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2024
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[2024] ZAFSHC 155
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Molise v S (43/2020) [2024] ZAFSHC 155 (22 May 2024)
IN THE
HIGH
COURT
OF
SOUTH AFRICA
FREE STATE PROVINCIAL
DIVISION
Reportable:
YES/NO
CASE
NO.: 43/2020
In
the matter between:
MOLEFI
MOLISE
Applicant
[1]
and
THE
STATE
Respondent
Coram:
Opperman J
Hearing:
1 March 2024
Order:
1 March 2024
Reasons:
22 May 2024
Judgment:
Opperman J
Summary:
Application
for
leave
to
appeal
-
criminal
trial
-
convictions
and
sentences
JUDGMENT
[1]
On 25 March 2024 I
granted
an order for leave to appeal
to
Molefi Molise, that was accused
one,
in this case
a
quo
on
all the charges he was convicted of and the subsequent sentences
[2]
to
the Supreme Court of Appeal.
[2]
Seven accused stood trial and only accused 1 and 6 were ultimately
convicted. They lodged separate
applications for leave to appeal on
separate occasions since they were represented by different counsel
and their instructions
supposedly came at different times. Leave to
appeal was granted to accused six also and similarly to the Supreme
Court of Appeal.
[3]
I indicated in some earlier judgments in this case pertaining to the
interlocutory issue of the
hostile witness and the application in
terms of
section 174
of the
Criminal Procedure Act 51 of 1977
that
the case took many twists and turns and what was supposed to be a
strong case for the State turned into a sudden quandary
and impasse
when the pivotal key witness ("Letsotso"), that was
apparently closely and directly involved in the crimes,
turned
hostile and pleaded ignorance of any crimes or knowledge thereof.
[4]
What distinguishes this case from the other cases is that Letsotso
also stated his case when he
pleaded guilty in terms of
section 105A
of the
Criminal Procedure Act 51 of 1977
. This is the elephant in the
room; the hostile witness and the previous alleged inconsistent
statements he made. Is it admissible
against co-accused and what is
the value of the statements at the end of the trial? Was it strong
enough to convict the accused?
[5]
The case of the State against accused 1 and 6 is reliant on the
evidence of Letsotso as adduced
in statements and not
viva
voce
under
oath to be tested under cross examination. There is also the
peripheral evidence that supports his evidence in the statements.
It
is imperative that the Supreme Court of Appeal rule on the
admissibility of the evidence of Letsotso against accused one and
six. Apart from the cases I referred to in the judgments during the
trial the matter of
Kapa
v
The
State
[2023]
ZACC 1
has
also seen the light.
[3]
[6]
The facts are also entwined to the extent that
leave had to be granted on all the convictions and the sentences.
[7]
I undertook to write a judgement
in
addition to the ex-tempore judgment and other judgments that
eventuated as the case progressed
that
will encompass all the evidence, the interlocutory issues and all
other challenges and issues that occurred in the trial and
the most
current law before the matter is submitted to the Supreme Court of
Appeal. I am awaiting the transcribed records for this
purpose.
The
ex-tempore
judgment
in 2023 was forced due to the delays in the case and the workload at
the time. The matter started on 24 May 2021 and was
only finalised in
2024 due to numerous challenges that presented; expeditious
finalisation was essential.
[8]
The contemporary test that must be applied when an
application for leave to appeal is considered and that forms the
background to
this application is based on the following:
1.
The right to appeal is, among others, managed by the application for
leave to appeal.
It may not be abused but the hurdle of an
application for leave to appeal may never become an obstacle to
justice in the post
constitutional era. Access to justice is
access to justice.
2.
