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[2014] ZAGPPHC 97
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Naidoo v S (CC 27/2012) [2014] ZAGPPHC 97 (10 March 2014)
IN THE HIGH COURT OF SOUTH ARICA GAUTENG
DIVISION, PRETORIA
(Functioning as MPUMALANGA DIVISION,
NELSPRUIT)
CASE NO: CC 27/2012
DATE: 10 MARCH 2014
IN
THE MATTER BETWEEN:
LOGANDERAN
NAIDOO
.......................................
APPLICANT/APPELLANT
AND
THE
STATE
..................................................................................
RESPONDENT
TOLMAY, J:
BACKGROUND
[1]
The applicant, who was convicted and
sentenced by this court, brought an application for leave to appeal
in which he also requested
leave to lead further evidence in terms of
sec 316(5) of the Criminal Procedure Act, 51 of 1977 (the CPA).
[2]
The application to lead further evidence
was argued before me and needs to be determined before I proceed to
deal with the application
for leave to appeal.
[3]
The applicant was found guilty of two
charges of murder, two of attempted murder and one of conspiracy to
commit murder as well
as contravention of sec 28(1) of the Explosives
Act 26 of 1956. He was sentenced to life imprisonment on each of the
two murder
charges, 8 years on each of the attempted murder charges,
7 years on the conspiracy to murder charge and 7 years on the charge
of possession of explosives.
[4]
The background to this case was that the
court found that the applicant conspired with a certain Mohammed
Ishmael Khan (“M
Khan”) and Zameer Khan to kill Verisha
Govender. It was found that the applicant supplied the hand grenade
and demonstrated
how it should be used and instructed the Khans to
execute the plan. Zameer Khan and M Khan drove to Nelspruit where a
hand grenade
was thrown through the window of a house where they
suspected Ms Govender lived. However Ms Govender was not in the house
and Ms
Patricia Rebecca Bangad Pillay and a minor child Yetska
Michaela Pillay died in the explosion. Kevin Pillay and Daphne Pillay
were
also in the house, the latter sustained slight injuries as a
result of the explosion. Both Mr Zameer Khan and M Khan are serving
sentences of life imprisonment pertaining to the same incident. The
applicant was found guilty on the evidence of M Khan, a single
witness who was also an accomplice.
APPLICABLE LEGAL PRINCIPLES
[5]
In terms of sec 316(5)(a) read with
section 316(1) of the CPA an application for leave to appeal by an
accused convicted by a High
Court may be
♦ —
accompanied by an application *to lead further
evidence, relating to the prospective appeal. Section 316(5)(b) sets
out the requirements
for such an application and reads as follows:
“(b) An application for further evidence
must be supported by an affidavit stating that -
(i)
Further evidence which would presumably
be accepted as true, is available;
(ii)
If accepted the evidence could
reasonably lead to a different verdict or sentence; and
(iii)
There is a reasonably acceptable
explanation for the failure to produce the evidence before the close
of the trial.”
[6]
It would seem that sec 316(5)
constitutes a codification of the guidelines which the courts
previously set out to be followed when
determining the question
whether new evidence should be allowed
[1]
.
These principles have also been confirmed in later decisions and also
in decisions after the advent of the Constitution
[2]
.
[7]
The aforementioned authorities determine
that courts should only allow further evidence after conviction and
sentencing in exceptional
circumstances and if the aforesaid
requirements are met. The reasons for the cautious approach in
allowing further evidence are
many, but finality in criminal cases as
well as the possibility of interference with evidence and the
possibility of corruption
and fraud have been mentioned as reasons
why the courts should not lightly allow such evidence to be led
[3]
.
In S v Stevens
[4]
it was stated that:
“ while it is in the interest of justice
and in public interest that those who are guilty of an offence ought
to be convicted,
it is also in the interest of justice that finality
should be reached in criminal cases and that they should not be
allowed to
drag on indefinitely...”
After a court has made a finding on facts
available at the trial, the very real potential exists that evidence
could be tampered
with as an accused now knows which facts resulted
in the conviction and could attempt to adjust evidence to support his
defence.
[8]
In the light of the requirements that
should be met and the dangers inherent in allowing further evidence
at this stage, a court
has an obligation to closely scrutinise the
evidence that an accused wishes to lead. New evidence carelessly
allowed in a criminal
matter after conclusion of a trial could invite
bad preparation by the legal representatives and could lead to fraud,
corruption and to tampering with evidence. A
court must be extremely careful to avoid serious abuses in the
administration of justice.
