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[2015] ZAFSHC 62
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Director: Public Prosecutions Free State v Msimango and Others (100/2008) [2015] ZAFSHC 62 (27 March 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case No.: 100/2008
DATE: 27 MARCH 2015
In the matter between:
THE DIRECTOR: PUBLIC PROSECUTIONS,
FREE
STATE
.............................................................................................................................
Applicant
And
SIBUSISO
MSIMANGO
......................................................
1stRespondent
and 16 other respondents
HEARD ON: 31 JANUARY 2015
JUDGMENT BY: DAFFUE, J
DELIVERED ON: 27 MARCH 2015
INTRODUCTION
[1] Two applications for leave to
appeal have been filed in this matter, one by the Director of Public
Prosecutions, Free State
(“the DPP”) and the other by Mr
Sibusiso Msimango and his former co-accused to whom I shall refer
hereinlater as “Msimango
et al” to avoid confusion.
[2] The DPP’s application for
leave to appeal was filed on 31 October 2014 and well within the
applicable timeframe. It gave
notice of its intention to apply for
leave to appeal on 12 December 2014, being the last Friday of the
fourth term in 2014. This
date was not arranged with me and did not
suit me as I was allocated a criminal trial to be heard in the
circuit court in Harrismith
during the final two weeks of that term.
I indicated to Adv Pretorius of the DPP’s office that another
date had to be arranged
during the first term of 2015.
[3] Co-incidentally, and whilst I was
on circuit duty, Msimango et al filed a notice of opposition on 5
December 2014 only and on
12 December 2014 their application for
leave to appeal. This was done well outside the applicable
timeframe. Although this application
appears to be brought by all
seventeen convicted persons, only ten supporting affidavits
accompanied the application for condonation
which was filed
simultaneously. Incidentally, the ten persons who made confirmatory
affidavits are all serving sentences of imprisonment.
These persons
are the 1st, 3rd, 4th, 7th, 8th, 11th, 12th, 13th, 14th and 15th
respondents as cited by the DPP in its application
and they were also
arraigned as accused in the same order. The others did not depose to
any confirmatory affidavits.
II THE HEARING OF THE APPLICATIONS FOR
LEAVE TO APPEAL
[4] A date for hearing of the
applications was agreed upon and the applications were eventually
heard on 31 January 2015.
[5] Adv Johann Nel, who initially
appeared for the defence during the trial and again at the sentencing
stage, argued the application
for leave to appeal on behalf of
Msimango et al. Adv Pretorius who throughout the trial appeared for
the DPP represented it again.
[6] Adv Pretorius submitted that,
without conceding that the merits favoured Msimango et al, the
application for condonation should
be granted whereupon I granted
condonation for the late filing of the application for leave to
appeal.
III EVALUATION OF THE APPLICATIONS
[7] The DPP’s application for
leave to appeal, being first in time, shall be considered first.
[8] I am satisfied that there is no
reasonable possibility that another court may find that Messrs
Sylvester Mahamo, Sicelosekosi
Clever Mthimkulu and Adoons Knight @
Promise Beta, cited as 5th, 6th and 9th respondents in the DPP’s
application (also accused
5, 6 and 9 in the trial) were sentenced too
lenient or that I made any misdirections in this regard. 5th and 9th
respondents,
being Zimbabwe citizens, were incarcerated since 23
August 2006 awaiting trial as their bail applications were refused.
6th respondent
was also arrested on 23 August 2006 and bail was
initially refused insofar as he failed to prove that he was a South
African citizen.
Such proof was obtained eventually at a late stage
and when my attention was drawn to this, I immediately released him
on bail
just before the finalisation of the trial. All three were
therefore in custody awaiting trial for 8 years. Their incarceration
was one of the reasons that I insisted throughout the trial that
started as long ago as June 2012 that unnecessary delays should
be
avoided as far as possible. The record will reflect how many times I
raised this issue. The longer the trial would run, the
more unfair
would it be for them. The other respondents apparently did not care
too much about their predicament.
[9] Adv Pretorius submitted that I
erred in sentencing these three respondents in terms of section 284
of the Criminal Procedure
Act, 51 of 1977 (“the CPA”) to
be detained until the rising of the court. According to his argument
I should have
at best for them sentenced them to a period of
imprisonment, wholly or partially suspended. 5th, 6th and 9th
respondents did not
play meaningless rolls in the activities of the
Msimango syndicate, but bearing in mind their relatively minor
involvement I would
not have sentenced them to a period in excess of
five years’ imprisonment if they were out on bail all the time.