The final word was spoken in the Supreme Court of
Appeal in
Ramakatsa and others v African
National Congress and another
[2021]
JOL 49993
(SCA) in March 2021. It also added the issue of "compelling
reasons which exist why the appeal should be heard such as the
interests of justice":
Turning the focus to the
relevant provisions of the Superior Courts Act (the SC Act), leave to
appeal may only be granted where
the judges concerned are of the
opinion that the appeal would have a reasonable prospect of success
or there are compelling reasons
which exist why the appeal should be
heard such as the interests of justice. This Court in Caratco,
concerning the provisions of
section 17(1)(a)(ii) of the SC Act
pointed out that 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". 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. lf 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. (Accentuation added)
3.
The fact remains that the judicial
character
of the task
conferred
upon a
presiding officer in determining whether to grant leave to appeal is
that it should be approached on the footing of intellectual
humility
and integrity, neither over-zealously endorsing the ineluctable
correctness of the decision that has been reached, nor
over-anxiously
referring decisions that are indubitably correct to an appellate
Court.
[9]
These are the grounds for leave to appeal more
specifically noted by counsel for accused one, Mr. Molise, in their
heads of argument
in the application for leave to appeal:
1.
The
court
a
quo
erred
in
finding that the State
proved
its
case beyond
reasonable doubt against
Applicant 1.
2.
That the court
a quo
erred by not properly analyzing and
evaluating the evidence of state witnesses.
Counts 1 to 5
2.1.
The state only relied on the evidence of
circumstantial evidence to convict the accused. There was no eye
witness (sic) except for
the statements of Mr. Letsoso that he
disavowed during his evidence (exhibits CC and S). Mr. Letsoso also
recanted on the S105A
plea agreement (exhibit R).
2.2
The court should approach Mr. Letsoso's statements
with caution as the truthfulness and reliability of the statement is
in dispute.
Exhibits CC and S amounts to confessions. It's the
writer's submission that the statements cannot be used against the
Applicant
and accused 6.
2.3
Mr. Letsoso
is an
accomplice
to the offences pertaining to
counts 1 to 6.
2.4
The cellphone record provided that there were
communications between the cellphone numbers of the Applicant and
Accused 6 however,
it does not provide content to such communication.
2.5
The Applicant's cellphone number was in the range
of the
l9Atlas tower in Thaba-Nchu
on 25 March 2019, however according to the expert
the range can be about 30 km.
Counts 6 to 9
2.6
The Applicant was not found in possession of the
Norinco firearm or ammunition. No fingerprints or DNA was found to
link him to
the said firearm.
2.7
According to Warrant Officer Kemp he could not say
who placed the firearm on the floor of the vehicle behind the driver.
The Applicant
was sitting in the front seat and not near the Norinco
firearm.
2.8
There were also no fingerprints or DNA found on
the Rifle found. Mr. Letsoso evidence was that the blue bag was in
the boot at the
time when the police stopped the vehicle and
therefore not with the Applicant.
3.
Relevant Case Law
3.1
The case of
Mabaso
v
The
State (67712020)
[2021] ZASCA
98
(09 July 2021)
deals with the
statements of an accomplice who was also declared a hostile witness
as in casu and whether or not it can be used
against a co accused.
3.2
In contrast to
Makhala
&
Another
v The State (438/2020)
[2021]
ZASCA
19
(18 February 2022)
the
Mabaso
(supra)
matter deals with an
accomplice that pleaded guilty (Section 112 of Act 51 of 1977).
Mabaso (supra)
is
in more than one way similar to the applicant's case as
it
relates to counts 1 to 5.
3.3
The court in Mabaso par 24, referred
to
the
S
v
Mathonsi
2012 (1) SACR 335
(KZP)
matter as it relates to prior
inconsistent statements and when it will be admissible" "In
Mathonsi
the full bench held that
evidence contained in a prior
inconsistent
statement is
such
that it would only be admissible if
given in court. The high court failed to follow this important
guideline
prior
to admitting Mr Mvubu's prior inconsistent statements.
"
3.4
Therefore our submission is that the
coun
erred in relying on the
statements of Mr.
