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2015
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[2015] ZAFSHC 219
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Nkabinde and Others v S (A256/14) [2015] ZAFSHC 219 (5 November 2015)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No. : A256/14
In
the case between:
KHETANI
MBUYISE
NKABINDE
1
st
Appellant
ORAPELENG
LAWRENCE
MOGOJE
2
nd
Appellant
UBREY
MMUSHI DIKOBE
3
rd
Appellant
JABULANE
ELLIOT PAPIE MAKHENE
4
th
Appellant
and
THE
STATE
CORAM:
CJ
MUSI et NAIDOO, JJ
et
REINDERS, AJ
JUDGMENT:
CJ
MUSI, J
HEARD
ON:
5
AUGUST 2015
DELIVERED
ON:
5
NOVEMBER 2015
[1]
This matter came before us as an appeal against a judgment of a
single judge (now retired) of this division. I will refer
to
the appellants as the accused.
[2]
The N8 road between Bloemfontein and Kimberley is very tedious.
The tedium is to some extent interrupted when one reaches
Petrusburg,
a small and tranquil town, which is situated equidistant between the
aforementioned cities.
[3]
On the morning of 8 August 2008 the tedium and tranquillity was
terribly disturbed by a daring and bloody robbery that occurred
on
the N8 near Petrusburg.
[4]
During the robbery a Mercedes Benz motor vehicle deliberately
collided with an armoured vehicle of Fidelity Security, which
was
transporting approximately R2.5 million from Bloemfontein to
Kimberley, as a result of which the armoured vehicle overturned.
Although the robbers could not get access to the R2.5 million, which
was in a safe at the back of the armoured vehicle, they robbed
some
of the security guards, who were transporting the money, of their
firearms and personal goods.
[5]
The armoured vehicle came to a halt in the road and obstructed
traffic. Some motorists who were forced to stop at the
scene
were robbed, at gun point, and Mr De La Rey, a white farmer from
Potgietersrus, was fatally shot by one of the robbers.
[6]
The four accused were later arrested, after a high speed chase with a
helicopter, in a stolen Audi Q7, a few kilometres from
the robbery
scene. Some of the items that were robbed from the security
guards were allegedly found in the Audi Q7.
[7]
They were arraigned in the Free State High Court, Bloemfontein and
charged with 28 counts ranging from murder and robbery with
aggravating circumstances, to unlawful possession of firearms,
ammunition and explosives. Accused 1 was sentenced to 151
years
imprisonment and life imprisonment, while accused 2 to 4 were
sentenced to life imprisonment and 146 years imprisonment.
The
sentences were ordered to run concurrently with the sentence of life
imprisonment.
[8]
During the trial the accused were represented by Mr Potgieter;
thereafter, during the application for leave to appeal, and before
us, by Mr Shapiro.
[9]
During the application for leave to appeal Mr Shapiro requested the
trial judge to make special entries. The proposed special
entries
were dated 22 April 2014. They were, in essence, to the
following effect:
9.1 Did the fact that the deceased was
a white Afrikaans speaking farmer, like the trial judge, make him
bias against the accused,
who are black persons. Should the judge not
have recused himself?
9.2 Given that the judge
would fall asleep during presentation of evidence, did the accused
have a fair trial?
9.3 Whether the judge
pre-judged the matter.
9.4
Whether the judge manifested bias against the accused in
unfairly denying an application to postpone the trial
in order to
obtain expert technical assistance.
[10]
On 22 July 2014 Mr Shapiro filed another notice proposing additional
special entries. There were approximately
eighteen additional special
entries proposed. I do not deem it necessary to repeat all the
purported special entries but will highlight
a few to illustrate that
most of them did not qualify as special entries. They are briefly:
10.1 Whether Advocate
Pretorius (the State Advocate) wrongly misstated
the position, thereby misleading
the Court regarding the relevance of
video evidence.
10.2 The court
misdirected itself by ignoring crucial and highly material evidence
of the defence case.
