IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case number: CCT 174/16 SCA 204/14 NGP A329/11 In the matter between:
BRENDAN SOLLY NDLOVU APPLICANT
and
THE STATE RESPONDENT
RESPONDENT’S OPPOSING AFFIDAVIT
I, the undersigned
MARIKA JANSEN VAN VUUREN
declare under oath as follows:
1. I am employed by the National Prosecuting Authority (NPA) as a Deputy Director of Public Prosecutions in the office of the Director of Public Prosecutions, Gauteng Division, Pretoria, and situated at Protea Towers, 246 Paul Kruger Street, Pretoria.
2. I appeared for the Respondent at the Supreme Court of Appeal (SCA).
3. The facts contained herein are, save where the context otherwise indicates, within my personal knowledge and are true and correct.
4. The Applicant is Brendan Solly Ndlovu (Ndlovu).
5. The Respondent is the State and I have been duly authorised to depose to this affidavit on behalf of the Respondent.
6. The purpose of this affidavit is to set out the reasons why the application in terms of the provisions of Rule 19 (2) of the Rules of this Honourable Court is opposed.
BACKGROUND
7. The Applicant was charged with one count of Rape (read with the provisions of Section 51(2) of the Criminal Law Amendment Act, Act No 105 of 1997 (“the Act”). The appellant pleaded not guilty but was
convicted as charged on 8 May 2009 by the Regional Court, Phalaborwa.
He was subsequently sentenced to life imprisonment. The Applicant was legally represented throughout the trial by Mr Mafogo.
8. The Applicant appealed the conviction and sentence to then North Gauteng High Court and the appeal was dismissed on 4 October 2011.
9. Leave to appeal was granted by the North Gauteng High Court against sentence only on 31 July 2012 and the matter was heard by the SCA on 10 September 2014. The appeal was dismissed on 26 September 2014.
10. The Applicant has filed an application for leave to appeal the judgment and order of the SCA.
11. This application is opposed on the main ground that there exists no reasonable prospect of success on appeal. It is my respectful submission that the SCA committed no errors of law and that the arguments by the Applicant are without merit.
12. I will deal with the tests which this Honourable Court has adopted when considering granting leave to appeal and submit strongly that it is not in the interests of justice to grant leave to appeal.
13. The Respondent is also of the view that entertaining the application will unnecessarily delay the administration of justice in bringing the matter to finality.
14. The Respondent does not respond to each paragraph of the Applicant’s application as set out in the founding affidavit of Ndlovu, but deals with more detail with the grounds of appeal to demonstrate that there is no merit in any of the grounds of appeal.
THE TEST FOR APPEALABILITY
15. In Phillips and Others v National Director of Public Prosecutions1 this Honourable court, in a unanimous judgment found that an application for leave to appeal even if it “… raises a constitutional issue is not however decisive” of whether leave to appeal to the Court ought to be granted. It was reaffirmed that “Leave to appeal may be refused if it is not in the interests of justice that this Court hear the appeal.”2
16. In Boesak3 one of the principles identified by this Honourable Court is that there is a need for finality in criminal matters and that finality should be achieved by the SCA unless a constitutional matter arises. A
1 2006 (1) SA 505 (CC)
2 Ad par [32]. Also see S v Boesak 2001 (1) SA 912 (CC) at para [15]
3 Supra para [15]
disagreement with the SCA’s assessment of the facts is not sufficient to constitute a breach of the right to a fair trial. Madlanga J in Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd4 went on to state
“Unless there is some separate constitutional issue raised therefore, no constitutional right is engaged when an appellant merely dispute the findings of fact made by the SCA.”
17. Should the Court find that the Applicant did not have a fair trial and it therefore raises a constitutional issue, it does not automatically lead to granting leave to appeal? The Court has a discretion to decide whether the granting of leave to appeal would be in the interests of justice.5 In this regard, the Court with reference to Boesak6 held:
“A threshold requirement in applications for leave relates to the issue of jurisdiction. The issues to be decided must be constitutional matters or issues connected with decisions on constitutional matters …
A finding that a matter is a constitutional issue is not decisive. Leave may be refused if it is not in the interests of justice that the court should hear the appeal. The decision to grant or refuse leave is a matter for the discretion of the court, and in deciding whether or not to grant leave, the interest of justice remains fundamental. In considering the interests of justice, prospects of success, although not the only factor, are obviously
4 2015 (3) SA 479 (CC) para [29]
5 Paulsen (supra) at paras [17] –[18] and [29] to [30]
6 Para [29] (emphasis added)
an important aspect of the enquiry. An Applicant who seeks leave to appeal must ordinarily show that there are reasonable prospects that this court will reverse or materially alter the decision of the SCA.
The interests-of-justice factor aims to ensure that the court does not entertain any and every application for leave to appeal brought to it.”
18. It is common cause that this rape falls within the ambit of section 51(1) read with part I of Schedule 2 of the Act, and not section 51(2) as stated in the charge sheet because of the infliction of grievous bodily harm. The charge sheet ought to have referred to section 51(1) of the Criminal Law Amendment Act, because of the serious assault on the complainant which caused grievous bodily harm.
19. It is not disputed that the complainant was seriously injured as a result of the assault. She testified that she suffered several open facial wounds and she was raped by the Applicant. She was bleeding from these wounds and required medical attention. She spent 5 (five) days in hospital.
The Respondent respectfully submits that the incomplete charge sheet was automatically cured by the evidence of the state witnesses to include the fact that the complainant was seriously injured during the assault followed by the rape.7
7 Sections 86(4) and 88 of the Criminal Procedure Act, No 51 of 1977 and S v Maqubela 2014 (1) SACR 378 (WCC) 384 h.
20. It is common cause that the appellant was sentenced to life imprisonment in terms of section 51(1) of the Act. The Applicant submits that he was not properly advised that he faces a term of life imprisonment and because thereof his trial was not fair. This is underpinned in section 35(3)(a) of the Constitution, which provides that every accused person has the right to a fair trial.
