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IN THE NORTH WEST HIGH COURT, MAHIKENG

 

CASE NO: CC 139/2014

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

 

In the matter between:

 

ERNEST MATSHOGWE                                                                        Applicant

 

And

 

THE STATE                                                                                            Respondent

 

DATE OF HEARING                                         10 FEBRUARY 2023

 

DATE OF JUDGMENT                                     24 FEBRUARY 2023

 

COUNSEL FOR APPLICANT                          MR MV KEKANA

 

COUNSEL FOR THE RESPONDENT             ADV. K PHETLHU

 

ORDER

 

Consequently, the following order is made:

Condonation for the late noting of the application for leave to appeal is refused on the basis that there are no reasonable prospects of success on appeal.

JUDGMENT IN APPLICATION FOR LEAVE TO APPEAL

PETERSEN J

Introduction

[1]          This is an application for leave to appeal against conviction and sentence. The applicant was convicted in the Regional Court on three counts of rape (counts 1, 2 and 4) and one count of attempted rape (count 3).

[2]          As the Regional Court was not vested with jurisdiction to impose life imprisonment at the time, the matter was transferred to the High Court for sentencing. Upon satisfying himself that the conviction of the applicant was in accordance with justice, Hendricks J (as he then was), sentenced the applicant to life imprisonment on each of counts 1 ,2 and 4 and six (6) years imprisonment on count 3.

[3]          The applicant applies for leave to appeal to the Supreme Court of Appeal (SCA), alternatively to the Full Court of this Division against conviction as well as the sentences imposed.

The law applicable to applications for leave to appeal

[4]          Section 17 of the Superior Courts Act 10 of 2013 ("the Superior Courts

Act") provides that:

"Leave to appeal

17. (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 a reasonable prospect 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 section 16(2)(a); and

(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties. '

[5]          It is now accepted as trite that since the enactment of the Superior Courts Act, the test applicable in an application for leave to appeal is no longer whether another court may come to a different decision but whether another Court would come to a different decision.

Condonation

[6]          The applicant was sentenced on 07 September 2004. That is close on two decades ago. The applicant seeks condonation for the late filing of his application for leave to appeal. In the applicant's affidavit in support of his condonation application, the applicant states that everything contained in the affidavit is within his personal knowledge unless the context indicates otherwise.

[7]          The main ground the applicant relies on in support of the application for condonation is premised on an allegation that that he was never informed of his rights of appeal and the time frame prescribed by the Rules of Court despite being legally represented at the time.

[8]          The applicant further states that he became aware of his appeal rights whilst serving his sentence and sought the assistance of his fellow inmates to write letters to court to hear his appeal, as he is illiterate. He states that he is unable to recall when he first caused such letters to be written. He further alleges that he received no response to the letters and later learnt that most of the letters were never posted, without identifying the source of this hearsay information.

[9]        According to the applicant he learnt of inmates using public phones to contact Legal Aid South Africa ("I-ASA"). As a result, he requested his children to purchase airtime vouchers for him. He claims to have contacted the High Court, Mmabatho and was informed that there was no record of an application for leave to appeal. However, according to Annexure EMI attached to the founding affidavit, dated 05 August 2014, sent to the applicant from the Registrar of the High Court, Pretoria, that Registrar made contact with a certain Ms Mogakolodi, a clerk at the criminal section of this COURT, who informed her that there was no application for leave to appeal on record.

[10]       The next allegation by the applicant is that he was assisted by a paralegal from LASA in 2016 to complete an application for legal aid assistance. This applicant was informed in writing on 16 February 2016 that his application was unsuccessful as it was received more than twelve (12) months after his conviction and sentence, and was out of time. LASA informed him that he could appeal that decision. The applicant does not state whether he in fact appealed the decision of I-ASA, when he did so and when he received a decision, if at all. In his affidavit he goes on to state that he was informed by LASA that they would request a transcribed record of the trial and proceed with an appeal. A broad statement with no further detail is made that the transcription of the record was delayed.

