only be
appreciated by
a consideration of the case as a whole, it is
necessary so to consider it.’
The test in respect of leave to appeal
[27] It is useful at this juncture to
remind oneself of the test to be applied when dealing with
an
application for leave to appeal in a criminal matter. In
Smith v
S
[7]
the SCA held that the test is whether an applicant has reasonable
prospects of success on appeal.
[28] At para 7 of the judgment, the
court per Plasket AJA records the following:
‘
What the test of
reasonable prospects of success postulate 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 had 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
.’
[29] In
S v Kruger
[8]
the court was of the view that a possibility that another court could
come to a different conclusion and that leave to appeal should
not be
lightly refused, embodied an incorrect test. The court also expressed
that it was undesirable for leave to appeal to be
granted against
conviction but refused against sentence.
[30] I have considered the detailed
grounds of appeal in the written application in making a decision.
In
doing so, I have had regard to the unedited transcript of the
proceedings, my bench books containing my hand written notes of
the
proceedings as the unedited transcript contains many inaudible
portions, the various exhibits and all the written heads of
argument
submitted during the course of the trial.
[31] I do not propose to deal with each
and every ground of appeal advanced in the written application
for
leave to appeal but wish only to highlight certain aspects relating
to some of the grounds advanced. This ought not to be construed
as an
acceptance that the applicant has reasonable prospects of success on
every ground of appeal advanced.
Re the evidence of Sugen Naidoo and counts 1 to 5
[32] In the detailed written judgment
the court dealt with the evidence of Naidoo as well as the
other
witnesses in respect of the different counts. The court recognised
that he was an accomplice, a self-confessed liar, extortionist,
drug
addict and thief. Whilst Naidoo acknowledged that he was diagnosed as
suffering with a bipolar disorder such disorder is one
in which
sufferers experience a high and then a low.
[33] The judgment on conviction
acknowledges that there were contradictions in what Naidoo testified
to in court, his s 204 statement (exhibit “C”) and what
was elicited during the course of cross-examination and when
he was
recalled as a witness. Naidoo at the outset when he testified
indicated that he had no clear recollection of dates, times
and
amounts. He testified about incidents which occurred several years
prior to his evidence in court and it certainly cannot be
expected of
him to remember each one of these incidents with the accuracy
demanded by the applicant and his legal representatives.
In addition,
although there may be contradictions between the amounts paid and
when this occurred, there is corroboration for his
version that
moneys were paid over albeit under different circumstances as alleged
by the applicant.
[34] The applicant alleges that the
court committed a misdirection when it relied on the evidence
of
Shaik-Cassim and Emersleben as corroboration for Naidoo’s
evidence. The written judgment deals with the evidence of these
witnesses and also contains the analysis of their evidence. The
importance of the evidence of Shaik-Cassim and Emersleben was to
confirm that a relationship existed between Naidoo and the applicant.
In addition, Emersleben confirmed that the applicant had
approached
him to ask his wife to lay a false complaint of sexual assault
against the deceased. When Emersleben refused, it was
then that
Kisten and Sookraj were approached.
[35] In addition, Emersleben was
approached to commit an assault and was tasked with finding two
persons who would ultimately commit or attempt to commit the assault
on the deceased on the applicant’s instructions. The
link
between Emersleben and Shaik-Cassim is clear and thus serves as
corroboration for the pattern of activity followed by the
applicant
and Naidoo, the applicant’s friendship with Naidoo and some of
the planning which occurred between the applicant
and Naidoo which
they both had knowledge of.
[36] In respect of count 1, the
corroboration for Naidoo’s evidence that the applicant engaged
Treasurer exists in the phone call made by Treasurer in Dlamini’s
presence, as well as Dlamini’s evidence that Treasurer
was
present in the vehicle when the conversation in relation to the
manner in which the deceased would be killed took place. Treasurer
not only transported Nxumalo and Dlamini to and from the scene of the
shooting but also provided the firearm used. In addition,
Treasurer
was the one who handed the moneys over to them after the deceased had
been killed.
[37] At para 13.2.9 of the grounds of
appeal, the applicant submits that this court erred in ‘holding
that it was Dlamini’s evidence that Nxumalo informed Treasurer:
here is the man who is going to do the job’ as the
‘official
transcript’ did not support such a finding. The unedited
transcript (page 990) reflects ‘[a]s Treasurer
was still
greeting me then Nxumalo said, this is the man that….(indistinct)’.
My contemporaneous notes in my bench
book reflected what is
summarised and referred to in the written judgment. It is
disingenuous of the applicant to suggest otherwise
especially when
the transcript is unedited.
Failure by the State and the court to call certain witnesses
[38] At the early stages of the trial
Mr Sangham advised the court that Treasurer would be a defence
witness and further, that Mr Chetty of his offices had received
instructions to petition the SCA in respect of Treasurer’s
conviction and sentence for the deceased’s murder. In fact,
throughout the course of cross-examination, it was pertinently
put to
the State witnesses by Mr Sangham that Treasurer would be called as a
witness.
[39] It was on this basis that Dlamini,
the shottist, was cross-examined and an objection was raised
as to
the admissibility of his evidence in respect of what transpired in
the motor vehicle when Treasurer made a telephone call.
In addition,
Treasurer had formally been a co-accused of the applicant and had
been convicted together with Nxumalo prior to the
commencement of the
applicant’s trial.
[40] Mr Sangham confirmed that State
witnesses were made available to him as the State would not
be
leading their evidence. This is evident having regard to the judgment
(para 36, page 11) and the unedited transcript of the
proceedings
(page 328). The witnesses were identified and the dates on which
statements were obtained from them was also placed
on record.
[41] In fact, throughout Mr Sangham’s
cross-examination of certain of the State witnesses, the contents
of
the statements of the witnesses made available to the defence were
put to them. Their statements were however never handed in
during the
course of the trial. Mr Sangham also placed on record that he had
obtained statements from Brigadier Bantam as well
as Officer Gounder.