21. The Act does not create new offences. It provides for enhanced penal jurisdiction for particular forms of already existing offences. In S v Legoa8 the court states:
“The offences scheduled in the minimum sentencing legislation are likewise not new offences. They are but specific forms of existing offences, and when their commission is proved in the form specified in the Schedule, the sentencing court acquires an enhanced penal jurisdiction.”
The dictum was recently confirmed in S v Motloung9.
22. The trial court warned the appellant on 26 February 2008 that the minimum sentence applicable is 15 (fifteen) years imprisonment. It is submitted that the trial court took into account that the maximum sentence could exceed the minimum to be imposed with 5 (five) years.10
8 2003 (1) SACR 13 on 21e
9 (182/15) [2016] ZASCA 96 (2 June 2016)
10 Section 51(2) of Act 105 of 1997
23. In determining whether the Applicant was prejudiced, the manner in how the Applicant conducted his defence will be indicative of whether the trial was fair. In S v Kolea11, the court states how prejudice will be determined. It is described as a “…fact-based enquiry into the entire proceedings of the trial.” This was confirmed in S v Mashinini12, and in S v Legoa13 the court finds that “Whether the accused’s substantive fair trial right, including this ability to answer the charge, has been impaired, will therefore depend on a vigilant examination of the relevant circumstances.”
24. The SCA14 with reference to the principle that emerged from S v Kolea and S v Mashinini (supra) also concluded that the imposition of a sentence of life imprisonment will not in itself result in a failure of justice which vitiates the sentence.
25. If regard is had to the relevant circumstances in casu, the Respondent submits that the Applicant’s trial was fair for the following reasons:
25.1. The Applicant was informed that the minimum sentence legislation is applicable, albeit the wrong section.
25.2 The Applicant pleaded not guilty to the charge and was legally represented throughout the trial.
11 2013 (1) SACR 409 (SCA) on 412 f
12 2012 (1) SACR (SCA) 604 at 626 h.
13 (supra) at 23 d-e
14 in paragraph 14 on p. 63
25.3 The legal representative during the proceedings often requested the court for time to obtain instructions from the appellant.
25.4 Witnesses were cross-examined at length and the appellant testified in his defence.
25.5 The J88 which set out the serious injuries the complainant sustained was hand in by consent. Clearly the legal representative consulted with the Applicant prior to the handing in thereof and should have realised at that stage already that the Applicant face life imprisonment because of the serious injuries to the complainant.
25.6 The Applicant abandoned the request for the DNA evidence.15
25.7 From the regional court judgment it is inferred that the Applicant was invited to take part in the sentencing process and had an opportunity to address the court regarding substantial and compelling circumstances, but despite the invitation to make submissions the “…defence left everything in the hands of the court regarding deviation from the prescribed minimum sentence.”16
25.8 The Applicant was legally represented during the two appeals that followed.
25.9 Furthermore, this aspect (that the Applicant was not properly warned) was not raised as a ground of appeal in the notice of appeal dated 24 November 2009.
15 Record: p. 37 lines 5 to 10, p. 63 paragraph 13 and 64 paragraph 14
16 Record: p.47 line 15
25.10 This aspect was not included in the heads of argument when the appeal was heard on 4 October 2011. It was raised for the first time during argument on 4 October 2011 when the appeal was heard in the North Gauteng High Court. From the Applicant’s silence on this aspect until the hearing of the appeal and the fact that the trial court made a finding that no compelling and substantial circumstances were present, it is reasonable to infer that the magistrate had the provisions of the Act in mind and took steps to arrive at the conclusion. The absence of substantial and compelling circumstances was confirmed by the judgment on appeal to the Supreme Court of Appeal.17
26. The reasons set out in paragraph 25 supra, are in the Respondent’s respectful opinion indicative thereof that the Applicant would not have conducted the trial in any other way had he been informed that he faced life imprisonment. The Respondent submits that the Applicant would not have conducted his defence differently had the mistake not been made in the charge sheet. Therefore, the trial of the Applicant was fair and he suffered no prejudice. This is in line with the finding of both the courts of appeal.18
17 Record: p. 48 line 11 and p. 65 paragraph 15
18 Record: p. 64 paragraph 14
27. Fairness applies to both the Applicant and the complainant or the public represented by the state, as this Honourable Court remarked in S v Jaipal
19
“The right of an accused to a fair trial requires fairness to the accused, as well as fairness to the public as represented by the State. It has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime.”
CONCLUSION
28. The application does not contain any arguments that have not yet been decided by a court of appeal. As has been stated the Applicant’s appeal has been dismissed by the Gauteng High Court, Pretoria and subsequently dismissed by the Supreme Court of Appeal where the same argument was raised.
29. In the light of the foregoing, the Respondent therefore respectfully submits that the application for leave to appeal should be dismissed.
192005 (1) SACR 215 (CC) par 29
DATED AT PRETORIA ON 4th DAY OF AUGUST 2016
_________________________
DEPONENT
THUS SIGNED AND SWORN TO before me at PRETORIA on this 4th day of August 2016 by the deponent who acknowledges that she knows and understands the contents of this affidavit; that it is the truth to the best of her knowledge and belief and that she has no objection to taking the prescribed oath and regards same as binding on her conscience.
___________________________
COMMISSIONER OF OATHS
NAME: ____________________________
RANK: ____________________________
ADDRESS: ____________________________
____________________________
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