[11]       The locus classicus on condonation on which all subsequent authorities are predicated is by Holmes JA in Melane v Santam Bank Insurance co. Ltd 1962 (4) SA 531 (A) at 532 B-E where the following was stated:

"In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised iudicially upon the consideration of all the facts and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation thereof, the prospects ofsuccess, and the importance of the case. Ordinarily, those facts are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with true discretion, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for the prospects of success which are not strong. Or the importance of the issue and the strong prospects of success may tend to compensate for a long delay." (See also Wynberg and Another (1998) SACR 18, 1998 (3) SA 34 (SCA) at 40 H-41 E)."

(my emphasis)

[12]       The approach enunciated in Melane is echoed by the Constitutional Court in Van Wyk v Unitas Hospital and Another 2008 (2) SA CC at paragraphs [20] and [22]:

"This court has held that the standard for considering an application for condonation is in the interest of lustice. Whether it is in the interests of iustice to grant condonation depends on the facts and circumstances of each case. Factors that are relevant to this enquiry but are not limited to the nature of the relief souqht, the extent and the cause of the delay, the effect of the delay on the administration of iustice and other litiqants, the reasonableness of the explanation of the delay the importance of the issue to be raised in the intended appeal and the prospects of success...An applicant for condonation must qive a full explanation for the delay. In addition, the explanation must cover the entire period of the delay. And what is more the explanation must be reasonable.

(my emphasis)

[13]       In Grootboom v National Prosecuting Authority 2014 (2) SA 68 (CC) at paragraph [23], the Constitutional Court emphasized the requirement of sufficient or good cause to be shown by an applicant seeking condonation:

"It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court’s indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance with the rules or court's directions. Of great significance, the explanation must be reasonable enough to excuse the default. '

(my emphasis)

[14]       The applicant deposed to the affidavit in support of condonation on 19 October 2022, that is more than eighteen (18) years following his conviction and sentence. The sole reason for the lateness of the application is an allegation that he was not informed of his right of appeal. The affidavit in support of the application for condonation fails to set out with detailed specificity when the applicant became aware of his appeal rights which were allegedly not brought to his attention. Nor does it give specifics as to dates from 07 September 2004 when he was sentenced until a decade later when the first correspondence relevant to an application for leave to appeal is received on 05 August 2014 from the Registrar of the High Court, Pretoria.

[15]        A further two years elapsed from the correspondence of 05 August 2014 before an application was made for legal aid assistance in 2016. No cogent explanation is given for the further delay of two (2) years. This is exacerbated by the dearth of an explanation for the appeal process on I-ASA's decision to reject his application for legal aid assistance and when such appeal was successful, for the inordinate and inexplicably long delay from 2016 to 2022 to secure the transcribed record.

[16]       The applicant's explanation on the lengthy delay, initially of ten (10) years post sentence and subsequently a further eight (8) years to date, for prosecuting the appeal cannot be accepted as a reasonable explanation. The failure to give a reasonable explanation for the delay may be mitigated if there are reasonable prospects of success on appeal. It is to these prospects of success or the corollary thereof absence of prospects of success, that I turn, against the background of the grounds of appeal.

The grounds of appeal

[17]       The application for leave to appeal is premised on the following grounds of appeal:

"AD CONVICTION.

1.         The Honourable court erred in finding that the State proved the guilt of the appellant beyond reasonable doubt and that the version of the appellant was not reasonably possibly true.

2.         The Honourable trial court erred in admonishing the witnesses to tell the truth before making a finding that they do not understand the nature or import of the oath owing to youthfulness, defective education or some other cause.

3.         The Honourable trial court erred in granting applications for the use of an intermediary in terms of section 170,4 of the Criminal Procedure Act 51 of 1977 (the Act) when there was no evidence either oral evidence or reports from social workers or psychologist that the witnesses will suffer undue mental stress or pressure. In no proper basis laid out.

4.         The Honourable trial court erred in finding the ages of these witnesses was proved by admissible evidence when in reality no such evidence was given under oath and instead information was obtained from their mothers about their ages when the said mothers were not sworn in at all as per the peremptory provisions of section 162 of the Act or not affirmed as per section 163.

5.         The court a quo erred in finding corroboration in medical reports placed before the coun when the said reports were at best neutral and at worst vague and of little assistance.

6.         The honourable trial court erred in sitting without the assistance of assessors.

AD SENTENCE:

1.         The Honourable sentencing court erred when it found that there were no substantial and compelling circumstances allowing it to deviate from the prescribed sentence.

