---

IN THE NORTH WEST HIGH COURT. MAFIKENG

 

CASE NO: CC 83/06

In the matter between:-

PHILLIP DANIEL SCHOOMBEE                                                                    First Applicant

FRIKKIE MASSYN                                                                                     Second Applicant

and

THE STATE                                                                                                         Respondent

 

APPLICATION FOR LEAVE TO APPEAL

 

DATE OF HEARING                                      :           11 JULY 2011

DATE OF JUDGMENT                                   :           04 AUGUST 2011

COUNSEL FOR THE APPLICANT                :           ADV GISSING

COUNSEL FOR THE RESPONDENT            :           ADV MUNYAI

 

JUDGMENT

 

HENDRICKS J

[A] Introduction:-

[1] This is an application for leave to appeal to the Full Bench of this division. As far as the First Applicant is concerned, the application is against the sentence on count 1 {murder) only. As far as the Second Applicant is concerned, leave to appeal is sought against both the convictions and the sentences on count 1 (murder) as well as count 2 (assault with intent to do grievous bodily harm).

Coupled with this application for leave to appeal is also an application on behalf of both Applicants for condonat1on for the late filing of their notice of application for leave to appeal.

[2] Both Applicants were convicted on the murder charge (count 1) and sentenced to life imprisonment. In addition, the Second Applicant was also convicted on a charge of assault with intent to do grievous bodily harm and sentenced to one (1) year imprisonment. The trial was finalised on 02 March 2007.

 

[B] Ad Condonation for the late filing of the Notice of Appeal: -

[3] A notice termed "Notice of Motion" was filed with the Registrar- of this Court on 09 May 2011.  This notice entails a notice for condonation for the late filing of the Applicants Notice of Application for leave to appeal.

[4] It goes without saying that the said application is outside the specified time limit of fourteen (14) days for the filing of such an application.

See:- Section 316 of the Criminal Procedure Act  51 of 1977 (as amended) ["the Act"].

[5] The Supreme Court of Appeal set out the criteria to be applied when considering an application for condonation. Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success, and the importance of the case.

See:- Melane v Sanlam Insurance Co. Ltd 1962 (4) SA 531 (A).

[6] In S v Van der Westhuizen 2009 (2) SACR 350 (SCA ), Snyders JA added the  nature of  relief. the interest  in  finality, the convenience of court, the avoidance of unnecessary delay in the administration of justice and the degree of  negligence of the persons responsible for non-compliance, as factors that the court would take into account

[7] It is submitted on behalf of the Applicants that the failure to comply with the Act and the Rules of Court was due to factors beyond their control and not due to any fault on their part or on the part of their legal representatives. The supporting affidavits of the Applicants does not concisely set out the reasons for the delay save to refer to a trail of letters written to the Registrar and the transcribers between the period 2009 and 2010.

[8] There is no explanation whatsoever what prevented the Applicants from lodging their notice of application for leave to appeal between 02 March 2007 and 21 February 2009. The first letter written by Mrs Steyn is dated 22 February 2009 This is some twenty two (22 months after the trial was concluded. The reasons advanced are vague, contradictory and mutually destructive and fair to provide a reasonable explanation for the delay.  No good cause exist or was shown to exist why condonation should be granted.

[9] I find the following dictum in the unreported Supreme Court of Appeal case of Mogorosi v The State Case No 410/10  [201O] ZASCA 147 (29 November 2010) quite apposite:-

"[8] A court considering an application for condonation must take into account a range of considerations. Relevant considerations include the extent of non-compliance and the explanation give for it: the prospects of success on the merits; the importance of the case; the respondent's interest in the finality of the judgment; the convenience of the court and the avoidance of unnecessary delay in the administration of justice. (See S v Blasi 1996 (1) SACR 1 (A) at 3g.)'

[10] And also:-

"[10] Even allowing for the fact that the appellant acted in person at some stages in the prosecution of his appeal that can hardly compensate for the fundamental lacunae in his application For as Heher JA pointed out in Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA) 'condonation is not to be had merely for the asking; a full. detailed and accurate account of the causes of the delay and its effects must be furnished so as to enable the Court to understand clearly the reasons and to assess the responsibility'. That did not happen in this case. The appellant's affidavit, notwithstanding that he was legally represented when it was drafted, failed to 17eed 1-leher JA's admonition. In my view it is opaque and singularly unhelpful in explaining the long delay.

