About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 139
|
|
Tsolo v S (51/2021) [2024] ZAFSHC 139 (9 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, HELD AT BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges:
NO
Circulate
to Magistrates: YES
Case
number
: 51/2021
In
the matter between:
RAMPHANE
PETRUS TSOLO
APPLICANT
versus
THE
STATE
RESPONDENT
JUDGMENT
- APPLICATION FOR LEAVE TO APPEAL
CORAM:
NAIDOO, J
HEARD
ON:
9 MAY 2024
DELIVERED
ON:
9 MAY 2024
[1]
The accused was charged with one count of
Murder, read with section 51(1) of the Criminal Law Amendment Act 105
of 1997 (Minimum
Sentences Act)
(Count1)
and one count of contravening a Protection Order (the Protection
Order) granted in terms of the Domestic Violence Act 116
Of 1998
(Count 2), brought against him in this court, sitting at Bethlehem.
He pleaded guilty to the charge on 7 September 2021
and was convicted
accordingly. He was sentenced on the same day to Thirty (30) Years'
Imprisonment in respect of count 1 and Twelve
(12) Months'
imprisonment
in
respect of count 2. The sentence in respect of count 2 was ordered to
run concurrently with that in count 1. Mr PL Van der Merwe
appears
for the applicant and Mr WJ Harrington for the state.
[2]
It is perhaps prudent to give context to
why there was a delay in hearing this matter. Initially there was
confusion as to who the
presiding judge was in this matter, as is
apparent from the Notice of Application for Leave to Appeal, which
refers to the sentence
of Judge Reinders that is being appealed. The
applicant filed an Application for Leave to Appeal on 5 December
2022, during the
December court recess, hence the clerks dealing with
this matter were unable to locate the judge who handed down the
sentence.
That was eventually resolved. As is required, a transcript
of the judgment was to accompany the Application, which was not done
in this case. In or about January/February 2023, the applicant's
representative, from Legal Aid South Africa, was requested to
comply
therewith before the matter could be placed before this court. It
appears that the Judge President was advised that Legal
Aid South
Africa was unable to pay for transcripts in this matter (and other
matters) and discussed this with the Judge President
of this
Division. After many months, I was advised that I should hear the
application without such transcripts. The state was in
the difficult
position that it required a copy of the judgment as the prosecutor
who dealt with the matter initially was no longer
able to continue
doing so. To expedite the matter, I made available to the parties
copies of my personal written judgment to enable
the state to
determine if it would oppose the application, which it did. The
matter was ultimately enrolled for hearing on 9 May
2024, after the
parties filed Heads of Argument.
[3]
The applicant sought the following relief:
3.1
Condonation for the late filing of
the application;
3.2
Leave to Appeal be granted to Full
Bench of this court against the sentence handed down on 7 September
2021 in Bethlehem.
[4]
With regard to the application for
condonation, the applicant alleged that it took time for him to
"digest" that he would
be spending thirty years in prison,
hence he did not immediately give instructions to his legal
representative to lodge this appeal.
This coupled with the fact that
he is a lay person and that the sentencing fell during the period
when Covid-19 regulations were
still in place, preventing any
consultation with his legal representative, also contributed to the
delay in prosecuting this appeal.
The state did not take issue with
the application for condonation and submitted that in the interests
of finalising the matter
condonation should be granted.
Condonation for the late filing of the
application was accordingly granted.
[5]
The sentence in this matter was assailed a
number of grounds, which in essence,
are
that the court erred or misdirected itself in that it:
5.1
did not take into account the
applicant's personal circumstances, and gave too much weight to the
aggravating circumstances in finding
that there were substantial and
compelling circumstances to justify deviation from imposing the
prescribed minimum sentence;
5.2
imposed a sentence that is harsh and
induces a sense of shock
5.3
over-emphasised the seriousness of
the offences over the mitigating and personal circumstances in
respect of sentencing;
5.4
over-emphasised that this was a
femicide case
5.5
imposed a sentence of thirty years'
imprisonment, after finding that there were substantial and
compelling circumstances present
to deviate from imposing the
prescribed minimum sentence.