Letsoso, who was an accomplice, in as far as it incriminates the
Applicant as Mr. Letsoso did not testify same
under oath.
3.5
Litako and Others
v
S
2015 (3) SA 287
(SCA) para 65
"
it is difficult to see how one accused's extra
curial statements can bind another.
Co-accused
more often than not, disavow extra-curial statement made by them and
often choose not to testify. They cannot be compelled
to testify, and
in the event that an extra-curial statement made by one co-accused
and implicating the others ruled admissible
and he or she chooses not
to testify, the right of the others to challenge the truthfulness of
incriminating parts of such statement
is effectively nullified. The
right to challenge evidence enshrined in section 35(3) of the
Constitution is thereby rendered nugatory.
"
3.6
Mr. Letsoso did not incriminate 1 Applicant in any
of the offences and therefore Applicant one was
unable
to cross examine him on the merits. Furthermore, due to the fact that
he disavowed the statements, Applicant 1 was unable
to challenge the
truthfulness of Mr. Letsoso's statements.
4.
4.1
Subjectively the court need not believe the
Applicant, his version only needs to be reasonably possibly true. If
there is doubt,
he be given the benefit of the doubt.
5.
AD SENTENCE:
5.1
That an effective term of life imprisonment
is strikingly inappropriate
in
that:
a) The sentence is
excessive and induces a sense of shock.
5.2
Having
said
the
above,
it
is
submitted
that
the
Honorable
Judge
erred
on
the following:
5.2.1
In finding that there were no substantial
and compelling reasons present to
deviate from the
prescribed minimum sentences for counts 3 and 4 and 5;
5.2.2
The
type
of
sentence
imposed
on
the
Applicant
does
not
afford
him
an opportunity to
rehabilitate;
5.2.3
The
court
a
quo
did
not
adequately
consider
the
Applicant's
personal circumstances;
5.2.4
The court a quo overemphasized the seriousness of
the offence, interest of the society, the effect of the offence on
the complainants,
the deterrent and retributive effect of sentencing.
6.
The Applicant humbly
submit that on the grounds mentioned above there are prospect of
success and another will come to a different
conclusion on both
convictions and sentence. The Applicant hereby respectfully apply to
the Honorable Court to grant the Applicant
Leave to Appeal to the
full bench of the High Court, against convictions and sentences
imposed.
[10] Reading of the
grounds for leave to appeal with due cognisance to the nature of the
evidence and considering the law
applicable, I am convinced that a
sound rational basis for the conclusion that there are prospects of
success on appeal exists.
The Supreme Court of Appeal must give final
clarity on the issues.
ORDER
[11]
Leave to appeal
is
granted and to the Supreme
Court
of
Appeal
against the convictions and
sentences imposed.
M OPPERMAN J
APPEARANCES
Counsel
for applicant
ADVOCATE
V ABRAHAMS
Legal
Aid: South Africa
Bloemfontein
Counsel
for respondent
ADVOCATED
MPEMVANE
Office
of the Director:
Public
Prosecutions,
Free
State
Bloemfontein
[1]
Also
“accused 1”.
[2]
1:
MOLEFI
MOUSE
1.
CONVlCTIONS
AND
SENTENCES
Count
1:
GUILTY (1 DECEMBER 2023): Attempt
robbery with aggravating circumstances as defined in Section
1
of
the
Criminal
Procedure Act 51 of 1977
.
SENTENCE (9 FEBRUARY
2024): In terms of
section 276(1)(b)
of the
Criminal Procedure Act
51 of 1977
the accused is sentenced to 7 (seven) years'
imprisonment.
(Botshabelo cas
254/1/2019)
Count
2
: GUILTY (1
DECEMBER
2023): Attempted
murder.
SENTENCE (9 FEBRUARY
2024): In terms of
section 276(1)(b)
of the
Criminal Procedure Act
51 of 1977
the accused is sentenced 12 (twelve) years' imprisonment.
