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[2019] ZASCA 72
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Nare v S (380/2018) [2019] ZASCA 72 (30 May 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 380/2018
In
the matter between:
JEFFREY
BOB
NARE APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Nare v The State
(380/2018)
[2019] ZASCA 72
(30 May
2019)
Coram:
Navsa ADP and Saldulker JA and Eksteen
AJA
Heard:
16 May 2019
Delivered:
30 May 2019
Summary
:
Application for leave to appeal against the refusal by the High
Court to grant leave to appeal against conviction ––
Interpretation of the order of this court granting leave to appeal
– Whether reasonable prospects of success established.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Raulinga and Molefe JJ):
1 The appeal in respect of count 12 is
dismissed.
2 The appeal in respect of counts 2
and 13 is upheld.
3 The order of the Gauteng Division of
the High Court, Pretoria refusing leave to appeal is set aside and
replaced with the following:
‘
The
appellant is granted leave to appeal to the full bench of the Gauteng
Division of the High Court, Pretoria, against his conviction
of
attempted murder (count 2) and possession of ammunition without
holding a licence, permit or authorisation (count 13).’
JUDGMENT
Eksteen
AJA (Navsa ADP and Saldulker JA concurring):
[1]
The appellant was convicted in the Regional Court Gauteng, Pretoria,
of attempted robbery with aggravating circumstances (count
1),
attempted murder (count 2), unlawful possession of a firearm (count
12) and unlawful possession of ammunition (count 13) and
sentenced to
various terms of imprisonment. An application for leave to appeal
against his convictions and sentences was refused.
On petition to the
Judge President, Gauteng, in terms of s 309C of the Criminal
Procedure Act 51 of 1977 (the CPA) he obtained
leave to appeal
against his sentences, but not against his convictions. The appeal
against the sentences is currently pending in
the high court. The
present appeal is against the decision of the high court to refuse
him leave to appeal against his convictions.
[2]
Before us there was some debate in relation to the extent of the
issues before us. It has its origin in the history of the rulings
made in this court. An application in terms of s 17 (2)
(b) of the Superior Courts Act 10 of 2013 (the Act) was made
for
leave to appeal against the decision of the high court not to grant
leave to appeal against his convictions. This application
was
considered by two judges of this court (the panel judges) in
accordance with s 17(2)(c) of the Act. On 20 October 2017 they
granted the appellant leave to appeal in respect of counts 2, 12 and
13 (the first order) in the following terms:
‘
1.
The application for condonation is granted.
2.
Special leave to appeal against conviction is granted to the Supreme
Court of Appeal.
3.
The leave to appeal is limited to the following:
Counts
2, 12 and 13.’
The
application in respect of count 1 was accordingly refused.
Dissatisfied with the refusal of the application in respect of count
1 the appellant applied to the President of this court to
reconsider or vary the first order as envisaged in s 17 (2)(f)
of the
Act. On 27 March 2018 she refused the application (the second order).
[3]
On 12 July 2018, however, a further ‘order’ emanated from
this court in the name of the panel judges (the third
order) in the
following terms:
‘
1
The application for condonation is granted.
2
Special leave to appeal is granted to the Supreme Court of Appeal
against the dismissal of a petition in terms of s 309 C of the
Criminal Procedure Act 51 of 1977
.’
This
appears to have been the result of the belated realisation that the
first order ought to have expressed more clearly that the
application
for leave to appeal was granted only in relation to the refusal in
the high court of the application for leave to appeal.
Simply put,
that means that it ought to have been in the terms of paragraph 2 of
the third order.
[4]
Counsel on behalf of the appellant submitted that the third order
constituted an ‘amended order’ granting him leave
to
appeal against the dismissal of the petition in respect of all four
counts of which he had been convicted. The argument is misplaced.
