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[2016] ZANCHC 44
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Mabejane and Others v S (K/S07/2015) [2016] ZANCHC 44 (7 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE
DIVISION, KIMBERLEY
Case
No:K/S 07/2015
Heard
on: 18/11/2016
Delivered
on:
07/
1
2/20
1
6
In
the matter between:
KEARABETSWE
McNULTY MABEJANE 1
st
Applicant/accused 1
KITLANO
OCCASION
MABEJANE 2
nd
Applicant/accused 2
GADIEHELE
PATRICIA KGOMOELELA 3
rd
Applicant/accused 3
TSHEPISO
SHADRACK MODUTWANE 4
th
Applicant/accused 4
PATRICK
MOGAPI Accused
5: No AIL/A
SIPHO
GIFf
KEOGATILE 5
th
Applicant/accused 6
and
THE
STATE
Respondent
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
MAMOSEBO
J:
[1]
The applicants were accused 1, 2, 3, 4, and 6. They were convicted on
29 August 2016 of murder with
dolus
eventualis
as the form of intent and assault with intent to cause grievous
bodily harm (Assault GBH) and sentenced on 16 November 2016. Each
one
of the six accused was sentenced to 15 years imprisonment on the
murder charge and two years' imprisonment in respect of the
Assault
GBH charge. The two sentences in respect of each one of them were
ordered to run concurrently. They now seek leave to appeal
against
their conviction to the Supreme Court of Appeal alternatively, the
Full Bench of the Northern Cape Division. The State
opposed the
application.
[2]
None of the accused testified in the trial. There is no valid reason
why the uncontested evidence of the state witnesses should
not be
accepted. In
S
v
Boesak
[2000] ZACC 25
;
2001
(1) SACR 1
(CC) at 1ld;
2001 (1) BCLR 36
;
[2000] ZACC
25
(para 24) the following was said:
"The
fact that an accused person is under no obligation to testify does
not
mean that there are no consequences attaching to
a
decision
to
remain silent during
the
trial.
If
there
is evidence
calling
for an answer
,
and an
accused
pers
o
n
chooses to
remain
silent in
the face
of
such
evidence,
a
court
may
well
be_ entitled
to conclude
that the
evidence
is s
u
fficient in the
a
b
sence of
an explanation to
prove
the
guilt
of
t
he accused
.
Wh
e
ther such a
conclusion is justified will depend on the weight of
the
evidence. What
is
stated
above
is
consistent
with
the
remarks
of
Madala
J,
writing for
the
C
o
urt,
in
Osman
and
Another
v
Attorney General, Transvaal, when he said
t
he following:
'Our
legal system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a prima facie case,
an accused
who
fails t
o
produce
evidence
to rebut
that case
is at risk.
The failure to
testify
does
not relieve
the
prosecution of
its duty
to
prove
guilt
beyond
reasonable doubt. An accused, however,
always runs the risk that, absent
any rebuttal,
the
prosecution
's
case
may be
sufficient
to
prove
the elements
of
the
o
ffence.
T
he
fact
t
h
at
an
accused
has
to
make
such
an election
is not a
breach of
t
he
r
i
ght
to silence. If
the
right to silence
were to
be
interpreted,
it would
destroy
the
fu
n
damental
nature
of
our
adversarial system of
crimina
l
justice.
"
[3]
On 14 November 2014 Mr Thapelo Bacwadi and the deceased, Seiso Brady
Madito, attempted to steal an electric pump belonging to
accused 2.
The deceased was immediately accosted inside the toilet but within
the premises of accused 2's tavern while Mr Bacwadi
was apprehended
later at his home. It is common cause that the deceased travelled
with accused 1 and 2 and Mr Tebogo Sentle, a
witness in terms of s
204 of the Criminal Procedure Act, 51 of 1977 (the CPA), to the
police station presumably with the aim of
laying theft charges
against him.
[4]
During cross-examination counsel for accused I and 2 put it to Sentle
that the accused will testify that Sentle was in possession
of a
pellet gun and used it to inflict injuries on the deceased's head an
accusation which Sentle vehemently denied. The accused
never entered
the witness box to testify on the aspect of the pellet gun, as
already stated.
[5]
Sentle placed all accused on the scene where the deceased and Bacwadi
were brutally assaulted indiscriminately and the deceased
was
observed by Bacwadi in a paralytic state. Counsel now submits that I
should have rejected the evidence of Sentle in its entirety
because
he was a s 204 witness and a possible accomplice. I have dealt with
counsel 's submissions on these aspects in the main
judgment and my
reasons for accepting Sentle's testimony were also explained. I have
further dealt with the aspects of contradictions
in the state
witnesses' testimony referring to
S v M
a
faladiso
en andere
2003 (1) SACR 583
(SCA) at 593e -
594h. I have also touched on the aspect that it is permissible to
accept a witnesses' evidence on one aspect and
reject it on another
relying on
S
v
Francis
1991 (1) SACR 198
(A) at 205e - f and
S v
Mkohle
1990 (1) SACR 95
(A) at 98f -h.