In each case the court will be obliged to
exercise a value judgment on the facts of that specific case, keeping
in mind the principles
already alluded to.
THE APPLICATION TO LEAD FURTHER EVIDENCE
[9]
The grounds for the application to lead
further evidence are set out in an affidavit attached to the
application for leave to appeal.
Applicant instructed a new attorney
at sentencing stage of the proceedings. Applicant alleges that his
present attorney found evidence,
which if it is to be found true may
have made a fundamental difference in the outcome of the trial.
During argument Mr Hellens,
on behalf of applicant abandoned certain
of the evidence that the applicant initially wanted to lead. The
abandoned evidence relates
primarily to certain allegations
pertaining to the evidence of Deenah Govender, a police officer that
testified at the trial and
who was called by the court as a witness,
as well as allegations pertaining to the motives of the Cato Manor
Serious Crime Unit.
It also includes evidence about the origins of
the hand grenade used during the attack.
[10]
Applicant’s counsel indicated that
he wants to lead evidence pertaining to the following remaining
issues:
10.1
Whether the year-end party to which
M Khan referred in his evidence took place on the 21
st
December 2006. A certain Dhurum Raj
made an affidavit contradicting this evidence
and refers to documents allegedly corroborating this averment.
Applicant states that
he also wants to lead the evidence of the
following people pertaining to this issue;
(a)
The evidence of Anton Klein together
with documentary evidence corroborating the evidence relating to the
year- end party;
(b)
The evidence of Jan Buitendag on the
issue relating to the expenses of the business of the applicant in
connection with the issue
of whether the applicant’s business
expended moneys on any other party at the relevant time including
reference by him in
his affidavit to various financial aspects and
employees of the business of the applicant;
10.2
That during 2007 M Khan had not
relocated to Pietermaritzburg but worked at Nqutu and Umzinkhulu
until October 2007, and that as
at 24 April 2008 M Khan had not moved
to Pietermaritzburg but worked for Mr Pandaram at Nqutu
10.3
Evidence demonstrating the fact that
the father of Sydney Pandaram had passed away on 24
th
April 2007 and that the phone call referred to by Sydney Pandaram and
M Khan which in evidence was said to have taken place, in
September
2009, could not have taken place during that time.
10.4
Evidence pertaining to the issues
arising out of the case docket,
Malvern
CAS 010903 relating to the following:
(a)
The
robbery that took place at the premises of Sydney Pandaram, the
seriousness of the injuries sustained during the robbery, the
value
of the property taken and the fact that a person who committed the
robbery was permitted by the Investigating Officer to
phone Syndey
Pandaram relating to the robbery and did phone him. Further that in
that conversation one of the persons responsible
for the robbery
informed Sydney Pandaram that he had committed the robbery at Sydney
Pandaram’s home on the instructions
of Joe Hlope.
10.5
The evidence of Lavin Ishwarchand
relating to the issue of him being approached by Sydney Pandaram in
2005 to arrange for the assassination
of Joe Hlope and related
issues.
10.6
The question whether the hand
grenade attack on the 23
rd
December 2006 referred to in the evidence was reported on the front
page of the Sunday Times or not and the issue as to whether
it was
reported on the front page of any newspaper and if reported at all,
in what newspaper.
10.7
Evidence relating to who flew on
flight SA 8507 from Durban to Nelspruit on 24 April 2013 (that was
the day that Mr Pandaram came
to testify during this trial) and who
flew back from Nelspruit to Durban on the same date in the afternoon
thereof, as well as
the fact that Sydney Pandaram is alleged to have
paid for one other person to fly from Durban on the day that he gave
evidence.
[11]
At the hearing, Mr Hellens, quite
correctly and in the execution of his duty as an officer of the court
disclosed that annexure
“LN 25” to applicant’s
affidavit which sought to prove that Mr Pandaram paid for the air
tickets of certain people
who flew to Nelspruit, was a fraudulent
document.
COMMON CAUSE FACTS
[12]
I was also provided with certain common
cause facts which the defence and the DPP agreed to. It must be
stated however that the
DPP did not concede that this evidence should
be allowed, despite their correctness.
