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2024
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[2024] ZANCHC 72
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Van Vuuren v S (Leave to Appeal) (K/S3/2021) [2024] ZANCHC 72 (3 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No: K/S3/2021
Heard on:23/04/2024
Delivered
on:03/05/2024
Reportable: YES / NO
Circulate to Judges: YES
/ NO
Circulate to Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In
the matter between:
JACQUES
VAN VUUREN
APPLICANT
and
THE
STATE
RESPONDENT
JUDGMENT: APPLICATION
FOR LEAVE TO APPEAL
MAMOSEBO
J
[1]
On 25 March 2021 the applicant, represented by Adv J Henzen-Du Toit,
and the respondent
represented by Adv JJ Cloete, entered into a Plea
and Sentence Agreement (the agreement) in terms of s 105A of the
Criminal Procedure
Act
[1]
(CPA).
The agreement was signed by the applicant, his counsel and the
respondent’s counsel.
[2]
The applicant was arraigned on three counts: Count 1: Murder read
with the provisions
of s 51(1) of the Criminal Law Amendment Act, 105
of 1997 (CLAA); Count 2: Robbery with Aggravating Circumstances
as described
in
s 1
of the
Criminal Procedure Act, 51 of 1977
and
read with the provisions of
s 51(2)
of the CLAA; Count 3: a
contravention of
s 3(1)
read with
sections 1
,
120
(1) and
121
and also
read with columns 1 and 2 of Schedule 4 of the
Firearms Control Act,
60 of 2000
Unlawful Possession of Firearms.
[3]
Having considered the Plea and Sentence Agreement and having
ascertained from the
applicant and having satisfied myself that all
the prescribed requirements of
s 105A
were met and that the applicant
had entered into the agreement freely and voluntarily without being
coerced or promised anything
in return, and having considered the
substantial and compelling circumstances, he was subsequently found
guilty on all the three
counts. On count 1 he was sentenced to
Twenty-Five (25) years’ imprisonment of which Five (5) years
were suspended
for a period of Five (5) years on specified
conditions. On count 2 he was sentenced to fifteen (15) years’
imprisonment
while on count 3, a sentence of Three (3) years was
imposed. Counts 2 and 3 were ordered to run concurrently with
the sentence
in count 1. The applicant is serving an effective
imprisonment term of Twenty (20) years.
[4]
The court file contained the original Notice of Motion dated 15
November 2022 together
with the applicant’s Founding Affidavit.
On 26 September 2023 an email under signature of Peyper &
Botha Attorneys
Inc. was addressed to the Judge’s clerk
accompanied by an Amended Notice of Motion marked “J1”,
without an affidavit.
The relief sought in the Amended Notice
of Motion is condonation for the late serving and filing of this
application and
to be granted leave to appeal against his conviction
and sentence and leave to lead further evidence to the Supreme Court
of Appeal
alternatively, to the Full Bench of the Northern Cape
Division.
[5]
The amended Notice of Motion changed the parties’ initial
approach to have the
matter determined on the papers in respect of
sentence only. The respondent opposed the application
requesting that the matter
be referred for oral argument contending
that there are no reasonable prospects of success. The
respondent did not oppose
the application for condonation to be
granted to the applicant for the late filing of the application.
There is no need to
deal further with the aspect of condonation as it
is unopposed.
[6]
These are the listed grounds upon which the applicant relied, as
found in his Founding
Affidavit alleging that the Court had erred in:
6.1
Overemphasizing the seriousness of the offence and the interests of
society, thereby attaching
insufficient weight to his personal
circumstances and his chances of rehabilitation;
6.2
Failing to look at precedent when sentencing the applicant;
6.3
Failing to take into consideration that the applicant was a first
offender;
6.4
Failing to take other forms of punishment into consideration.
[7]
It is significant, before considering the merits of this matter, to
highlight that
Rule 6(1) of the Uniform Rules of Court stipulates:
“
Every
application must be brought on notice of motion supported by an
affidavit as to the facts upon which the applicant relies
for
relief
.”
As stated earlier, the
applicant failed to file an accompanying affidavit to the Amended
Notice of Motion (Annexure “J1”).