Section 17(2)(f)
of the act provides that the decision of the panel
judges
‘
to grant or refuse the
application shall be final: Provided that the President of the
Supreme Court of Appeal may in exceptional
circumstances, whether of
his or her own accord or on application, filed within one month of
the decision, refer the decision to
the court for reconsideration
and, if necessary, variation
’
.
Self-evidently, once a decision has
been taken by the panel judges it is final. The panel judges are
functus officio
thereafter. The only remaining remedy available to an appellant is to
apply to the President of this court to refer the matter
to the court
for reconsideration or variation of the first order. This the
appellant did, without success. The application for
leave to appeal
against the ruling of the high court in respect of count 1 was
therefore finally dismissed when the second order
was issued.
[5]
In relation to a refusal by the high court of a petition against
conviction and sentence by a magistrates’ court, the
appeal
lies to this court. This court would then decide on whether the
petition ought to have been granted and if the answer is
in the
affirmative it would make an order to that effect and remit the
matter to the high court for consideration of the merits.
This was
clearly stated in
S v Matshona
2013(2) SACR 126 where Leach
AJA summarised the possession as follows:
‘
It
is clear . . . that where . . . and accused obtains leave to appeal
to this court against the refusal in a high court of a petition
seeking leave to appeal against a conviction or sentence in the
regional court, the issue before this court is whether leave to
appeal should have been granted by the high court, and not the appeal
itself which has been left in limbo, so to speak, since the
accused
first sought leave to appeal to the high court. After all, in the
present case, the appellants’ appeal against his
sentence has
never been heard in the high court and, . . . the power of this court
to hear appeals of this nature is limited to
its statutory power.
Section 309(1)
prescribes that an appeal from the magistrates’
court lies to the high court, and an appeal against the
sentence imposed
on the appellant in the regional court is clearly
not before this court at this stage’
.
[1]
Clearly,
what the panel judges intended with the first order was to grant
leave to appeal against the decision of the high court
refusing leave
to appeal on counts 2, 12 and 13. This is how their order must be
construed. They could not do otherwise. There
is therefore no appeal
before us in respect of count 1.
[6]
I turn to consider whether the application for leave to appeal in
respect of counts 2, 12 and 13 ought to have been granted
by the high
court. The complainant, one Rossouw, together with members of his
family and friends had gathered socially in a lapa
at his homestead
on a small holding in Kameeldrift East, Tshwane. A vehicle arrived at
his home with seven men who pretended that
they wanted to buy sheep.
At first, Rossouw was reluctant to sell any sheep, but they persisted
and he ultimately agreed. He, together
with three or four of the men,
proceeded away from the homestead to the sheep kraal. After some
conversation an agreement in respect
of the purchase of sheep was
arrived at. At that stage the men suddenly produced firearms and
demanded money and ‘plasmas’.
Rossouw noticed a scuffle
occurring at the lapa where the remaining intruders attacked his
family and guests. He resisted and grabbed
one of his assailants
around the neck in order to use him as shield while gun shots were
fired around them. One of the robbers,
armed with a firearm,
began to retreat while pointing his firearm at Rossouw. Then,
suddenly, he lowered his weapon and shot Rossouw
in the leg. As
Rossouw fell to the ground the men ran to their vehicle and fled.
[7]
The appellant denied any participation in the events. Although an
identification parade was subsequently held, the record of
the parade
was mislaid and no evidence was tendered at the trial in respect of
the identification parade. In court, by way of a
dock identification,
Rossouw identified the appellant as one of the men who had
accompanied him to the kraal. The appellant, he
says, was the person
who did most of the talking and was one of the men armed with a
firearm. He was, however, not the person who
fired the shot.
Rossouw’s identification was corroborated by the fact that the
appellant’s finger print was lifted
from the vehicle in which
the men arrived and fled. The appellant’s endeavours to
explain the time at and manner in
which the fingerprint came to be on
the vehicle was rightly rejected by the magistrate. In the
circumstances the application for
leave to appeal in respect of count
1 was correctly dismissed.