(Botshabelo cas
254/1/2019)
Count
3
: GUILTY (1 DECEMBER
2023):
Murder
read
with
the Provisions of
Section
5I(1)
and
Part
I
of Schedule 2 of Act 105 of 1997.
SENTENCE (9 FEBRUARY
2024): Life imprisonment.
(Botshabelo cas
254/1/2019)
Count
4
: GUILTY
(1
DECEMBER
2023):
Murder
read
with
the
Provisions
of
Section
51(1)
and
I
of
Schedule 2 of Act 105 of 1997.
SENTENCE (9 FEBRUARY
2024): Life imprisonment.
(Thaba Nchu cas
79/3/2019)
Count
5
: GUILTY (1 DECEMBER 2023): Murder
read with the Provisions of Section 51(I) and Part I of
Schedule 2 of Act 105 of 1997.
SENTENCE (9 FEBRUARY
2024): Life imprisonment.
(Thaba Nchu cas
79/3/2019)
Count
6:
GUILTY
(1
DECEMBER
2023):
Contravening
of
Section
3
read
with
Section
1,
103,
117,
120(1)(a), 121 and read with Schedule 4 of Act 60
of 2000 and read with Section 51(2) and Schedule 2 Part II of Act
105 of 1997,
Possession of a
Semi-Automatic
Firearm without a licence.
SENTENCE
(9 FEBRUARY 2024): 1n terms of
section 276(l)(b)
of the
Criminal Procedure Act
51of
1977
the accused is sentenced to 15
(fifteen) years' imprisonment.
(Fouriesburg cas
129/06/2019)
Count
7
: GUILTY
(1
DECEMBER
2023):
Contravening
of Section
90
read
with
Section
1
,
103
,
117
,
120
(1)(a),
121
and
read with
Section 8
of Schedule 1 and with Schedule 4 of Act 60 of
2000 and further read with Section
1 50(1)
of Act 51 of 1997.
SENTENCE (9 FEBRUARY
2024): 1n terms of
section 276(1)(b)
of the
Criminal Procedure Act
51 of 1977
the accused is sentenced to 3 (three) years'
imprisonment.
(Fouriesburg cas
129/06/2019)
Count
8:
GUILTY (1
DECEMBER
2023): Contravention of
Section 4(1)(a)
and
Section 4(1)(f)(iv)
read
with
Section 1
,
103
,
117
,
120
(1)(a) and
Section 121
read with
Schedule 4 of Act 60 of 2000.
SENTENCE
(9
FEBRUARY
2024):
In
terms
of
section
276(1)(b)
of
the
Criminal
Procedure
Act
51
of
1977
the accused is sentenced to 25 (twenty-five)
years'
imprisonment.
(Fouriesburg cas
129/06/2019)
Count
9:
GUILTY (1 DECEMBER 2023):
Contravening of
Section 90
read with
Sections 1
,
103
,
117
,
120
(1)(a),
121
and read with
Section 8
of Schedule 1 and with
Schedule 4 of Act 60 of 2000 and further read with Section 250(1) of
Act 51 of 1997.
SENTENCE (9 FEBRUARY
2024): In terms of
section 276(1)(b)
of the
Criminal Procedure Act
51 of 1977
the accused is sentenced to 10 (ten) years' imprisonment.
(Fouriesburg cas
129/06/2019)
2. IN TERMS OF
SECTION
280(2)
OF THE
CRIMINAL PROCEDURE ACT 51 OF 1977
COUNTS 6, 7, 8 &
9 SHALL BE SERVED CONCURRENTLY.
3. NO ORDER IS MADE IN
TERMS OF SECTION 103(1) OF Tiffi
FIREARMS CONTROL ACT 60 OF 2000
.
[3]
De
Rebus, Archive 2023, The Kapa case:
The
Kapa case: A landmark ruling redefining the admissibility of hearsay
evidence in criminal trials.
July
1st, 2023