[8]
The argument for the basis of the amendment is in the applicant’s
Heads of Argument.
The purpose of the Heads of Argument is
settled and that is to afford a party’s opponent/s and the
court an opportunity
to familiarize themselves with the arguments
that will be presented at the hearing. Of significance, is that
the Heads themselves
do not constitute pleadings but are based on the
pleadings filed. The information as argued in the Heads of
Argument prepared
by the applicant’s legal representative does
not appear anywhere in his founding affidavit. A case cannot
and should
not be made out in the heads of argument. I have,
nevertheless, allowed the parties to continue with their submissions.
[9]
The test to be applied in determining whether an application for
leave to appeal should
be granted or not is governed by s 17
[2]
which stipulates:
“
(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 reasonable prospects 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)
The decision sought on appeal does
not fall within the ambit of s 16(2)(a); and
(c)
Where the decision sought to be
appealed does not dispose of all issues in the case, the appeal would
lead to a just and prompt
resolution of the real issues between the
parties.”
[10]
In
S
v Smith
[3]
Plasket AJA stressed:
“
[7]
What the test of reasonable prospects of success postulates is 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 order to succeed, therefore, the
appellant must convince this court on proper grounds that he has
prospects of success on appeal
and that those prospects are not
remote but have a realistic chance of succeeding. More is
required to be established than
that there is a mere possibility of
success, that the case is arguable on appeal or that the case cannot
be categorised as hopeless.
There must, in other words, be a
sound, rational basis for the conclusion that there are prospects of
success on appeal.”
As
reiterated by Leach JA in
S
v Kruger
[4]
the Courts should follow the aforementioned test scrupulously in the
interests of justice.
[11]
Counsel for the applicant, Adv A Simpson, abandoned all the grounds
listed in the original Notice
of Motion. Counsel contended that
there is a grey area with regard to whether or not aspects of s 105A
are appealable and
that, on that basis, it becomes one of the
compelling reasons for leave to be granted. Counsel further
focused his submissions
on s 204 of the CPA
[5]
contending that absent any explanation of the provisions of s 204 to
the applicant by his erstwhile counsel, and the respondent’s
counsel and even the Court itself before the applicant had concluded
the plea and sentence agreement, it is unclear whether he
would have
proceeded with the agreement and that, so the argument went, may be
another basis for leave to be granted. In
my view, the
contention pertaining to s 204 and the absence of an explanation, is
without merit. At the time when the applicant
appeared before
court he was already indicted as an accused on the three counts as
specified. Section 204 does not find application
in this
instance because he was not a witness expected to furnish
incriminating evidence where the court would then consider if
his
answers were provided frankly and honestly in order to be discharged
from prosecution and remain as a witness for the state.
The
reliance by the applicant on s 204 is misplaced.
[12]
It is significant that the applicant does not allege or challenge any
non-compliance with the
provisions of s 105A of the CPA. It is
further significant that he does not allege that he was misled by his
erstwhile legal
representative in terms of the advice provided and
services rendered. He also does not put into question that he
did not
act freely and voluntarily, was not in his sound and sober
senses or was unduly influenced to conclude the plea and sentence
agreement.
In actual fact, his erstwhile counsel went on record
after the accused answered the court pertinently on his state of mind
before entering into the agreement to say
there was comprehensive
consultations and everything was explained in full.
[13]
The applicant cannot now approach court with a request to be granted
leave to appeal where new
evidence would be led. I incline to
agree with the Court in
S v De Koker
2010 (2) SACR 196
(WCC)
at 204i – 205a making the following remarks:
“
I
cannot think of a clearer case of peremption than one where an
accused duly concludes a plea and sentence agreement with the State
in terms of s 105A of the CPA, confirms the agreement to the court
before which he is arraigned, asks the court to convict and
sentence
him in accordance with the agreement, and is thereupon duly convicted
and sentenced in accordance with the agreement.
By following
the process created by s 105A, the appellant settled the lis between
the State and him once and for all.”