2.         The Honourable court further erred in not making a determination whether the prescribed sentence was a just and proportionate sentence under the circumstances of the commission of the offence and the personal circumstances of appellant.

3.         The seriousness of the offence and the interests of society were overemphasized at the expense of the personal circumstances of appellant. "

The prospects of success on appeal

[18]       The first ground of appeal is stated very broadly. Nothing turns on it.

[19]       The second ground of appeal implicates the provisions of sections 162 to 164 of the CPA insofar as the trial court is said to have erred in admonishing the witnesses to tell the truth before making a finding that they do not understand the nature or import of the oath owing to youthfulness, defective education or some other cause. The judgment in S v Matshivha 2014 (1) SACR 29 (SCA) (footnotes omitted), was handed down a decade after the disposal of the present matter. At the time the present matter was disposed of in 2004, the law as set out in Matshivha was not the applicable jurisprudence.

[20]       I can accordingly find no merit in this ground of appeal, which is raised close on two (2) decades later.

[21]       The third ground of appeal attacks the granting of the use of intermediaries to assist with the taking of the evidence of the children on the sole basis that there was no evidence or reports from social workers or psychologist that the witnesses would suffer undue mental stress or pressure.

[22]      Section 170A(1) of the CPA as it read in 2004 provided that:

"Whenever criminal proceedings are pending before any court and it appears to such court that it would expose any witness under the biological or mental age of 18 years to undue mental stress or suffering if he or she testifies at such proceedings, the court may, subject to subsection (4) appoint a competent person as an intermediary in order to enable such witness to give his or her evidence through that intermediary. '

(my emphasis)

[23]       The applications by the prosecutor in the trial court for the appointment of an intermediary was unopposed. The applicant in this ground claims that he was prejudiced as a result. A reading of the record does not reflect any prejudice to the applicant in circumstances where the children were fully cross examined by his legal representative. In my view, nothing turns on this ground of appeal. In any event, whether or not there were reports from social workers or psychologists, the best interests of the children which are paramount in any matter, prevailed.

[24]       The fourth ground appeal attacks the evidence of the mothers of the children as being inadmissible on the basis that they were not sworn in by the trial Magistrate. A reading of the record reflects in respect of each of the mothers, the following words "d.s.s through interpreter' after their names. The acronym d.s.s in a transcribed record implies that the witness was sworn in by the interpreter, where d.s.s means "duly sworn states". Each of the four mothers were therefore correctly sworn in and nothing turns on this ground of appeal.

[25]       The fifth ground of appeal attacks the trial court's reliance on the medical reports completed by medical practitioners in respect of the child complainants. A misnomer in the ground of appeal needs to be corrected. Medical evidence in a medical report, referred to as J88, can never provide corroboration of an alleged rape. At most it can provide evidence of consistency for the evidence of the victim. The findings in the medical reports are clear in what the medical practitioners relay therein and provides consistency to the evidence of the victims. In my view, nothing turns on this ground of appeal, in circumstances where the evidence of the children was clear in all material respects.

[26]       The sixth ground of appeal seeks to suggest that it was peremptory for the trial Court to sit with assessors. Section 93ter of the Magistrates' Court Act 32 of 1944, only makes it peremptory to sit with assessors when an accused is standing trial on a charge of murder. Other than that, the judicial officer is vested with a discretion whether or not to sit with assessors. Nothing thus turns on this ground of appeal.

[27]       On sentence, the Judge is said to have overemphasized the seriousness of the offence and the interest of society and not making a determination on whether or not life imprisonment was proportionate to the offences and personal circumstances of the applicant. The Judge dealt with all the relevant principles applicable to sentencing in and balanced the opposing interests carefully. The sentence imposed in my view was a just sentence. In my view there are no reasonable prospects of success on appeal in respect of sentence.

Conclusion

[28]       Having dispassionately reflected on the grounds of appeal in respect of both conviction and sentence with due regard to the record of proceedings, both in the trial Court and the sentencing Court, I am of the view that there are no reasonable prospects of success that another Court would come to a different conclusion on both conviction and sentence. Condonation for the late noting of the application for leave to appeal accordingly stands to be refused.

Order

[29]       Consequently, the following order is made:

Condonation for the late noting of the application for leave to appeal is refused on the basis that there are no reasonable prospects of success on appeal.

A H PETERSEN

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

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