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[2016] ZAGPPHC 209
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Mahashe v S (A360 / 2013) [2016] ZAGPPHC 209 (30 March 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A360 / 2013
DATE:
30 MARCH 2016
In the matter
between:
DANIEL PIET
MAHASHE
..............................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
DATE OF HEARING:
03/03/2016
JUDGMENT
[1] This matter came
by way of appeal from the regional court of Gauteng sitting at
Carletonville' the appellant having been granted
leave to appeal by
the court a quo.
[2] The appellant
was charged with twelve (12) counts for contravening Section 45 of
the Regulation of Interception of Communications
and Provisions of
Communications Related Information Act, Act No 70 of 2002, as amended
("the Act"). TTie appellant pleaded
guilty to ail counts
and was found guilty by the court a quo. The appellant was
subsequently sentenced to four months term of direct
imprisonment in
respect of each count and the sentences were ordered to run
cumulatively; which come to effective sentence of four
years.
[3] When the
appellant appeared in the court a quo he was represented by an
attorney, Joseph Maseko. The appellant pleaded guilty
to all 12
counts and prepared a statement in terms of Section 112(2) of the
Criminal Procedure Act, Act No 51 of 1977, as amended.
[4] The appellant's
appeal is not based on the facts which are on the record. It is based
on facts which are stated in his founding
affidavit, more
particularly in paragraph 3 thereof. The appellant's main contention
is that he pleaded guilty due to undue influence
from his erstwhile
attorney, Mr Maseko, who assured him that he has concluded a plea
bargain arrangement with the State Prosecutor
and the Presiding
Magistrate to impose a non-custodial sentence.
[5] Parties have
agreed that this matter be treated and / or be heard as both an
appeal and review in view of the fact that the
appeal is based on
facts which are outside the record of proceedings.
[6] The principle
expressed by the court In 5 v Botha
2006 (1) SACR 105
(SCA) is to the
effect that the test to determine the irregularity which does not
appear from the record is two-fold: firstly,
whether irregularity has
occurred; secondly, whether the said irregularity has led to failure
of justice.
[7] In the case of
Qoko v La Grange NO & AnotiierlQM (2) SACR 521 at page 527D-E &
528B-C the court stated that "the
applicant bears the onus of
proving on a balance of probability that he was wrongfully induced by
threats and promises to tender
a plea of guilty. He must establish
his bon fides by giving a proper explanation of why he pleaded guilty
and why he now wishes
to change his plea to one of not guilty, which
involves setting out a bona fide defence to the charge. He does not
have to prove
his defence. For the purposes of the review application
it is sufficient to raise a defence which might be reasonably
possibly
be true".
[8] In his
affidavit, the appellant state that he had a defence to the charges
but was persuaded by his erstwhile attorney Maseko
to plead guilty.
The appellant was contradicted by the erstwhile attorney, Joseph
Maseko, who stated in his affidavit that he did
not mislead the
appellant to plead guilty. The attorney stated that he accordingly
advised the appellant that he has no reasonable
prospects of success
in view of the fact that credit cards were found in his person hidden
in his underwear. The attorney stated
further under oath that he
advised the appellant that his record of previous convictions will be
taken as an aggravating factor
which will likely lead to sentence of
direct imprisonment.
[9] The appellant
did not deal with the version of the attorney in reply except to
offer a bare denial. The appellant's version
that he did not plead
guilty voluntarily was disputed by his erstwhile attorney Maseko. In
light of the above, the appellant has
failed to discharge the onus
which is on him. There is no evidence to suggest that attorney Joseph
Maseko has misled the appellant.
Therefore, there is no proof of
occurrence of the alleged irregularity. It appears to this court that
it is the imminent reality
of the prospects of serving four years
imprisonment which has triggered the allegations of irregularity. In
this court's view,
the appellant has failed the first stage of the
test.
[10] The second
stage is whether the irregularity has led to the failure of justice.
In paragraph 5 of his founding affidavit, the
appellant states in
general terms that he has a defence. He states that the cards were
found in his vehicle which had previously
borrowed it to a friend.
The appellant does not take the court into his confidence by stating
the name of the said friend and /
or the circumstances under which
the cards were found. In argument, counsel of the appellant stated
that the name will be disclosed
at the trial de novo.
[11] The appellant
has a duty to persuade the court that indeed an irregularity has led
to the failure of justice. That duty requires
him to explain his
defence in more details. This is more so in view of the fact that the
appellant has to deal with an incriminating
affidavit of Paul Jacobus
Louw and Wynand Kruger on behalf of the respondent.
[12] In paragraphs
3,4,5,6 and 7 of his statement in terms of Section 112(2) of the Act,
the appellant has admitted that he was
found in possession of the
cards for which he was convicted and that he was in his sober mind
when he makes the admission. The
appellant signed this statement. In
court, the respondent and the appellant agreed that the factual
circumstances are common cause
between the parties. The appellant
heard this submission but did not dispute it. Much is expected from
the appellant in order to
oust these admissions.
[13] It is the view
of this court that the appellant has failed the second leg of the
test. The appellant has explained no defence
in his founding
affidavit. Appellant has failed to deal with allegations in the
affidavits of police officer Wynard Kruger and
the State Prosecutor
PJ Louw. The appellant has failed to take the court into his
confidence by divulging the name of the friend
who borrowed the car
or to attach the confirmatory affidavit of the said friend. These
were necessary in order for the appellant
to establish his bona
tides.
[14] Police Officer
Wynard Kuger stated in his affidavit that on the date of the incident
he stopped the appellant's vehicle. There
were two occupants in the
vehicle, being the police informer and the appellant. He conducted a
search. He found the appellant in
possession of 17 various bank
cards. The said cards were hidden in the private parts of the
appellant. The appellant has not dealt
with this version of the
police officer other than to offer a bare denial.
[15] PJ Louw has
stated in his affidavit that he was the prosecutor at the court a quo
where the appellant has pleaded guilty to
12 counts of unlawful
possession of cloned bank cards in contravention of Section 45 of the
Regulations of Communication and Provision
of Communication Related
Information Act 70 of 2002. PJ Louw denied the existence of any plea
bargain arrangement. To this regard,
he is supported by the
appellant's erstwhile attorney Maseko.
[16] In the
premises, it is the finding of this court that there were no
irregularities committed at the trial of the matter at
the court a
quo. There was no failure of justice in the circumstances of this
case.
[17] No argument was
submitted by the appellant on sentence in the heads of argument.
However, in reply the appellant argued that
the sentence of four
years imprisonment is harsh and shocking without elaborating much.
This court finds no basis to interfere
with the sentences Imposed by
the court a quo.
[18] The following
order is made:
1. That appellant is
granted condonation for the late filing of heads of argument.
2. That the review
is dismissed in respect of both conviction and sentences.
3. That the
conviction and sentences imposed by the court a quo are confirmed.
SIKHWARI, AJ
ACTING JUDGE OF
THE HIGH COURT, PRETORIA
I agree.
KOLLAPEN, J
JUDGE OF THE HIGH
COURT, PRETORIA