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[2018] ZAFSHC 17
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Njango and Another v S (06/2016) [2018] ZAFSHC 17 (27 February 2018)
IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Case
number:
06/2016
In the
matter between:
AMERICO
DANIEL NJANGO &
ANOTHER
Applicants
and
THE
STATE
Respondent
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON:
27 FEBRUARY 2018
[1] This is an
application for leave to appeal. The applicant, who was accused 1 at
the
trial in which five accused were involved, was aggrieved by his
conviction and sentence - hence he wishes to take me on appeal.
[2] The
applicant and others were tried in the Kroonstad Circuit Court. Their
trial commenced
on 25
th
January 2016 and ended on 26
February 2016. Three of his four co-accused are not before me in
these proceedings. Therefore, I shall
not say much about them.
[3] The
applicant was indicted for ten offences. Although the indictment
consisted
of sixteen charges, those relevant to him were charges 3,
4, 5, 7, 81 12, 13, 15, 16 and 17. Those charges were part of a
series
of offences spanning from 4
th
January 2014 to 4
th
June 2014. The crime scenes were at various places in the Free State
Province as well as in Mpumalanga Province.
[4] The
verdict was pronounced on 18
th
February 2016. The
applicant was acquitted in respect of one of the ten charges, to wit
count 12 , but convicted of the 9 remaining
charges.
"[133] Now the verdict as regards
ACCUSED 1
:
in respect of counts 3, 4, 5, 7, 8, 131 151 16 and 17
GUILTY AS
CHARGED
. In respect of count 12
NOT GUILTY."
[5] Following
his conviction the applicant was sentenced on 22nd February 2016.
In respect of count
3 three (3) years imprisonment.
In respect of count
4 five (5) years imprisonment.
In respect of count
5 five (5) years imprisonment.
In respect of count
7 three (3) years of
imprisonment.
In respect of count
8 three (3) years imprisonment.
In respect of count
13 four (4) years imprisonment.
In respect of count 15 three (3) years imprisonment
In respect of count 16
seventeen (17) years
imprisonment.
I directed that all the sentences must run concurrently
in such a way that accused 1 serves an effective sentence of
twenty
(20) years imprisonment.
[6] Aggrieved
by his conviction and sentence the applicant on18th September 2017,
filed
his application for leave to appeal against both. This
application for leave to appeal was filed nineteen months after the
finalization
of the trial. Needless to say that it was awfully
belated. As a result of that it became necessary for him to apply for
condonation
for his lateness in filling the application for leave to
appeal. That he did. This application for leave to appeal was duly
accompanied
by a substantive application for condonation. The
condonation application was unopposed. Therefore, I condoned the
lateness.
[7]
Section 17 of the Superior Court Act 10 of 2013 governs the
legal position relative to the leave to appeal procedure. In
Hunter
v Financial Services Board and Others
(2017) JOL 39476
(GP) HF Jacobs AJ remarked that the section imposes substantive law
provisions applicable to applications for leave to appeal.
First, it
stipulates that leave to appeal may only be given if the judge is of
the opinion that certain jurisdictional facts exist.
The discretion
of the judge sitting as a court of first instance is, therefore,
curbed. Second, the jurisdictional facts which
are in the opinion of
the judge required to be present are that the appeal would have
reasonable prospects of success. or that
some other compelling reason
exists why the case should be heard on appeal. For instance,
conflicting provincial decisions on a
particular point of law under
consideration, would constitute a compelling reason for granting
leave to appeal.
[8] The learned
judge went on. He said that an appeal would have prospects of success
if
it is arguable in the narrow sense of the word. The section
requires that the argument advanced by an applicant in support of an
application for leave to appeal must have substance. The notion that
the point of law is arguable on appeal entails some degree
of merit
in the argument. The argument, however, need not be strongly
convincing at the stage when leave to appeal is sought but
it must
nonetheless, have a measure of plausibility. Thirdly, the decision
sought on appeal may not fall within the ambit of section
16(2)(a) of
the Act and should, therefore. not be of such a nature that decision
sought will have no practical effects or result.