[13]
The following is common cause between
the DPP and the defence
13.1
The father of Syndey Pandaram died
on 24
th
April 2007. The date on which M Khan and Sydney Pandaram alleged that
a conversation took place between them, which conversation
led Sydney
Pandaram to disclose M Khan’s involvement in the crime to the
South African Police, was a date in September 2009.
The evidence by M
Khan in court was that he phoned Mr Pandaram in order to talk to his
father and Mr Pandaram confirmed this in
his evidence, therefor M
Khan and Mr Pandaram’s evidence could not be true;
13.2
It is common cause that on 1
st
September 2003 a very serious robbery took place at the home of
Sydney Pandaram. Pandaram was seriously wounded with stab wounds
to
his left upper arm, left side buttock, left armpit and right arm with
property of considerable value having been
taken. This is in contradiction with Mr
Pandaram’s evidence in court during the trial.
13.3
One of the persons responsible for
the robbery Simphiwe Sipho Mbhele asked the investigating officer to
make a phone call. He made
the phone call. The phone call was to
Sydney Pandaram. He informed Sydney Pandaram in that phone call that
Joe Hlope had instructed
him
A
to commit the robbery at the house of Pandaram.
[14]
I will now proceed to deal with the
evidence that the applicant wishes to lead under separate headings.
THE YEAR-END PARTY AND PAYMENT TO KHAN
[15]
The evidence of M Khan given at the
trial suggested, and the Court made a finding that applicant had paid
M Khan a sum of money
after the grenade attack when they were
together at a year-end party. This evidence has now been investigated
and applicant alleges
that he can now state that he has evidence
which he can present which directly disproves this statement. The
evidence is the following:
15.1
In his evidence in chief M Khan made
it clear that he received R2 000 (two thousand rand) from applicant
at the year-end function
which took place after the attack that took
place in Nelspruit. He also indicated that Joe had more money for
him.
15.2
In two statements, both which were
disclosed as witness statements Mr Khan claimed that it had taken him
and Zameer Khan two days
after the attack to get back to Durban.
15.3
In his written statement he therefor
makes it clear, as he had done in his evidence, that he received the
R2 000 at the year-end
party. Applicant alleges that on his version
this had to have been on the 25
th
or 26
th
of December 2006. Applicant alleges that this is not possible as it
is clear from the annexures to the affidavit of Dhurum Raj
that the
Christmas party took place prior to the attack taking place in
Nelspruit.It is then alleged that therefore it is not possible
that
his evidence could be true.
[16]
M Khan was cross-examined by the
applicant’s legal representatives during the trial, yet this
aspect was never raised. The
applicant himself never raised this
point in his evidence before this court. The evidence was available
during the trial and applicant
should have raised it at that stage.
There is no explanation for the failure to deal with this evidence
during the course of the
trial. There is also no explanation why
applicant’s previous legal representatives failed to canvas
this aspect during the
trial.
[17]
I am not satisfied that there is a
reasonable explanation for the failure to lead the evidence
pertaining to the year-end function
and in the absence of that the
requirements set out in the act and confirmed in the authorities
referred to have not been met.
I am also not of the view that a
different .finding in this regard could have led to a different
verdict, and therefore this evidence
also fails the test of
relevance. I must also point out that in the judgment the court dealt
with the fact that M Khan was not
a satisfactory witness in many
respects. In the light thereof yet another indication of his
shortcomings as a witness cannot assist
applicant. '
THE EVIDENCE PERTAINING TO MR PANDARAM
[18]
The applicant raised the following
issues pertaining to the evidence of Mr Pandaram:
(a)
applicant did not have prior notice of
the fact that he was to be called as a witness;
(b)
Mr Pandaram lied about the facts
pertaining to the robbery at his house;
(c)
applicant has evidence that Mr Pandaram
approached someone to assassinate Joe Hlope; and
(d)
the facts pertaining to what motivated M
Khan to phone his house was untrue.
[19]
The applicant alleges that the state
called Mr Sydney Pandaram as its last witness and applicant states
that as there was no prior
statement by Mr Pandaram he had no advance
notice that he would testify that he therefore
could not have foreseen the nature of his
evidence and could not prepare properly on this aspect.
