About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2018
>>
[2018] ZASCA 120
|
|
Maphanga v S (607/2017) [2018] ZASCA 120 (20 September 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 607/2017
In
the matter between:
OUPA
STANLEY
MAPHANGA APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Maphanga v The State
(607/2017)
[2018] ZASCA 120
(20
September 2018)
Coram:
Ponnan, Tshiqi and Mbha JJA
Heard:
15 August 2018
Delivered:
20 September 2018
Summary
:
Reconsideration of application for special leave to appeal –
section 17(2)
(f)
of the
Superior Courts Act 10 of 2013
– exceptional
circumstances not shown.
ORDER
The
application in terms of
s 17(2)
(f)
of the
Superior Courts Act
10 of 2013
is dismissed.
JUDGMENT
Tshiqi
JA (Ponnan and Mbha JJA concurring):
[1]
This is an application for the reconsideration of an application for
special leave to appeal brought in terms of 17(2)
(f)
of the
Superior Courts Act 10 of 2013 (the Act).
[2]
The applicant, Mr Maphanga, and his co-accused, Mr Mkhonza, were
charged in the regional court, Benoni, with four counts. On
count 1,
which is the only one relevant to this application, they were charged
with robbery with aggravating circumstances.
[1]
The charge sheet alleged that upon or about 12 March 2011 they robbed
the complainant, Mr Kassen of his motor vehicle, a silver
Jetta with
registration number […] GP.
[3]
Mr Kassen testified that on the evening of the robbery he had
just arrived at his home, parked his motor vehicle
on his
driveway and was about to get out of the motor vehicle in order to
unlock his garage door when he noticed two men next to
his motor
vehicle. One was on the left hand side whilst the other was on the
right hand side. The one on the right hand side had
a firearm. He
approached Mr Kassen, pointed him with the fire-arm and demanded
his car keys. He took the car keys, got into
the motor vehicle,
reversed it and drove away. He stated that he could see this
assailant because a fluorescent light, which was
at the top of the
wall of his garage, about three to four metre from the ground was on.
He did not pay much attention to the other
man on the left hand side.
He could not sleep well that night as he kept remembering the face of
the man on the right hand side.
Subsequently, on 1 March 2011, he
attended an identification parade where he identified accused 2 as
the perpetrator.
[4]
The magistrate convicted the applicant on two of the four counts and
sentenced him to 15 years imprisonment in respect
of count 1.
After taking into account the sentence on count 2 and the cumulative
effect of the sentences, the magistrate imposed
an effective sentence
of 25 years imprisonment. The applicant applied for leave to appeal
against both the convictions and sentences,
relying mainly on
mistaken identity concerning his conviction on count 1. The
application was dismissed by the trial court. The
applicant thereupon
petitioned the Gauteng Division of the High Court, Pretoria for leave
to appeal in terms of
s 309C
of the
Criminal Procedure Act 51 of
1977
. That application was dismissed by the high court.
[5]
The applicant then applied to this court in terms of
s 16(1)(
b
)
of the
Superior Courts Act 10 of 2013
for special leave to appeal the
high court’s dismissal of his petition. The two judges of this
court, who considered the
petition in chambers, dismissed it on the
grounds that there were no special circumstances meriting a further
appeal. The applicant
then applied to the President of this court in
terms of
s 17(2)(
f
).
Section 17(2)
(f)
provides:
‘
The
decision of the majority of the judges considering an application
referred to in paragraph 9(b), or the decision of the court,
as the
case may be, 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.’
We
are thus required to consider whether there are exceptional
circumstances which warrant the reconsideration or variation of the
earlier order of this court dismissing the application for special
leave to appeal.
[6]
In prayer 3 of the Notice of Motion the applicant asked this court
for an order allowing him to adduce further evidence regarding
count
1. According to him, the evidence would show that on 12 March 2011,
which is the date appearing on the charge sheet as the
date on which
it is alleged he committed the robbery, he was an inmate at the
Modderbee Correctional Centre, Benoni, thereby providing
him with an
alibi defence. In support of this allegation the applicant attached
an affidavit by Mr Ramoroka, a correctional supervision
official from
the correctional centre.
[7]
In attempting to explain why he had not raised the alibi defence
during the trial the applicant submitted that after his arrest
he was
confronted by approximately seven cases of robbery of motor vehicles
over a period of two years. He was confused by these
allegations
since he had no knowledge thereof. When the other charges were
withdrawn and he was only charged with two counts of
robbery, he
together with his counsel, focused on the issue of mistaken
identification, as he knew that he was not present at the
scene of
the crimes. The unfortunate consequence of this focused approach, so
he continued, led to no thought on his part or his
counsel of an
alibi defence. He continued to state that he is not an educated man
and cannot easily recollect specific times and
places, especially
when confronted with seven crimes over a period of time.
[8]
The applicant’s allegation that he has an alibi defence has no
merit and can easily be disposed of through a closer look
at the
complainant’s evidence tendered during his cross-examination by
the applicant’s legal representative. He clarified
the dates as
follows:
‘
Mr
Nkuna: I just want to make sure, when did the incident take place.
Happen? – 1 March 2010.
[Mr
Nkuna:] 2010 and when did you attend the ID parade? It is not in
dispute, if you do not remember it was put to you the 1 March
2011.
This is roughly. – It was roughly a year later.
Roughly
a year. – Yes
[Mr
Nkuna:] Yes sir but look, it was your first time to see this person
on 12 March 2010; So you saw this person for only 20 seconds.
–
Yes.
.
. . .
[Mr
Nkuna:] Then you took a year without seeing him but still pointed him
at the ID parade? – Exactly.’
[9]
Thus although the charge sheet alleged that the offence had been
committed on 12 March 2011, the evidence came to be undisputed
during
the course of the trial that the offence had indeed been committed in
March 2010. It was also common cause that the identity
parade had
been held on 1 March 2011. That could not have occurred had the
offence been committed, as alleged in the charge sheet,
on 12 March
2011. It is clear therefore that the offence took place on 1 March
2010 and not on 12 March 2011 as stated in the charge
sheet and as
referred to earlier by the prosecutor during the examination in chief
of Mr Kassim. Had the prosecutor and the magistrate
been more
vigilant, the variance between the evidence adduced and the charge
sheet could have been addressed in terms of ss 86
or 88 of the Act.
It is generally accepted that a charge sheet may be amended on
appeal. (See
S v Nedzamba
2013 (2) SACR 333
(SCA) para 19-20).
[10]
It follows that the applicant has failed to show that there are
exceptional circumstances that warrant reconsideration or variation
of this court’s earlier order dismissing the application for
special leave to appeal. The application must therefore fail.
[11]
I make the following order:
The
application in terms of
s 17(2)
(f)
of the
Superior Courts Act
10 of 2013
is dismissed.
_______________
Z L L Tshiqi
Judge
of Appeal
APPEARANCES:
For
Appellant: A H Van der Bilt
Instructed
by: Van der Bilt Attorneys, Pretoria
c/o
Lovius Block Attorneys, Bloemfontein
For
First Respondent: MR Molatudi (With him, MJ Makgwatha)
Instructed
by: Director of Public Prosecutions, Pretoria
[1]
Robbery as
contemplated in
s 1
of
the
Criminal Procedure Act 51 of 1977
, read with
s 51(2)
of the
Criminal Law Amendment Act 105 of 1997
.