Finally, section
17(6) (a) provides that if leave is granted under section 17(2)(a) or
(b) to appeal against the decision of a
court of first instance
consisting of a single judge, the judge must direct that the appeal
be heard by a full court of that division
unless the judge considers
that a decision to be appealed involves a question of law of
importance in respect of which a decision
of the Supreme Court of
Appeal is required to resolve differences of opinion or that the
administration of justice requires consideration
by the Supreme Court
of Appeal of the decision, in which case the judge granting leave
must direct that the appeal be heard by
the Supreme Court of Appeal.
Whether a court of first instance grants or refuses leave to appeal
it is required to give reasons
for its order.
[9] As
regards conviction my judgment was attacked on the following grounds:
"It is respectfully submitted that the Honourable
judge erred in finding that the state had proved his (sic) case
beyond reasonable
doubt more particularly in view of the following
facts:
1.1
here
was no evidence linking the appellant to the commission of the
offence;
1.2
the
state in proving its case against the appellant relied solely on
circumstantial evidence in all the charges;
1.3
the
state relied on the evidence of a single witness and which evidence
and its reliability is subject to serious doubt;
1.4
there
was nothing found in possession of the appellant linking him to any
of the offences at the time of his arrest."
[10] Mr Monareng, counsel for
the applicant, submitted that the evidence tendered by the
prosecution constituted
no proof beyond a reasonable doubt to justify
the conviction of the applicant. Based on this proposition counsel
submitted that
a reasonable possibility existed that another court
will come to a different conclusion as regards the guilt or otherwise
of the
applicant. Accordingly counsel submitted that the applicant
had a reasonable prospect of success on appeal. It was his argument
that the circumstantial evidence tendered by the prosecution against
the applicant was inadequate to justify his conviction. Therefore,
counsel urged me to grant leave to appeal.
[11]
M
r
Steyn, counsel for the respondent, sharply differed. He submitted
that the respondent had proved its case against the applicant
beyond
a reasonable doubt; that the applicant was correctly convicted in
respect of all the nine charges; that there existed no
reasonable
prospects of success on appeal and that the application was
unmeritorious. Accordingly counsel implored me to refuse
the
applicant leave to appeal.
[12] The case against
the applicant was overwhelmingly strong, in my view. I deem it
necessary
to highlight the following aspects of the prosecution case
against him:
•
The
state witnesses, Sithole Mthombeni and Gerhardt van Deventer,
corroborated each other in all material respects and their versions
were, without any doubt, free from contradictions and
improbabilities.
•
The
relevant cellphones of the applicant and his four co accused
"exi 1" to "exi 5" were found on the persons
of
the applicant and his four co-accused. The cellular number of the
applicant linked to "exi 1" was 072 050 0127.
•
The
applicant was the owner of a motor vehicle, a Sentra sedan involved
in the commission of the crime referred to in count 16.
He was also
the lawful owner of a firearm found in his possession in that motor
vehicle.
•
The
witness, Mr Joubert, identified the copper cables recovered shortly
after the theft as that which belonged to Transnet Limited.
The said
copper cables were stolen at Bosrand railway station and loaded on
the Nissan NP200, a bakkie which was accompanied by
the applicant
sedan right up to the moment of its recovery (count 16).
•
The
applicant and his four co-accused were arrested on 4
th
June 2014 near Sasolburg after been pursued for approximately 70km by
the operatives of Combined Private Investigations from the
last scene
of the theft of copper cables which was committed on or about 3
rd
June 2014 at Bosrand and Geneva in the district of Kroonstad.
•
The
applicant and accused 5 tried to flee and to resist arrest at the
time they were confronted near Sasolburg.
[13]
I continue with the respondent's case against the applicant.
•
The
applicant indicated, through his legal representative that he did not
know accused 2, 3, 4 and 5. Notwithstanding his disassociation,
their
phonebooks told a different story.
•
The
phonebook of accused 2 had the cellular numbers of the applicant,
accused 1,accused 3, accused 4 and accused 5.
