S v Babeile (Application for leave to appeal) (CA&R 35/01) [2001] ZANCHC 17 (24 August 2001)

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[2001] ZANCHC 17
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S v Babeile (Application for leave to appeal) (CA&R 35/01) [2001] ZANCHC 17 (24 August 2001)

VERSLAGWAARDIG JA/NEE
SIRKULEER
ONDER REGTERS JA/NEE
SIRKULEER
ONDER LANDDROSTE JA/NEE
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN
CAPE PROVINCIAL DIVISION)
KIMBERLEY
CASE NO.:CA&R
35/01
DATE:
24/08/2001
In the matter between:
ANDREW ITUMELENG
BABEILE APPLICANT
and
THE STATE RESPONDENT
CORAM:
Steenkamp
J.P et Majiedt J
Judgment
on Application for leave to appeal
MAJIEDT J:
The Applicant seeks
leave to appeal against our dismissal of his appeal against
conviction. By reason of the fact that the application
had been
lodged out of time, the Applicant also seeks condonation for his
non-compliance with the Rules of Court.
2. In considering the
application for condonation, we are enjoined to have regard to:
the degree of the
lateness of the filing of the application and the explanation
therefor; and
the prospects of
success and the importance of the case.
See:
S
v di Blasi
1996(1) SACR 1(A) at 3f-h.
S v Mohlathe
2000(2)
SACR 530 (SCA) at 535g-536a.
In my view, the Applicant
has cleared the first hurdle in that he has to my mind, furnished a
satisfactory explanation (i.e. impecuniosity)
for the non-compliance.
What
remains to be considered is the second leg, viz. prospects of
success.
In considering the
merits of the application for leave to appeal, I am mindful of the
need to disabuse one’s own mind of the fact
that we, as a Court of
Appeal, were not persuaded that the Magistrate had been wrong in his
decision to convict the Applicant of
attempted murder.
See:
R
v Kuzwayo
1949(3) SA 761(A) at 766.
The other side of the
coin is, however, equally apposite given the facts of this case, viz.
that it is totally unacceptable to grant
leave to appeal in order to
provide comfort to the Applicant with the knowledge that the Supreme
Court of Appeal will furnish a final
decision in his case;
See:
S
v Swanepoel
1978(2) SA 410(A) at 411F-G.
The appeal before us
entailed conviction only and was furthermore limited to the question
as to whether the Applicant had been correctly
convicted of
attempted murder. The facts of the case appear fully in our
judgment on appeal and it is not necessary to repeat
same for
purposes of this judgment.
The written application
sought leave to appeal against the decision on the Applicant’s
petition to grant leave to appeal to this
Court on the narrow ground
(enunciated in paragraph 4,
supra
)
only and, in the alternative, against our dismissal of the appeal.
Mr. Botha who appears for the Applicant, expressly abandoned
the
first leg of the application and argued only the latter (as he did
in his written Heads of Argument). We are concerned therefore
only
with the merits of an application for leave to appeal against the
dismissal of the Applicant’s appeal.
Mr. Botha has, as I
understand his argument, really only two strings to his bow in his
quest for leave to appeal, i.e:
6(1) firstly he submits
that there is reasonable doubt that the Applicant had intended to
kill the complainant, given the fact that
the attack on the
complainant had not been premeditated and that a pair of scissors had
been used; and
6(2) that,
since the complainant had, according to his testimony, ducked at the
time when he saw the Applicant stabbing at him, there
was reasonable
doubt as to an intent to kill.
Before I deal with these
submissions, I need to record the following: -
Mr. Botha
unhesitatingly conceded (as did his predecessor, Mr. Hulley, at the
hearing of the appeal) that the Court
a
quo
was correct in rejecting the Applicant’s version and in deciding
the matter on the State’s case; and
Related to the
aforementioned, Mr. Botha was equally forthright in his concession
that there is no room for what I would refer
to as a defence of
putative self-defence on behalf of the Applicant. Such a
concession had also been made by Mr. Hulley when
he had argued the
appeal before us.
I turn now to the main
thrust of Mr. Botha’s argument.
8.1 I have dealt in my
judgment with the Magistrate’s approach on the aspect of the
scissors. I remain unpersuaded that there is
any merit in this
submission, nor do I believe that another Court may take a different
view of the matter.
It has never been the
State’s case that the attack on the complainant had been
premeditated, nor has that been the finding of the
Magistrate. By
drawing inferences the Magistrate had concluded that the Applicant
had formed the intent (in the form of
dolus
eventualis)
to kill the complainant. Such intent the Magistrate had inferred
from the nature of the weapon used, the reckless conduct of the
Applicant, the location of the wound considered in conjunction with
the medical evidence and the Applicant’s failure to furnish
an
acceptable explanation. It is implied in the Magistrate’s judgment
that such intent on the part of the Applicant was formed
at the time
of the incident.
There is, to my mind, no
reasonable likelihood of the Supreme Court of Appeal reaching a
different conclusion on these aspects.
Mr. Botha has submitted
that, given the fact that the complainant had on his own version
ducked at the time of the stabbing, another
Court may reasonably
find that the Applicant had not intended to kill the complainant,
notwithstanding the location of the wound.
One must exercise care
not to venture into the realm of speculation in order to lay claim
to areas of reasonable doubt – such
claims on behalf of an
accused person must be based on reasonable and solid foundations
borne out either by positive evidence
or based on reasonable
inferences which are consistent with the proved facts;
See:
R
v Mlambo
1957(4) SA 727 (AD) at 738B-C.
When one peruses the
record, it is noticeable that this aspect of the ducking of the
complainant: -
was elicited in
cross-examination of the complainant by Mr. Hulley in the context of
a contradiction between that testimony and
his earlier testimony at
a disciplinary hearing; and
was not probed further
at all by Counsel in cross-examination, nor was it advanced by the
Applicant in evidence as a possible explanation
for the location of
the stab wound.
These factors have the
effect of leaving this aspect inconclusive, at best for the
Applicant. To elevate this aspect as Counsel has
attempted to do,
would in my opinion necessitate an exercise in speculation.
I conclude with this
remark: -
As had been conveyed to
Counsel during the hearing of the application, we have empathy with
the Applicant’s unfortunate situation,
but we can only assist him
insofar as the law permits. I reiterate my introductory remarks in
the judgment on appeal – this is
a sad, most unfortunate incident
which emphasises the need to heal the divisions of the past and to
inculcate a spirit of racial
tolerance, also in our schools. There
are, in my view, no reasonable prospects of success that another
Court may come to a finding
different than ours and I would dismiss
the application for condonation.
_________________________
S.A
MAJIEDT
JUDGE
I
concur and it is so ordered.
__________________
M.D.J.
STEENKAMP
JUDGE
PRESIDENT
DATE
OF APPLICATION: 20-08-2001
DATE
OF JUDGMENT: 24-08-2001
COUNSEL
FOR APPELLANT: Mr. M. Botha
COUNSEL
FOR RESPONDENT: Mr. C. Nekosie