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2016
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[2016] ZANCHC 25
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Beyleveld v S (KS32/2004) [2016] ZANCHC 25 (24 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
NO
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
CASE
NO:
KS32/2004
DATE
HEARD:
21/06/2016
DATE
DELIVERED:
24/06/2016
In
the matter between:
BEYLEVELD,
H
J
Appellant
and
THE
STATE
Respondent
Coram:
Olivier
J
JUDGMENT
Olivier
J:
[1.]
During
2005 the applicant and two co-accused stood trial in the High Court,
Kimberley, on charges of kidnapping, robbery with aggravating
circumstances and murder. All three of them pleaded not guilty
to all charges. On 27 October 2005 the applicant and
his
co-accused were sentenced to an effective period of 21 years
imprisonment.
[2.]
On
18 June 2014, almost 9 years after the sentence, a notice of motion
and a founding affidavit by the applicant were received (via
e-mail)
by the secretary of the Judge President. They had both
ostensibly been drafted during April 2014, presumably by the
applicant himself. In the notice of motion condonation was
sought for the late filing of the application, as well as “
an
order … directing that a portion of the Applicant’s
sentence is deducted in the form of suspending a portion of
the
applicant’s sentence or in any manner which the … Court
may deem meet
”.
[3.]
The
Judge who presided at the trial is not available to deal with this
application.
[4.]
The
applicant’s sentence could of course only be interfered with on
appeal and his reference to the powers of courts of appeal
indicated
that he was well aware of this and that his application had in fact
effectively been intended as an appeal. It
is trite that the
applicant would, however, not have been entitled to pursue such an
appeal without leave to do so. Although
the notice of motion
did not contain a prayer for such leave, I was prepared to entertain
the application as one for leave to appeal
against sentence.
This is also how both Mr Fourie, who appeared on behalf of the
applicant, and Mr Cloete, counsel for the
respondent, approached the
application in argument. The position is therefore that, should
leave to appeal be granted, the
appeal against sentence would have to
be heard by a properly constituted court of appeal.
[5.]
It
appears that the record in this matter is incomplete. The
evidence of accused number 3 and the proceedings on judgment
and
sentence have not been transcribed. According to information
from the office of the Registrar no recording of those proceedings
is
at this stage available. As far as the possibility of a
reconstruction is concerned, it appears that the applicant had
initially been represented by Adv. Muhlohlonyi, until his mandate was
terminated by the applicant. Thereafter, and more specifically
also at the stage of sentence, the applicant was represented by the
attorney Mr Louis Jooste, who however passed away a number
of years
ago. The prosecutor, Adv. J J Cloete, has no notes and the
bench book/s of the presiding Judge cannot be traced.
A
reconstruction is therefore not possible.
[6.]
The
applicant however, according to his letter of 1 March 2016, now
wishes the application to proceed regardless of the fact of
the
incomplete record. The absence of recordings and notes is not
surprising at all, given the extraordinary long delay,
and the
applicant would have only himself to blame for this
[1]
.
He has consciously delayed this application for almost 9 years.
Furthermore this application is, as will appear in
due course,
entirely based on facts and evidence which would in any event not
have appeared in the record of the proceedings in
the trial court.
[7.]
As
far as the issue of condonation is concerned, the applicant’s
explanation for the delay in filing the application for leave
was
basically that he never took steps to appeal against his sentences,
because he had “
resigned
(himself)
to
(his)
fate
”
.
He
furthermore stated that “
after
sentencing
(he)
resigned
(himself)
to
serving this sentence
”,
that “
having
accepted
(his)
fate,
there was no need for
(him)
to
adhere to the various prescribed time periods
”
and that he therefore did not apply for leave to appeal.
[8.]
In
my view the applicant had, on his own version, taken the conscious
decision not to pursue his right to apply for leave to appeal
on the
basis of the evidence before the trial court, and had effectively
abandoned that right. At the very least though the
delay was
caused by a deliberate decision not to apply for leave to appeal on
that basis.