[42] It must be noted that although the
CPA
[9]
enables a court to subpoena witnesses, the exercise of its discretion
is exercised judicially and in a limited manner. The court
in the
exercise of its discretion must be cautious not to “…descend
into the arena.’ In my view this was not
a matter in which it
was appropriate for the court to exercise such discretion to call
witnesses.
[43] The applicant submits that the
court misdirected itself in not considering the absence of
corroboration
for Naidoo’s evidence from available witnesses
and the impact of this on the evidence of the State overall. A
reading of
the detailed written judgment reflects corroboration in
the form of the evidence of Emersleben and Shaik-Cassim.
[44] In respect of count 2, in as much
as Gounder could have corroborated Naidoo’s evidence,
the
defence placed on record that Gounder would be a witness for the
defence. It is common cause that during the course of the
applicant’s
trial a ‘sting’ operation involving Gounder initiated by
the applicant and Mr Sangham was held during
which time Gounder was
arrested. Colonel Jones confirms this. At the outset of the trial,
even prior to the ‘sting’
operation taking place, the
State made Gounder available to the defence. Inasmuch as the witness
statements of Gounder were handed
in, the contents of these
statements were not proved as Gounder was not called as a witness by
the defence.
[45] The submission in the grounds for
leave to appeal that the court failed to take into account
that
Gounder was not called because he would contradict Naidoo’s
evidence is an incorrect one. Kisten confirmed that she
did not have
any contact with Naidoo, her contact was with Gounder.
[46] What the submission ignores is the
fact that Kisten testified that her contact was with Gounder
and that
he was the one who approached her. She had no contact with Naidoo. In
addition, although there is a difference between
her evidence and
Naidoo’s as to exactly what transpired, she would not be in a
position to testify in relation to the instructions
which Naidoo
received from the applicant. Her evidence corroborates Naidoo’s
that she was approached by Gounder to lay a
false complaint against
the deceased and in fact did so.
[47] In respect of count 3, the fact
that the applicant had made a witness statement was never an
issue in
dispute. It can hardly be said that an adverse inference must be
drawn against the State and Naidoo based on the failure
to call the
officer who recorded the applicant’s witness statement and
consequently the inference is that there would be
no corroboration or
support for Naidoo’s evidence. Naidoo testified that he took
Roshan Jainath’s statement and this
was confirmed by him during
his evidence when the statement was handed in as an exhibit before
court. The applicant’s defence
was also canvassed with Naidoo
and a version put to him by Mr Sangham.
[48] In respect of count 4, the
submission that the court committed a misdirection in not drawing
an
adverse inference that Khan was not called as he would contradict
Naidoo, completely ignores the fact that Sookraj confirmed
that she
was approached by her step-father, Khan to assist Naidoo. She
testified how the instructions were given to her by her
step-father
on the day of the incident and what transpired. It is not disputed
that a criminal charge of sexual assault was laid
against the
deceased. The fact that there is a contradiction in respect of
whether a discussion took place in the lounge does not
justify the
rejection of Naidoo’s evidence or that of Sookraj.
[49] In the grounds of appeal, the
applicant also criticises the court and the State in not calling
attorney Nersen Naicker to testify. One of the difficulties in
calling an attorney like Nersen Naicker to testify is that such
attorney is bound by attorney client privilege. Sookraj could not
remember the name of the attorney and it was never placed on
record
that whomever had instructed him had waived privilege.
[50] In relation to count 5, as
indicated Maharaj and Ricky Naidoo had been made available to the
defence as defence witnesses. In relation to the assault on the
deceased, Naidoo testified relating to the planning of this and
also
indicated that he was present when the deceased attended at the
charge office to report the incident of the assault. This
was never
challenged. In this regard he is a single witness.
[51] At para 55 of the written grounds
of appeal the applicant submits that the court failed to take
into
account that the State did not call for the conviction of the
applicant on count 5. I am not in possession of the unedited
transcript of the submissions made during the final argument
presented on 28 February and 1 March 2018. I have had regard to the
written heads of argument submitted by Mr
du Toit
and the
notes in my bench book. The written heads of the State (para 203)
request the court to find the applicant guilty on all
six counts. In
addition, at the hearing of the s 174 application, although he
acknowledged that the State was on ‘slim grounds’
in
respect of count 5, Mr
du Toit
requested the court to refuse
the application for the discharge of the applicant on count 5 as
there was a case to answer.
Count 6 and the evidence of Professor Mlungisi Sithebe
[52] There are several aspects in
relation to this witness’s evidence in respect of count 6
which
are challenged in the grounds of appeal. The first relates to the
failure by the court to disregard Sithebe’s evidence
in its
entirety as the applicant was unable to further cross-examine
Sithebe. The applicant submits that the court committed a
misdirection in not applying the correct legal principles pertaining
to the evidence of a deceased witness who could not be fully
cross-examined.
[53] One must bear in mind the sequence in which
the trial and the interlocutory applications proceeded in relation
to
the evidence of Sithebe. He completed his evidence and his
cross-examination both in the main trial and the trial-with-a-trial.
[54] The applicant’s
representatives, Mr
van Schalkwyk
and
Howse
were at
pains during the course of their submissions when bringing the
application to recall and further cross-examine Mr Sithebe,
to place
on record that this would be limited to certain aspects. In addition,
it was indicated that this was not because Mr Sangham
had failed to
put the applicant’s version to Sithebe but rather that this was
a matter of style and the applicant was not
happy with the manner in
which certain issues were canvassed with the witness. The unedited
transcript of the submissions made
in the application to recall bears
this out.
[55] In addition, the unedited
transcript indicates that there was a concession by the applicant’s
representatives that the applicant’s version ‘. . .has
been put in its bare bones’ (page 1874). One must bear
in mind
that the reasons for the court granting the application to recall
Sithebe are contained in the written judgment and the
limited areas
on which further cross-examination was allowed were defined in the
order which forms part of the record of proceedings.
[56] It must be emphasised that in granting an application of this
nature, the ultimate requirement is whether or not the applicant
would have a fair trial. My reasons for allowing the further
cross-examination of Sithebe are on record and I do not propose to
repeat these here save to say that it was in keeping with the
principles of the applicant’s right to a fair trial.