[20]
It must be noted that Mr Pandaram’s
alleged role in framing applicant arose during cross-examination of
the state witness
by applicant’s legal representative. The
allegation that Mr Pandaram handed a hand grenade to M Khan to kill
Joe Hlope was
made by applicant’s counsel during cross-
examination of M Khan. Mr Kotze argued that the state did not list Mr
Pandaram
as a witness and he was only called as a result of what was
put to M Khan by the accused’s legal representatives during
cross-examination.
It was argued that the state thus would not have
called Mr Pandaram, but for the version put to state witnesses on
behalf of the
applicant. This is indeed correct and under these
circumstances it is untenable that the applicant could argue that he
could not
have foreseen that Mr Pandaram would be called as a witness
or that he could not have foreseen the nature of the evidence. His
legal representatives certainly would have canvassed the relevant
facts pertaining to Mr Pandaram’s evidence, seeing that
the
applicant’s defence is that Mr Pandaram framed him. Furthermore
after Mr Pandaram testified applicant certainly would
have given
proper instructions and would have consulted extensively with his
legal representatives and would have alerted them
to all relevant
facts. Applicant’s legal representatives did not request that
the matter stand down nor did they indicate
that they needed time to
consider his evidence or needed to investigate aspects of his
evidence. It is also of importance to note
that applicant at no point
alleged that his legal representatives did not consult properly with
him or did not execute his instructions.
[21]
It would seem that the applicant
attempts to justify the failure to ask for time to consider Mr
Pandaram’s evidence on the
Court and alleges that as the Court
made it clear that the matter was going to be finalised during that
sitting of circuit court,
it did not seem possible for the applicant
to apply for a postponement to enable an investigation of Mr
Pandaram’s evidence.
The innuendo that the court would not have
considered granting a postponement or letting the matter stand down
in appropriate circumstances
is preposterous. Applicant had two legal
representatives appearing for him, at that stage, who certainly would
not have hesitated
to bring any application they deemed necessary and
in the interest of their client. It is important to note that at the
point that
Mr Pandaram testified there was in any event several weeks
left of term and if an application was brought for a postponement it
could have been considered and the matter could even have been
postponed to a later date during that term. In any event, even though
this court attempts to finalise matters expeditiously, sometimes a
longer postponement is unavoidable and that could have been
arranged
as a last resort, if it was deemed to be in the interest of justice.
In the absence of any application for postponement
during the trial
this argument has no merit. I also find it interesting that there are
no affidavits from the former legal representatives
in this regard.
[22]
The evidence of Mr Pandaram’s
father’s death, is in the light of the common cause facts not
in dispute and gives an
indication that Mr Pandaram was not truthful
but it must be remembered that the applicant was not convicted on his
evidence and
even if this evidence was available at the trial and
even if I rejected Mr Pandaram’s evidence it could not have had
any
effect on the outcome of the trial.
[23]
During cross-examination Mr Pandaram
denied a number of facts inter alia to indicate that a serious
robbery took place at his home
on 1 September 2003, where he was
seriously wounded and that the accused in that matter had been
instructed by Joe Hlope to commit
the robbery. One of Mr Pandaram’s
employees died after having been injured during this robbery.
[24]
This evidence seeks to proof that Mr
Pandaram had sound reason to bear Joe Hlope a grudge and his evidence
pertaining to the robbery
was false. The applicant testified during
the trial that he saw Mr Pandaram giving M Khan a hand grenade to
“sort out”
Joe Hlope. The applicant’s evidence was
that Mr Pandaram framed him in this crime due to bad blood between
them. Applicant
wants to call Mr Ischwarsand to testify that Mr
Pandaram approached him to assassinate Joe Hlope.
[25]
In my view the evidence pertaining to
the robbery at Mr Pandaram’s home and the fact that he may have
approached someone to
assassinate Joe Hlope
has no bearing on this case. Neither does it
indicate that the applicant did not commit the acts that he was
accused of and convicted
for. This evidence could not have any effect
on the decision of this court. Even if Mr Pandaram wanted to
assassinate Joe Hlope
or had access to hand grenades these facts
could not play any role in the applicant’s conviction, as it
could never be said
that those facts must lead to the conclusion that
the applicant did not have access to a hand grenade or did not plan
the attack
in Nelspruit. I have already dealt in my judgment with the
improbability of the allegation that Mr Pandaram framed the applicant
for the crimes that he was convicted for. I reiterate that it is
highly improbable as Mr Pandaram did not at any point before or
during his evidence at this trial accuse the applicant of involvement
in the crimes committed in Nelspruit. M Khan is the person
who
implicated the applicant. Consequently I will not allow this evidence
as no reasonable explanation is given for the failure
to lead the
evidence at the trial nor is it relevant. The requirements that need
to be met to allow the evidence have not been
met.
