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 140
|
|
Galada and Another v S (4/2022) [2024] ZAFSHC 140 (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:
4/2022
In
the matter between:
SIMON
YANDISA GALADA
First
Applicant
PAUL
KATISO NKOESA
Second
Applicant
and
THE
STATE
Respondent
JUDGMENT
- LEAVE TO APPEAL
CORAM:
NAIDOO, J
HEARD
ON:
8 MAY 2024
DELIVERED
ON:
9 MAY 2024
[1]
This is an
application by the first and second applicants, who were accused 1
and 3 respectively in the main trial for leave to
appeal against my
judgments on conviction and sentence, handed down on 31 May 2023 and
2 June 2023 respectively. The respondent
(the state)
opposed the application. The state was represented by Adv (Ms) A
Bester, while the first applicant (Galada) was represented
by Mr JH
Jordaan and the second applicant (Nkoesa) by Ms H Fourie.
[2]
The judgment
was assailed on a number of grounds by each applicant. The grounds
relied upon by Galada in respect of the conviction
and sentence are,
in essence, that the court erred or misdirected itself by finding
that:
2.1
the proven
facts supported only one reasonable inference, namely that Galada
raped the complainant and did so on numerous occasions;
2.2
the
complainant,
being a single
witness, was honest, credible and reliable, and that her evidence was
satisfactory in all material respects;
2.3
the injury to
the genital area would have been self-inflicted, if Galada's version
were to be accepted, even though no history of
consensual sexual
intercourse in the previous seven days was recorded on the J88
medical report;
2.4
the version of
the complainant was too complex for her to have fabricated it on the
spur of the moment to implicate Galada;
2.5
the applicant
was required to furnish a reason for the complainant to falsely
implicate him;
2.6
the whole of
Galada's evidence was not properly evaluated, and the court refused
leave to recall the complainant when Galada instructed
a new legal
representative;
2.7
there were no
substantial and compelling circumstances to justify a deviation from
the prescribed minimum sentence, in that all
Galada's personal
circumstances, the manner of commission of the offence, and the role
he can play in the community
in future were
not taken into account.
[3]
The grounds on
which Nkoesa assailed the convictions and sentences in respect of
counts 3 and 4 are, in essence, that the court
erred or misdirected
itself by finding/holding that:
3.1
the evidence
of entrapment in terms of section 252A of the Criminal Procedure Act
is admissible;
3.2
over-
emphasising the seriousness and prevalence of the crime as
justification for admitting the evidence;
3.3
the state
proved beyond reasonable doubt that Nkoesa influenced the witness and
defeated the ends of justice, for a variety of reasons
set out in the
Application for Leave to Appeal;
3.4
not taking
account of all Nkoesa's personal circumstances
as listed.
3.5
The sentences
create a sense of shock and are unreasonably
harsh;
3.6
There are reasonable
prospects of success on appeal before a Full Court of this Division.
[4]
The test
applicable to an application for leave to appeal was correctly set
out in the Heads
of Argument
on behalf
of the
accused,
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)
[5]
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)]
[6]
In the case of
Ramakatsa
and
Others
v
African
National
Congress
and Another (724/2019)
[2021)
ZASCA 31 (31 March 2021),
a decision
of the Supreme Court of Appeal (SCA) the following extract from para
10 of the judgment is instructive:
I
am mindful of the decisions at high court level debating whether the
use of the word 'would' as opposed to 'could' possibly means
that the
threshold for granting the appeal has been raised. If a reasonable
prospect of success is established, leave to appeal
should be
granted. Similarly, if there are some other compelling reasons why
the appeal should be heard, leave to appeal should
be granted. The
test of reasonable prospects of success postulates a dispassionate
decision based on the facts and the law that
a court of appeal could
reasonably arrive at a conclusion different to that of the trial
court. In other words, the appellants
in this matter need to convince
this Court on proper grounds that they have prospects of success on
appeal. Those prospects of
success must not be remote, but there must
exist a reasonable chance of succeeding. A sound rational basis for
the conclusion that
there are prospects of success must be shown to
exist.
[7]
The judgment
in this matter sets out comprehensively the reasons for the orders
made, and it is unnecessary
for me to
repeat it here. Similarly, the judgment in respect of the
trial-within-a -trial (TWT), deals in detail with the tape recordings
and evidence in respect of the witnesses in respect thereof, which
answer the grounds raised by Nkoesa. For convenience, a copy
of the
judgment in the TWT is also available in the file.