[57] In relation to the cellphone video
recording which Sithebe made on his cellular phone, that
evidence
stood over for purposes of a trial-within-a-trial. Sithebe testified
and was thoroughly cross-examined and re-examined
in the main trial
and thus the applicant’s version was put to him during the
course of the main trial. In addition, the applicant’s
defence
in relation to the cellphone video recording was at that stage
already known.
[58] All the witnesses testified in
relation to count 6 in the main trial being Sithebe, the employees
of
Cash Crusaders as well as the owner, Wayne Beaumont, and thereafter
the trial-within-a-trial in relation to the admissibility
of the
cellphone recording then ensued. Once again Sithebe testified during
the course of these proceedings and a version was put
to him. The
thrust of the attack on the admissibility of the cellphone recording
was to deal with the aspects of authenticity and
originality.
[59] The applicant elected not to
testify in the trial-within-a-trial and thus the challenge to the
evidence in the trial-within-a-trial was limited to those witnesses
who testified in the course of the trial-within-a-trial. There
was
certainly no bar to Mr Sangham placing the applicant’s defence
in ‘it’s bare bones’ on record and his
version as
to the circumstances under which such recording was made to the
witnesses in the trial-within-a-trial.
[60] The unedited transcript of
evidence reveals that in fact what was placed in issue by the
applicant
in the trial-within-a-trial was the originality and the
authenticity as well as the veracity of such cellphone recording, the
date
on which same was made and the circumstances in which the
recording was made. It was the applicant’s version that
the
cellphone recording was taken in March 2013 sometime after the
incident involving the theft of the window panes at the Mkondeni
premises of the applicant had occurred. Such version was canvassed
with Sithebe as were the circumstances under which he and the
applicant travelled together in the applicant’s vehicle.
[61] It is incorrect to say that no
cross-examination in respect of this aspect occurred in respect
of
Sithebe. Mr
Howse
during the course of the argument in the
application for leave to appeal conceded that cross-examination
occurred to a limited
extent.
[62] The second aspect in relation to
count 6 and Sithebe’s evidence relates to the admissibility
of
the cellphone video recording and the procedure followed by the court
in holding the trial-within-a-trial. Mr
Howse
dealt with this
aspect on behalf of the applicant and indicated that the ruling was
not clear and it was for this reason that the
appeal court could
possibly change the finding and indicate that this court ought to
have followed the procedure as set out in
the Transvaal line of cases
such as
S v Baleka & others
[10]
as opposed to that followed by the court as set out in
S v
Ramgobin
[11]
and
S v Singh & another
[12]
in this division.
[63] What these submissions in my view
fail to appreciate is the fact that Sithebe testified and
was
cross-examined on the reasons for him making the cellphone recording.
The cellphone video recording was not independent evidence
to bolster
his evidence but rather served as ‘self-corroboration’.
The applicant had sufficient opportunity to challenge
Sithebe’s
evidence during the course of cross-examination in the main trial and
the trial-within-a-trial. The applicant elected
not to testify in the
trial-within-a-trial and place his full version before the court. He
cannot now complain about this in light
of the fact that Sithebe died
during the course of the proceedings.
[64] A crucial aspect to be born in
mind is that during the course of the main trial at the time
Sithebe
testified and at the commencement of the trial-within-a-trial, the
contents of the cellphone video recording were made
available to the
applicant and his then defence team and was considered by them and
their experts in the preparation of his defence
in the
trial-within-a-trial.
[65] At the commencement of the main
trial and the proceedings in the trial-within-a-trial when the
evidence in relation to the cellphone video recording was being
given, the applicant would have known, on his version, the
circumstances
under which he met with Sithebe in relation to what he
said was the March 2013 incident in relation to the theft of the
window
frames.
[66] Sithebe’s evidence in the
main trial was that after being approached by the applicant
to effect
the assault on the deceased, as he did not know who the deceased was,
he accompanied the applicant in his vehicle who
showed him the two
surgeries which the deceased operated from. This was the purpose of
him being in the applicant’s vehicle
on the day in question.
Sithebe’s evidence in this regard is corroborated by the
cellphone records.
[67] This evidence was known to the
applicant during the course of the main trial. It would
thus
have been known to him at the commencement of the
trial-within-a-trial. At no stage during the course of the
State’s
evidence in the trial-within-a-trial and during the
course of Sithebe’s evidence in the main trial was it placed in
issue
that this conversation took place whilst travelling in the
applicant’s vehicle and nor was it ever placed on record that a
witness would testify and corroborate the applicant’s version
in relation to when he travelled with the applicant in his
vehicle,
being Ricky Ganhes. At that stage the applicant would have known of
Ricky Ganhes and that there was a witness to corroborate
his version
of the circumstances under which the cellphone video recording was
taken.
[68] The weather map for the day in
question both 20 February 2013 as well as 19 March 2013 reflect
that
there was slight rain on both days thus corroborating both the State
and the applicant’s versions.
The legal requirements to prove the offence of conspiracy to
commit murder
[69] The third aspect in relation to
the challenge to Sithebe’s evidence relates to the conviction
of conspiracy to commit murder. Mr
Howse
was at pains to point
out that this conviction was not a competent conviction. The legal
requirements to sustain a conviction for
conspiracy to commit murder
are dealt with in the written judgment (page 243, para 907).
[70] Count 6 relates to the conviction
in respect of conspiracy to commit murder. Section 18(2)(
a
)
of the Riotous Assemblies Act 17 of 1956 describes conspiracy to
commit a crime as follows:
‘
(2) Any person who –
(a)
conspires with any
other person to aid or procure the commission of or to commit; or
…
any offence, whether at common
law or against a statute or statutory regulation, shall be guilty of
an offence and liable on conviction
to the punishment to which a
person convicted of actually committing that offence would be
liable
.’
[71] The authors Snyman, Burchell and
Hunt deal with the requirements for the commission of the offence
within the meaning of the Act. The offence requires that there should
at least be two people for the crime of conspiracy to be
committed.
