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[2008] ZAWCHC 86
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Van Dalen and Others v S (SS57/2008) [2008] ZAWCHC 86 (21 November 2008)
1
JUDGMENT
N
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO
:
SS57/2008
DATE
:
21
NOVEMBER 2008
In
the matter between:
EMILY
VAN DALEN
ANGELIQUE
VAN DALEN
CHRISTO
VAN DALEN
versus
THE
STATE
JUDGMENT
(Application for Leave to Appeal)
NGEWU,
A J
:
On
31 October 2008 I heard an argument from counsel on applications for
leave to appeal and a special entry brought by the defence
simultaneously and made orally immediately after imposition of
sentence.
The
grounds of appeal were cited as follows by
Mr
Smith
on behalf of accused No 1:-
1.
He
made an application for special entry, it being his contention that
at 174, that is when the Court refused to discharge the
accused at
the closure of the state case, it did not grant its reasons for its
judgment, and it never gave its judgment at any
stage of the
proceedings.
2.
As
borne out by the record of proceedings the honourable judge
presiding in the matter allowed the learned assessor to intervene
and question counsel for accused No1 upon counsel's submissions in
an application for discharge in terms of section 174. I must
say
this is briefly a summary of what
Mr
Smith
argued for.
The
third ground was that the Honourable Court inhibited
cross-examination of the counsel for accused No 1 with regards the
testimony of Captain Van der Heever. In his argument the advocate,
Mr
Smith
,
explained that when Captain Van der Heever was questioned on
paragraph 7 of the statement, the Court indicated that the
question
is not allowed, and according to him, then he said then he would not
ask questions and obviously sat down. That is how
the inhibition
occurred. According to him, that was irregular.
A
further ground for an application in terms of section 316 was that
the Court misdirected itself again in not giving reasons
for
judgment pertaining to the application in terms of section 174, that
is failure to discharge the accused at close of the
State case.
Furthermore,
he concluded that the statement by accused No 3 was inadmissible,
and according to him was found as corroborating
the evidence against
No 2. According to him that was in contradiction with section 219 of
the Criminal 10 Procedure Act.
Another
point was raised that the Court failed to apply the cautionary rules
in the evidence of Mr Roy Swan. The Court
a
quo
disregarded
the demeanour, the untruthfulness, the 15 contradictions, the
evasiveness and the manipulation of the judicial system
by
Mr
Swan
.
According to
Mr
Smith
,
the confession was used in corroborating the version of the accused,
that is the statement of accused No 1.
It
was further argued by
Mr
Smith
that the Honourable Court failed to make credibility findings and to
provide reasons for any testimony and evidence presented
by
witnesses.
He
further argued that the Court misdirected itself in finding that an
exculpatory statement by accused No 1 was adequateto satisfy
the
deficiencies in the State case.
A
further point raised was that the Court erred concerning the fact
that it drew an inference from the fact that the alarm was
not
activated and he further added that he had, or they had no evidence
as to whether the alarm was in fact in a working order.
Mr
Cox
,
for the accused No 2, raised further grounds in 10 addition to those
raised by
Mr
Smith
,
that the Court erred in finding that the State proved the accused
guilt beyond reasonable doubt and that undue weight was afforded
(indistinct) to the statement of Mr Roy Swan, although the Court
found that it was to be approached with caution. He 15 further
submitted that there was lack of coherence in the judgment; weight
was still afforded to his testimony and no credibility finding
was
made in regard to his evidence.
He
further sought to deny that there was a common thread, as concluded
by the Court, running through the uncontradicted evidence
of Mr Swan
and the statements that were tendered by the State into evidence
implicating the accused in other words.
It
was his further submission that there were prospects of success on
appeal. And if heard in front of another Court, another
decision
could have been granted and more irregularities could be
found.
Mr
Jennings
,
in addition to the above submissions by
Mr
Smith
and
Mr
Cox
,
added that the Court erred and misdirected itself in accepting or
admitting the confession of accused No 3. He based this on
an
allegation that accused No 3 indicated that his attorney was not
present and that he did not wish to say anything.
He
further hoped that another Court interpreting or considering the
document in question might come to a different conclusion
to that of
the Court, or might well exclude the document.
It
was his further submission that an appeal is a vehicle and not
manifestly doomed to failure.
The
application was opposed by counsel for the State, who conceded,(her
submission was not that there is anything wrong with the
finding
that the Court made). The State's submission was that the assessor
at 174 asked questions. I must state, if I failed
to at the
beginning, that one of the factors raised by
Mr
Smith
was the fact that an assessor asked a question at 174 stage, hence
he wanted a special entry. According to Ms.
Gravenjas
,
the fact that the assessor asked a question does not mean that he
participated into the finding that the court reached.
It
was his further submission that the problem that the defence 5
experienced was further that the only evidence that was before
Court
was that of the State and the accused elected not to testify, and
therefore there was nothing to gainsay the evidence of
Mr Swan, and
it was evident that the application for leave to appeal should not
succeed.