[6]
The test applicable to an application for
leave to appeal was correctly set out in the Heads of Argument
on behalf
of
the applicant,
with
which the state agreed. For the sake of completeness,
I repeat the legal position as it currently
stands.
Section 17
of the
Superior Courts Act 10 of 2013
regulates
the test to be applied in an application for leave to appeal. The
relevant provisions of
section 17(1)
provide as follows:
"(1) Leave to appeal
may
only
be given where the judge or judges concerned
are of the opinion that
(a)
(i)
the
appeal
would
have a reasonable prospect of success;
or
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;"
(my emphasis and
underlining)
[7]
It has been held in a number of cases that
an applicant was, previously, merely required to show that there is a
reasonable possibility
that another court, differently constituted,
would find differently to the court against whose judgment leave to
appeal is sought.
It is clear from
section 17(1)
, set out above, that
the situation is now somewhat different, and an applicant for leave
to appeal is required to convince the
court that there is a
reasonable prospect of success and not merely a possibility of
success.
[See
in this regard
The Mont Chevaux Trust v
Tina Goosen + 18 2014 JDR LCC,
which
was cited with approval in a number of cases, such as
Matoto
v Free State Gambling and Liquor Authority
(4629/2015)
[2017] ZAFSHC 80
(8 June 2017),
a
decision emanating from this Division, and
also a
Full
Court decision in
Acting National Director of Public
Prosecutions and Others v Democratic Alliance (19577/2009) [2016]
ZAGPPHC 489 (24 June 2016)]
[8]
The judgment in this matter took account of
the personal circumstances of the accused and weighed those against
the seriousness
of the offence and the interests of society. The
court also took account of the fact that the accused pleaded guilty,
cooperated
with the police in pointing out the murder weapon and
handed himself over to the police.
[9]
The appellant
has
not
alleged or
shown that the court misdirected itself or improperly
exercised
its
discretion in imposing
the
sentences it did. An appeal
court
will not lightly
interfere
with
a sentence imposed by the court of first instance, even if it would
have imposed a different sentence, unless the sentencing
court had
misdirected itself or improperly exercised its sentencing discretion.
[10]
During oral argument, Mr Van der Merwe submitted that while he could
not argue that the court misdirected
itself or improperly exercised
its sentencing jurisdiction, he was of the view that thirty years'
imprisonment was harsh and another
court may sentence differently. Mr
Harrington submitted that, in addition to his submissions in his
Heads of Argument, he is of
the view that the court showed mercy to
the applicant in a large measure and that the court treated the
applicant leniently. He
was of the view that the sentence was not
manifestly unjust, and was fair. He further submitted that the court
should not grant
the application, as to do so would be a waste of
court resources. If the application were to be granted, the state may
well consider
a cross-appeal for the imposition of life imprisonment,
which would not be in the interests of the applicant.
[11]
The grounds upon which the applicant
proposes to base his appeal, cannot be sustained, as the judgment in
this matter deals with
each of those aspects raised by him. In view
of the position relating to an appeal court's ability to interfere
with the sentence,
I am of the view that the applicant has not
satisfied the threshold of the requirement
that there is a reasonable prospect of
success on appeal and that another court could or would come to a
different conclusion in
respect of the sentence in this matter.
[12]
In the circumstances, I order as
follows:
The application for leave
to appeal is dismissed
S
NAIDOO J
On
behalf of the Applicant:
Mr PL
Van Der Merwe
Instructed
by:
Legal
Aid South Africa
4
th
Floor, Fedsure Building
49
Charlotte Maxeke Street
Bloemfontein
(Ref:
X89299912101)
On
Behalf of the Respondent:
Mr WJ
Harrington
Instructed
by:
Office
of the Director of Public Prosecutions
Bloemfontein