South Africa: Western Cape High Court, Cape Town

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Ngcobo v S [2011] ZAWCHC 292; ; SS225/2006 (17 June 2011)

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The application for leave to appeal against the applicant's conviction on three charges, namely a charge of robbery with aggravating circumstances, a charge of rape and a charge of murder, is based on five grounds identified in the notice of application, the first of which is that I erred in finding that the state proved beyond a reasonable doubt that the applicant and raped and murdered the deceased on 11 April. The contention is in the nature of a conclusion based on the other grounds identified and it is convenient to deal with it last, together with the final ground of appeal.

The second ground is that I erred in not taking into consideration that it was possible that the applicant and the deceased were lovers. There is no merit, in my view, in that contention. The possibility that the applicant and Ms Bissett, that is, the deceased, had been lovers, was considered carefully and at some length, as a reading of the judgment, particularly the passages from pages 58 to 67, evidence.

The third ground is that I erred in not taking into consideration that the state witness Mathiya was possibly telling lies when he gave evidence against the applicant. There is, in my view, no merit in that contention either. My assessors and I indeed found Mr Mathiya to be an unimpressive witness and we said so. His evidence was carefully considered and weighed and approached with caution as a reading of the judgment, in particular the passages at pages 45 to 47 and 71 to 72, shows.

The fourth ground is that I erred in not giving the applicant sufficient time to call witnesses in his defence. This is a serious charge and one which deserves to be treated seriously. As recorded in the judgment, the facts are these: The matter was postponed following the withdrawal of the applicant's first counsel, to be resumed on 6 March 2007. In the interim the applicant's first counsel was replaced by Mr Ramovha. who appears for him again today. In March 2007 the matter was again postponed to 11 May 2007 at Mr Ramovha's request on the grounds, inter alia, that he wished to call a witness from the Eastern Cape who was not available in March. That witness was, I think, reffered to as a Mr Mlindeli, a truck driver and a friend of the applicant.

When the matter resumed in May 2007, Mr Mathiya was recalled for further cross-examination and the applicant called Mr Brown as a witness to testify on his behalf. After completion of Mr Brown's evidence, Mr Ramovha made application for the matter to be further postponed in order to secure the attendance of the witness from the Eastern Cape. He indicated that the applicant had spoken to the witness tetephonically the day before and the witness was willing to testify, but was not at work that day and for that reason was uncontactable. The state opposed the application for a postponement, but I nevertheless granted it to a date which was agreed with the applicants counsel.

On resumption of the matter on 17 July 2007, Mr Ramovha made a further application for a postponement of the matter in order to secure the attendance of this witness, whose continued absence was explained on the basis that the witness had returned none of his messages and was now unexpectedly back in the Eastern Cape attending a funeral. The application for postponement was opposed by the state, this time more strenuously, inter alia, on the grounds that all offers of assistance in securing the attendance of the witness had been rejected by Mr Ramovha. In the event I granted a further and final postponement to the week of Monday 16 to 20 September 2007, so that the case could be finalised then.

When the matter resumed on 17 September 2007, I was informed by Mr Ramovha that he had still not consulted with the witness concerned, whom he said would not be available until later in the week. He told me, however, as is noted at page 40 of the judgment, that his instructions from the applicant were that he no longer intended to call any further witnesses and that he was closing his case. In these circumstances I am satisfied that there is no merit in this complaint either. It is perhaps not without significance that there is no application to lead further evidence on appeal today in terms of section 316(5) of the Criminal Procedure Act. When asked about this ground of appeal during his oral argument, Mr Ramovha suggested that it had perhaps been unhappily drafted

The fifth and final ground of appeal is that I erred in not taking into consideration that the evidence of the applicant was reasonably possibly true. This ground may conveniently be considered with the first ground of appeal. As noted at page 41 of the judgment, because of the way the case unfolded, it reduced, in essence, to a consideration of whether the applicant's version could reasonably possibly be true. As is also evident from the subsequent four or five pages of the judgment, my assessors and I carefully considered the test to be applied in this regard. Ultimately, on a conspectus of all the evidence, we concluded that the accused's version was not reasonably possibly true and that the state had proved its case beyond a reasonable doubt in respect of the three charges on which we convicted.

Of course the identical test is not to be applied today. I must grant leave to appeal against one or more or all of the convictions, if I conclude that there is a reasonable prospect that a court of appeal will have a different view. I cannot grant leave to appeal simply in order to allow the applicant another opportunity to secure his acquittal, or because his conviction was followed by the imposition of a maximum sentence, nor even if I were to conclude that the case for the applicant is fairly arguable. (See in this regard S v Sikosana 1980 (4) SA 559 (A) at 562E-F.)