[8]
The grounds
set out by Galada skirt around the court's assessment of the evidence
in arriving at the conclusions it did, both in
respect of the merits
and sentence. He completely denied that he had sexual intercourse
with the complainant and relied on a spurious
explanation that she
smeared her underwear with semen from a used condom, to explain how
he is linked to the offence by DNA evidence.
This has been dealt with
in the judgment. Similarly with Nkoesa, the court's evaluation of the
evidence seems to be the cause of
his complaint as well as the
sentence the court imposed. He has failed to allege or show that the
application of the court's discretion,
with regard to sentence, was
irregular or improper.
[9]
During oral
argument, Mr Jordaan on behalf of Galada, did not raise any points
further to his heads of argument and Ms Fourie, for
Nkoesa, mentioned
the case of
S
v Smith 2012(1)
SACR
567 (SCA)
in
respect of the test for determining whether leave to appeal should be
granted. She submitted that the second applicant, Nkoesa,
has
reasonable prospects of success on appeal. Ms Bester, on behalf of
the state, argued that in respect of the first applicant,
the only
thing of relevance in this matter is that Galada is linked by DNA
evidence and his explanation regarding the manner in
which the semen
ended up on the complainant's underwear is untenable as two witnesses
confirmed that there were no used condoms
in the house. The
complainant had also reported to three witnesses that she had been
raped.
[9]
With regard to
prospects of success on the grounds set out in the Notice of Appeal,
I am not satisfied that the appellants
have made out
a compelling enough case that they enjoy reasonable prospects of
success on appeal, and I would refuse leave to appeal
on that basis.
However, I have noted what the SCA in the Ramakatsa case said further
in para 10 of its judgement, that a court
should take into
consideration the provisions of
section 17(1)(a)(ii)
of the
Superior
Courts Act 10 of 2013
, and even
"if
the court
is
unpersuaded
that there are prospects of success, it must still enquire into
whether there is
a
compelling
reason to entertain the appeal. Compelling reason would of course
include an important question of law or a discreet
issue
of public
importance that will have an effect on future disputes. However, this
Court correctly added that
'but
here
too the merits remain vitally important and are often decisive"
[10]
The state and
the defence attorneys were asked to address the court on whether the
facts and circumstances of this matter raise
any questions of law or
any matter of public importance, which demand the attention of either
a Full Court of this Division or
the SCA. Mr Jordaan, for Galada
submitted that when he came on record as the legal representative for
Galada, it was because the
mandate of the previous attorney was
terminated on account of the latter not carrying out Galada's
instructions. Mr Jordaan's application
to recall the complainant was
refused and this is compelling matter to be dealt with on appeal.
[11]
Ms Fourie on
behalf of Nkoesa submitted that the accused was convicted on two
counts arising out of the same incident and the same
facts. This is a
duplication of charges and the court should give due weight to this.
Ms Bester, for the state, argued that in
respect of Galada, they
wished to recall the complainant to question her about the two
"please call me" messages that
she ostensibly sent to
Galada's cellular telephone. This had nothing to do with the rape,
and would not have taken that matter
any further. With regard to
Nkoesa, she pointed out that the counts that he was convicted of are
two different offences, with different
elements that needed to be
proved. There was no duplication of charges. The court mitigated the
effect of the sentences by ordering
them to run concurrently.
Therefore, there is no compelling reason to consider an appeal in
this matter.
[12]
As I indicated
earlier, all the points raised by the defence have been dealt with in
the judgment. I am in agreement that the matters
raised are based on
the facts and evidence of this case and do not implicate issues of
law of public importance. It is clear that
such issues must, of
necessity, be decided on a case- by-case basis. For the reasons set
out in this judgment, I am of the view
that the applicants have not
satisfied the threshold of the requirement that there is a reasonable
prospect of success on appeal
and that another court could would come
to a different conclusion.
[13]
In the
circumstances, I make the following
order:
The
applications for
leave to appeal by the first and second respondents are dismissed.
S
NAIDOO J
On
behalf of the 1
st
Applicant:
Mr
JH Jordaan
Instructed
by:
JHJ
Attorneys Inc
Regus
Business Centre
Ground
Floor, Unipark Building
Vodacom
Lane, Nobel Street
Bloemfontein
(Ref:
JHJ/M00318)
On
Behalf of the 2
nd
Applicant:
Ms
H Fourie
Instructed
by:
Hanlie
Fourie Attorneys
c/o
Ferreira Property Law
9
Bompart Street
Westdene
Bloemfontein
On
behalf of the Respondent:
Adv
A Bester
Instructed
by:
The
Director of Public Prosecutions
Bloemfontein