10.3 The court misdirected
itself regarding the improbability of Col. Joubert’s evidence.
10.4 The court misdirected itself by
not applying S v
Mbuli
2003 (1) SACR 97
(SCA) regarding
the possession of firearms and ammunition charges.
10.5 The court
overlooked the fact that the accused were probably pointed out by Mr.
Danie van Jaarsveld, a farmer,
for blatantly racist reasons.
10.6 The court unfairly allowed
blatantly leading questions.
Most
of the other purported special entries referred to evidence which was
overlooked or accepted.
[11]
On 24 July 2014 the trial judge made the following order:
“
1.
Condonation for the late filing of the notice of appeal is granted.
2. The requested
special entries as set out in the proposed draft special entries
dated the 2
nd
April 2014 and the proposed draft additional
special entries dated 22 July 2014 are entered as special entries in
terms of section
317 of Act 51 of 1977.
3.
Leave to appeal to a full bench of this court against the convictions
and sentences imposed is granted to all
4 the accused.”
[12]
After the matter was argued before us, I requested the parties to
furnish us with supplementary heads of argument
focussing on whether
paragraph 3 of the trial judge’s order was competent.
[13]
Mr Shapiro contended that the accused should not be penalised for the
trial judge’s error and that we should
consider the merits of
the appeal with the special entries. He contended that it would only
be fair if the appeal is decided by
us. He further submitted that the
accused’s constitutional right to appeal would be interfered
with should we decide not
to determine the merits of the appeal. Mrs
Giorgi, on behalf of the State, either misunderstood the problem I
had with paragraph
3 of the court a quo’s order or she did not
have regard to the relevant sections of the Criminal Procedure Act 51
of 1977
(the Act). She submitted that the trial judge exercised his
discretion properly, in terms of s 315(2) of the Act, and that we
should
not interfere therewith. Section 315(2) (a) and (b) reads as
follows:
“
(2)
(a) If an application for leave to appeal in a criminal case heard by
a single judge of a High Court (irrespective of whether
he or she sat
with or without assessors) is granted under section 316, the court or
judge or judges granting the application shall,
if it, he or she or,
in the case of the judges referred to in subsections (12) and (13) of
that section, they or the majority of
them, is or are satisfied that
the questions of law and of fact and the other considerations
involved in the appeal are of such
a nature that the appeal does not
require the attention of the Supreme Court of Appeal, direct that the
appeal be heard by a full
court.
(b)
Any such direction by the court or a judge of a High Court may be set
aside by the Supreme Court of Appeal on application made
to it by the
accused or the Director of Public Prosecutions or other prosecutor
within 21 days, or such longer period as may on
application to the
Supreme Court of Appeal on good cause shown, be allowed, after the
direction was given.”
[14]
The recording of a special entry and the procedure to be followed
thereafter are regulated by sections 317, 318
and 320 of the Act.
They read as follows:
“
317
Special entry of irregularity or illegality
(1) If an accused is of the view that
any of the proceedings in connection with or during his or her trial
before a High Court are
irregular or not according to law, he or she
may, either during his or her trial or within a period of 14 days
after his or her
conviction or within such extended period as may
upon application (in this section referred to as an application for
condonation)
on good cause be allowed, apply for a special entry to
be made on the record (in this section referred to as an application
for
a special entry) stating in what respect the proceedings are
alleged to be irregular or not according to law, and such a special
entry shall, upon such application for a special entry, be made
unless the court to which or the judge to whom the application
for a
special entry is made is of the opinion that the application is not
made bona fide or that it is frivolous or absurd or that
the granting
of the application would be an abuse of the process of the court.
[Sub-s. (1) substituted by s. 6 (a) of
Act 42 of 2003.]
(2) Save as hereinafter provided, an
application for condonation or for a special entry shall be made to
the judge who presided
at the trial or, if he is not available, or,
if in the case of a conviction before a circuit court the said court
is not sitting,
to any other judge of the provincial or local
division of which that judge was a member when he so presided.
