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[2017] ZANCHC 36
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Van Staden v S (K/S21/2016) [2017] ZANCHC 36 (21 April 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: K/S 21/2016
Heard
on: 20/04/2017
Delivered
on: 21/04/2017
In
the matter between:
NEVILLE
VAN
STADEN
APPLICANT
V
THESTATE
RESPONDENT
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
MAMOSEBO
J:
[l]
On 07 December 2016 the applicant pleaded not
guilty to but was convicted of murder
with
dolus directus
as the form of intent, assault with intent to
cause grievous bodily harm (Assault GBH) and two counts of assault
common. On
20 March 2017 he was sentenced
to a term of life imprisonment on the murder count,
12
month s' imprisonment on each count of assault common and two
years' imprisonment for assault GBH. The sentences in respect
of each one of the assault charges were ordered to run
concurrently with the murder charge. The applicant
now
seeks leave to appeal against his conviction and sentence to
the Supreme Court of Appeal alternatively, the
Full Bench of
the Northern Cape Division in respect of the murder count only. The
State opposed the application.
[2]
The grounds for this application boil down to the
contention that I erred in my finding that the act
of
asphyxiation coupled with the excessive force
exerted on the deceased's body which caused the multiple
injuries
sustained was without doubt an indication of a clear direct intent to
kill which was also premeditated and there are therefore
reasonable
prospects of success on appeal.
[3]
Adv Schreuder, arguing for the applicant, submitted that the State
should have presented some evidence to show that the murder
was
premeditated. This contention was addressed by the Supreme Court of
Appeal in the unreported judgment
Kekana v The State
(629/2013)
[2014] ZASCA 158
(1 October 2014) where Mathopo AJA pronounced
(Lewis JA and Gorven AJA) concurring:
"[12]
Another argument advanced on behalf of the appellant was based on S v
Raath
[2009 (2) SACR 46
(CPD)] where it was held that to prove
premeditation, the State must lead evidence to establish the period
of time between the
accused forming the intent to murder and the
carrying out of his intention. In the present matter there is no
evidence as to how
much time passed between the appellant's admitted
decision to kill the deceased and when he doused the bed with
petrol and
set it alight. But a consideration of the appellant's
evidence suggests that it was a matter of a few minutes, at the
least.
[13]
In my view it is not necessary that the appellant should have
thought or planned his action a long period of time
in advance before
carrying out his plan. Time is not the only consideration because
even a few minutes are enough to carry out
a premeditated action. "
[4]
Adv Schreuder relied on the case of
S v Ferreira and Others
2004 (4) All SA 373
(A). In my view the case
in casu
is
distinguishable from the Ferreira case. It is my view that
premeditated murder is not only found in contract crimes but
the
circumstances in each case can determine whether the murder was
premeditated or not. It must be borne in mind that the two
assault
common charges preceded the murder of the accused. In the early hours
the assault with intent to cause grievous bodily
harm then followed.
The applicant in all these counts inflicted the injuries unprovoked.
The evidence against him was found
to be overwhelming
and credible. When a deceased is strangled to death and
the supply of oxygen to the
brain is curbed, the deceased thrashes
about until life is squeezed out of her. How can the death not be
premeditated?
[5]
In terms of the provisions of
s 17(1)
of the
Superior Courts
Act 10 of 2013
, leave to appeal may only be granted if the
Judge or Judges concerned are of the opinion that:
5.1
The appeal would have reasonable prospects of success
or
if there is some compelling reason why leave should be
granted;
5.2
The decision sought on appeal does
not
fall within the ambit of
s 16(2)(a)
of the Act; and
5.3
Where the decision sought to be appealed does not dispose of all
the
issues in the case, the appeal would lead to a just and prompt
resolution of the real issues between the parties.
[6]
Section l 7(6)(a) of the Act stipulates that if leave is granted to
appeal against a decision of a Division as a court of first
instance
consisting of a single Judge the Judge or Judges granting leave must
direct that the appeal be heard by a full court of
that Division,
unless they consider that the circumstances set out ins l 7(6)(a)(i)
and (ii) are applicable.
[7]
In
S v Smith
2012 ( l)
SACR 567 (SCA) para 7 Plasket AJA stressed:
"[7]
What the test of reasonable prospects of success
postulates 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. "
As
reiterated by Leach JA in
S v
Kruger
2014 (I)
SACR 647 (SCA) at 649d (para 3) the Courts should follow the
aforementioned test scrupulously in the interests of justice.
[8]
Having regard to the above and having dispassionately considered the
application I am satisfied that the applicants have no
reasonable
prospects of success on appeal and the application stands to fail. I
am not swayed that a court of appeal could
reasonably arrive at
a conclusion different to that of the trial cou1i.
[9]
It becomes unnecessary to deal with the appeal against sentence as
correctly conceded by Mr Schreuder that if the murder was
premeditated the applicant would not have a leg to stand on.
[10]
In the result, the following order is made:
The
application for leave to appeal is dismissed.
__________________
MAMOSEBO
J
NORTHERN
CAPE HIGH COURT
For
the applicant: Adv
JJ Schreuder
In
structured by:
Legal Aid South Africa (Judicare)
For
the Respondent: Adv KM Kgatwe
Director of Public
Prosecution