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[2018] ZAECMHC 17
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Zide v S (49B/06) [2018] ZAECMHC 17 (22 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
CASE
NO:
49B/06
Heard
on: 15/02/18
Delivered
on: 20/03/18
In
the matter between:
MALUSI
ZIDE
Appellant
and
THE
STATE
Respondent
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
NHLANGULELA
DJP
[1]
This matter concerns an application brought by Mr Zide for leave to
appeal against the judgment on convictions. The application
is
opposed by the state.
[2]
The application for leave to appeal against the sentence had also
been initiated, but it was abandoned on the day of hearing
of the
present application.
[3]
The success, or otherwise, of this application will depend on whether
the application measures up to the test of existence of
prospect(s)
of success on appeal.
Mr Mpepanduku
for the State,
brought the case of
S v Smith
2012 (1) SACR 567
(SCA) to the
attention of this Court. The test is stated in the
Smith
case at para 7 in the following terms:
“
What is the
test of reasonable prospects of success postulants is a dispassionate
decision, based on the facts and the law, that
a court of appeal
could reasonably arrive at a conclusion different to that of the
trial court. In order to succeed, therefore,
the appellant must
convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are
not remote but have a
realistic chance of succeeding. More is required to be
established than that there is a mere possibility
of 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.
”
[4]
The test as aforementioned was again applied in
Kruger
v The State
(612/13)
[2013] ZASCA 198
;
2014 (1) SACR 647
at para 2 (2 December
2013). What indicates the test has been consistently applied by
the Supreme Court of Appeal and in
turn, by the general divisions of
the High Court of the Republic as they are bound to do so.
Since this Court is equally
so bound, it must apply this test to the
letter and spirit of it.
[5]
In applying the test to this case I must break – down the
statements made in the
Smith
case in the following manner:
(i)
The High Court having the application for leave to appeal to the Full
Court or Supreme
Court of Appeal must make its decision
dispassionately based on the facts and the law. What the court
is expected to do is
disabuse its mind of the fact that it convicted
the Applicant and its decision is now being criticised on appeal.
(ii)
The applicant for leave must convince the court on proper grounds
that he/she has prospects
of success on appeal.
(iii)
The prospects of success must not be remote, but should be those that
have a realistic chance of succeeding.
(iv)
A mere possibility of success is not enough.
(v)
That the case stated in the application for leave will be arguable on
appeal is not enough.
(vi)
The case stated by the Applicant must not be inherently hopeless.
(vii)
The grounds of appeal must be sound and rational.
[6]
The present application is premised in the grounds that maybe
summarised in the following terms:
(a)
The court
a quo
should not have admitted the confession
allegedly made by the Appellant on 05 August 2004 because the Peace
Officer (Captain Nodlabi)
appear on exhibit J at pages 2 and 3 (the
warning statement of Siphathise Zide dated 26/07/2004) as being the
Investigating Officer.
Upon taking the warning statement of
Siphathise (the co-accused of the applicant), Captain Nodlabi gained
knowledge of the facts
of the case later, in the same way that the
Investigating Officer, would which influenced him when he later on
took a confession
of the Appellant on 05 August 2004.
(b)
The Court
a quo
failed to take into account that whereas Mr
Gwebityala (the Investigating Officer) testified that the firearm
that had been revealed
by the Applicant was recovered in the dongas,
the confession statement points to the firearm having been recovered
in the mealie
fields. Therefore, even if the confession is
admissible in evidence the same is shown by the evidence of Mr
Gwebityala to
be untrue and/or unreliable to warrant consideration as
being the evidence at all.
(c)
The Court
a
quo
erred
in not finding that in the absence of [a trial within a trial] the
pointing out and the failure by the state to exhibit the
firearm in
court during the trial point to the fact that the Appellant had no
knowledge of the firearm or the knowledge of where
it was hidden.
[7]
The summary of the grounds that is made herein above reflects the
context in which grounds were presented on behalf of the Appellant
during arguments. More must be said about the pointing out so
that the context in which it arose may be appreciated.
At the
trial there was never a trial within a trial on the issue of the
pointing out a firearm. The issue of pointing out
came out of
the confession statement only after a ruling had been made on the
admissibility of the confession. In the circumstances
the fact
that the Appellant pointed out the firearm is not in dispute.
What then remains for consideration is whether the
Court
a
quo
erred in finding that the Applicant did have knowledge of the
existence of the firearm, the whereabouts of which were disclosed
by
him to Captain Nodlabi through the confession statement.
[8]
It was submitted on behalf of the State that the application should
be dismissed as there is no evidence gainsaying Captain
Nodlabi’s
explanation that he was never the Investigating Officer at any stage,
including at the time when he took the warning
statement of
Siphathise. It was contended that the recovery of this firearm
of the Appellant in dongas, instead of the mealie
field, is not a
contradiction. The firearm was not placed into the dongas so
that its existence was attributed to the Applicant
wrongly. On
the issue of the pointing out it was submitted that the convictions
were based on the admissible confession statement
in which the
pointing out is mentioned. Finally, it was submitted that the
Appellant failed to show existence of any prospect
of success on
appeal.
[9]
In deciding the relief sought the Court will be guided by the
statements that were made in the cases of
Smith,
supra.
[10]
The criticism levelled against Captain Nodlabi’s action in
taking the warning statement and the confession was raised
on the
basis that the knowledge of the case he gained from the warning
statement was deliberately transferred by him into the confession.
In other words, the proposition was that Captain Nodlabi made a
confession statement for the Applicant. In my judgment
on the
trial-within a trial I found that Captain Nodlabi was not an
Investigating Officer at any stage, and the warning statement
was
recorded on a pro-forma which suggests wrongly so, that only an
Investigating Officer can complete the form. The uncontroverted
facts of the case are that any member of the police force asked by
the Investigating Officer to record a statement of a suspect
can
complete the form. Further, I found that the contents of the
warning statement and those of the confession were different
in
material respects, including that the warning statement was
exculpatory and the confession was incriminatory. So, I found
that whatever, prior knowledge that Captain Nodlabi could have
obtained from the warning statement it did not prejudice the
Appellant
in any way.
[11]
The finding made that the firearm that was recovered by Mr Gwebityala
on information derived from the Applicant puts paid to
the issue now
being raised that the firearm ought to have been exhibited in court
during the trial. The description of the
firearm was not the
basis for the convictions. The issue of description of the
firearm came up only during sentence proceedings.
[12]
The correctness of the finding that the contents of the confession
are true is not disturbed regardless of the fact that the
firearm was
hidden in the dongas and that it was not exhibited in court.
[13]
In my opinion the grounds of appeal raised are merely arguable.
The grounds advanced on behalf of the Appellant are not
premised on
the correct interpretation of the proved facts. To that extent
they are unsound and irrational. They do not have
a realistic chance
of success on appeal. They can safely be categorised as remote
and/or hopeless. I arrive at these conclusions
dispassionately, based
on the proved facts of the case, and not based on some hypothetical
considerations.
[14]
In the result the application for leave to appeal against the
convictions is dismissed.
_______________________
________________________
Z.
M. NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
MTHATHA
For
the Appellant
:
Mr V
Gwebindlala of
:
c/o V Gwebindlala & Associates
MTHATHA.
For
the Respondent
: Adv L.
Mpepanduku
:
The Director of Public Prosecutions
MTHATHA.