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2024
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[2024] ZAFSHC 179
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Jama and Others v S (27/2017) [2024] ZAFSHC 179 (6 June 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of interest to other
judges: YES/NO
Circulate to
Magistrates: YES/NO
Case no: 27/2017
In the matter between:
JUNIOR
JAMA
First Applicant/Accused 1
SABATHA
MAHLOANE
Second Applicant/Accused 2
PASEKA
SOLANE
Third Applicant/Accused 4
KOOS
HAYI
Fourth Applicant/Accused 6
and
THE
STATE
Respondent
CORAM:
VANZYL, J
HEARD
ON:
2
FEBRUARY
2024
DELIVERED
ON:
6 JUNE 2024
[1]
This is an application for leave to appeal
against the convictions and sentences imposed by Moloi, J on 9 June
2017 and 26 June
2017, respectively.
[2]
The applicants in this application are 4 of
the 6 accused who were charged in the court a
quo
on two counts.
I will refer to the parties as in the court
a
quo.
[3]
Count 1 is murder, read with the
provisions. of Section 51 of Schedule 2 of the
Criminal Procedure
Act, 51 of 1977
, in that upon or about 25 October 2015 and at or near
Block […], K[…],
in
the district of Odendaalsrus, the accused unlawfully and
intentionally killed J[…] V[…] N[…], an adult
male person. Count 2 is one of assault with the intent to do grievous
bodily harm in that on the same date and at the same place
mentioned
in count 1, the accused unlawfully and
intentionally assaulted T[…] M[…] by stabbing him with
a knife with the intention
of causing him grievous bodily harm.
[4]
All 6 accused pleaded not guilty on both
charges and gave no plea explanation. However,
all 6 accused were convicted on count 1 and
accused 1 was also convicted on count 2, whilst the other accused
were acquitted on
count 2.
[5]
This application for leave to appeal was
allocated to me on the basis of the provisions of Section 17(2)(a) of
the Superior Courts
Act, 10 of 2013 ("the Act"), in terms
whereof an application for leave
to
appeal
may
be
heard
by
any
other
judge
of
the
Division when the judge against whose
decision the appeal is sought to be made is not readily available.
Moloi, J has since sadly passed on.
[6]
Section 17(1)(a) of the Act determines
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;
(b)
…
[7]
It is by now settled law that the word
"would'
in Section 17(1)(a)(i) has raised the
bar for granting leave to appeal.
See
Acting
National
Director
of
Public
Prosecutions
v
Democratic
Alliance
In
Re
Democratic Alliance v
Acting National Director of Public Prosecutions_
(
19577/09)
[2016] ZAGPPHZ 489 (24 June 2016) at para [25]. In the judgment of
The Mont Chevaux
Trust (IT 2012/28) v Tina Goosen
and 18 Others
2014
JDR 2325 (LCC), the court held as follows at para [6]:
"It is clear that
the threshold for granting leave to appeal against a judgment of a
High Court has been raised in the new
Act. The former test whether
leave to appeal should be granted was a reasonable prospect that
another court might come to a different
conclusion, see
Van
Heerden v Cronwright
&
Others
1985 (2) SA 342
(T) at 343H. The use of the word 'would' in the
new statute indicates a measure of certainty that another court will
differ from
the court whose judgment is sought to be appealed
against."
See also
Rohde v S
2020 (1) SACR 329
(SCA) at para [8].
Amended notice of
application for leave to appeal:
[8]
The grounds stated for the application for
leave to appeal are the following:
"Ad conviction
2.
The learned Judge erred in
finding that the accused were guilty in
that:
2.1
The State failed to discharge the onus of
proof beyond reasonable ground about the guilt of the accused on all
the counts proffered
against them. There are contradictions between
the state witnesses. The following contradictions came to the fore:
2.1.1
According to Thembisa Constance
Radebe she saw that accused 1, 2, 4 and 6 and a Bongani stabbed the
deceased with knives, however
Bonginkosi Wonderboy Makgetha who was
with the deceased contradicted her by
testifying that he saw accused 1, 2 and 4 and Bongani with knives.
