Mathibela v S (714/2017) [2017] ZASCA 162 (27 November 2017)

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[2017] ZASCA 162
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Mathibela v S (714/2017) [2017] ZASCA 162 (27 November 2017)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 714/2017
In
the matter between:
JERRY
BAFANA PETER MATHIBELA

APPELLANT
and
THE
STATE

RESPONDENT
Neutral
citation:
Mathibela
v The State
(714/2017)
[2017] ZASCA 162
(27 November 2017)
Coram:
Shongwe AP, Tshiqi,
Majiedt and Mocumie JJA and Tsoka AJA
Heard:
1 November 2017
Delivered:
27 November 2017
Summary
:
Application
for condonation – late filing of and reinstatement of lapsed
appeal – inadequacy of explanation - delay
unreasonable and
would result in inordinate
miscarriage
of justice
- no prospects of success –
application dismissed.
ORDER
On
appeal from:
North West Division,
Mahikeng (Garankuwa Circuit Court, Gura J sitting as court of first
instance):
The
application for condonation and for the reinstatement of the appeal
is dismissed.
JUDGMENT
Mocumie
JA (Shongwe AP, Tshiqi, Majiedt JJA and Tsoka AJA concurring):
[1]
On 14 November 2005 the appellant, Mr Jerry Bafana Peter Mathibela,
together with two co-accused were convicted and sentenced
in the
North West Division, held at the circuit court Garankuwa (court a
quo).  The appellant was convicted of murder read
with s 51(1)
of the Criminal Law Amendment Act 105 of 1997 (the CLA) and attempted
robbery and was sentenced to a term of life
imprisonment for murder
and seven years’ imprisonment for the attempted robbery
respectively. The application for condonation
for the late filing of
his application for leave to appeal was dismissed by that court. He
then petitioned this Court and leave
to appeal against his
convictions and sentences was granted on 31 August 2016. In terms of
rule 7 of the Rules of the Supreme Court
of Appeal
[1]
(the rules)
the appellant was required to file a notice of appeal within one
month
[2]
,
but, this was not done. On 26 June 2017, ten months after the
prescribed time frame in the rules, the appellant filed same. On
11
July 2017, eleven months after leave to appeal was granted by this
Court, the appellant lodged the appeal record together with
his heads
of argument. The appeal record was therefore lodged outside the
prescribed period and subsequently the appeal lapsed
as set out in
rule 8(3) of the rules.
[3]
[2]
The appellant now applies for his appeal to be reinstated. He has
also lodged an application for condonation for the late filing
of the
notice of appeal, appeal record and heads of argument.
[3]
In his explanation for the delay, the appellant stated in his
founding affidavit that Ms B Segone of Mahikeng Justice Centre

represented him during the trial in the court a quo. Upon the refusal
of the court a quo to grant him leave to appeal to either
the full
court or this Court, he did not get further assistance from Ms
Segone. He alleged that he personally petitioned this Court,
which
petition was before this Court on 20 May 2016.  Leave to appeal
was granted on 31 August 2016. The appellant submitted
further that
he only received this court’s order on 17 September 2016.
According to the appellant between 17 September
and December 2016,
nearly three months later, he was in continuous communication with
Mahikeng Justice Centre to apply for legal
assistance. Once more,
this allegation is vague and makes no reference to any dates, phone
calls or details of the communication
between himself and the Justice
Centre. According to the appellant, the Mahikeng Justice Centre only
granted his application for
legal assistance in December 2016.  He
then consulted for the first time with Mr Gonyane on 17 January 2017
and a second time
on 31 January 2017. Therefore the notice of appeal
was filed five months later and the record of appeal six months after
his first
consultation, once more contrary to rule 7 and 8 of the
rules.
[4]
The State opposed the application on the basis that there was no
satisfactory explanation for the numerous delays on the part
of the
appellant and that there were no prospects of success. In his
opposition, counsel for the State submitted that there were
in fact
three applications for condonation filed by the appellant. The first
application was before the court a quo (dismissed
on 4 May 2012), the
second application was before this Court, (granted on 31 August 2016)
and the third application is the present
application for condonation
coupled with an application for reinstatement of the appeal.  The
State argued further that in
the first application, the appellant
approached the court a quo after a period of seven years and in the
second application, the
appellant delayed the process by filing his
papers ten months after the prescribed period. Counsel for the State
urged this Court
not to accept the appellant’s unreasonable
explanation for the delay and numerous incidents of non-compliance
with the rules
of this Court.
[5]
This Court recently stated the following in
Mulaudzi
v Old Mutual Life Insurance Company Limited & others, National
Director of Public Prosecutions & another v Mulaudzi
[4]
:
‘
[34]
In
applications of this sort the prospects of success are in general an
important, although not decisive, consideration.
As was stated in
Rennie
v Kamby Farms (Pty) Ltd
,
[5]
it
is advisable, where application for condonation is made; that the
application should set forth briefly and succinctly such

