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[2017] ZAFSHC 169
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Van Schalkwyk and Others v S (51/1998) [2017] ZAFSHC 169 (28 September 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 51/1998
In
the matter between:
JOHANNES
PETRUS VAN SCHALKWYK
1
st
Applicant
PETRUS
XOLI
QUINCH
2
nd
Applicant
JERRY
QUINCH
3
rd
Applicant
and
THE
STATE
Respondent
HEARD
ON:
19
SEPTEMBER 2017
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON:
28
SEPTEMBER 2017
[1]
This was an application for leave to appeal against the conviction
and sentence. Besides the main relief sought, the applicants
also applied for a subsidiary relief to have the lateness of their
appeal condoned. I shall revert to the respondent’s
attitude towards the matters in due course.
[2]
On 24 June 1999 Malherbe J, as he then was, convicted each of the 3
applicants in connection with the following charges:
2.1 The first
conviction pertained to robbery with aggravating circumstances.
The incident concerned the hijacking of
a commercial a Mercedes Benz,
cargo truck, with registration AK 644 owned by Mr Bilal Osman.
The incident took place in Bloemfontein
on 20 January 1998.
2.2 The second
conviction pertained to kidnapping. The incident concerned the
two occupants of the aforesaid truck,
namely: Mr S.B. Letsie
and Mr F Pitso – vide “exi b” and “exi f”.
2.3 The third
conviction pertained to the murder of the truck driver Mr Setshotsha
Letsi.
2.4 The fourth
conviction pertained to the murder of the assistant truck driver, Mr
Fusi Pitso. The 2 counts of murder
and the kidnapping stemmed
from the same hijacking incident.
[3]
On 25 June 1998 the trial judge sentenced each of the applicants as
follows:
3.1 Hijacking, 15
years imprisonment;
3.2 Kidnapping, 5
years imprisonment;
3.3 Murder, life
imprisonment and
3.4 Murder life
imprisonment.
[4]
As regards condonation, the respondent did not oppose the
application. The supporting affidavit was deposed to by the
first applicant. The salient features of his explanation were
that shortly after they severe sentenced he alone brought his
application for leave to appeal; that he did so in good time;
that he alone appeared before the court on the
date that had been
allocated for the hearing of his application; that the trial
judge was not inclined to entertain his separate
application;
that his application was then postponed
sine
die
.
[5]
He went further to explain that his 2 co-accused, also subsequently
decided to apply for leave to appeal. In due course
a date was
allocated for the hearing of their joint application. On the
day in question the 2 of them were taken to court
but he was not.
On account of his absence, the trial judge declined to entertain
their separate application, on the grounds
that it was practically
expedient to simultaneously hear their three applications.
Consequently their two applications were
also postponed
sine
die
. I
pause to point out that in those days, unlike nowadays, the accused
had to be personally present in court during the hearing
of his
application for leave to appeal.
[6]
Since then their applications for leave to appeal were never placed
on the roll again. Although they made several request
for
further assistance in order to pursue their applications, they
received no further assistance. The second and the third
applicants confirmed the averments made by the first applicants.
I pause again to clarify one more point. It has to
be mentioned
that, according to their current attorney, their previous
applications were in fact withdrawn.
[7]
I am persuade that the applicants were not to blame for the delay.
The delay was apparently occasioned by the stance of
the trial judge
and exacerbated by the failure of their previous attorneys to
consolidate the separate applications in accordance
with the
directives of the trial judge. In my view they have given a
satisfactory explanation. I find it reasonably
acceptable.
In coming to this conclusion, I am fortified by the attitude of Mr
Strauss, counsel for the respondent.
[8]
It would appear that the applicants were sentenced in accordance with
the provisions of section 51 Criminal Law Amendment Act
105/1997
which prescribes certain minimum sentences. In the case of a
conviction for robbery with aggravating circumstances
the prescribed
minimum sentence is 15 years imprisonment and in the case of
premeditated murder the prescribed minimum sentence
is life
imprisonment. It is now their case that they were not warned by
the trial court about the section; that they
were unaware of
the provisions of the section; that they were unaware of the
provisions of schedule 2 and that they recently
became aware that the
law previously required that they should have been warned about those
provisions before they were convicted.
[9]
It was an undisputed fact that the applicants were indeed not warned
at any stage of the trial. In view of this, I am
persuaded that
the applicants have a reasonable prospect of success on appeal as
regards sentence.
[10]
For the reasons given above, I was inclined to condone their failure
to comply with section 319(1)(b) Criminal Procedure Act
51/1977.
Therefore, I would extend the 14 day period referred to in the
section to the date on which their appeal will be
heard by the full
compliment of the bench. Now I turn to the main application.
[11]
As regards the substantive merits, the key prosecution witnesses were
Mr Ruiters and Mr George. Indeed they were single
witnesses as
far as some aspects of their testimonies were concerned.
However, they corroborated each other as far as other
aspects of
their testimonies were concerned.
[12]
In order to secure conviction, the evidence of a single witness must
be materially satisfactory not absolutely perfect.
S
v Abdoormann
1954 (3) SA 163
(N)
S
v Sauls and Others
1981
(3) SA 172
(A)
The
trial court was mindful and alive to the factual matrix and the
applicable legal principles.