In other words, X and Y or more people must agree with one another to
commit the crime. The act consists of entering
into an agreement, in
other words a meeting of minds. The conspiracy need not be express it
may be tacit and a court may infer
a conspiracy from a person’s
conduct provided that the inference is the only reasonable one to be
drawn from the proven facts.
The conspirators need not also
agree about the exact manner in which the crime or crimes are to be
committed.
[72] In respect of the intention, a
co-conspirator must intend to conspire with another and must
intend
to commit that crime or to assist in its commission. A conspiracy may
only be construed once a court is satisfied that a
conspirator was
also aware of his/her co-conspirators’ knowledge of the
conspiracy. Only then will there be talk of ‘a
meeting of
minds’ (see in this regard
S v Agliotti
).
[13]
[73] Section 18(2)(
a
) does not
differentiate between a successful and unsuccessful conspiracy,
namely one followed by the actual commission of the crime
and one not
followed by any further steps towards the commission of the crime.
[74] Mr
Howse
submitted that the
legal requirements to sustain a conviction in terms of s 18(2)
(a)
of the Riotous Assemblies Act have not been met. The submission is
that as Sithebe pretended to agree, there was no meeting of
the minds
and consequently, there was no ‘true agreement between at least
two persons to commit a crime’. In this regard
he relied on C R
Snyman
Criminal Law
. I have had regard to the relevant passage
from Snyman quoted by Mr
Howse
. It is correct that Snyman
refers to this and it would appear that if a party pretends to agree
but in fact secretly intends to
inform the police of another party’s
plans to enable that person to be apprehended then there is no
conspiracy. Snyman indicates
that a trap can therefore not be
convicted of conspiracy.
[75] When preparing the judgment I had
regard to the extract from Snyman as well as the decision
of
Agliotti
referred to hereinabove. In addition the quote from Snyman relies
heavily on the decision in
Harris v Rex.
[14]
The facts of
Harris
are distinguishable from the present
situation. Based on
Harris
, the applicant could still be
guilty of an attempt to conspire.
[76] There are several decisions
relating to the aspect of conspiracy which raise some doubt as to
whether or not
Harris
is still good law. The matter of
S v
D S Ngobese & others
[15]
suggests and provides support for the submission by Mr
du Toit
that even if
Harris
is still good law, the legislature has
resolved the problem by enacting the provisions of s 18(2)(
b
)
of the Riotous Assemblies Act. Section 18(2)
(b)
provides that:
‘
(2) Any person who –
. . .
(b)
incites,
instigates, commands, or procures any other person to commit, any
offence, whether at common law or against a statute or
statutory
regulation, shall be guilty of an offence and liable on conviction to
the punishment to which a person convicted of actually
committing
that offence would be liable
.’
[77] In this division in the matter of
State v Mbatha & others
,
[16]
the court also considered the issue in relation to conspiracy to
commit murder.
[78] A further decision which
considered the offence of contravening s 18(2)(
a
) of the
Riotous Assemblies Act was a Full Court decision in
Ngobese v
S.
[17]
The court considered the evidence to sustain a conviction for the
offence of conspiracy in contravention of s 18(2)(
a
). It
expressed a view that
Harris
may not be good law and that
possibly one needs to consider facts similar to the present case. At
para 18 the court per Spilg J
opined:
‘
If regard is had to the
present onslaught our society faces in relation to serious crime I
consider it appropriate to express my
reservations regarding the
correctness of
Harris
and an interpretation of section 18(2)(a) which requires the
prosecution to prove subjective intent on the part of any
co-conspirator
beyond a reasonable doubt, even if not all the alleged
conspirators are before the Court
.’
[79] In
Ngobese
there was no
express agreement to conspire and the court considered the acts of
the accused and the co-conspirator in furtherance
of the crime. Given
the differing view expressed by the courts and academic writers, it
appears that this issue and the requirements
to sustain a conviction
for a contravention of s 18(2)
(a)
of the Riotous Assemblies
Act warrant the attention of an appeal court.
The evidence of Ricky Ganhes
[80] The reasons for rejecting the
evidence of Ganhes are to be found in the written judgment (paras
963
to 971, pages 257 to 259). The accused must have provided Mr Sangham
instructions in relation to Sithebe’s evidence.
The criticism
in the judgment regarding the failure to put the applicant’s
entire version of his defence was justified in
that although
cross-examination of Sithebe occurred on 22 October and 2 and 3
November 2015 respectively, the applicant was and
must have been
aware of his defence in relation to Sithebe’s evidence at the
outset.
[81] There is no explanation as to why
this version of events was not canvassed with Sithebe during
the
course of the main trial. In addition, even though the applicant’s
present counsel may not have consulted with Ganhes
at the time of
bringing the application to recall Sithebe, he must have provided
instructions to Mr Sangham as the events of 20
March 2013 were put to
Sithebe by Mr Sangham.
The defence’s case generally and the evidence of the
applicant
[82] The grounds upon which the court
rejected the evidence of the applicant and the defence witnesses
has
already been canvassed in detail in the written judgment (pages 252
to 259, paras 939 to 972).
Sentence
[83]
The reasons for imposing the sentences is apparent from the judgment
on sentence delivered on
26 October 2018. I refer to the judgment in
its entirety.
[84]
Among the submissions of Mr
Howse
and raised in the grounds of
appeal was that the court erred or misdirected itself in treating
count 6 differently from counts
1 to 5. The submission being that
having regard to the summary of substantial facts in the indictment,
this court ought to have
found that it was closely related to counts
1 to 5 and ought to have ordered it to run concurrently with count 1.
[85]
The written judgment on conviction contained a timeline based on the
evidence presented. The
judgment on sentence set out the reasons why
count 6 was treated differently and why it was ordered to run
consecutively inter
alia as the role players were not the same.
[86] In addition, the summary of
substantial facts is not evidence nor admitted facts. In this regard
see
S v Fhetani
[18]
where the court said the following:
‘
The summary does not
constitute evidence nor admitted facts. Its sole purpose is to inform
an accused about the nature of the case
he or she is facing by
setting out material facts on which the prosecution relies. . . .’