2.1.2
Ms Thembisa Constance Radebe also
contradicted her satement.
2.1.3
Ms Thembisa Constance Radebe was the
only witness that described the clothing of accused 3.
2.1.4
Ms Thembisa Radebe contradicted Ms
Nomalizo Mthingevu as
to
who told the group to chase the deceased. According to Ms Radebe
accused 3 told the group, however according to Ms Mthingevu
accused 4
told the group of the accused to catch the deceased.
2.1.5
According to Mr Thabo Motshukanye,
his group had knives and they drew the knives when the accused drew
theirs, however according
to Mr Samkelo Yawa only the deceased had a
knife and Thabo Motshukanye had a stick and none of the other members
in their group
had any weapons.
3.
The Learned Judge misdirected himself in
finding that the accused were guilty in that:
3.1
There were improbabilities in
the evidence
adduced by the
State.
3.1.1
The fight earlier the day was
between the deceased
and
another person. Accused 1 and 2 were present however from the
evidence they wanted to stop the altercation because she even
asked
Mr Yawa to tell the deceased to stop.
3.1.2
The submission in this regard is
that accused 1 did not have any reason to assault the deceased seeing
that they were not arguing
with the deceased.
4.
The Learned Judge descended into the arena
and cross-examined the accused and from the record it appears
that the Honourable
Judge made a credibility finding on
evidence of accused 1 during his evidence.
5.
The learned Judge ought to have found that:
5.1
The versions of the accused were reasonably
possibly true based on the contradictions in the State's case. The
accused should have
been acquitted on all charges.
5.2
The evidence of the defence witnesses, Mr
Chaka and Ms Palesa Hayi, corroborated the evidence of the accused as
to their whereabouts
on the said date.
Ad sentence
6.
6.1
The
sentence
imposed
by
the
Learned
Judge
is
shockingly
harsh.
6.2
The Learned Judge did not take the personal
circumstances of the accused into account.
6.3
The Learned Judge over emphasized the
seriousness of the crime, interest of society above the mitigating
factors and personal circumstances
of the accused.
6.4
The Learned Judge erred by finding that no
substantial and compelling circumstances exist to deviate from the
prescribed minimum
sentence.
Conclusion
7.
The accused persons humbly submit that on
the grounds mentioned
above
there are prospects of success and another court will come to a
different conclusion on both convictions
and sentence.
The accused therefore
request that leave to appeal and condonation for the late be granted
as aforesaid."
Consideration of
the convictions:
[9]
I have thoroughly read the record.
·However, despite this, I found the record to be difficult to
read and the relevant events
and roll players are not clear in all
respects.
[10]
The events occurred as part of moving
scenes which lead to a number of contradictions in identity. The
cautionary rule which pertains
to identity is settled law.
[11]
In my view there are reasonable prospects
that a different court would come to a different
conclusion
in
respect
of the
convictions in accordance with the grounds for the application for
leave to appeal.
Consideration of
the sentences:
[12]
Ms Abrahams, on behalf of the accused,
indicated that it is her instructions to submit that the court
a
quo
erred in finding that there are no
substantial and compelling circumstances present that necessitated a
deviation from the prescribed
minimum sentence on count 1. She also
submitted in accordance with her instructions
that the imposed sentences are shockingly
harsh and
inappropriate.
[13]
The court
a
quo
gave a detailed judgment on
sentence and dealt with all relevant factors. In my view there are no
reasonable prospects that a different
court would interfere with the
imposed sentences on appeal.
Order:
[14]
The following orders are made;
1.
Leave to appeal against the
convictions of the applicants/accused by the late Moloi, J, dated 9
June 2017,
is
granted to the Full Court of this Division.
2.
The application by the
applicants/accused for leave to appeal against the sentences imposed
by the late Moloi, J, dated 26 June
2017, is dismissed.
C. VAN ZYL, J
On behalf of the
applicants/the accused:
Ms V Abrahams
Instructed
by
:
Legal Aid
BLOEMFONTEIN
On behalf of the
respondent/the State:
Adv. A Ferreira
Instructed
by
:
Department:
Public Prosecutions
BLOEMFONTEIN