•
The
phonebook of accused 4 had the cellular numbers of the applicant,
accused 1, accused 2 and accused 5.
•
The
phonebook of accused 5 had the cellular numbers of the applicant,
accused1, accused 3 and accused 4.
[14] All in all 16 crimes
of theft were committed over a time span stretching from 20 January
2014
up to 4
th
June 2014 - approximately 6 months
•
The
applicant and his co-accused had repeated contacts with each other
over the period. During that period their cellphones were
very active
on the various crime scenes far from their homes.
•
The
applicant contacted scrapyard metal dealers shortly before, during
and after each incident of theft.
•
The
cellular numbers of the scrapyard dealers were stored in his
phonebook "exi 1"
[15] I still continue
with the respondent's case against the applicant. This is now the
last
mile of the arduous road for the applicant.
•
It was
put to the state witnesses that the applicant was at one stage in
Bloemfontein far from the crime scenes at Geneva and Bosrand
near
Kroonstad. However, an analysis relative to his cellphone contained
no shred of objective evidence that he was ever in the
vicinity of
Bloemfontein at the time of the incident described in count 16.
•
It
was similarly put to the prosecution witnesses that his four
co-accused were travelling somewhere between Welkom and Odendaalsrus
at the time the incident described in count 16 was committed.
However, again there was no shred objective evidence to support
their
alibi(s.)
•
It
was also put to the prosecution witnesses that the applicant and his
co-accused approached Kroonstad from the Welkom road and
not the
Hennenman road. They tried to distance themselves from Hennenman
road. Yet again there was no cellular data to corroborate
their
version that they came from the direction of Welkom. On the contrary,
there was overwhelming pieces of objective evidence
and direct
evidence which linked them to the Hennenman road.
[16] Notwithstanding the
aforesaid highly incriminating evidence against the applicant and his
co-accused,
they opted not to testify or to call any witnesses to
testify on their behalf. Therefore the prosecution case stood
unchallenged.
The applicant had no version before the court to be
considered. Of course, it was their fundamental right to remain
silent. From
his silence, in the face of the formidable case
presented against him which cried out for an explanation, I drew an
adverse inference.
He must have appreciated that risk. Because he
did, he must accept the consequences flowing from his decision to
remain silent.
An innocent person has a natural inclination to speak
out against false accusation alleged against him.
S v Brown &
Another
1996(2) SACR (HC) et 60f-61d and the authorities
there cited.
[17]
In the light of the totality of the facts and the surrounding
circumstances, the only reasonably possible inference that could be
drawn by any objective court, from all the facts proven and
unchallenged, was that the applicant was beyond reasonable doubt
guilty
of all the charges in respect of which he was accused and
ultimately convicted.
[18]
As regards sentence, it was submitted on behalf of the
applicant that the effective term of 20 years imprisonment was
strikingly
inappropriate in that:
2.1
It
is out of proportion to the totality of the accepted facts proven in
mitigation.
2.2
It
over emphasises the need to remove the Appellant from the society
Rather than correcting his behaviour.
2.3
It
disregarded the social standing of the Appellant in the community and
the need to rehabilitate him back to the community.
2.4
It
over emphasised the seriousness of the offence and disregarded the
personal circumstances of the Appellant.
2.5
It
disregarded the negative impact a long term of imprisonment can on
the Appellant and his family.
2.6
It
fails to allow for corrective rehabilitation.
[19] Mr Monareng submitted, on
the basis of the alleged misdirections, that the effective term of 20
years
imprisonment was exceedingly retributive. Therefore, he urged
me to grant the applicant leave to appeal against the sentence I
imposed on him
[20]
Section
51 of Act No. 105/1997 prescribes a minimum sentence of 15 years
imprisonment in respect of count 16. In the light of the
surrounding
facts and the peculiar circumstances of the applicant concerning
count 16, I found that there existed no substantial
and compelling
circumstances to deviate from the prescribed minimum sentence. I then
loaded the prescribed minimum sentence and
imposed a sentence of 17
years imprisonment on the applicant. Mr Steyn submitted that the
applicant was rightly and correctly sentenced.
