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[2003] ZAWCHC 81
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Waggie and Another v S (A363/2002) [2003] ZAWCHC 81 (13 June 2003)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NUMBER
:
A363/2002
DATE
:
13
JUNE 2003
In
the matter between:
FAIZEL
WAGGIE
1
st
APPELLANT
ISMAIL
EDWARDS
2
nd
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
GASSNER.
A J
:
[1}
The appellants were initially prosecuted in the Wynberg Regional
Court in respect of the following charges:
(1)
Charges
1 to 3:
Three
counts of attempted murder;
(2)
Charge
4:
Possession
of explosives in contravention of section 28{1) read with sections 1
and 27(l)(c) of the Explosives Act 26/1956;
(3)
Charge 5:
Pointing
a firearm at a person in contravention of section 39(1)(i) of the
Arms & Ammunition Act 75/1969. (This charge was preferred
against
the second appellant only.)
[2]
The appellants both pleaded not guilty in respect of each of these
charges. The matter was then part-heard during 1999 and 2000
before
the Regional Magistrate, Mr Theron, who died after a postponement on
23 May 2000. On 3 October 2000 the appellants, who
were at the time
both represented by counsel, Mr Van der Berg, were advised that the
matter would have to proceed
de
novo
on
25 June 2001.
[3]
On 25 June 2001 the matter proceeded
de
novo
before
the Regional Magistrate, Mr Henney. At the commencement of the trial
de
novo,
the
appellants were charged with the charges referred above, as well as
the additional charge of sabotage (and various additional
alternative
charges), namely:
(1)
Charge
1:
Sabotage
in terms of section 54(3}(a) of the Internal Security Act 74/1982
(with certain alternative charges in terms of the Internal
Security
Act);
(2)
Charges
2 to 4:
Three
counts of attempted murder (which were substantially the
same charges as charges
1
to
3 in the first proceedings), with an alternative charge in terms of
section 27(1)(c) of the Explosives Act 26/1956;
(3)
Charge
5:
Possession
of explosives in contravention of Section 28 of the Explosives Act
26/1956 (which were substantially the same charge
as charge 4 in the
first proceedings);
(4)
Charge
6 (this charge was preferred against the second
appellant only):
Contravention
of section 39(1)(i) of the Arms and Ammunition Act 75/1969 (which was
substantially the same charge as charge 5 in
the first proceedings).
The
appellants both declined to plead and accordingly a plea of not
guilty was entered in respect of each of these charges.
[4]
The case against the appellants in the first proceedings and in the
de
novo
trial
related to the same incident. On 25 January 1998 two perpetrators,
allegedly the appellants, threw a pipe bomb into the charge
office of
the Lansdowne Police Station. At the time there were three police
officers on duty, namely Inspector De Jager, Sergeant
Luyt and
Inspector Plaatjies. They were the complainants in respect of the
charges of attempted murder.
[5]
On 18 September 2001 the appellants were each convicted in respect of
charges 1, 2, 3 and 4 (i.e. of the main charges), and
the second
appellant was also convicted in respect of charge 6. The appellants
were sentenced to 30 years' imprisonment each, of
which ten years was
ordered to run concurrently with the prison sentence which they were
already serving. The appellants now appeal
against both their
convictions and their sentences.
[6]
The appellants
1
heads of argument deal with two preliminary points as to why the
conviction and sentence in respect of the charge of sabotage should
be set aside:
(1) Firstly,
the appellants submit that the prosecutor acted irregularly and
contrary to the tenets of fair trial in charging the
appellants with
the additional charge of sabotage. Inasmuch as they, through no
fault of theirs, were required to stand trial
de
novo,
they
contend that it was unfair to expose them to the jeopardy of charges
greater than those on which they were originally arraigned.
In
support of this argument they rely on a decision of the US Supreme
Court in
Blackledge
v Perry
417
US 21.
(2) Furthermore
the appellants submit that the Regional
Magistrate
"committed
a fatal irregularity"
by
not allowing them to obtain legal representation prior to pleading to
the new charge of sabotage.
These
grounds of appeal were not contained in the appellants notice of
appeal filed on 1 November 2001. The grounds of appeal which
are set
out in the appellants' notice of appeal are directed against the
Magistrate's finding that the State had proved its case
beyond
reasonable doubt. They also attack the sentences as being excessive
in the light of the misdirections which, it is contended,
were to be
found in the Regional Magistrate's reasoning.
[7]
Although it was intimated in the appellants' heads of argument that
supplementary heads would be filed on the
"merits",
this
was only done on 11 June 2003, two days before the hearing of the
appeal and well after the respondent filed its heads of argument.
[8]
The respondent accordingly, in its heads of argument, asked for the
appeal to be struck from the roll on the basts that:
(1)
the grounds of appeal set out in the appellants
1
notice of appeal were not dealt with in the appellants' heads of
arguments;
(2)
the arguments advanced in the appellants
1
first heads of argument were not covered by their notice of appeal
and consequently the Magistrate has not had an opportunity to
deal
with these further grounds.
