S v Dawlatt (CC132/01) [2007] ZAKZHC 21; 2008 (1) SACR 35 (N); [2008] 1 All SA 40 (N) (9 October 2007)

REPORTABLE

IN THE

HIGH COURT OF SOUTH AFRICA

NATAL

PROVINCIAL DIVISION

CASE NO: CC132/01

APPEAL CASE NO: AR 620/2005

In the matter between

DAWCHAND DAWLATT Appellant

and

THE STATE Respondent

_____________

JUDGMENT

delivered on 9 October 2007

TSHABALALA JP

1. This is an application by Mr Dawchand Dawlatt (hereinafter referred to as “the applicant”) for condonation and reservation of a question of law in terms of section 319 of the Criminal Procedure Act 51 of 1977 (hereinafter referred to as “the Act”).

The respondent is the State.

2. The trial was concluded on 20 July 2002 and on 23 July 2002 the applicant was found guilty as an accomplice to the crime of robbery with aggravating circumstances on Count 1 and as an accessory after the fact to murder on Count 2. On 24 July 2002 the applicant was sentenced to 15 years’ imprisonment on Count 1 and five years’ imprisonment on Count 2, the sentences to run consecutively. The applicant is currently serving his sentences at Westville Prison.

3. Pursuant to convictions and sentences the applicant applied for leave to appeal against both convictions and sentences. On 1 April 2005 the applicant was refused leave to appeal against convictions, but granted leave to appeal against sentences.

4. On 7 February 2006 the applicant lodged an application for condonation for leave to appeal to the Supreme Court of Appeal against convictions on Counts 1 and 2 in terms of section 316 of the Act. On 6 April 2006 the application for condonation was granted, but the application for leave to appeal was dismissed\.

5. At the hearing of the appeal on sentence on 6 February 2007, the Full Bench of the Natal Provincial Division adjourned the appeal against sentences sine die.

Applicant’s case

6. The applicant requests this Court, as the Trial Court, to reserve a question of law.

The applicant has submitted that:

(a) The question of law to be reserved is whether the Golf motor vehicle which was previously stolen was capable of being robbed from the Rabkissons who were not in lawful possession thereof.

(b) The question of law sought to be reserved was not articulated during the previous application for leave to appeal against convictions on Count 1. Therefore the leave to appeal has not been previously refused on this point of law.

(c) In the case of Magmoed v Janse van Vuuren and Others [1992] ZASCA 208; 1993 (1) SACR 67 (A), a question of law has been defined as an enquiry whether the proven facts bring the conduct of the accused within the ambit and scope of the crime charged.

(d) Where leave to appeal has been refused in terms of section 316 of the Act, it does not prohibit the applicant from further applying for the reservation of a question of law in terms of section 319(1) of the Act. Applicant’s submission is based on the case of R v Nzimande 1957 (3) SA 772 (A), where the Court held that the refusal of leave to appeal is not, for such purposes, equivalent to the dismissal of the appeal; it merely ends recourse to section 363 of repealed Criminal Procedure Act No 56 of 1955.

Merits of the applicant’s case

7. The applicant was found guilty as an accomplice to the crime of robbery with aggravating circumstances. The motor vehicle in question was previously stolen from a person known as Ian Veasey in Durban on 16 March 2001. The applicant played no part in stealing the motor vehicle on 16 March 2001

8. Subsequent to that, Dickie Maharaj loaned the motor vehicle to the Rabkissons. The applicant was aware that the Rabkissons were not the owners of the motor vehicle in question. The argument goes that only an owner or a lawful owner can devolve a right to possess property upon another.

Theft is a continuing crime which means that the theft from the original owner continued and was not interrupted or broken by a number of subsequent possessors. No subsequent possessor can be considered a lawful possessor in circumstances where the original owner’s rights to the vehicle persist. There cannot be theft/robbery from a person other than the original owner or lawful possessor unless the original or lawful possessor transfers his or her right to the property to such person. A completed crime of theft is an essential element of the crime of robbery and no conduct can be robbery unless it is also theft.

9. The Rabkissons could never be considered lawful possessors of the motor vehicle in the circumstances of this case as their possession formed part of the continuing crime of theft. It was accordingly impossible to rob the Rabkissons of the vehicle as they did not own or lawfully possess the vehicle. It was also impossible for the applicant to intend to steal a vehicle in circumstances where he knew that it was already stolen.