essential information as may enable the court to assess an
applicant's prospects of success. This was not done in the present
case:
indeed,
the application does not contain even a bare averment that the appeal
enjoys any prospect of success
[6]
.
It
has been pointed out
[7]
that
the court is bound to make an assessment of an applicant's prospects
of success as one of the factors relevant to the exercise
of its
discretion,
unless
the cumulative
effect
of the other relevant factors in the case is such as to render the
application for condonation obviously unworthy of consideration.
’
(My
emphasis)
[6]
The same principles apply in the context of criminal cases as
restated in
Mogorosi
v State
[8]
where this
Court said:
‘
[3]
. . . [G]iven that the appellant was seeking an indulgence he had to
show good cause for condonation to be granted. In
S
v Mantsha
2009
(1) SACR 414
(SC
A)
para 5 Jafta JA stated that “good (or sufficient) cause has two
requirements. The first is that the applicant must furnish
a
satisfactory and acceptable explanation for the delay. Secondly, he
or she must show that he or she has reasonable prospects
of success
on the merits of the appeal’
[8]
A court considering an application for condonation must take into
account a range of considerations. Relevant considerations
include
the extent of non-compliance and the explanation given for it; the
prospects of success on the merits; the importance of
the case; the
respondent's interest in the finality of the judgment; the
convenience of the court and the avoidance of unnecessary
delay in
the administration of justice. (See
S
v Di Blasi
1996
(1) SACR 1
(A)
at
3g.)’
[7]
The appellant provided no reasonable explanation for his
non-compliance with the rules of this Court.  The delay in
prosecuting
his appeal in this Court alone amounted to one year and
one month. In total ie in both the court a quo and this Court it took
the
appellant eight years and one month to prosecute his appeal.
Even
if I take into account the fact that he was unrepresented at times
during the prosecution of his appeal, that can hardly compensate
for
the inordinate delay in his application.
[8]
As
pointed out in
Uitenhage
Transitional Local Council v South African Revenue Service
[9]
the
requirements for granting an application for condonation are the
following:
‘
One
would have hoped that the many admonitions concerning what is
required of an applicant in a condonation application would be
trite
knowledge among practitioners who are entrusted with the preperation
of appels to this Court: condonation is not to be had
merely for the
asking: a full, detailed and accurate account of the causes of the
delay and its effects must be furnished so as
to enable the Court to
understand clearly the reasons and to assess the responsibility. It
must be obvious that, if the non-compliance
is time related then the
date, duration and extent of any obstacle on which reliance is placed
must be spelled out.’
[10]
[9]
As was the case in
Mulaudzi
,
as is apparrent, the founding affidavit is singularly unhelpful in
explaining the long delay.
[11]
The
explanation is not in the least satisfactory. Even worse, no
explanation was provided for the third application for condonation

and reinstatement of the appeal. This delay is unreasonable and there
is no cogent explanation for it.  It remains to consider
whether
the prospects of success on the merits justify the granting of
condonation.
[10]
In a large measure, the State’s case rested on circumstantial
evidence in so far as the actual shooting was concerned.
Mr Keletso
Desmond Moletsane (Desmond) testified that he was friends with the
appellant and his two co-accused. On this fateful
day, he went to the
house of accused 2 around 9h00 where he found the three together
although accused 3 arrived just after he had
arrived. Upon his
arrival the decision was taken to buy meat and beer and to have a
braai. They all left together in accused 3’s
vehicle. When they
reached the supermarket, only accused 2 and 3 alighted to go and buy
meat. He remained in the vehicle with the
appellant. When the two
co-accused returned, the appellant alighted from the vehicle and
spoke to accused 3 outside the vehicle.
He then saw accused 3 take
out a firearm from the side pocket of the vehicle on the driver’s
side, and gave it to the appellant.
The appellant went back to the
supermarket with the firearm and they drove off to park a distance
from the supermarket and waited
for the appellant. Soon thereafter,
the appellant came running towards the parked vehicle with the
firearm in his hand and he noticed
that his T-shirt was blood
stained. The appellant got into the vehicle and accused 3 drove to
the house of accused 2 where the
appellant changed into a clean
T-shirt. They all drove together to Temba Square where they drank
beer until late that night. Desmond
testified further that he did not
report this incident to the police as he was afraid of the appellant
who told him not say anything
about what he had witnessed.
[11]
Desmond was a single witness. Section 208 of the Criminal Procedure
Act 51 of 1977 (the CPA) provides that a single witness’