(3) ......
[Sub-s. (3) deleted by s. 13 of Act 62
of 2000.]
(4) The terms of a special entry shall
be settled by the court which or the judge who grants the application
for a special entry.
(5)
If an application for condonation or for a special entry is refused,
the accused may, within a period of 21 days of such refusal
or within
such extended period as may on good cause shown, be allowed, by
petition addressed to the President of the Supreme Court
of Appeal,
apply to the Supreme Court of Appeal for condonation or for a special
entry to be made on the record stating in what
respect the
proceedings are alleged to be irregular or not according to law, as
the case may be, and thereupon the provisions of
subsections (11),
(12), (13), (14) and (15) of section 316 shall mutatis mutandis
apply.”
318 Appeal on special entry
under section 317
(1) If a special entry is made on the
record, the person convicted may appeal to the Appellate Division
against his conviction on
the ground of the irregularity or
illegality stated in the special entry if, within a period of
twenty-one days after entry is
so made or within such extended period
as may on good cause be allowed, notice of appeal has been given to
the registrar of the
Appellate Division and to the registrar of the
provincial or local division, other than a circuit court, within
whose area of jurisdiction
the trial took place, and of which the
judge who presided at the trial was a member when he so presided.
[Sub-s. (1) amended by s. 23 of Act
105 of 1982.]
(2) The registrar of such provincial
or local division shall forthwith after receiving such notice give
notice thereof to the attorney-general
and shall transmit to the
registrar of the Appellate Division a certified copy of the record,
including copies of the evidence,
whether oral or documentary, taken
or admitted at the trial and of the special entry: Provided that with
the consent of the accused
and the attorney-general, the registrar
concerned may, instead of transmitting the whole record, transmit
copies, one of which
shall be certified, of such parts of the record
as may be agreed upon by the attorney-general and the accused to be
sufficient,
in which event the Appellate Division may nevertheless
call for the production of the whole record.
…
320 Report of trial judge to
be furnished on appeal
The
judge or judges, as the case may be, of any court before whom a
person is convicted shall, in the case of an appeal under section
316
or 316B or of an application for a special entry under section 317 or
the reservation of a question of law under section 319
or an
application to the court of appeal for leave to appeal or for a
special entry under this Act, furnish to the registrar a
report
giving his, her or their opinion upon the case or upon any point
arising in the case, and such report, which shall form
part of the
record, shall without delay be forwarded by the registrar to the
registrar of the court of appeal.”
[15]
The trial judge is not bound to make a special entry because there is
an application for him/her to make such special
entry. The
trial judge has discretion not to make such entry if he/she is of the
opinion that the application is not made
bona
fide
or that it is frivolous or absurd or that the granting of the
application would be an abuse of the process of the court. In S v
Khoza
2010 (2) SACR 207
(SCA) at par [44] it was said that a further
ground to refuse an application for a special entry is when the
irregularity appears
from the record itself, because in such a case
the special entry procedure may be unnecessary because of the wide
powers enjoyed
by the SCA in terms of section 316 of the Act. In
terms of section 317(4) the terms of a special entry shall be settled
by the
court which or the judge who grants the application for a
special entry. What this entails is that the judge must apply
his/her
mind to the alleged irregularity or the alleged manner in
which the proceedings are not in accordance with the law and
determine
whether there is merit in the application. In doing
so the trial judge must decide the issue by having regard to the
factors
mentioned in section 317(1) and S v Khoza. The
applicant must therefore in his/her application show that the factors
mentioned
in section 317(1) and S v Khoza are absent. If the
trial court is of the opinion that the application is
bona
fide
and not frivolous or absurd and that granting it would not be an
abuse of the process of court, it must then settle the special
entry.