EVIDENCE PERTAINING TO THE FRONT PAGE OF THE
SUNDAY TIMES, 23 DECEMBER 2013
[26]
This evidence relates to the question
whether the hand grenade attack of 23
rd
December 2006 referred to in the evidence was reported on the front
page of the Sunday Times (as alleged by M Khan) or not and
the issue
as to whether it was reported on the front page of any newspapers and
if reported at all, in which newspaper.
[27]
It is common cause that at no time
whatsoever was the hand grenade incident which took place in
Nelspruit on 23
rd
December 2006 reported on the front page of any newspaper. In
particular it was not reported on the front page of the Sunday Times
at the time referred to in the evidence. The report was however
carried on the third page of the Post Newspaper dated 27 to 31
December 2006.
[28]
The evidence pertaining to the Sunday
Times front page does not take the matter any further as it is common
cause that the incident
was published and an error pertaining to
where it was published could not result in another outcome to the
trial. Furthermore this
should have been dealt with at the trial and
there is no explanation at all why this was not done. Consequently
the applicant did
not meet the requirements and the evidence should
not be allowed.
KHAN’S ALLEGED MOVE
[29]
Applicant wants to lead evidence that as
at 24 April 2007 M Khan had not moved to live in Pietermaritzburg and
was working for Mr
Pandaram at Nqutu. There exists no reasonable
explanation for the fact that this evidence was not led at the trial
nor could it
have any effect on the outcome of the trial and
consequently the evidence should not be allowed.
EVIDENCE RELATING TO WHO FLEW ON FLIGHT SA
8507 FROM DURBAN TO NELSPRUIT ON 24 APRIL 2013
[30]
The evidence relating to who flew on
flight SA 8507 from Durban to Nelspruit on 24 April 2013 and who flew
back from Nelspruit to
Durban on the same date in the afternoon as
well as who paid for the said flight is in my view totally
irrelevant. It must be noted
that this date and flight refers to the
day that Mr Pandaram had to come to court to testify. There is no
indication that this
is relevant to this case in any conceivable way.
CONCLUSION
[31]
In the light of all the facts and for
the reasons set out above I am of the view that none of the further
evidence should be allowed.
In my view the mere fact that some
evidence may after the trial be proven to be incorrect does not
automatically leads to the conclusion
that it should be allowed on
appeal. These facts must also be tested against the requirements
already referred to.
[32]
This application illustrates the very
real possibility of tampering with evidence as we now know that “LN
25” was a
fraudulent document obtained. In the light of that
the SAPS is requested to investigate who is responsible for this and
to report
to this court pertaining the progress made in this
investigation.
[33]
I make the following order:
33.1
The application to lead further evidence
on appeal is dismissed.
33.2
The SAPS is requested to investigate who
is responsible for the production of annexure “LN 25” and
to report to this
court which steps are taken to prosecute whoever is
responsible.
R G TOLMAY
JUDGE OF THE HIGH COURT
1R
v Van Heerden & Another 1956(1) SA 366; S v De Jager, 1965(2)
612 AD
[2]
S v Stevens 1983(3) SA 649 (A); S v Dampies 1999(1) SACR 598 (OPA);
S v Marais 2010(2) SACR 606 on 614; S v EB 2010(2) SACR 524
(SCA) on
529; S v Kardia 2006(2) SACR 75 (SCA); S v Jafhta 2010(1) SACR 136
(SCA); S v
Michele 2010(1) SACR 131 (SCA) and S v Barnard
2004(1) SACR 191 (SCA); S v Musiker 2013(1) SACR 517 (SCA);
Maemu v S
[2012] JOL 28585
(SCA) and S v
Marain
[2010] ZACC 16
(CC)
[3]
S v M 2003(1) SA 341 (SCA); R v Van Heerden, supra; S v Nkala
1964(1) SA 493 (A) at 497 H; S v Zondi 1968(2)
SA
653 (A) at 655 F
[4]
S v Stevens, supra