evidence is adequate to sustain a conviction, provided that it is
satisfactory in all material aspects
[12]
.
It is, however, a well-established judicial practice that the
evidence of a single witness should be approached with caution,
his
or her merits as a witness being weighed against factors which
militate against his or her credibility.
[13]
The correct
approach to the application of this so-called ‘cautionary rule’
was set out by Diemont JA in
S
v Sauls & others
[14]
as follows:
‘
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
the
remarks of Rumpff JA in
S
v Webber
1971 (3) SA 754
(A)
).
The trial judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether it is
trustworthy
and whether, despite the fact that there are shortcomings or defects
or contradictions in the testimony, he is satisfied
that the truth
has been told. The cautionary rule referred to by De Villiers JP in
1932 [in
R
v Mokoena
1932
OPD 79
at 80] may be a guide to a right decision but it does not mean
“that the appeal must succeed if any criticism, however
slender,
of the witnesses’ evidence were well-founded”
(per Schreiner JA in
R
v Nhlapo
(AD
10 November 1952) quoted in
R
v Bellingham
1955 (2) SA 566
(A) at 569.) It has been said more than once that the exercise of
caution must not be allowed to
displace the exercise of common
sense.’ (See further all the other authorities referred to
therein.)
[15]
[12]
Desmond’s state of sobriety and his intermittent lying on the
back seat of the vehicle due to a hangover was questioned
at length
during cross examination. He however did not contradict himself. The
court a quo was cognisant of the fact that Desmond
was a single
witness and approached his evidence with caution as it ought to have.
On a conspectus of all the evidence, Desmond
could not be
discredited. As the trial court correctly found ‘he was
consistent and firm [in] his account of that day’s
events. He
answered questions spontaneously without pondering. . . He narrated
most of the events surrounding the visit to the
supermarket in the
same way as all the accused narrated them.’ The reliance of the
appellant on Desmond’s state of
sobriety did not assist him at
all as Desmond’s observation could not be faulted. It tallied
with the events as they unfolded
from the time he saw accused 3
giving the appellant the firearm and the appellant returning from the
supermarket with the firearm
in his hand with blood on his T-shirt.
The appellant, on his own version, placed himself on the scene of the
crime. From the prevailing
circumstances there could be no doubt that
the appellant was the person who shot the deceased. There was no
other shooting on the
day in question.
[13]
In this Court, the appellant’s counsel argued that the
appellant was convicted on the basis of illegally obtained evidence,

i.e That two the firearms which were found by the police in the house
of accused 2 and pointed out by the appellant, were found
without a
search warrant.  The unrefuted evidence of the police before the
trial court was the following: After the three
accused were arrested;
based on information that the firearms were going to be removed; the
three accused were booked out of custody
and taken to accused 2’s
house. Inside the house, the police asked accused 2’s
permission to search the house and he
consented.
[16]
Once they
were inside the house, the appellant pointed the firearms out from
behind a unit. The two firearms were confiscated.
[14]
These firearms were sent for ballistic examination. In terms of the s
212 statement which was handed in as exhibit D per agreement
between
the State and the defence, the examination confirmed that the fired
cartridge found at the scene of crime was emitted from
one of the two
firearms. The search was conducted without a search warrant, but with
the consent of accused 2 as the owner of the
house.  In
Gumede
v S
[17]
this
court stated the following:
‘
[T]he
fact that the evidence of a firearm was obtained in that manner
[illegally] did not, in my view, affect the fairness of the
trial.
This is so because the firearm is real evidence that the police
probably would have found if they had entered the premises
lawfully
in terms of a search warrant and without breaching the appellant’s
right to privacy. . . ’
[18]
[15]
From this factual matrix, it is clear that there are no prospects of
success on the merits.
[16]
In light of the wanton disregard of the rules of this Court by the
appellant, coupled with an
inadequate explanation of all the
delays,
and the fact that the appeal has no
prospects of success, the application for condonation must fail and
the appeal cannot be reinstated.
[17]
In the result the following order is made:
The
application for condonation and for the reinstatement of the appeal
is dismissed.
_________________
BC
Mocumie
Judge
of Appeal
APPEARANCES:
For
the Appellant:

NL Skibi with T Gonyane
Instructed
by:

Legal Aid House, Braamfontein
Justice Centre, Bloemfontein
For
the Respondent:

MJ De Beer
Instructed
by:

Director of Public Prosecutions, Mahikeng
Director of Public
Prosecutions, Bloemfontein
[1]
Rules
Regulating the Conduct of the Proceedings of the Supreme Court of
Appeal of South Africa, 27 November 1998 as amended.
[2]
‘
7.Notice
of Appeal. -
(
1)
An appellant shall lodge a notice of appeal with the registrar and
the registrar of -  the court a quo within one month
after the
date of -
(a) the granting of the judgment or order appealed
against where leave to appeal is not required:
(b) the granting
of leave to appeal where leave to appeal is required; or . . . .’
[3]
‘
8.
Record.—(1) An appellant shall within three months of the
lodging of the notice of appeal lodge with the registrar six
copies
of the record of the proceedings in the court a quo and deliver to
each respondent such number of copies as may be considered
necessary
or as may reasonably be requested by the respondent.
.
. . .
(3)
If the appellant fails to lodge the record within the prescribed
period or within the extended period, the appeal shall lapse.’
[4]
Mulaudzi v
Old Mutual Life Insurance Company (South Africa) Limited &
others, National Director of Public Prosecutions &
another v
Mulaudzi [2017] ZASCA 88; [2017] 3 All SA 520 (SCA); 2017 (6) SA 90
(SCA).
[5]
Rennie v
Kamby Farms (Pty) Ltd
1989(2) SA 124 (A) at 131E.
[6]
Moraliswani
v Mamili
1989
(4) SA 1
(
A)
at 10E.
[7]
Finbro
Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein &
others
1985
(4) SA 773
(A)
at
789C.
[8]
Mogorosi
v S
(410/2010)
[2010] ZASCA 147
(29 November 2010) paras 3-and 8.See also
Mtshali
& Others v Buffalo Conservation 97 (Pty) Ltd
(250/2017)
[2017] ZSCA 127 (29 September 2017)
[9]
Uitenhage
Transitional Local Council v South African Revenue Service
2004
(1) SA 292
(SCA).
[10]
Ibid para
6. See also
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Ltd & others
[2013]
ZASCA 5
;
2013 (2) All SA 251
(SCA) para 11.
[11]
Mulaudzi
fn 2
para
30.
[12]
Section 208
of the
Criminal Procedure Act 51 of 1977
reads as follows:
Conviction
may follow on evidence of single witness
‘
An
accused may be convicted of any offence on the single evidence of
any competent witness’.
[13]
S v
Webber
1971 (3) SA 754
(A) at 758G–H.
[14]
S v
Sauls & others
1981 (3) SA 172
(A).
[15]
Ibid
at
180E–G.
[16]
Section 22
of the
Criminal Procedure Act 51 of 1977
provides:
‘
22
Circumstances in which article may be seized without search warrant
A
police official may without a search warrant search any person or
container or premises for the purpose of seizing any article

referred to in
section 20
-
(a)
if the person
concerned consents to the search for and the seizure of the
article
in question, or
if the person who may consent to the search of
the
container
or premises consents to such search
and
the seizure of the article
in
question;
[17]
Gumede
v S
[2016]
ZASCA 148; [2016] 4 All SA 692 (SCA); 2017 (1) SACR 253 (SCA) para
32.
[18]
Ibid para
32. See also
Sv
Dzukuda & others
;
S
v Tshilo
[2000] ZACC 16
;
2000 (2) SACR 443
(CC) para 14.