Mudarai and Others v S [2007] ZAFSHC 102 (28 September 2007)

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[2007] ZAFSHC 102
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Mudarai and Others v S [2007] ZAFSHC 102 (28 September 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Application No. :
A223/2007
(Appeal
No. : 25/2003)
In
the application between:-
MADURAYMUTHEN
MADURAI
First
Applicant
JAYAPALAN
PILLAY
Second
Applicant
KOGILAN
NAIDOO
Third
Applicant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
MALHERBE,
JP
et
VAN DER
MERWE, J
_____________________________________________________
HEARD
ON:
26
SEPTEMBER 2003
_____________________________________________________
JUDGMENT
BY:
MALHERBE,
JP
_____________________________________________________
DELIVERED
ON:
28
SEPTEMBER 2007
_____________________________________________________
The three applicants were
convicted of robbery with aggravating circumstances in the Regional
Court on 22 March 2002 and on 28 June
of the same year each of them
was sentenced to 8 (eight) years’ imprisonment. They were granted
bail pending the outcome of their
appeal to this Court against their
convictions and sentences. The appeals were dismissed on 16 March
2006 and they are presently
serving their sentences. On 11 June 2007
they delivered an application for leave to appeal to the Supreme
Court of Appeal against
their convictions only. Included in that
application is an application for condonation of the late application
for leave to appeal.
The applicants put
forward two reasons for their failure to apply for leave to appeal
timeously, namely lack of funds and the difficulties
their relatives
encountered in obtaining their file from their previous attorneys.
The State does not query these reasons and opposes
the application
for condonation only on the ground that there are no prospects of
success on appeal.
Mr.
Howse attacked the conviction on the limited ground that it had not
been proved beyond reasonable doubt that the property recovered
by
the Police in Pretoria on 23 March 2000 and which was linked to the
applicants, is the same property that was later identified
by the
complainant at the Warden Police Station on 13 May 2000. In support
of this contention he referred to the evidence in great
detail.
It is true that the State
case could have been presented with greater care. However, if regard
is had to the evidence as a whole,
there can be no reasonable doubt
that the property that the complainant identified at the Warden
Police Station as his, is the same
property that the Police found in
Pretoria on the day after the robbery:
In
his evidence-in-chief the complainant testified that he handed his
wrist watch to the robbers at gun point; that they took his
Nokia
cellphone and approximately R5 000,00 in cash as well as a “brown
and grey travellers bag” containing
“
...
a white jacket, one pair of trouser and T-shirt, one telephone
address book and one white trousers.”
With reference to his
visit to the Police Station at Warden, he testified that he went
there
“to
identify my loss, my belongings that were lost.”
The record then
continues:
“
Did
you see any of your property there? Yes, I found my travellers bag
with all my clothes I mentioned, all still in there and I
saw my
cellphone. The only thing missing is my passport and my residence
permit.
And did you see your wrist watch?
Yes.
Were
you able to identify these properties that you saw as yours? Yes.”
Sergeant Claassen of
Warden testified that he handed the following goods to complainant on
13 May 2000:
“
... ‘n Nokia selfoon, ‘n klein
kleretas, ‘n baadjie, ‘n hemp en ‘n broek en ‘n horlosie, ‘n
goue horlosie met ‘n reeksnommer
...
En
kan u vir ons sê waaraan het die klaer hierdie items uitgeken?
Ek
het dit aan hom getoon en onmiddellik het hy dit as syne uitgeken en
die horlosie onder andere het hy aan die reeksnommer geken
en die
selfoon ook, die selfoon het ook ‘n reeksnommer gehad.”
This evidence was not
challenged at all in cross-examination by applicants’ attorneys.
From the evidence of
Captain Van Aswegen and Inspector Putter it appears that on the day
after the robbery, after the applicants had
been informed that the
robbery was being investigated, the third applicant facilitated and
assisted in the retrieval of “’n bont
kleretas”, a cellphone,
an amount of cash and a wrist watch. The wrist watch was retrieved
by the third applicant from where it
was buried in the parking lot of
the police offices where the applicants were questioned earlier that
day. All these items were
handed to Inspector Putter who was the
investigating officer of the case. Inspector Putter subsequently
handed the items in at Villiers
police station. Although not spelt
out in detail, the inference is irresistible that these items found
their way from Inspector
Putter to the Warden Police Station and
Sergeant Claassen, where the complainant identified it as his
property.
For the above reasons, as
well as the reasons set out in our previous judgment, it is my view
that there are no prospects of a successful
appeal against the
convictions.
The
following order is made:
1. Applicants’ failure
to apply for leave to appeal timeously is condoned.
2. The
application for leave to appeal is refused.
_________________
J.P. MALHERBE, JP
I
agree.
_______________________
C.H.G. VAN DER MERWE,
J
On behalf of
applicants: Adv. J.E. Howse
Instructed by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv. J. Botha
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/sp