Because of the lengthy elapse of time, I have reread the judgment and passages of the evidence. I have also carefully considered and weighed the evidence and the probabilities afresh. Having done so, I am satisfied that another court will not reasonably come to another conclusion. Leave to appeal against the applicant's conviction on each of the three charges on which he was convicted is accordingly refused.

As far as the application for leave to appeal against sentence is concerned, I have considered the grounds advanced in the applicant's application for leave to appeal as briefly elaborated on by Mr Ramovha in oral argument. I find none of them compelling. In my view another court will not reasonably interfere with the sentences imposed. Leave to appeal against the sentences imposed is accordingly refused.

I indicated at the outset that I would return to the application for condonation for the late filing of this application for leave to appeal and the fact that the application is so far out of time. In the light of the conclusion to which I have come on the merits of the application for leave to appeal and the fact that the state did not oppose the condonation application, it was unnecessary to consider it in any detail prior to considering the merits of the application for leave to appeal itself. There are, however, several disturbing features of this belated application for leave to appeal and the condonation application which accompanied it, which cannot pass without comment.

Least important, the condonation application is riddled with formal and other defects. The notice bears the date 27 May 2008. Mr Ramovha indicated to me that this was a typographical error. The notice of motion filed in support of the condonation application has gaps, with the date for the hearing presumably intended to be filled in. The affidavit by the applicant, in support of the application for condonation, is undated. The person who ostensibly commissioned his affidavit is unidentified and he, or possibly she - because this cannot be established from the document itself - failed to comply with any of the requirements of section 4 of the regulations governing the administration of an oath, save only for the appending of his or her signature. In a word, the entire application has been put together shoddily and unprofessionally.

More fundamental is the extreme lateness of the application for leave to appeal itself and the reasons put up by the applicant in explanation for this. The applicant says this at paragraphs 4 to 6 of his affidavit:

"4. After I was sentenced, I applied to the Legal Aid Board for legal assistance, since I could not afford the services of a lawyer. This was done within the prescribed period through the prison channels.

5. After a long while I was notified by the prison authorities that the Legal Aid Board appointed a legal practitioner to assist me, but the legal practitioner never came to see me to tell me what was happening with my appeal. I was later told that the legal practitioner was on maternity leave.

6. After waiting for a long time without hearing any news about my appeal, I decided to draft the appeal papers myself, which I sent to the High Court through the prison channels and I do not know what happened to the papers I sent to the High Court. I never received any response in this regard."

The terseness of the explanation given is in inverse proportion to the length of time taken to apply for leave to appeal. It raises more questions than it answers. On the face of it, however, it constitutes a severe indictment to both the Legal Aid Board and the correctional services authorities. But given the seriousness of the matter and the paucity of detail furnished by the applicant, it is better to reserve judgment on that score for the moment.

The expeditious hearing of applications for leave to appeal are essential for the proper functioning of the criminal justice system. The judge hearing the application and the practitioners involved will, if it is brought promptly, have the evidence and the issues still at their fingertips. Not so after three and a half years. More importantly, the sooner the application is launched and heard, the sooner an accused, whose conviction is in due course overturned will, if he was also incarcerated, as here, be released from prison. In the present case the delay in the bringing of the application would mean that if the accused's convictions are one day overturned, the accused has unnecessarily suffered incarceration for many years. That is an untenable situation.

I cannot determine on the strength of this condonation application where the fault lies. It may, for all we know, lie with the applicant or it may lie with more than one person. It must, however, be investigated. Accordingly, I am going to direct as follows and I understand that Mr Bali, who is present in court today, will make sure that the directions are given effect to. I direct as follows:

1. A copy of this judgment is to be typed and sent, together
with the applicant's application for condonation, to each of:

(a) The head of the Legal Aid Board in the Western Cape.

(b) The head of the prison or prisons in which the applicant was incarcerated during the period September 2007 to January 2011.

2. Each of those persons mentioned in 1(a) and (b) is
requested to:

(a) Investigate why the application for leave to appeal was made so late.

(b) Investigate whether there was any failure on the part of their personnel or their systems which contributed in any way to the lateness with which the application was made.

(c) To report their findings, with such recommendations and/or recordal of measures implemented in order to avoid a repetition, as they consider are warranted in the circumstances, to (i) the Judge President of this division, with (li) a copy sent to each of the other persons mentioned in (1) above, as well as (iii) to the Director of Public Prosecutions in the Western Cape.

MULLER, AJ