[21] The section finds no
application to the rest of the charges in respect of which the
applicant was convicted.
Accordingly, I punished the applicant in
accordance with the sentencing discretion entrusted to me in
accordance with unwritten
common law principles. As regards count 3,
4, 5, 7, 8,13, 15 and 17, the sentences imposed on him ranged from 3
to 5 years imprisonment.
Mr Steyn supported those sentences. He
submitted that the objectives of sentence assessment were thoroughly
and correctly considered
and applied. I am satisfied that I exercised
my sentencing discretion properly and judicially. See
S v
Holder
1979 (2) SA 70
(A) at 74H.
[22] The sentencing
of an offender is the prerogative of a trial court. A court with
appellate
jurisdiction shall only interfere on well-known and
acceptable but narrow grounds. The power of a court exercising
appellate jurisdiction
in respect of sentence is very limited
S
v Pieters
1987 (3) SA 717
(A) at 727. I am not persuaded that
the full bench of this division sitting as a court of first instance
would have come to a different
conclusion. Neither any of the
individuals sentences imposed nor the effective sentence is
shockingly inappropriate and harsh considering
the legio of
aggravating circumstances proven against the applicant.
[23] The aggravating
factors may be tabulated as follows;
•
The
applicant committed several offences of a serious nature;
•
The
offences of which the applicant has been convicted are prevalent in
the jurisdiction of this court;
•
He
still protested his innocence after his conviction, which attitude
showed that he was remorseless. a factor which strongly militated
against the contention that he was a rehabilitable offender;
•
He
committed the offences out of greet and not need;
•
The
high value of copper cables stolen was a strongly aggravating factor;
•
The
applicant had planned and coordinated the offences very well over a
period of about six months.
•
He
was not a lone ranger but he committed the offences as a member of a
gang of railway track thieves;
•
He
played a leading role in the commission of the offences of which he
has been convicted. For instance, he supplied a motor vehicle
to
transport his co-accused to and from various crime scenes. He also
provided protection for them because he was the carrier of
a firearm.
•
The
widespread impact of these crimes on the economy of the country was a
strongly aggravating factor. As Mr Steyn said, it was
an economic
sabotage in its worst form.
[24] The gravity of the
offences, the deterrence objective of sentencing and the interests of
the general
public were overriding considerations in the case against
the applicant. I am persuaded that there exists no reasonable
prospect
that a full bench hearing this matter on appeal will
interfere with the sentences I imposed on the applicant. Given all
the peculiar
circumstances of this particular case, I am satisfied
that the applicant's application for leave to appeal against the
sentences
is unmeritorious. I would, therefore, refuse leave.
[25] The applicant
was not alone before me in these proceedings. One of his co- accused
was riding
on his back . He was Thaba Chicca Madlasa, accused 2.
[26] I have already
considered his position. The respondent's case against him was also
overwhelming,
as regards the merits. The defence in respect of each
count on which he was convicted, was bedevilled by numerous features
of material
demerits.
[27] As regards
sentence, I am not persuaded there is any substance in his grounds of
appeal.
His argument that the full bench will, on appeal, come to a
different conclusion was in my view not plausible. I would,
therefore,
deny him leave to appeal against any individual or
effective sentence I imposed on him.
[28] Consequently I
have come to the final conclusion that Mr Thaba Chicca Madlasa's
application
also has no reasonable prospect of success at all on
appeal. In view of this, I am also inclined to deny him leave to
appeal against
the conviction and sentence.
[29] Accordingly I make the
following order;
29.1
The
application for leave to appeal fails in tote.
29.2
The
conviction and sentence stand.
29.3
The
same order applies to the second applicant, Thaba Chicca Madlasa.
M
H RAMPAI, J
On
behalf of the applicants:
Adv MM Monareng
Instructed
by: Rasegoete
Attorneys
Vanderbiljpark
On behalf
of the respondent: Adv
C Steyn
Instructed
by: Director
of Public Prosecutions
Bloemfontein