I was of
the opinion that they had served their time and that it
would be inappropriate to sentence them to any term of imprisonment,
even
if the imprisonment was wholly or partially suspended. It was
proved that 5th and 6th respondents were involved with the
syndicate’s
activities on the farm Annasvlei, district
Wesselsbron during the middle of 2006 and that 9th respondent was
involved there as
well and also before that on Plot L17, Virginia.
All three are apparently poor people with meagre means. They were
conveniently
used by the leaders of the syndicate, probably without
being paid enormous amounts. Unlike most of the other respondents,
they
did not even operate bank accounts and most certainly do not
possess luxury items such as houses and motor vehicles.
[10] No specific mention is made of the
sentences imposed on 10th, 16th, 17th and 18th respondents in the
DPP’s application.
In my view the DPP has not convinced me
that a reasonable possibility exists that another court may find that
their sentences
were too lenient or that I misdirected myself in
imposing the particular sentences.
[11] I took into consideration that
11th respondent was a security guard with Protea Coin Security at the
Harmony One Plant and
that 12th and 13th respondents were mine
employees at the Harmony One Plant although I did not mention this
specifically when sentences
were imposed. The reader is referred to
my findings in the judgment delivered on 9 to 12 September 2014.
This was surely an aggravating
factor that I regarded in a serious
light. However the proven role that these three respondents played
was limited. They have
not been involved over any extended period
of time according to the proven facts. They were involved during the
latter part of
2007 only and in respect of isolated incidents
relating to the farms Memoriam, district Ventersburg and/or Mocca,
district Hennenman.
In my view there is no reasonable possibility
that another court may find, based on the proven facts, that they
deserved more
severe sentences.
[12] The position of 1st, 3rd and 4th
respondents – the Msimango’s – and 7th, 8th, 14th
and15th respondents, the
Sithole’s – is totally different
from the others mentioned above. I am of the view that I felt
overcome with mercy
and compassion when I sentenced them, especially
1st, 3rd and 4th respondents, in light of the confiscation orders
issued in terms
of the Prevention of Organised Crime Act, No. 121 of
1998 (“POCA”), a few days earlier. I accept that another
court
may find that I either misdirected myself, or that the
sentences were too lenient and that interference is warranted. Adv
Pretorius
submitted during argument at the sentencing stage that all
the sentences in respect of all accused persons should run
concurrently,
but argued that 25 years in respect of the Msimangos
and 20 years in respect of the Sitholes would be appropriate
effective sentences.
[13] Having considered the matter
afresh, I am of the view that there is a reasonable possibility that
another court may find that
I erred and impose more severe sentences.
[14] Adv Nel submitted that, should
leave to appeal be granted in respect of the application of Msimango
et al, it should be to
the Supreme Court of Appeal and not the full
bench of this division as set out in the application for leave to
appeal, bearing
in mind applicable legal principles. Msimango et
al’s application for leave to appeal is based on certain
grounds of appeal
which I conveniently summarise as follows:
1. That I misdirected myself when I
applied the provisions of section 342(A) of the CPA and that I in the
process failed to assist
Msimango et al who were unrepresented at the
time by explaining the provisions of the relevant subsections to them
and incorrectly
found that exceptional circumstances existed as
contemplated in section 342(A)(4).
2. That I failed to properly exercise
my discretion whether or not to grant a postponement.
3. That I misdirected myself in finding
and/or intimating that Msimango et al (and their legal team) employed
delaying tactics.
4. I erred in failing to consider the
reason why Msimango et al did not cross-examine the last State
witnesses.
5. That my rulings and decisions
regarding postponements resulted in an unfair trial.