[11] In my view, it will not be in the interest of justice if condonation is granted, having regard also to the prospects of success on appeal, which I wilI now address.

 

[C] Prospects of success on appeal:-

First Applicant:-

[12] After evidence was tendered on behalf of the State and midway through the trial , the First Applicant changed his plea to that of guilty on count 1 (murder ). A plea explanation was handed in, in which he admitted alI the elements of the offence of murder. He was thereafter found guilty as charged. Leave to appeal is sought only with regard to the sentence.

 

Second Applicant:-

[13] Leave to appeal is sought on count 1 (murder) against both the conviction and the sentence. As far as the conviction of the Second Applicant on the murder charge is concerned, the State alleged that the two Applicants (and also their former co-accused) acted in fu1iherance of a common purpose or goal to bring about the death of the deceased.

[14]  Having regard to the principles enunciated in S v Mgedezi 1989 ( 1) SA 687 (A) on page 705 l to 706 C, which  withstand constitutional muster, as was found in S v Thebus and Another [2003] ZACC 12; 2003 (6) SA 505 (CC), the State succeeded in proving beyond reasonable doubt that the two Applicants acted in concert with one another.

[15] The following evidence was presented in support of this finding:-

· the Second Applicant was first seen in front of Country Palm;

· he again confronted the complainant in count 2 who was with the deceased at the time in Plaladium Street;

· he hit the complainant in count 2 with the door of the vehicle and even insulted the complainant;

· he did not disassociate himself with the attack on the deceased person;

· he told the police at the scene that the deceased was driven over by a cream white Toyota bakkie. This was a lie calculated to mislead the investigations. A man who have nothing to hide will not attempt to mislead the investigations.

[16] Evidence presented is to the effect that the Second Applicant at no stage disassociated himself with the conduct of the First Applicant

See:- S v Musingadi 2005 (1) SACR 395 (SCA).

 

Second Applicant:- Count 2 ( assault with intent to do grievous bodily harm:-

[17] lt was submitted on behalf of the Second Applicant that the evidence of the complainant on count 2, which is that of a single witness, should not have been accepted by this Court. It is trite law that a court may convict on the evidence of a single witness in terms of the provisions of Section 208 of the Criminal Procedure Act 51 of 1977, provided that such evidence is clear and satisfactory in every material respect. lt is furthermore trite that the evidence of a single witness should be accepted with caution.

See:- S v Sauls 1981 (3) SA 172 (A) on page 80 E-G.

[18] It was further submitted on behalf of the Second Applicant that the evidence of the complainant in count 2 did not meet the legal safeguards set for the evidence of a single witness The submission pointed to the following aspects as shortcomings in the evidence of complainant in count 2:-

· that the complainant was drunk and could not see properly in front of him

· that the street lights were out of order;

· the discrepancy regarding the time of the incident;

· the identity of the Second Applicant and the fact that the complainant referred in his evidence to one Selina, who the State did not call and therefore submitted that the failure by the State to call that Selina must result in a negative inference drawn against the State as was held in the case of S v Texeira 1980 (3) SA 755 (A).

[19] The witness testified that on the day in question he did consume two (2) 750ml of Black Label beers, but that he was not so drunk and was able to see what was going on with himself. He even indicated that he could see ± 9 metres far. He further stated that there was moonlight and the lights of the motor vehicle were on thus he was able to identify the Second Applicant whom he knew for about seven (7) years. He saw him on two occasions that night.

[20] On the issue of Selina mentioned by the complainant during trial, it is noteworthy that Selina was not included in the list of witnesses for the Respondent (State) as was the case in the Texeira matter, supra. Neither was there any evidence to suggest that the said Selina was in court. The adverse inference sought by the Applicants therefore finds no application in this matter It is also worth mentioning that in the Texeira matter, the evidence of the single witness was also found not to be clear and satisfactory at every material respect. In my view, the evidence of the complainant in count 2 was clear and satisfactory in every material respect. The discrepancy relating to the time of the incident is in my view not material and cannot affect the credibility of his testimony.