This is
confirmed by the provisions of s 144(3)(
a
) of the CPA.
[87] A further criticism relates to the
court not following the decision in
Ferreira
as alluded to in
para 8 hereinbefore. There are differing views as to whether the
circumstances like in the present matter amount
to ‘diminished
responsibility’, ‘emotional storming’ or
‘vengeance’ (see in this regard
S v Di Blasi
;
[19]
Director of Public Prosecutions: Transvaal v Venter
;
[20]
S v Mgibelo
[21]
).
[88] I am further mindful of the view
that if one grants leave to appeal on the convictions one should
likewise grant leave to appeal on sentence.
The application for bail pending appeal
[89] In support of his application for
bail pending appeal the applicant in his affidavit submits
the
following:
(a) The primary issue for
determination is whether or not he will honour his bail conditions
pending the outcome of his appeal. He submits and acknowledges that
he has the onus to establish exceptional circumstances which
permit
his release on bail in the interests of justice.
(b) He is not a flight risk. When
he was arrested on 12 August 2013 and released on bail, which
was
unopposed, it was accepted that he satisfied the test for exceptional
circumstances as required by s 60(11)
(a)
of the CPA.
(c) He was granted bail in
the sum of R100 000 subject to certain bail conditions
including
that he surrender his passport and not leave the country. He has
since bail was granted in 2013, honoured his bail conditions
for a
period in excess of five years and consequently he can be trusted to
continue to do so as he takes the institution of bail
seriously.
(d) Since bail was granted he has
conducted himself responsibly and maintained his obligations
to his
children and continued to operate his business. He supports his
children financially and is the primary caregiver to his
daughter
Sonali. He relies in this regard on exhibit “MMMM” which
is the settlement agreement concluded between his
ex-wife Kerusha
Soni (Kerusha) and the reports by educational psychologist Tarryn
Blake and counselling psychologist Floss Mitchell.
(e) Both children have since his
incarceration on 19 September 2018, resided with Kerusha,
and his
sister Sherasthie Premchund, has been liaising with Kerusha on a
daily basis to ensure the wellbeing of his children.
(f) Sherasthie facilitates
payment of maintenance to keep both children at the school
they are
presently attending and for what is described as their ‘general
maintenance’. He submits he is unable to continue
making
significant financial contributions to their maintenance unless he is
granted bail and is able to continue generating an
income.
(g) Kerusha has, through her
attorneys of record, Carlos Miranda, provided an affidavit, “RS1”,
in which she supports the applicant’s release on bail pending
appeal. Her reason for doing so is that she cannot maintain
their
children at the ‘current standard of education to which they
are accustomed and to immediately change their current
support
structure will add to their emotional distress’.
(h) Sonali has suffered
significantly since he has been incarcerated and it is in Sonali’s
best interests that he be granted bail. Kerusha further indicates it
is necessary for the applicant to organise his business matters
to
make the best arrangements to care for their children and to continue
providing for them at least until his appeal is decided.
She
indicates, that ‘he did not plan for the scenario of bail being
denied’.
(i) In addition, when
Sonali visited the applicant in prison on 18 October 2018,
it caused
them both emotional trauma as they were not able to hug each other
through the glass. The applicant places much emphasis
on the report
of Dr Floss Mitchell indicating that Sonali is distressed and
expresses anxiety at the uncertainty of his present
position. He
submits that Sonali’s days are characterised by the hope that
he will be released on bail.
(j) The applicant
denies that he is a flight risk as he has adhered to his bail
conditions for the past five years, has exceptionally strong family
ties and will not abandon his children or give up his extensive
business interests which he shares with his family and extended
family.
(k) In addition, he has
surrendered his passport and does not have the means to leave
the
country. His mother who is 73 years old lives next door to him to
enable him to assist in taking care of her.
(l) He submits that
he has proved exceptional circumstances warranting his release
on
bail pending appeal and that the sum of R100 000 is presently
still with the registrar. Such amount can be increased by
the court
should the court be amenable to granting him bail pending appeal in
the sum of R200 000.
(m) He has prospects of success on
appeal and there are reasonable prospects of another court coming
to
a different decision.
Legal principles in respect of bail pending appeal
[90] The noting of an appeal does not
automatically suspend the implementation of the sentence unless
there
is a special application to court to suspend the sentence until the
appeal has been disposed of.
[22]
[91] In deciding on bail pending
appeal, our courts have held
[23]
that the question is whether the court of appeal might possibly set
aside the imprisonment, the test being no higher than ‘a
possibility’.
[92] Different courts have adopted
different approaches in respect of bail pending appeal, as a
consequence of which our courts have held that when an accused has
been convicted of a schedule 6 offence,
[24]
the fact that leave to appeal has been granted does not in itself
amount to an ‘exceptional circumstance’.
[93] In
S v Bruintjies
[25]
the SCA considered the provisions of s 60(11)(
a)
of the CPA in
respect of a schedule 6 offence. Paragraph 5 of the judgment reads:
‘
The section deals, on the
face of it, with unconvicted persons. However, it must follow that a
person who has been found guilty
of a Schedule 6 offence cannot claim
the benefit of a lighter test. It was conceded that the mere
fact that a sentenced person
has been granted leave to appeal does
not automatically suspend the operation of his sentence, nor does it
entitle him to bail
as of right. (See
R
v Mthembu
1961 (3) SA
468
(D).)
’
[94] The SCA also considered whether or
not the granting of leave to appeal amounts to an exceptional
circumstance warranting bail pending appeal being granted. At para 6
the court held the following:
‘
The main thrust of the
appellant’s counsel’s submissions before us was that the
grant of leave to appeal on the merits
presupposed the existence of a
reasonable prospect of success in the appeal. Such a prospect, said
counsel, of itself constituted
an exceptional circumstance within the
meaning of the section. If that was so, however, the great majority
of persons facing charges
involving Schedule 6 offences would have to
be released on bail pending their trial without regard to other
important considerations,
such as, for example, the public safety.
