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[2012] ZAKZPHC 58
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Peerbhai and Another v S (AR 633/11) [2012] ZAKZPHC 58 (17 September 2012)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR 633/11
In the matter between:
JAMEEL PEERBHAI
....................................................
FIRST
APPLICANT
SIVALINGUM MURUGAN
.......................................
SECOND
APPLICANT
and
THE STATE
.........................................................................
RESPONDENT
JUDGMENT
Delivered
on 17 September 2012
________________________________________________________
SWAIN J
[1] On 28 June 2012 the
appeal of the first and second applicants against their convictions
of attempted murder and kidnapping,
for which they were each
sentenced to eight years’ imprisonment, of which three years
were suspended on conditions, was dismissed.
[2] The applicants now
apply for leave to appeal to the Full Bench of this Division, and for
leave to adduce further evidence on
appeal. In the alternative they
ask that the case be remitted to the trial court for the hearing of
further evidence. In the event
that leave to appeal and/or leave to
adduce further evidence is granted, the applicants seek a further
order that they be released
on bail, on such terms and conditions as
this Court may determine. In the event that leave to appeal and leave
to adduce further
evidence is refused, an order is sought admitting
the applicants to bail, pending the outcome of a petition for leave
to appeal
to the Supreme Court of Appeal.
[3] At the outset it
should be noted that an appeal from the decision of this Court,
sitting as an Appeal Court from a decision
in the Magistrates’
Court, does not lie to the Full Bench of this Division, but to the
Supreme Court of Appeal. At the hearing
when I put this to Mr.
Chetty, who appeared for the applicants, he agreed that this was so.
[4] In addition, the
Criminal Procedure Act No. 51 of 1977
only makes provision for
evidence to be heard on appeal by this Court, in two distinct
situations.
In terms of
Section 309
(3) read with
Section 304
(2) of Act No. 51 of 1977 and Section 22
of the Supreme Court Act No. 59 of 1959, this Court sitting as a
Court of Appeal, can
hear further evidence, or direct that it be
heard, in respect of any matter that is before it on appeal.
In terms of Section 316
(5) (a) read with Section 316 (1) of Act No.51 of 1977 an
application for leave to appeal by an accused
convicted by a High
Court, may be accompanied by an application to adduce further
evidence, relating to the prospective appeal.
[5] This Court has
already determined the appeal of the applicants and consequently the
first situation envisaged by Act No. 51
of 1977 is not applicable.
This Court is therefore
functus officio
and ceases to have the
power to entertain an application to lead further evidence, at this
stage of the proceedings.
S v Marais
2010 (2) SACR 606
(CC) at para 14
In addition, the
applicants were never
“convicted”
by
this Court, within the meaning of that term as contained in Section
316 (a) of Act No. 51 of 1977. Accordingly, the second situation
envisaged by Act No. 51 of 1977 is equally inapplicable. When I put
this proposition to Mr. Chetty, he agreed with it.
[6] The application by
the applicants to lead further evidence before this Court,
alternatively for the matter to be remitted to
the Court
a quo,
for this purpose must accordingly fail.
[7] Turning to the merits
of the application. The contradictions in the complainants’
evidence, to which Mr. Chetty has referred,
pale into insignificance,
when weighed against the gross improbabilities in the version of the
applicants, which we have referred
to in our Judgment. Having
carefully considered the arguments advanced on behalf of the
applicants by Mr. Chetty, I am satisfied
that there is no reasonable
prospect that the Supreme Court of Appeal could come to a different
conclusion, either in regard to
the applicants’ conviction, or
with regard to the sentences imposed.
[8] In this regard, Mr.
Chetty submitted that this Court would be entitled to have regard to
the additional evidence which the applicants
sought to lead, in the
form of the affidavit of Tina Harrod, in deciding whether the
applicants have prospects of success on appeal.
I disagree. It would
be anomalous having decided that this Court had no power to admit the
evidence, to then have regard to such
evidence, albeit for a
different purpose.
[9] Mr. Chetty informed
us that in the event of the application for leave to appeal being
refused by this Court, the applicants
intended petitioning the
Supreme Court of Appeal for leave to appeal. He applied for the
applicants to be released on bail pending
the finalisation of such
proceedings. Mr. Cooke, who appeared for the State, opposed the grant
of bail and undertook that in the
event of the applicants being
granted leave to appeal by the Supreme Court of Appeal, the State
would not oppose the grant of bail
at that stage. In the case of
S v Mabapa
2003 (2) SACR 579
(T) at 582 (d) – 583 (e)
van Rooyen A J, set out
the different approaches to the grant of bail, pending an appeal. The
conventional approach was that it
should be granted, only if there
are reasonable prospects of success on appeal and no likelihood that
the appellant will abscond.
S v Anderson
1991 (1) SACR 525
(C) at 527 e – g
As opposed to the
conventional test
“a more lenient, fundamental rights
and liberty-orientated approach has developed in the last decade”.
Mabapa at 582 e
In such instances the
test to be applied was
“whether it could be said that
the appellant had no possibility of success on appeal”.
Mabapa at 582 e
S v Naidoo
1996 (2) SACR 250
(W) at 252
As regards an appeal
against sentence, the following was stated:
“
....even in
the absence of reasonable prospects of success bail should be granted
where the possibility cannot safely be excluded
that the term of
imprisonment, which the Court of Appeal may substitute would, at that
stage, have expired. In such a case ‘it
is enough that the
appeal against sentence is reasonably arguable and not manifestly
doomed to failure’”.
Mabapa at 582 G
quoting
S v Hudson
1996 (1) SACR 431
(W) at 434 b
[10] In this regard the
Supreme Court of Appeal in the case of
S v Scott-Crosley
2007 (2) SACR 470
(SCA) at 473 d
stated the following:
“
....the
approach to bail pending appeal in respect of certain serious
offences has become less lenient and less liberty-orientated
in the
last decade”.
[11] However, even if I
apply the more lenient approach to the facts of the present case, I
am satisfied that not only do the appellants
not have reasonable
prospects of success on appeal, but that they do not have any
possibility of success on appeal. Their version
of events is so
grossly improbable that it simply has no prospect of being found to
be reasonably possibly true. As regards the
sentence imposed, I am
satisfied that the appeal against sentence is
“manifestly
doomed to failure”
and is not
“reasonably
arguable”.
In addition, the appellants have been
sentenced to effective terms of five years’ imprisonment and I
am satisfied that in
the unlikely event that the appeal against
sentence is successful, the possibility can safely be excluded that
the term of imprisonment
which the Supreme Court of Appeal may
substitute would, at that stage have expired.
[12] I am accordingly
satisfied that the appellants should not be granted bail pending the
outcome of any petition to the Supreme
Court of Appeal.
I accordingly make the
following order:
The applicants are
refused leave to adduce further evidence on appeal.
The applicants are
refused leave to adduce further evidence before the trial court.
The applicants are
refused leave to appeal to the Supreme Court of Appeal against their
convictions and sentences.
The applicants are
refused bail pending the outcome of any petition to the Supreme
Court of Appeal for leave to appeal against
their convictions and
sentences.
____________
SWAIN J
I agree
_____________
HENRIQUES J
Appearances /…
Appearances
For the Applicants
:
K. Chetty
Instructed by
: Charmane Pillay & Company Pietermaritzburg
F
or the
Respondent
: Mr. I. Cooke
Instructed
by
: Director of Public Prosecutions
Date of Hearing
:
12 September 2012
Date of Filing of
Judgment
: 17 September 2012