 

[D] Ad sentence (count 1 - murder) :-

[21] Section 51 (1) of The Criminal Law Amendment Act, Act 105 of 1997 (as amended), is applicable to the offence of murder, seeing that it was proved  beyond  reasonable  doubt  that  the two Applicants acted with a common purpose to bring about the death of the deceased.

[22] No substantial and compelling circumstances were found to be present which warranted the court to deviate from imposing the prescribed sentence of life imprisonment.

[23] I find the dictum in the case of S v Matyityi 2011 (1) SACR 40 (SCA) on page 53 c-g quite apposite and I quote:-

"[23] Despite certain limited successes there has been no real let-up in the crime pandemic that engulfs our country The situation continues to be alarming. It follows that to borrow· from Malgas, it still is 'no longer business as usual'. And yet one notices a!! too frequently a willingness on the part of sentencing courts to deviate from the minimum sentences prescribed by the legislature for the flimsiest of reasons - reasons, as here, that do not survive scrutiny . As Malgas makes plain, courts have a duty, despite any persona! doubts about the efficacy of the policy or personal aversion to it, to implement those sentences. Our courts derive their power from the Constitution and, like other arms of State, owe their fealty to it. Our constitutional order can hardly survive if courts fail to properly patrol the boundaries of their own power by showing due deference to the legitimate domains of power of the other arms of State here Parliament has spoken. It has ordained minimum sentences for certain specified offences. Cow1s are obliged to impose those sentences unless there are truly convincing reasons for departing from them. Courts are not free to subvert the will of the legislature by resort to vague. ill-defined concepts such as 'relative youthfulness or other equally vague and ill-founded hypotheses that appear too fit the particular sentencing officer's personal notion of fairness. Predictable outcomes, not outcomes based on the whim of an individual judicial officer, is foundational to the rule of law which lies at the heart of our constitutional order.

[24] In this case the respondent and his cohorts conducted themselves with a flagrant disregard for the sanctity of human life or individual physical integrity ..."

[24] This offence was racially motivated, brutal, totally unprovoked and unwarranted.

See:- S v Salzwedel and Others 1999 (2) SACR 586 (SCA).

[25] In my view, no other court would come to a different decision with regard to sentence than what this Court had arrived at There are therefore no reasonable prospects of success on appeal as far as the sentence of life imprisonment on the murder count (count 1) is concerned, in respect of both Applicants.

 

[E] Ad Sentence on count 2:-

Second Applicant:-

[26] Having regard to the nature and seriousness of the offence. the interest of society as well as the personal circumstances of the Second Applicant, the sentence of one (1) year imprisonment is a suitable sentence. This sentence is not at all inappropriate or disproportionate to the crime committed Neither was any misdirection pointed out by the legal representative of the Second Applicant.

 

[F] Conclusion:-

[27] Therefore, there are no reasonable prospects that another court may come to a different decision than what this Court had arrived at with regard to the respective applications by the Applicants. The applications by both Applicants with regard to conviction and sentence respectively on the respective counts should consequently fail. So too, must the applications for condonation for the late filing of the notice of application for leave to appeal be dismissed.

 

[G] Order:-

[28] Consequently, the following order is made:-

[i] The application for condonation for the late filing of the notice of application for leave to appeal by both Applicants is dismissed.

[ii] Leave to appeal by the First Applicant against the sentence of life imprisonment on the murder charge (count 1) is refused.

[iii] Leave to appeal by the Second Applicant against both the conviction and the sentence of life imprisonment on the murder charge (count 1) is refused.

[iv] Leave to appeal by the Second Applicant against both the conviction and the sentence on the charge of assault with intent to do grievous bodily harm (count 2) is refused.

 

________________

R D HENDRICKS

JUDGE OF THE HIGH COURT

 

ATTORNEYS FOR THE APPLICANTS:-                 SMIT STANTON INC

---