It was also argued that the evidence did not prove that the applicant was an accessory to the robbery. The applicant did not have the requisite intention to commit robbery against the Rabkissons.

10. The applicant argued that reasonable prospects exist that the appeal will succeed on the question of law sought to be reserved. The applicant based his submission on the view expressed by the Full Bench of the Natal Provincial Division which stated that there was “considerable substance”1 in the grounds upon which the criticism of the correctness of the conviction on the count of robbery is based.

It was finally submitted that the applicant’s conviction as an accessory to the crime of robbery was erroneous in fact and in law. The interests of justice required that the error be corrected.

Respondent’s case:

11. The respondent submitted that a question of law must arise “at the trial”. The trial against the applicant ended on 20 July 2002. His application for leave to appeal was only granted with respect to sentence on 1 April 2005. The first mention of the reservation of a question of law was made in the applicant’s heads of argument dated 30January 2007. The trial was concluded on 20 July 2002. Any delay for such a long period could never be regarded as reasonable. It was submitted that the reservation of a question of law at this stage would amount to an abuse of the process of the court.

12. In the case of S v Haarmeyer 1970 (4) SA 113 (O) in the headnote it was noted that the Court held that the Legislature intended that an application by the Attorney-General, under section 366 of repealed Criminal Procedure Act No 56 of 1955, for the reservation of a question of law for a Court of appeal, must, in the interests of justice, be made as soon as possible after the judgment, or at any rate within a reasonable time. The Court accordingly concluded that eight and a half months after judgment was too late for such a question to be reserved, also in view of the finality principle.2

13. It was also the case of the respondent that the applicant did petition the Supreme Court of Appeal with regard to convictions on Counts 1 and 2. In his documentation submitted to the Supreme Court of Appeal the applicant argued, inter alia, that in law he could not be found guilty of the crime of robbery as was found to be the case in the court a quo. The Supreme Court of Appeal refused the petition. The point taken is that the Supreme Court of Appeal did not see prospects of success in this matter including the point that in law the applicant could not be found guilty of the crime of robbery. This Court was referred to the case of S v Motsau 1974 (4) SA 970 (W), where CILLIERS JP refused to reserve a question of law on the basis that the same legal points were contained in a petition by the applicant to the Chief Justice.

14. A Superior Court will exercise its discretion in favour of reserving a question of law only where there are reasonable prospects that the Supreme Court of Appeal will find that a mistake of law was made.3 In the present case it must be shown that the applicant would not have been convicted but for the error. It was submitted that the applicant would have been convicted as there was no error in law.

15. The respondent also made reference to the finality principle, stating that the principle of finality militates against any amplification of our law to the extent as argued by the applicant.

Merits of the Respondent’s case

16. It is the applicant’s argument that someone who is in possession of stolen property can never have that property stolen from him. This, according to the respondent, does not make any sense at all. A number of judgments were cited by the respondent making reference to the crime of theft in South Africa and the variety of forms that it takes.

17. The Rabkissons were at all times bona fide possessors of the motor vehicle. In the case of S v Twala 1952 (2) SA 599 (A), at page 607H-608A, FAGAN JA stated:

“The mere fact, then, that there is an illegality to the complainant’s ownership or possession will not defeat a charge of theft.”

Therefore the dispossession of the Rabkissons of their vehicle does therefore amount in law to theft and, having been effected by force, amounts to robbery. It was submitted that this application was devoid of any substance and that it ought to be refused.

Application for the reservation of a question of law

18. This application is governed by section 319(1) of the Act which reads as follows:

"If any question of law arises on the trial in a Superior Court of any person for any offence, that Court may of its own motion or at the request either of the prosecutor or the accused reserve that question for the consideration of the Appellate Division, and thereupon the first-mentioned Court shall state the question reserved and shall direct that it be specially entered in the record and that a copy thereof be transmitted to the Registrar of the Appellate Division.”

19. In the case of Magmoed (supra) it was stated in the headnote at 69D-F:

"It is a genuine question of law, for the purposes of a reservation of a question of law in terms of section 319 of the Criminal Procedure Act 51 of 1977, whether the proven facts bring the conduct of the accused within the ambit of the crime charged. Such a question involves an enquiry as to the essence and scope of the crime charged by asking whether the proven facts in the particular case constitute the commission of a crime. This is clearly a question of law. But a question of law is not raised by asking whether the evidence establishes one or more of the factual ingredients of a particular crime, where there is a doubt or dispute as to what those ingredients are.”

