Soni v S (CC29/2014P) [2019] ZAKZPHC 34 (11 April 2019)

IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL DIVISION, PIETERMARITZBURG

CASE NO. CC29/2014P

In the matter between:

RAJIVEE SONI

APPLICANT

and

THE STATE

RESPONDENT

SUMMARY IN RESPECT OF THE APPLICATIONS FOR LEAVE TO APPEAL AND BAIL PENDING APPEAL

HENRIQUES J

Introduction

[1] The applicant seeks leave to appeal to the Supreme Court of Appeal (SCA) against all the convictions imposed on 19 September 2018 and the sentences imposed on 26 October 2018. Leave to appeal is sought to the SCA on the basis that a number of ‘controversial propositions of fact and law’ arose during the trial, which are deserving of its attention. These controversial issues of fact and law are dealt with in detail in the formal application for leave to appeal which comprises some 62 pages.

[2] In the event of leave to appeal being granted, the applicant seeks to be admitted to bail pending the finalisation of the appeal. The basis upon which he seeks to be admitted to bail is set out on pages 43 to 52 of the application for leave to appeal.

The test in respect of leave to appeal

[3] In Smith v S 2012 (1) SACR 567 (SCA) the SCA dealt with the test which is applicable when dealing with an application for leave to appeal in a criminal matter. It is trite that the test is whether an applicant has reasonable prospects of success on appeal.

[4] At paragraph 7 of the judgment, the court per Plasket AJA records the following: ‘What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of such success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.’

[5] I have considered the substantive grounds of appeal advanced by the applicant in respect of the convictions and sentences imposed. My detailed reasons for the convictions are contained in the written judgment which comprises some 301 pages. This was further summarised in the executive summary which accompanied the judgment and which was read into the record. In addition I have had regard to the transcribed judgment on sentence.

[6] I have dealt extensively with the grounds of appeal advanced by the applicant in the written judgment which will be handed to the parties, shortly hereafter and have done so after careful consideration of the oral submissions of the parties during the application for leave to appeal. I have also had regard to the unedited transcript of the proceedings, the heads of arguments submitted by the parties throughout the course of the trial and my bench books. Although I am not convinced that there is merit in all the grounds of appeal advanced by him, I am satisfied that the applicant has reasonable prospects of success on appeal considering the test in applications for leave to appeal. The detailed and considered reasons for this conclusion are set out in the written judgment which accompanies this summary.

[7] Turning now to the application for bail pending appeal, it is trite and as conceded by Mr Howse who appeared for the applicant, the onus is on the applicant to show exceptional circumstances exist which in the interests of justice warrant his release on bail. I have had regard to the relevant case authorities and considered Mr Howse’s oral submissions.

[8] In S v Bruintjies 2003 (2) SACR 575 SCA at paragraph 5 the SCA held that the granting of leave to appeal does not amount to an exceptional circumstance. In Crossburg v The State the court had regard to the prospects of success on appeal but noted that there was a different emphasis in respect of bail pending

finalisation of a trial as opposed to bail pending finalisation of an appeal.

[9] I have given careful consideration to the grounds advanced by the applicant in respect of the application for bail pending appeal. Having regard to his affidavit and annexures, the applicable case authorities and the relevant factors to be considered in applications of this nature, I am not satisfied that there are exceptional circumstances which in the interests of justice permit his release on bail pending an appeal. My detailed reasons for coming to this conclusion are similarly contained in the written judgment.

[10] In the result the following orders will issue:

1. In respect of the applications for leave to appeal all the convictions (counts 1 to 6) and the sentences imposed, the applicant is granted leave to appeal to the Supreme Court of Appeal.

2. The application to be admitted to bail pending leave to appeal is refused.

HENRIQUES J

11 April 2019

CASE INFORMATION

Date of argument

: 12 December 2018 & 7 March 2019

Judgment delivered

: 11 April 2019

APPEARANCES

Counsel for the State

: Mr J du Toit

Instructed by

: The Director of Public Prosecutions

Counsel for the Applicant : Mr Howse

Instructed by

: Ayoob Attorneys

Suite 2, SDC Centre

495 Church Street

Pietermaritzburg