The mere fact that the trial court considers that the appellant has a
reasonable prospect
of succeeding on appeal does not of itself amount
to an exceptional circumstance. What is required is that the
court consider
all relevant factors and determine whether
individually or cumulatively they warrant a finding that
circumstances of an exceptional
nature exist which justify his or her
release. What is exceptional cannot be defined in isolation from the
relevant facts, save
to say that the Legislature clearly had in mind
circumstances which remove the applicant from the ordinary run and
which serve
at least to mitigate the serious limitation of freedom
which the Legislature has attached to the commission of a Schedule 6
offence.
The prospect of success may be such a circumstance,
particularly if the conviction is demonstrably suspect. It may,
however, be
insufficient to surmount the threshold if, for example,
there are other facts which persuade the court that society will
probably
be endangered by the appellant’s release or there is
clear evidence of an intention to avoid the grasp of the law. The
court
will also take into account the increased risk of abscondment
which may attach to a convicted person who faces the known prospect
of a long sentence. Such matters, together with all other negative
factors, will be cast into the scale with factors favourable
to the
accused, such as stable home and work circumstances, strict adherence
to bail conditions over a long period, a previously
clear record and
so on. If, upon an overall assessment, the court is satisfied that
circumstances sufficiently out of the ordinary
to be deemed
exceptional have been established by the appellant and which,
consistent with the interests of justice, warrant his
release, the
appellant must be granted bail.’
[95] In
Crossberg v S
[26]
the court had to consider an appeal against the refusal to grant bail
pending appeal. Amongst the factors which the court considered
was
the prospects of success on appeal. In deciding on same the court
took note of the fact that the appellant had been convicted
of murder
which in the ordinary course attracted a heavy sentence and that
there was a different emphasis in respect of bail pending
finalisation of a trial as opposed to bail pending finalisation of an
appeal.
[96] At para 13 of the judgment the
court held the following:
‘
It is so that there is a
different emphasis in respect of bail pending finalisation of a trial
as against bail pending finalisation
of an appeal. The presumption of
innocence operates in favour of an accused person until his guilt has
been established in court
.’
(Footnote
omitted)
[97] Our courts have not attempted to
define what is meant by the term ‘exceptional circumstances’.
Consequently, it requires some consideration having regard to
relevant case authorities. In
S v Jonas & others
[27]
the court held the following:
‘
The term “exceptional
circumstances” is not defined. There can be as many
circumstances which are exceptional as the
term in essence implies.
An urgent serious medical operation necessitating the accused’s
absence is one that springs to mind.
A terminal illness may be
another. It would be futile to attempt to provide a list of
possibilities which would constitute such
exceptional circumstances.
To my mind, to incarcerate an innocent person for an offence which he
did not commit could also be viewed
as an exceptional circumstance.
Where a man is charged with the commission of a Schedule 6 offence
when everything points
to the fact that he could not have committed
the offence because, eg he has a cast-iron alibi, this would likewise
constitute an
exceptional circumstance.
’
[98] In
S v Scott-Crossley
[28]
the court held that the personal circumstances of the appellant were
‘commonplace’ and did not together with other
factors
constitute exceptional circumstances for purposes of s 60(11)
(a)
.
[99] In
S v Pietersen
[29]
the court remarked that ‘“exceptional” is
indicative of something unusual, extraordinary, remarkable, peculiar
or simply different’. A further factor to be considered is
whether an appellant will abscond. In
S v Hudson
[30]
the court held the following:
‘
Where an accused applies
for bail and confirms on oath that he has no intention of absconding
due weight has of course to be given
to this statement on oath.
However, since an accused who does have such an intention is hardly
likely to admit it, implicit reliance
cannot be placed on the mere
say-so of the accused. The court should examine the circumstances.’
[100] Having regard to the authorities, the central issue
which the court is required to decide, is whether or not
the
interests of justice permit the release on bail of the applicant?
[31]
Analysis
[101] The applicant bears the onus to establish
exceptional circumstances which permit his release in the interests
of justice. The submissions made by Mr
Howse
in this regard
are a matter of record. The applicant submits that his circumstances
are exceptional in nature for the following
reasons, namely:
(a)
that he complied with all his bail conditions whilst awaiting trial;
and
(b) that he is not a flight risk
as he surrendered his passport and did not leave the country.
He has
strong ties to the community specifically his mother and his children
and the purposes of being released on bail pending
appeal is to
provide for them financially as he is the primary caregiver of his
daughter, Sonali.
[102] The main grounds upon which the applicant seeks
bail pending appeal is to provide for the financial wellbeing
of his
children. He is unable to continue making the significant financial
contributions they require unless he is granted bail
and is able to
continue generating an income. In addition, a further factor is the
fact that his daughter is battling to come to
terms emotionally with
his incarceration. He indicates in his affidavit that his sister has
been liaising with his ex-wife on a
daily basis to ensure the
wellbeing of his children and to facilitate payment of the
maintenance required to keep the children
at the standard of living
they are accustomed to. He indicates that his ex-wife cannot maintain
the children at the same level
they are accustomed to unless he
assists her financially and emotionally. He alludes to the fact that
Sonali is receiving treatment
from Floss Mitchell.
[103] The evidence in relation to the counselling which
Sonali has received is a matter of record and this was dealt
with
when this court deviated from the prescribed minimum sentence at the
time of sentencing the applicant. Ms Floss Mitchell confirmed
that
Sonali had been undergoing therapy for a long period of time.
[104] Mr
du Toit
submits that there are no exceptional
circumstances or extraordinary circumstances warranting the applicant
being admitted to bail
pending leave to appeal, and even if leave to
appeal is granted, it does not necessarily mean that the applicant
must be admitted
to bail.
[105] Mr
Howse
submitted that the enquiry in
respect of bail pending appeal is twofold, namely:
(a) will the applicant honour his
bail; and
(b) does he have reasonable
prospects of success on appeal?
[106] As regards the first enquiry, Mr
Howse
submits that the applicant is an ‘exceptional person’ and
has proved at a ‘really exceptional level that he is
not a
flight risk.