[6]
What was disconcerting was that no charges were laid against the
deceased and Bacwadi. There was no Occurrence Book (OB) entry
made at
the police station upon the arrival of the deceased of any injuries
noted on him. Bacwadi was never taken to the police
station. Both
were severely beaten at accused 2 's tavern at different stages. The
deceased was forced to make a confession or
admission during the
beating completely contrary to the provisions of the Constitution.
After the beating of Bacwadi, he was instructed
to singlehandedly
carry and remove the deceased from the back of the police van at
Bacwadi's place. They were both not given any
medical assistance
contrary to the South African Police Standing Orders. The deceased
was simply left to die. Indeed, he died the
same afternoon at the
hospital where he and Bacwadi were admitted.
[7]
Counsel seems to suggest that the entire evidence rests solely on the
evidence of Mr Tebogo Sentle, Dr Anizoba and Mr Thapelo
Bacwadi.
However, there were more witnesses who testified whose evidence was
also considered in the assessment of
evidence. See
S v
Hadebe
and
O
thers
1998 (I) SACR 422 (SCA) at 426e-h. Counsel also argued that
causation in the case was missing, a submission made on an incorrect
analysis of the facts.
[8]
In
S v Van
Heerden
2010 (1) SACR 539
(ECP) at para 17 Liebenberg J, dealing with an application for leave
to appeal, held that the principles set out in relation to
a civil
application for leave in
Songono
v Min
i
ster
of
Law
and Order
1996 (4) SA 384
(E) apply equally to criminal cases. I agree.
Leach J in
Songono
said the following at 385C -E:
"In
attempted compliance therewith the applicant filed a document headed
'Application for leave to appeal in which he purported
to set out the
grounds upon which leave to appeal was to be sought.
These so
ca
l
led
'grounds' constitute a d
i
atribe
of some 1
7
pages
c
rit
i
cising
the
judgment,
analysing (at t
i
mes
i
ncorre
c
tly) c
e
rtain of the
ev
i
dence and
t
he findings
made,
putt
i
ng f
o
rward
certain
sub
m
i
ssions
and
quot
i
ng various authorities.
This
lengthy, convoluted
and
at t
i
mes
disjo
i
nted critici
s
m of the
judgment
d
i
d not clearly and
succinctly
spell out the grounds upon
whi
c
h
leave
to
appeal
i
s
so
u
ght
i
n
clear
and unam
b
i
guous
terms
-
indeed, it served more to deceive, particularly as, during the course
of argument, there were several points which the applicant's
counsel,
Mr Bursey, sought to raise which were not indicated in the document.
I
am
not
aware
of
a
n
y
judgment
dealing
specifically
wi
t
h
grounds
of appeal as envisaged
by Rule
49(l)(b);
however, Rule
49(
3
)
is
couched
in similar
terms
and
also
requires
the filing
of
a
notice
of
appeal
which
shall specify
'th
e
grounds
upon which the appeal is founded'.
In regard to
that
subrule it
i
s
now
well
established
that
the provisions
thereof
are peremptory and
that
the grounds
of
appeal
are
required,
inter
alia,
to
give
the respondent
an o
p
portunity
o
f
abandoning the
judgment,
to inform the respondent
o
f the case he has
to meet and
to notify the
Court of
the
points
to
be raised.
Accordingly,
insofar
as Rule
49
(3) is concerned,
it has been held
that
grounds
of a
p
peal
are bad
if
t
hey are so widely expressed
that
it leaves the appellan
t
free
to canvass
every finding
of
fact
and
every
ruling
of
the
law
made
by
the
court
a
quo,
or
if they
specify the findings
o
f
fact
or rulings of law appealed
against
so vaguely as to be of no value
either
to
the Court or to the respondent, or if
they, in general,
fail
to specify clearly and in un
ambiguous
terms exactly what
case
the
respondent
must
be prep
a
red
to
meet.
"
[9]
Counsel for all the applicants in oral argument rehashed what
was argued in the main judgment where findings have
already been
made, needlessly taking up precious time. They sometimes even got
bogged down in statements put to the state witnesses
which does not
constitute evidence.
[10]
In terms of the provisions of s 17(I) of the Superior Courts Act 10
of 20I3, leave to appeal may only be granted if the Judge
or Judges
concerned are of the opinion that:
10.3
The appeal would have reasonable prospects of success or if
there is some compelling reason why leave should be granted;
10.2
The decision sought on appeal does not fall within the ambit of
s 16(2)(a) of the Act; and
10.3
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.
[11]
Section 17(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, un1ess they consider that the circumstances set out in s
17(6)(a)(i) and (ii) are applicable.
[12]
In
S v
Smith
2012 (1) 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
o
f success, that
the
case is
arguable
o
n
appeal
or
that
t
he
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.
[13]
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.
[14]
In the result, the following order is made:
The
application for leave to appeal is dismissed.
______________________
MAMOSEBO
J
NORTHERN
CAPE HIGH COURT
For
1
st
and 2
nd
Applicants:
Adv A Stanton
Instructed
by:
Mr S Fourie
Oosthuizen Sweetman &
Reits Attorneys
For
3
rd
and 4
th
Applicant:
Mr R Bode
Engelsman & Magabane
Attorneys
For
5
th
Applicant:
Adv Van Zyl Nel
Kimberley Justice
Centre
For
the Respondent:
Adv NA Mxabo
Director of Public
Prosecution