Since the terms of the
agreement were clear and were confirmed by the applicant before the
matter was finalised, that in my view,
leaves no room for new
evidence, especially if it pertains to s 204. I was satisfied
in terms of s 170A(8) that the sentence
agreement was just before
convicting and sentencing the accused.
[14]
Regard being had to the submissions made pertaining to this
application for leave to appeal in
order to determine whether there
are reasonable prospects that another court would come to a different
finding than this court
had reached, I have not found any. I am
not persuaded of any cognisable prospects of success nor compelling
reasons that
warrant the attention of the SCA or the Full Court of
this Division, nor are there any compelling reasons to entertain this
appeal.
I am therefore, satisfied that there are no reasonable
prospects of a successful appeal. In the result the application
for
leave to appeal to the Supreme Court of Appeal alternatively, to
the Full Bench of this Division, must fail.
[15] In
the result the following order is made:
The
application for leave to appeal is dismissed.
MC MAMOSEBO
JUDGE OF THE HIGH
COURT
NORTHERN CAPE DIVISION
For the applicant:
Adv. A Simpson
Instructed by:
Peyper & Botha
Attorneys Inc.
For the respondent:
Adv. JJ Cloete
Office
of the Director of Public Prosecutions
[1]
51
of 1977
[2]
Of the
Superior Courts Act, 10 of 2013
[3]
2012
(1) SACR 567
(SCA) para 7
[4]
2014
(1) SACR 647
(SCA) at 649d (para 3)
[5]
Section
204
Incriminating
evidence by witness for prosecution
(1) Whenever
the prosecutor at criminal proceedings informs the court that any
person called as a witness on behalf
of the prosecution will be
required by the prosecution to answer questions which may
incriminate such witness with regard to
an offence specified by the
prosecutor-
(a)
the court, if satisfied that such witness is otherwise a competent
witness for the prosecution, shall
inform such witness-
(i)
that he is obliged to give evidence at the proceedings in question;
(ii) that
questions may be put to him which may incriminate him with regard to
the offence specified by the prosecutor;
(iii) that he will
be obliged to answer any question put to him, whether by the
prosecution, the accused or the court, notwithstanding
that the
answer may incriminate him with regard to the offence so specified
or with regard to any offence in respect of which
a verdict of
guilty would be competent upon a charge relating to the offence so
specified;
(iv) that if he
answers frankly and honestly all questions put to him, he shall be
discharged from prosecution with regard
to the offence so specified
and with regard to any offence in respect of which a verdict of
guilty would be competent upon a
charge relating to the offence so
specified; and
(b)
such witness shall thereupon give evidence and answer any question
put to him, whether by the prosecution,
the accused or the court,
notwithstanding that the reply thereto may incriminate him with
regard to the offence so specified
by the prosecutor or with regard
to any offence in respect of which a verdict of guilty would be
competent upon a charge relating
to the offence so specified.
(2)
If a witness referred to in subsection (1), in the opinion of the
court, answers frankly and honestly
all questions put to him-
(a) such
witness shall, subject to the provisions of subsection (3), be
discharged from prosecution for the offence
so specified by the
prosecutor and for any offence in respect of which a verdict of
guilty would be competent upon a charge relating
to the offence so
specified; and
(b) the
court shall cause such discharge to be entered on the record of the
proceedings in question.
(3)
The discharge referred to in subsection (2) shall be of no legal
force or effect if it is given at
preparatory examination
proceedings and the witness concerned does not at any trial arising
out of such preparatory examination,
answer, in the opinion of the
court, frankly and honestly all questions put to him at such trial,
whether by the prosecution,
the accused or the court.
(4)
(a) Where a witness gives evidence under this section
and is not discharged from prosecution
in respect of the offence in
question, such evidence shall not be admissible in evidence against
him at any trial in respect
of such offence or any offence in
respect of which a verdict of guilty is competent upon a charge
relating to such offence.
(b)
The provisions of this subsection shall not apply with reference to
a witness who is prosecuted for perjury arising
from the giving of
the evidence in question, or for a contravention of section 319 (3)
of the Criminal Procedure Act, 1955 (Act
56 of 1955).
[Para. (b) amended by s.
1 of Act 49 of 1996 (wef 4 October 1996).]