[107] I have had regard to the authorities referred to in
respect of bail pending appeal.
[32]
The personal circumstances of the applicant are not exceptional nor
extra-ordinary. Furthermore, the circumstances of the applicant
are
not unlike those which the court considered in
Babuile
above
and refused the application for bail pending appeal after considering
all the relevant factors.
[108] Inasmuch as the applicant is supported in his quest
for bail by his ex-wife, this is based on the incorrect premise
that
he ‘did not foresee bail being denied on conviction’. In
addition she wants the applicant to generate an income
so that their
children’s lives will not be disrupted.
[109] Firstly, the applicant must have been advised of
the consequences of bail being revoked on conviction. He submits
that
his sister Sherasthie has been attending to the needs of his children
and liaising on a daily basis with his ex-wife.
This is not an
‘exceptional circumstance’ in my view.
[110] In addition, the fact that the applicant wants to
generate an income pending an appeal has been held not to constitute
an exceptional circumstance which in the interests of justice warrant
his release on bail, see
Sewnarain v S
.
[33]
In his own affidavit, his family have been and can assist in
supporting his children.
[111] Having regard to the personal circumstances of the
applicant, coupled with the contents of the affidavit and
annexures
submitted in support of the application to be admitted to bail
pending appeal, I am not satisfied he has shown exceptional
circumstances which in the interests of justice warrant his release
on bail.
[112]
That he did not abscond when facing trial does not mean that as a
convicted person he will not. Different considerations
apply now. In
addition in his oral submissions Mr
Howse
, acknowledged
that the court had imposed a determinate sentence which if confirmed
on appeal, the applicant would serve a substantial
period of
incarceration.
[113]
Having carefully considered the grounds of appeal, even if the
applicant were to succeed on appeal in having the
conviction on count
5 set aside, that still leaves the remainder of the counts,
specifically counts 1, 2, 3, 4 and 6. In respect
of count 6, should
the court accept the evidence of Sithebe it can still alter the
conviction on count 6 to one of incitement or
an attempt to conspire.
If the applicant succeeds in having the convictions on counts 5 and 6
set aside he still faces terms of
imprisonment for the other counts.
[114]
That the offences are serious and the applicant faces a lengthy term
of imprisonment cannot be denied by him.
[115]
I have dealt with in some detail the grounds of appeal advanced by
the applicant and the prospects of success.
In respect of count 1
apart from the evidence of Naidoo, there is the evidence of Dlamini
and the cellphone call made by Treasurer
which ties in with the
cellphone records. That this call was made by Treasurer in Dlamini’s
presence in the vehicle whilst
travelling away from the scene after
the shooting cannot be wished away. The applicant on his own
admission knew Treasurer, and
the cellphone records likewise confirm
they communicated with each other over the time period in which the
offences were committed.
Apart from this evidence is the
circumstantial evidence and that of the executive statements to show
how the role players conspired
to have the deceased killed.
[116]
The applicant denied that he was friends with Naidoo and that the
cellphone records substantiated and corroborated
Naidoo’s
evidence in respect of the contact between them over a period of
time. These records relating to their contact via
cellphone were not
seriously challenged by the applicant. It was never suggested to
Naidoo that these were calls exchanged with
his ex-wife Chantel
Norman. This explanation was raised rather belatedly by the
applicant.
[117]
In respect of counts 2, 3 and 4, the evidence led by the respondent
was that false complaints were laid and dockets
opened. There is the
evidence of Kisten that she laid the false complaint having been
approached by Gounder. Although she acknowledged
that she did not
meet Naidoo we know from Naidoo’s evidence that he approached
Gounder. In count 3 a police docket was opened
and Naidoo took the
statement of Roshan Jainath. Sookraj confirmed in count 4, that when
she was approached by her step-father
Zaheer Khan, on the day in
question she observed the applicant and Naidoo seated in the double
cab bakkie. Similarly a false complaint
was lodged and a docket
opened and investigated.
[118]
Our courts have held that the grant of leave to appeal against
convictions, although presupposing prospects of
success, on its own
is not sufficient to result in an applicant being admitted to bail
pending appeal. Apart from the personal
circumstances of the
applicant, the seriousness of the offences involved, the risk that he
will abscond and the likelihood of a
non-custodial sentence being
imposed are other factors which a court must consider.
[34]
[119] For reasons already stated herein, even if the applicant
were to be successful in having counts 5 and 6 upheld on
appeal, I am
not satisfied that a substantial period of imprisonment will not have
to be served. In
S v Oosthuizen & another
[35]
the court referred to
S v Masoanganye & another
and at
para 29 held:
‘
In
S
v Masoanganye and Another
2012
(1) SACR 292
(SCA)
([2011]
ZASCA 119) this court held that the granting of an application for
leave to appeal does not, per se, entitle a person
to be released on
bail. There has to be a real prospect in relation to success on
convictions and that a non-custodial sentence
might be imposed,
such that any further period of detention before the appeal is heard
would be unjustified.’ (Footnote omitted)
[120] It must be noted that whilst on bail, even before
the trial commenced, the applicant applied for a relaxation
of his
bail conditions to be allowed to have access to his passport and
travel overseas for purposes of conducting a prayer relating
the
death of his father. He was not successful in obtaining permission
for the return of his passport to travel overseas.
[121]
As a convicted person I am not convinced that the applicant is not a
flight risk. The emotional impact which the
trial and his subsequent
incarceration has had on the applicant and on his daughter is alluded
to in his application to be admitted
to bail. Sonali played a
substantial part in the submissions made at sentencing stage as to
why the prescribed minimum sentence
ought not to be imposed and why
substantial and compelling circumstances exist. This in my view
serves as a strong impetus for
the possibility of him absconding
pending his appeal being finalised.
[122]
Further in the letter from Floss Mitchell annexed to the applicant’s
affidavit in this application, she
indicates that Sonali is aware
that her father may not be released on bail and that she understood
after her session with her on
24 October 2018, that bail is not “a
permanent release”. She also opines that Sonali has
demonstrated extraordinary
resilience.’