It
is trite that in an application of this nature, I will start first
with the application for leave to appeal, the question is
whether
the Court is satisfied that there are prospects of success on
appeal. Stated differently, the test is whether 15 there
are
reasonable prospects that another Court might reverse or materially
alter the judgment of the Court that heard the matter
appealed
against. See
S
v (Indistinct)
,
1993(1) SA 523 (?).
The
Court is further mindful of the fact that special entry is necessary
in those cases where the irregularity or illegality complained
of is
discovered after the conclusion of trial, and the procedure may not
be followed where the irregularity or illegality appears
from the
record of the case. In such an event, the irregularity or
illegality may form the basis of an
In
this regard see the case of
Sefatsa
and Others v the Attorney General of Transvaal and Another
,
1989(1) SA 821(A) 834 H - J.
Furthermore,
a non-constitutional irregularity committed during the trial does
not
per
se
constitute
sufficient justification to set aside a conviction on appeal. What
the Appeal Court considers is the effect of the
irregularity on the
verdict. That the Court gave no reasons for not discharging the
accused at 10 174 stage cannot be said
to have had an impact on
the verdict.
Mr
Smith
,
in his oral grounds of appeal, included also the grounds mentioned
in his application for special entry. What became manifest
in his
reply was that he was uncertain as to 15 whether the assessor asked
a factual question or a question of law.
A
further uncertainty related to whether he made that application in
order to get the Appeal Court to make a legal 20 pronouncement
on
the relevant submission. Unfortunately, a reasonable prospect of
success on appeal is not a factor which may be taken into
account
when one considers the question whether special entry should be
noted or not.
On
the oral grounds for appeal, I must say there were many,On the oral
grounds for appeal, I must say there were many,mmany grounds
that
Mr
Smith
raised. On the following points the Court wishes to comment as
follows.
Mr
Smith
denied that there was evidence led regarding the working condition
of the alarm. However, Inspector van der Heever testified
that there
was a panic button in the bedroom where accused no1 and 2 hid. The
alarm system was on and the panic button was not
activated.
He
referred to section 316 of the Criminal Procedure Act, and raised
the question whether the Court should have accepted the statements
as a confession or not. I wish to say that section 316 of the
Criminal Procedure Act does not deal with 15 the statements or
confessions, but with the applications for condonation, leave to
appeal and further evidence.
On
the aspect that the Court inhibited his cross-examination, the Court
specifically wanted him to elucidate what he meant by
that, and
according to him, as I have already indicated, the Court denied him
an opportunity to ask a question and, according
to him, he then
said, "Then I may not ask questions", and he obviously sat
down. I am not certain as I am sitting here
whether that amounts to
inhibiting further
cross-examination.
However, I have had the opportunity to peruse the record
concerned. Apparently there is nothing to support
the contentions by
Mr
Smith
.
What is reflected there on the record is that he was given an
opportunity to ask questions and the State objected to the
question
that he wanted to ask, and he said that he was happy that he had
asked whatever question he so wanted to, and I do not
think that
that amounts to inhibiting his cross-examination. I am not sure
of any system that the Court should have adopted
in keeping him
standing if it so wanted to keep him standing.
The
statement he referred to that was admitted as a confession was a
statement by accused No 3, or Mr Pretorius, who had made
a
confession. In that statement he had made the admissions that would
render him unequivocally guilty of 15 the crime of conspiracy
to
commit murder. He admitted all the essential elements of the
offence. Hence the Court branded his statement a confession relating
to the offence which he was convicted of.
The
Court noted with concern that in most of the grounds that were
raised for the appeal there was no honesty and the grounds
were
mostly untrue. From the fact that
Mr
Smith
included
the grounds he so wanted considered for special entry also in the
grounds of appeal, the Court drew an inference
that there may
not have been certainty as to what procedure to follow, and what is
more, those grounds were also part of the
record and were not issues
that arose after closure of proceedings. The Court is further
mindful of the fact that the test that
the Court should consider
regarding special entry is not whether there are irregularities but
whether it [the application] was
made frivolously or was absurd.
Judging by the nature of the grounds for application for special
entry, it is clear that the
granting thereof will be an abuse of the
process of the Court. In all the alleged irregularities, there are
no prospects of
success.
As
I said, most of the grounds of appeal are not in agreement with the
record. What is manifest from the record is that all three
accused
exercised their right to remain silent on the face of the evidence
tendered by the State that there was conspiracy to
murder and harm
the deceased amongst all the three accused. That evidence remained
uncontroverted. The contradictions in Mr Swan's
evidence relating to
their part in the murder of the deceased were irrelevant when one
has regard to the verdict that the court
returned. The Court
concedes that it made no credibility findings relating to Mr Swan's
evidence because his evidence relating
to conspiracy went
unchallenged.
Accused
No 3 also made a confession admitting conspiracy. There is no basis,
therefore, for the allegation that the guilt of the
accused was not
proved beyond reasonable doubt.
I
must say that the record was not complete. Before we adjourned on
the last occasion, I asked for a transcript of the record,
which was
not provided up to today, and some of the other points raised, I
could not verify them from the record.
With
what I said so far, both applications are
DENIED
NGEWU,
J