[9.]
The
applicant’s situation and the circumstances of this application
are however distinguishable from cases where late applications
for
leave to appeal are based on facts and evidence which had existed at
the time of sentence and where timeous applications for
leave to
appeal could therefore normally be expected. The facts upon
which the applicant relies only came into existence
long after the
prescribed period for applications for leave to appeal had lapsed.
[10.]
The
applicant stated that he had “
recently
”
been advised by a fellow inmate that the court could possibly
reconsider his sentence, apparently on the basis of the applicant’s
present circumstances, and that he had then taken steps to file this
application. It is not clear what “
recently
”
means and the applicant has not really shown that, subsequent to the
alleged advice, there was no further delay in the filing
of the
application.
[11.]
The
applicant clearly prepared this application as a lay person and,
although the applicant may perhaps be considered fortunate,
I will
proceed on the basis that the late filing of the application is
condoned.
[12.]
As
regards the merits of the appeal the applicant conceded that, on the
facts existing at the time of the imposition of sentence,
there would
have been no prospects of success. He relied entirely on the
court of appeal deciding to admit evidence of facts
which had since
then come into existence
[2]
.
These new facts were, according to the applicant, that he had
rehabilitated in prison,
inter
alia
by attending courses and by contributing towards the rehabilitation
of fellow inmates, and that he had a job opportunity should
he be
released from prison at this stage.
[13.]
It
is trite that, although appeals are normally considered on only the
facts and information that served before the trial court,
“
in
exceptional circumstances factors later coming to light may be taken
into account
”
[3]
.
The
fact of an accused having successfully rehabilitated can in my view
not constitute such exceptional circumstances, and cannot
be viewed
as “
exceptional
or peculiar circumstances that occur after sentence is imposed
”
[4]
,
because rehabilitation and reintegration into society are indeed
among the objects of sentences of imprisonment.
[14.]
If
facts like these were to be seen as new evidence which a court of
appeal has to take into account, it could result in an influx
of late
applications by inmates who claim to have been rehabilitated and to
have job opportunities available should they be released.
These
are circumstances relevant to the issue of whether an inmate should
be released on parole, and would therefore fall within
the province
of the executive, and not that of the courts
[5]
.
[15.]
In
two of the cases relied upon by Mr Fourie,
viz
the
Michele
case
[6]
and
S
v Karolia
[7]
,
the Supreme Court of Appeal had in any event on the existing evidence
and facts been at large to consider sentence afresh, and
in such
circumstances a court of appeal would be “
more
receptive of an argument that, in reconsidering sentence, facts which
have come into existence since the trial should also
be taken into
account
”
[8]
.
[16.]
In
the Jaftha
[9]
case the
rehabilitation of the appellant did not occur while serving a
sentence; a period during which a sentenced inmate could
in any event
be expected to take steps and to attend courses with a view to
rehabilitation.
[17.]
In
my view there are therefore no prospects of success with an appeal on
the basis advanced by the applicant. In the
premises the
following order is therefore made:
THE
APPLICATION IS DISMISSED.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
For the appellant:
Mr P J Fourie
Legal
Aid South Africa, Kimberley.
For the respondent:
Adv J J Cloete
Office
of the Director of Public Prosecutions, Kimberley.
[1]
Compare
S v Van
Staden
2008 (2) SACR 626 (NC)
[2]
There is therefore no merit in Mr Fourie’s
argument that the incomplete record makes a meaningful consideration
of the application
for leave to appeal against the sentence
impossible.
[3]
S v Michele and Another
2010 (1) SACR 131
(SCA) para [13]
[4]
S v Jaftha
2010 (1) SACR 136
(SCA) para [15]
[5]
Compare
S v Drummond
1979 (1) SA 565
(RA) at 569 D-E
[6]
See footnote 3
supra
.
[7]
2006 (2) SACR 75
and
[2004] 3 All SA 298
(SCA)
[8]
S v Drummond
,
supra
, at
569 F
[9]
See footnote 4
supra
.