Van Schalkwyk and Others v S (51/1998) [2017] ZAFSHC 169 (28 September 2017)

Van Schalkwyk and Others v S (51/1998) [2017] ZAFSHC 169 (28 September 2017)

The court found that the applicants were not to blame for the delay in filing their applications for leave to appeal, as the delay was caused by the trial judge's stance and the failure of their previous attorneys to consolidate the applications. Condonation was therefore granted. On the merits, the court held that the convictions were sound, as the trial judge properly considered the evidence of single witnesses and accomplices, and no material misdirection occurred in the findings. However, regarding sentence, the applicants were not warned about the applicability of section 51 of the Criminal Law Amendment Act 105/1997, nor were they afforded an opportunity to show substantial and...

Citation
[2017] ZAFSHC 169
Parties
Applicant: Johannes Petrus Van Schalkwyk; Applicant: Petrus Xoli Quinch; Applicant: Jerry Quinch; Respondent: The State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
28 September 2017
Case Number
51/1998
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Conviction and Sentence, With Condonation for Late Filing.
Outcome
Condonation for late filing of leave to appeal applications granted. Leave to appeal against convictions refused. Leave to appeal against sentences granted.
Judges
Rampai
Legal Topics
Minimum Sentences, Leave to Appeal, Condonation, Accomplice Evidence, Material Misdirection
Criminal Law Minimum Sentences Leave to Appeal Condonation Accomplice Evidence Material Misdirection

Case Brief

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Parties

Johannes Petrus Van Schalkwyk

Applicant

Petrus Xoli Quinch

Applicant

Jerry Quinch

Applicant

The State

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Conviction and Sentence, With Condonation for Late Filing.

Legal Issues

  1. 1 Whether the applicants should be granted condonation for late filing of their applications for leave to appeal.
  2. 2 Whether the applicants have reasonable prospects of success on appeal against conviction.
  3. 3 Whether the applicants have reasonable prospects of success on appeal against sentence, given the lack of forewarning regarding minimum sentences under section 51 of the Criminal Law Amendment Act 105/1997.

Ratio Decidendi

The court found that the applicants were not to blame for the delay in filing their applications for leave to appeal, as the delay was caused by the trial judge's stance and the failure of their previous attorneys to consolidate the applications. Condonation was therefore granted. On the merits, the court held that the convictions were sound, as the trial judge properly considered the evidence of single witnesses and accomplices, and no material misdirection occurred in the findings. However, regarding sentence, the applicants were not warned about the applicability of section 51 of the Criminal Law Amendment Act 105/1997, nor were they afforded an opportunity to show substantial and...

Court Disposition

Condonation for late filing of leave to appeal applications granted. Leave to appeal against convictions refused. Leave to appeal against sentences granted.

Orders

  • The non-compliance of the applicants with section 316(1)(b) Criminal Procedure Act 51/1977 is condoned. The 14 day period is extended to the date on which their appeal will be heard.
  • The application of each of the applicants for leave to appeal against any of the 4 convictions is refused.