[16]
On settling the special entry the trial judge must set out the
allegation/s made and the question that falls to
be decided by the
court of appeal when it deals with the special entry. The mere
incorporation of issues or allegations that
are characterised by
unbecoming levity and which are undeserving of any serious
consideration, as special entries, does not meet
the requirement.
[19]
Some of ‘special entries’ proposed by Mr Shapiro and
incorporated by the trial judge are, prima facie,
absurd, frivolous
and an abuse of the process. The trial court should have
considered each and every one of the proposed
special entries in
order to discern whether it meets the requirements set out in the
Act. The grounds of appeal, which were
disguised as special
entries, that could be considered on appeal in the ordinary course
without a special entry being made should
also not have been granted
as special entries.
[20]
After a special entry has been made the accused may appeal to the
Supreme Court of Appeal, not a full bench of
the high court, on the
ground of the irregularity or illegality which forms the subject
matter of the special entry. The
making of a special entry
per
se
gives the accused the right to appeal to the Supreme Court of Appeal
based on that special entry. Where there is a request that
the judge
should make more than one special entry, each proposed special entry
must be considered based on the factors mentioned
in paragraph 15
above.
[21]
In
S
v Felthun
1999 (1) SACR 481
(SCA) at 485 the Supreme Court of Appeal summarised
sections 317(1) and 318(1) as follows:
“
Section
317(1) of the Act provides that if an accused person considers that
any of the proceedings in connection with or during
his trial before
a superior court are irregular or not according to law, he may apply
for a special entry to be made on the record.
Section 318
provides that if a special entry is made on the record, the person
convicted may appeal to
this
court
against his conviction on the ground of the irregularity or
illegality stated in the special entry.”
(My
underlining.)
[22]
Kriegler and Kruger in Hiemstra: Suid Afrikaanse Strafproses
Butterworths, 6
th
ed at p891 states that it is clear from the wording of sections
315(2) and (5) and 318(1) that appeals based on special entries
may
not be referred to the full bench of a provincial division. I agree.
[25]
Mr Shapiro submitted that we have inherent jurisdiction andcan
therefore, for the sake of fairness and expedience,
consider the
merits of the appeal. This court has no jurisdiction to
override an express provision of the Act. See
Sefatsa
and Others v Attorney General Transvaal & Another
1989 (1) SA 821
(A) at 839 where it was said that
“
It
hardly needs saying that a court cannot have an inherent jurisdiction
which would entitle it to act contrary to an express provision
of an
Act of Parliament.”
Even
in our current constitutional dispensation this Court does not have
the power to act contrary to a provision of the Act, where
such
provision is constitutional.
[26]
The accused’s right to appeal would not be taken away if this
matter is not decided by us. In fact they have
already attained the
right to appeal to a higher court. Should the appeal be heard by us
and the accused are not satisfied with
the outcome they would then
have to approach the Supreme Court of Appeal which would be another
costly exercise. If the appeal
is heard where it is supposed to be
heard this unnecessary extra layer or level would be avoided.
Fairness is not a consideration
in this matter; this is a matter of
law. The Act pertinently regulates the issue and we must act in
accordance therewith.
[27]
In my judgment the trial judge’s directive that this matter
should be heard by a full bench of
the Free State High
Court Bloemfontein was incompetent. We have no jurisdiction to
hear the appeal.
[28]
This matter ought to be removed from the roll so that the accused can
prosecute their appeal in accordance with
the law. No travesty of
justice would result if this matter is removed from the roll because
the accused’s right to appeal
would still be intact.
[29]
I accordingly make the following order:
(a)
The
appeal is removed from the roll.
______________
C.J.
MUSI, J
I
concur.
___________
S.
NAIDOO,
________________
C.
REINDERS, AJ
On behalf of the
appellants: Adv. P.
I. Shapiro
Instructed
by:
Shapiro
Attorneys
JOHANNESBURG
On behalf of the
respondent: Adv. Giorgi
Instructed
by:
The
Director: Public Prosecutions
BLOEMFONTEIN