[13]
The prosecution witness, Mr Ruiters, was an accomplice. So was
the prosecution witness, Mr George. The trial judge
was mindful
of the legal principles, applicable to an accomplice. Malherbe
J quote the following passage from
S v Francis
1991
(1) SACR 198
(A) at 205f-g:
“
It
is not necessarily expected of an accomplice, before his evidence can
be accepted, that he should be wholly consistent and wholly
reliable,
or even wholly truthful, in all that he says. The ultimate test is
whether, after due consideration of the accomplice's
evidence with
the caution which the law enjoins, the Court is satisfied beyond all
reasonable doubt that in its essential features
the story that he
tells is a true one.”
[14]
In the final analysis the trial judge found, beyond reasonable doubt,
that the essential features of the testimony given by
each of the two
accomplices were true, notwithstanding its shortcomings.
[15]
There were certain discrepancies between the court testimony and the
police statement of Mr George. The trial judge recognised
and
considered those discrepancies. Having acknowledged their
existence, the trial judge ultimately ruled that the essence
of the
two was substantially the same.
[16]
The trial court considered the probabilities and improbabilities of
each version as presented by the prosecution and the defence
before
he announced the verdict.
S
v Tellingen
1992 (2) SACR 104
(C)
S
v Texeira
1980 (3) SA 755
(A).
[17]
One of the specific grounds of appeal was that the trial judge erred
in accepting “exi m” as a reliable piece of
circumstantial evidence and that the prosecution witness, Mr A.S. Mia
was not an expert. The exhibit contained cellular data,
electronically generated by Vodacom (Pty) Limited. At the trial
none of the applicants as accused persons challenged the
admissibility of “exi m” at all. It follows, that
they are precluded from raising the point now. It is
too late
now. The horse has long bolted. At any rate, Malherbe J
thoroughly and properly dealt with the argument that
the witness was
not a qualified expert.
[18]
I hold the view, and it is a very firm view, that no court with
appellate jurisdiction will come to a different conclusion.
As
I see it no other court will, on appeal, disturb any of the findings
made and the ultimate conclusions reached by Malherbe J
on the
merits. Consequently, I conclude that none of the applicants
has reasonable prospects of success on appeal as regards
the merits.
I would, therefore, deny each of the applicants leave to appeal
against his 4 convictions.
[19]
As regards sentence, it is trite that a court with appellate
jurisdiction can interfere with the sentence imposed by the trial
court. Appellate interference is justified where, among others,
it clear that the trial court did not exercise its discretion
properly and judicially. The court with appellate jurisdiction
can also interfere in a case where the trial court has committed
a
material misdirection or irregularity which shows that it did not
exercise its discretion at all or that it exercised such discretion
improperly or unreasonably.
[20]
It was common cause that there was no reference to section 51
Criminal Law Amendment Act 105/1997 in the written indictment,
and in
the merits component of the judgment. Even in the sentence
component of the judgment there was no explicit reference
to the
section. The concept of substantial and compelling
circumstances was never mentioned. The omission presupposes
that no enquiry in terms of section 51(3A) was held to determine
whether deviation from the prescribed minimum sentences was warranted
or not.
[21]
In
Mabitle
v
State
2017
(1) SACR 325
(NW) the court held:
“
It
is common cause that the indictment did not refer to the
Criminal Law
Amendment Act 105 of 1997
. However, at the sentencing stage, the
court a quo required the appellant to show that there were
substantial and compelling circumstances
present which would obviate
the imposition of life imprisonment. The absence of any forewarning,
at the commencement of the trial,
that the minimum-sentence
dispensation was applicable means that the court a quo was not
entitled to impose sentence in terms of
that law. See
S
v Ndlovu
2003
(1) SACR 331
(SCA)
([2003]
1 All SA 66
;
[2002] ZASCA 144).
It follows that the sentence imposed
by the court a quo should be set aside and this court is at liberty
to impose sentence afresh.”
I
am in respectful agreement.
[22]
In this instance the trial court materially erred not only because
the applicants were not forwarned at the commencement of
the trial
but also because they were not afforded the opportunity, or so it
would appear, of showing why it would be unjust or
disproportionate
to impose the prescribed minimum sentences on them. If they
were afforded such an opportunity, it does not
appear from the
sentence component of the judgment that an enquiry in terms of
section 51(3A)
was held in respect of any of them. Consequently
I am inclined to grant leave to appeal. The conclusion has the
support
of counsel for the respondent.
[23]
Accordingly I make the following order
23.1
The non-compliance of the applicants with
section 316(1)(b)
Criminal
Procedure Act 51/1977 is condoned. The 14 day period as
envisaged in the section is hereby extended to the date
on which
their appeal will be heard;
23.2
The application of each of the applicants for leave to appeal against
any of the 4 convictions is refused;
23.3
The convictions in respect of each applicants are confirmed;
23.4
The applicants are all granted leave to appeal against all the
sentences imposed on them.
_____________
MH
RAMPAI, J
On
behalf of applicants:
Attorney P Peyper
Instructed
by:
Peyper Buitendag
Incorporated
Bloemfontein
On
behalf of respondent: Adv M Strauss
Instructed
by:
Director Public
Prosecutions
Bloemfontein