CORBETT CJ observed at page 88I that in deciding whether to grant an application of this nature the Court must look at “whether there are good grounds for granting the application to have the question reserved as a question of law”.

20. In terms of the Act there are three ways in which a person who has been convicted in a Supreme Court may bring his case before the Court of Appeal. They are, firstly, by an application for leave to appeal in terms of section 316, which provides for a wide and general appeal on the facts and on the legal issues of the case. Secondly, in terms of section 317 an application may be made for a special entry where the proceedings are alleged to have been irregular and not according to law. Finally, he can make use of section 319. as in the present case, to ask for the reservation of points of law. A failure of an application under one of these sections does not exclude an application under another section.4

21. Section 319 does not prescribe a time period after an acquittal or conviction in which a question of law could be reserved; however it is worth noting that this application was brought more than four years after finalisation of the trial. In the case of S v Legote en ʼn Ander 1999 (1) SACR 269 (O) the Court held that an application for the reservation of a question of law must be brought as soon as possible and within a reasonable time after the trial.

22. In terms of section 319(1) a Trial Court has the discretion whether to reserve a question of law or not. The decision to reserve a question of law should not be an academic one but should have a practical effect upon the conviction of the accused.

23. As an example, when the State wishes to appeal against an acquittal on the ground that a mistake of law was made, a question of law will be reserved only if there is a reasonable prospect that the accused would have been convicted had that mistake of law not been made.

24. It was successfully shown by the respondent that in the applicant’s petition to the Supreme Court of Appeal, he argued, inter alia, he could not be found guilty of the crime of robbery as was found to be the case in the trial court. The Supreme Court of Appeal refused the petition. It is unlikely that the Supreme Court of Appeal had an oversight of this argument. Accordingly the Supreme Court of Appeal is unlikely to hear the matter of the applicant on this point again. I therefore cannot see how by granting this application that he has any reasonable prospects of success in the Supreme Court of Appeal.

25. Reference must be quickly made to section 316 of the Act. This section makes provision of the application for leave to appeal on the basis of either questions of fact or law. If a question of law has already been dealt with at an unsuccessful application, and it was concluded that for the point of law no prospect of success on appeal exists, an application for the reservation of the same question of law will be refused.5

26. In this matter, I wish to make reference to the case of R v Tucker 1953 (3) SA 150 (A), at page 160, where it is stated:

"It seems to me that the Court must have a discretion to refuse such an application on the grounds of public policy.”

It was also noted that considerations of public policy may preclude the Court from granting any indulgence to applicants whose cases have been finally disposed of by the Courts.

27. Is it the view of this Court that should the application be granted, it would result in the court’s process being abused. It would also open the floodgates to many other already finalised cases to pursue the path that the applicant has elected to take. Surely, this cannot be accepted. One of the aims of the criminal justice system is to try to finalise matters as soon as possible. There is already a clear backlog in the system. What would happen if we were to grant applications such as the one we are faced with?

28. Many an accused can get new legal representatives, as in this case, and then find new ways of setting aside the conviction. How are matters then ever going to be finalised? Such a situation is untenable and should not be allowed. What about the victims in these matters? There would also be no finality for them. It would result in a public outcry. In the present matter, the case was finalised in 2002, that is, five years ago. Now we are faced with the reservation of a question of law.

Conclusion

30. For the reasons set out above, I have come to the conclusion that the application for condonation and reservation of a question of law be and is hereby dismissed.

DATE OF HEARING : 19 July 2007

DATE OF JUDGMENT : 9 October 2007

FOR THE APPLICANT : Mr J E Howse

INSTRUCTED BY : Ravindra Maniklall & Co

Suites U3 – 4 , ABC Centre

91 Moss Road

VERULAM

FOR THE RESPONDENT : Mr G C Engelbrecht SC

Office of the Director of Public

Prosecutions

Private Bag X9008

PIETERMARITZBURG

1 Full Bench appeal record, page 4, lines 1-3

2 Haarmeyer (supra) at 114E-115A

3 S v Basson 2003 (3) SACR 373

4 Nzimande (supra)

5 Motsau (supra) at 973A