[9]
On 11 June 2003 the appellants filed heads of argument in respect of
the merits, together with an application for condonation
of the late
filing thereof. They also seek leave to amend their notice of appeal
by introducing the two additional grounds discussed
above, and have
brought an application for condonation in respect of the late filing
of the amended notice. The State opposes these
applications.
[10]
In terms of High Court Rule 51(4), as read with Cape Court Notice 9,
the appellants were obliged to deliver a concise statement
of the
main points which they intend to argue on appeal, as well as a list
of authorities to be tendered in support of each point.
The provision
of this sub-rule are peremptory and our courts have not been hesitant
to strike appeals off the roll where heads
of argument were not filed
or were not filed timeously. (See
S
v Zondo
1966(2) SA 521 T,
Louw
v Louw
1965(3) SA 750 (ECD). See also
AC
Building Services CC v P B & A Personnel Consultants (Ptv)
Limited
1992(2)
SA 55 (T), where the court refused to consider the merits of an
appeal because the appellants heads were not filed and there
was no
appearance on its behalf.)
[11]
As a general rule an appellant is confined to the grounds of appeal
set out in his notice of appeal. {See
S
v Baloyi
1991(1)
SACR 265 (B),
S
v Nel
1987(4) SA 276 (O) at 279G.) Our courts have been prepared to deal
with a new ground of appeal, not set out in the notice of appeal,
if
this involves a question of law. However this was allowed in
instances where the State raised no objection to the new ground
of
appeal being raised in argument (see
S
v Nel
1987(4) SA 276 (O) at 279F-I), or where the additional ground of
appeal involved a crisp point, see
S
v Lapi
1997(2) SACR 272 (O). Although in this matter the new ground of
appeal, directed at the introduction of the additional charge of
sabotage, involves a question of law, this cannot be said about the
second additional ground raised by the appellants, namely that
they
were not afforded the opportunity to be legally represented when they
were required to plead in respect of the charge of sabotage.
In
respect of this ground, we feel that the Magistrate ought to have
been afforded an opportunity to furnish additional reasons.
[12]
Before the application for condonation in respect of the two new
grounds of appeal may be granted, the appellants are required
to
furnish a satisfactory explanation for the late filing of this
application and must satisfy this Court that they have a reasonable
prospect of success on the new grounds of appeal. (See
R
v L
1960(3) SA 503 (A) at 505F-G,
S
v Nel
1991(2) SACR 10 (A) at 13b,
S
v Aspelinq
1998
(1)
SA
561
{C) at 566b.)
[13]
For the reasons which follow, it does not appear to us that there is
a reasonable prospect of success in respect of the proposed
ground of
appeal concerning the new charge of sabotage:
(1)
The US Supreme Court decision of
Blackledge
v Perry
{supra),
relied
on by the appellants, is distinguishable from the circumstances of
the present matter. Perry, a North Carolina prison inmate,
was
charged with the misdemeanour of assault with a deadly weapon, of
which he was convicted in a State District Court. While his
appeal
was pending in a superior court, where he had the statutory right to
a trial
de
novo,
the
prosecutor obtained an indictment covering the same conduct for a
more serious offence which carried a far heavier sentence
than the
misdemeanour of assault.
(2) The
US Supreme Court held that the subsequent indictment on the more
serious charge contravened the Due Process Clause of
the Fourteenth
Amendment, since a person convicted of the misdemeanour in North
Carolina was entitled to pursue his right under
State law to a trial
de
novo
without
apprehension that the State would retaliate by substituting a more
serious charge for the original one and thus exposing
him to an
increased period of imprisonment. It was, accordingly, held that it
was not constitutionally permissible for the State
to respond to
Perry's invocation of his statutory right to appeal by bringing a
more serious charge against him prior to the
trial de
novo.
In
coming to this conclusion, the court analysed its earlier decisions
in
North
Carolina v
Pearce
[1969] USSC 161
;
395
US 711
,
Colten
v Kentucky
[1972] USSC 130
;
407 US 104
and
Chaffin
v Stvnchcombe
412 US 17
, from which it appears that the Due Process Clause was not
offended by all possibilities of increased punishment upon retrial
after appeal. The possibility of an increased sentence, on retrial
after an appeal, was only regarded as unconstitutional if there
was
a realistic likelihood of
"vindictiveness
against a criminal defendant who attacked his initial conviction on
appeal".
Thus
in
Colten
v Kentucky
{supra},
where
the court which was to hear the matter
de
novo
was
not the one whose original judgment had prompted the appeal, the
Supreme Court held that the court hearing the trial
de
novo
was
not precluded from imposing a sentence in excess of that imposed in
the court of original trial, as
"there
was little possibility that an increased sentence on trial de novo
could have been motivated by personal vindictiveness
on the part of
the sentencing judge".