[15] I could not find any authorities
in terms whereof the provisions of section 342(A) were utilised in
order to close an accused’s
case. Adv Pretorius could not
direct me to any authorities in this regard as well. I dealt with
all relevant case law in my judgment
and I am satisfied that I
ensured that a proper procedure was followed before this section was
relied upon, that Msimango et al
were fully aware of their
obligations, the consequences of their actions or inaction and that
there were exceptional circumstances
in terms whereof I was entitled
to act as I did. The record of over six thousand pages speaks for
itself and I do not intend to
repeat anything. My judgment consists
of 293 pages and I dealt with the application in terms of section
342A from pages 160 to
182. I did my utmost to ensure that the
accused persons understand and appreciate the seriousness of the
matter. I referred to
the right to a fair trial in my judgment with
reference to authorities, but the reader is also referred to the
Shaik judgment of
the Constitutional Court quoted later herein. On
28 July 2014 and weeks before my ruling Msimango et al sought a
postponement
till February 2015. The suggestion was then that the
trial should not run and be finished as I directed earlier, but that
we proceed
on a “stop, start” basis as the record clearly
reflects.
[16] Msimango et al from the onset
wanted to dictate the pace of litigation. I have explained this in
detail in my ruling in terms
of section 342(A) as well as in other
parts of the judgment. Examples are abundant. It is unnecessary to
deal with any again.
It is sufficient to state for purposes hereof
that Msimango et al finally sought a postponement in July 2014 to
February 2015
in order to obtain the services of their erstwhile
legal team, Mr Schoeman and Adv Nel. At that stage they conceded
that the advocate
and attorney were not properly instructed, that
they did not have sufficient funds to cover their fees and expenses,
but that the
legal representatives would be prepared to keep their
diaries open notwithstanding lack of assurances pertaining to payment
of
their fees and expenses. This appeared to be highly improbable.
Neither the attorney, nor counsel approached the prosecutor or
the
court at any stage to confirm the instructions, their availability
and preparedness to come on record on that basis. This
must be seen
in the light of the fact that I indicated already in August 2013 that
the matter would be postponed to 2014 on the
basis that the trial
should run without further postponements.
[17] Msimango et al wanted to dictate
to the court that once we proceed with trial in February 2015 (if at
all, bearing in mind
the unwillingness of the legal representatives
to show up at court and confirm the alleged agreement), the court
should sit for
two weeks and the hearing then to be postponed for
three months to enable them to go back to their employment, then to
sit for
another two weeks and so on. I am not prepared to accept
that any court acting reasonably would be prepared to agree to such a
suggestion.
[18] Regarding delaying tactics
employed by Msimango et al, I have to do nothing more than to refer
to the full record together
with my judgment on the merits and ruling
in terms of section 342(A).
[19] It is correct that the last state
witnesses were not cross-examined and that the investigating officer
was not cross-examined
fully. Msimango et al did not testify in
their defence. They also did not present any arguments on the merits
as to why they
should be acquitted. I am of the view that the
respondents were given sufficient opportunity and time and that they
should not
be heard to cry foul at this stage of the proceedings.
[20] All remarks made by me quoted in
the application for leave to appeal must be read in context, having
regard to the full record
of the case, and when this is done, I am of
the view that no reasonable possibility exists that another court may
come to the conclusion
that Msimango et al did not have a fair trial.
That right was described in S v Shaik
[2007] ZACC 19
;
2008 (2) SA 208
(CC) at para
[43]
in these terms:
‘The right to a fair trial
requires a substantive, rather than a formal or textual approach. It
is clear also that fairness
is not a one - way street conferring an
unlimited right on an accused to demand the most favourable possible
treatment. A fair
trial also requires “fairness to the public
as represented by the State. It has to instil confidence in the
criminal justice
system with the public, including those close to the
accused, as well as those distressed by the audacity and horror of
crime.”’
[21] In conclusion I am not convinced
that there is a reasonable possibility that another court may come to
a different conclusion
and the application of Msimano et al should be
refused.
IV THE ORDERS
[22] Accordingly the following orders
are made:
1. The Msimango et al application for
leave to appeal against their convictions is dismissed.
2. The DPP’s application for
leave to appeal against the sentences imposed on 17 October 2014 is
granted partially insofar
as leave is granted to the Supreme Court of
Appeal in respect of the sentences imposed on 1st, 3rd, 4th, 7th,
8th, 14th and 15th
respondents, but leave to appeal is denied in
respect of the sentences imposed on the remainder of the respondents.
J. P. DAFFUE, J
On behalf of the applicant: Adv D
Pretorius
Instructed by: Director: Public
Prosecutions
BLOEMFONTEIN
On behalf of the respondents: Adv J
Nel
Instructed by: Bertus Jacobs Inc
BLOEMFONTEIN