[123]
His family especially his sister Sherasthie has been actively
involved in not only the trial (she took the photographs
for one of
the defence exhibits) but also in prosecuting the application for
leave to appeal. She has been actively liaising with
Sneller
Recordings for the transcript to be made available for purposes of
the appeal record. This is apparent from my exchange
with Mr
Howse
at the last hearing of the application for leave to appeal. I have no
doubt that all necessary steps will be taken to ensure that
the
appeal is prosecuted with haste and that there will be no undue delay
on the part of the applicant.
[124]
The applicant’s personal circumstances are not out of the
ordinary and I do not agree that he is ‘an
extraordinary
person’ or that his circumstances are exceptional to quote Mr
Howse.
From the evidence presented during the trial, the
applicant is a man of substantial means as well as his family.
Although he indicates
that he has been incarcerated and not been able
to generate in income, one must consider the bank statements put up
in the course
of the sentencing proceedings. In this application he
has elected not to put up any supporting evidence relating to his
financial
position to substantiate that the business has not been
generating an income.
[125]
That the applicant has access to substantial amounts of money also
cannot be ignored. He testified that he was
able to borrow the sum of
R10 000 in cash from his brother-in-law who runs his own
business and not forgetting the Shakile
Family Trust. His mother on
his evidence also has the means to assist him financially. The
R200 000 tendered for bail pending
appeal is not in my view a
substantial enough inducement to prevent him from absconding, due
consideration being had to his family’s
access to moneys and
given that he was released on bail on R100 000 when he was
arrested.
[126] In the result I am of the view that for all the
reasons canvassed and having considered all relevant factors,
the
applicant has not crossed the threshold and discharged the onus to
show exceptional circumstances which in the interests of
justice
warrant him being admitted to bail pending appeal.
Conclusion
[127]
In the result, although I am not convinced that there is merit in all
the grounds of appeal advanced by the applicant
in respect of
conviction and sentence for reasons dealt with hereinbefore, the
applicant has reasonable prospects of success as
envisaged in
Smith
v S.
This is despite the fact that I have indicated that I adhere
to the written judgment delivered in respect of the convictions and
the judgment on sentence.
[128] In respect of the sentences imposed an appeal court
may hold the view that this was a crime of passion warranting
interference on appeal. I am also mindful of the view expressed by
the SCA in
Kruger
above that once leave to appeal is granted
in respect of the conviction one ought to also grant leave to appeal
against the sentences
imposed.
Order
[129]
In the result the following orders do 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
[1]
Although the grounds of appeal bear a
court stamp of 2 November 2018, the application filed in court
contained missing pages in
the grounds of appeal on sentence. An
indexed bundle containing the missing pages was filed at the hearing
on 21 November 2018.
[2]
S v Ferreira & others
2004
(2) SACR 454 (SCA).
[3]
S v Smith
2012
(1) SACR 567
(SCA).
[4]
R v Levy
1943 AD 558
at 561.
[5]
R v Dhlumayo & another
1948 (2) SA 677
(A) at 678.
[6]
R v Dhlumayo
above
at 681.
[7]
S v Smith
2012
(1) SACR 567
(SCA).
[8]
S v Kruger
2014 (1) SACR 647
(SCA) para 2.
[9]
Section 186 refers to a court
subpoenaing witnesses if it would result in a just decision.
R
v Gani
1958(1) SA 102 (A)
[10]
S v Baleka & others (1)
1986 (4) SA 192 (T).
[11]
S v Ramgobin & others
1986
(4) SA 117 (N).
[12]
S v Singh & another
1975
(1) SA 330 (N).
[13]
S v Agliotti
2011 (2) SACR 437
at 442b–h.
[14]
Harris v Rex
(1927) 48 NPD 330.
[15]
S v D S Ngobese & others,
Benoni Regional Court case
number SH30/2010 delivered on 3 March 2010.
[16]
State v Mbatha & others
,
unreported decision of the late Msimang JP, KwaZulu-Natal High
Court, case number CC21/2008, delivered on 27 September 2010.
[17]
Ngobese v S
[2019] 1 All SA 517 (GJ).
[18]
S v Fhetani
2007 (2) SACR 590
(SCA) para 4.
[19]
S v Di Blasi
1996 (1) SACR 1 (A).
[20]
Director of Public Prosecutions:
Transvaal v Venter
[2208]
4 All SA 132 (SCA).
[21]
S v Mgibelo
2013
(2) SACR 559
(GSJ)
.
[22]
See
s 231
of the
Criminal Procedure
Act.
[23
]
S v Hudson
1996 (1) SACR 431
(W)
; S v
Naidoo
1996 (2) SACR 250
(W).
[24]
For bail to be granted an accused
person must establish exceptional circumstances showing it is in the
interests of justice to
warrant his/her release.
[25]
S v Bruintjies
2003
(2) SACR 575 (SCA).
[26]
Crossberg v S
[2007] SCA 93 (RSA).
[27]
S v Jonas & others
1998 (2) SACR 677
(SE) at 678e-g.
[28]
S v Scott-Crossley
2007 (2) SACR 470
(SCA) para 12.
[29]
S v Pietersen
2008 (2) SACR 355
(C) para 55.
[30]
S v Hudson
[1980] 1 All SA 1305
(D) at 133.
[31]
S v Malumo & 111 others (2)
2012 (1) NR 244
(HC) para 30.
[32]
S v Bruintjies
2003 (2) SACR 575
(SCA);
Babuile
& others v S
(CC32/2014)
[2015] ZAGPPHC 110 (13 October 2015);
Beetge
v The State
(925/12)
[2013] ZASCA 1
(11 February 2013) and
S
v Scott-Crossley
2007 (2)
SACR 470 (SCA).
[33]
Sewnarain v S
(877/12)
[2013] ZASCA 27
(25 March 2013).
[34]
S v Masoanganye & another
2012 (1) SACR 292
(SCA) para 14.
[35]
S v Oosthuizen & another
2018 (2) SACR 237
(SCA).