(4)
The
court in
Blackledoe
v Perry
(supra)
then
considered whether there was a realistic likelihood of vindictiveness
if a prosecutor was allowed to
"up
the ante"
through
a more serious charge when an accused pursues his statutory appeal
remedies. On the basis that the State could ensure that
"only
the most hardy defendants would brave the hazards of a de novo
trial",
the
court held that a person convicted of an offence was entitled to
pursue his statutory appeal rights to a trial
de
novo "without apprehension that the State will retaliate by
substituting a more serious charge for the original one, thus
subjecting him to stgnificantfy increased potential periods of
incarceration".
For
that reason the court held that it was unconstitutional for the State
to bring a more serious charge against Perry prior to
the trial
de
novo.
(5) In
a subsequent decision of the US Supreme Court in
Alabama
v Smith
490 US 794
, the court, with reference to various decisions after the
Pearce
case, also emphasised that
"the
evil the [Pearce] court sought to prevent",
was
not the Imposition of
"enlarged
sentences after a new trial",
but
"vindictiveness
of a sentencing judge".
(6) In
the present matter, in contrast to the case in
Blackledge
v
Perry
{supra),
the
trial had to proceed de
novo
as
a result of the presiding Magistrate's death, which was an unforeseen
event beyond the parties' control and not because the appellants
were
exercising any statutory rights. Consequently the need to
guard
against
the appellants' apprehension that they might be victimised is not a
relevant consideration in this matter.
[14}
The appellants' prospect of success in respect of the second
additional ground of appeal, namely that they were not allowed
legal
representation when they pleaded to the new charge of sabotage which
deprived them of the opportunity of raising the
Blackledge
v Perry
(supra)
argument,
to a large extent depends on whether there was any merit in that line
of argument in the first place. For the reasons
set out above, we are
of the view that there is no substance in the analogy which the
appellants attempt to draw with the facts
and findings in
Blackledge
v Perry
(supra).
Consequently,
there could not have been any prejudice to the appellants when they
pleaded not guilty to the new charge of sabotage,
in the absence of
legal representation. But, in any event, we are of the view that the
Regional Magistrate's decision to refuse
a postponement to allow the
appellants to appoint a counsel of their choice through Legal Aid did
not constitute a misdirection
or irregularity. It seems to us, from a
perusal of the record and an analysis of the Regional Magistrate's
reasons for refusing
the postponement on 26 June 2001, that he
exercised his discretion judicially and fairly and with due regard to
the principles
set out in
S
v Halgrvn
2002(2) SACR 211 (CC). We are accordingly of the view that the
appellants do not have a reasonable prospect of establishing that
the
Magistrate committed an irregularity when he required them to plead
to the new charge of sabotage in the absence of legal representation.
[15]
The application for condonation in respect of the proposed additional
grounds of appeal does not explain adequately why these
grounds were
not contained in the earlier notice of appeal and the reasons for the
delay in the necessary application for condonation.
This would have
involved a relatively simple application by the attorney of
record,
with
no need to peruse the entire record. Inasmuch as we, in any event,
are of the view that the appellants do not have a reasonable
prospect
of success in respect of the two proposed new grounds of appeal, we
are of the view that the application for leave to
introduce such
additional grounds should be dismissed.
[16]
This leaves us with the application for condonation of the Sate
filing of the heads of argument on the merits:
(1) In
order to assess this application, we have to be satisfied that the
appellants enjoy a reasonable prospect of success on the
merits. They
have failed to deal with this issue in the notice of application for
condonation. Further the appellants' prospects
of success on the
merits cannot be properly assessed until the State has had an
adequate opportunity to deal with the points raised
by the appellants
in their heads of argument on the merits. (This, unlike the issues
raised in the original heads of argument,
requires the perusal of
the entire record of the proceedings which consists of some 645
pages.)
(2) It
also seems to us that the application for condonation is
unsatisfactory. Firstly the financial position of the appellants
is
not fully set out or confirmed by them in a supporting affidavit.
Secondly, the reason as to why the Legal Aid Board refused
to fund
the appellants' appeal was not disclosed. No documentation from the
Legal Aid Board in support of this allegation was
attached to the
affidavit. Finally, it is not at all clear precisely from which
dates the appellants' counsel was prepared to
act
"as
an officer of the court".
[17]
In the light of these difficulties, it seems to us that the appeal
should be struck from the roll. This will enable the appellants
to
bring a properly motivated application for condonation of the late
filing of the heads of argument on the merits and allow the
State to
consider such application. It will also afford the State an
opportunity to file heads of argument on the merits of the
appeal
which would be necessary to assist the Court in deciding whether the
application for condonation in respect of the late
filing of the
heads of argument should be granted, and also to determine the appeal
on the merits, if the application for condonation
is granted.
[18]
It is accordingly ordered that.
(1)
The appellants' application for leave to introduce
additional grounds of appeal is dismissed.
NEL,
J
(2)
The application for condonation in respect of the late filing of the
heads of the argument on the merits and the appeal are
struck from
the roll.
GASSNER,
A J
I
agree
NEL,
J