[8]
In respect of count 2, there is little doubt that the assailants
acted with a common purpose to rob Rossouw. It is argued, however,
that the appellant should only have been convicted of assault with
intent to do grievous bodily harm. The evidence, it is argued,
shows
that the assailant had pointed his firearm at Rossouw for some time,
but then intentionally lowered the firearm before shooting.
It was
further argued, accordingly, that there is a reasonable prospect that
a court of appeal may find that the facts, properly
construed, do not
establish either
dolus directus
to
kill or
dolus evantualis
on the part of the assailant. This question is a matter for argument
before the court of appeal. Suffice it to say that there
is, in
my view, a reasonable prospect that a court of appeal would come to a
different conclusion to that arrived at by the magistrate.
[9]
In respect of count 12 Rossouw testified that he had formerly been in
the defence force, he was a reservist and a member of
the ‘commandos’
and was trained in this regard. He accordingly had a sound knowledge
of firearms. During cross-examination
on behalf of the appellant he
testified that the appellant was the first person who had put a
firearm in his face and instructed
him to return to the homestead.
There is accordingly direct evidence that the appellant was in
possession of a firearm.
[10]
It is argued on behalf of the appellant that there is a reasonable
prospect that a court of appeal would find that it has not
been
proved that it was not in fact an imitation firearm or, if it was
indeed a firearm, that it was not licenced. In view of Rossouw’s
training and experience of firearms and their proximity to one
another during the incident which occurred during broad daylight,
I
do not think that there is a reasonable prospect that another court
would hold that the object might have been an imitation firearm.
[11]
This bring me to the question of the licence. The material portion of
s 250(1)
of the CPA, that the state relied on in the indictment,
provides:
‘
If
a person would commit an offence if he . . . had in his
possession . . . or used any article . . . without being a holder
of
a licence, permit, . . . or other authority . . ., an accused
shall, at criminal proceedings upon a charge that he committed
such
an offence, be deemed not to have been the holder of the necessary
authority, unless the contrary is proved’’.
The
effect of this section is that a presumption is created in favour of
the prosecution. It was therefore incumbent upon the appellant
to
establish that he did have a licence to possess the firearm. He
testified at the trial that he was not present on the scene.
He did
not suggest that he was licenced to possess a firearm. In the
circumstances there are no reasonable prospects of success
and the
appeal in respect of count 12 must fail.
[12]
Count 13 relates to the unlawful possession of ammunition. I recorded
earlier that the evidence does not establish that the
appellant
discharged his firearm at any stage. In these circumstances it is
argued that, even if he did have a firearm, it has
not been proved
that there was any ammunition in the firearm. The state sought to
counter this argument with reference to the probabilities
arising
from the circumstances which prevailed. This is a matter for
argument, but I consider that there is a reasonable prospect
that
another court would find that the state has failed to discharge the
onus of establishing that the appellant was in unlawful
possession of
ammunition.
[13]
In the result I find that the high court erred in refusing the
appellant leave to appeal in respect of counts 2 and 13. It
correctly
dismissed the petition for leave to appeal in respect of count 12.
There is no appeal before us in respect of count 1
and the petition
in respect of this count was correctly dismissed by the high court
and the panel judges.
[14]
Accordingly the following order is made:
1 The appeal in respect of count 12 is
dismissed.
2 The appeal in respect of counts 2
and 13 is upheld.
3 The order of the Gauteng Division of
the High Court, Pretoria, refusing leave to appeal is set aside and
replaced with the following:
‘
The
appellant is granted leave to appeal to the full bench of the Gauteng
Division of the High Court, Pretoria, against his conviction
of
attempted murder (count 2) and possession of ammunition without
holding a licence, permit or authorisation (count 13).’
________________
J Eksteen
Acting Judge of Appeal
APPEARANCES:
For
the Appellant: A B Booysen
Instructed
by: SMO Seobe Inc, Bloemfontein
For
the Respondent: E Leonard SC
Instructed
by: Director of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
At para [5] page 127.