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In the Constitutional Court of South Africa Braamfontein

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In the Constitutional Court of South Africa Braamfontein IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA BRAAMFONTEIN CC CASE NO: _____/2017 SCA CASE NO: 224/2017 FSHC CASE NO: 51/2001 In the matter between: JOHANNES SEPTEMBER APPLICANT and THE STATE RESPONDENT FOUNDING AFFIDAVIT I, the undersigned JOHANNES SEPTEMBER do hereby make oath and say: AD APPLICANT: 1. 1.1. I am a major male person with identity number 770615 58 55088, currently in being held in custody at Grootvlei Correctional Centre, Dewetsdorp Road, Bloemfontein Free State Province. 1.2. I am the Applicant herein. 2. I am fully acquainted with the facts and allegations contained herein, which are within my personal knowledge and belief, except where otherwise expressly or by implication indicated, and are both true and correct. 3. I am legally represented herein and where I make allegations or submissions of a legal nature, I do so on advice procured in the drafting and preparation of this application. AD RESPONDENT: 4. 4.1. The respondent is the State which is represented by the Director of Public Prosecutions of the Free State Division, with offices at the Waterfall Building, Aliwal Street, Bloemfontein, Free State Province. 4.2. No costs will be sought against the Respondent. AD PURPOSE OF THIS APPLICATION: 5. 5.1. As indicate in the prefixed notice of motion I seek Leave to Appeal against the Sentence of His Lordship Jansen R in the High Court of South Africa, Free State Division delivered on 15 August 2001, whereby I was sentenced to Life Imprisonment, 15 years, 5 years, 5 years and 8 years imprisonment respectively. 5.2. In the alternative, I seek that Leave to Appeal be granted to the Supreme Court of Appeal and/or to the Full Bench of the High Court of South Africa, Free State Division. 5.3. I am advised, however, that are special reasons why I should be granted leave to appeal to this Court. 5.4. The grounds for this application are set out here below. AD BACKGROUND: 6. 6.1. On the 15th of August 2001, the Applicant was convicted of Murder, three counts of Attempted Murder and Robbery with Aggravating Circumstances. 6.2. The Applicant was sentence by Judge Jansen R, sitting in the Free State High Court to Life Imprisonment, 15 years, 5 years, 5 years and 8 years imprisonment respectively. 6.3. A copy of the Indictment is hereby attached as Annexure “JS1”. 6.4. A copy of the Judgement is hereby attached as Annexure “JS2”. 6.5. A copy of the Sentence is hereby attached as Annexure “JS3”. 6.6. The Applicant after being sentenced applied for Leave to Appeal, which application was subsequently dismissed on the 30th of August 2001. 6.7 A copy of the Court Order is hereby attached as Annexure “JS4”. 6.8. A copy of the Judgement dismissing the Leave to Appeal Application is hereby attached as Annexure “JS5”. 6.9. The Applicant further on the 14th of March 2017 applied for Condonation and Leave to Appeal to the Supreme Court of Appeal. 6.10. On the 7th of November 2017, the Applicant received an Order from the Supreme Court of Appeal dated the 6th of November 2017. 6.11. In terms of the Order received, condonation was granted for the late filing of the Application and the Leave to Appeal Application was dismissed. 6.12. A copy of the Leave to Appeal Application is hereby attached as Annexure “JS6”. 6.13. I humbly request the Court to incorporate herein the Grounds for Leave to Appeal as set out in Annexure “JS6”, as if specifically pleaded. 6.14. A copy of the Court Order dismissing the Leave to Appeal Application is hereby attached as Annexure “JS7”. 7. 7.1. I must place on record that the dismissal of the Application came with much surprise to the Applicant. 7.2. On the 15th of May 2017, the Supreme Court of Appeal issued a letter to the Applicants Attorney of Record, a copy of which is hereby attached as Annexure “JS8” requesting a copy of the indictment and part of the record to be filed. 7.3. Due to the matter being heard in 2001, quotes had to be requested to have the record transcribed. The Supreme Court of Appeal was informed accordingly, and the Indictment was filled in the meantime. 7.4. The Applicants Attorney of Record was informed that due to the matter being so old, it was still recorded on stereo cassettes and had to be sent to Johannesburg to be accessed and transcribed. 7.5. On the 11th of July 2017, the Supreme Court of Appeal issued a second letter, requesting the complete record to be filled. A copy of the letter is hereby attached as Annexure “JS9”. 7.6. On the 2nd of October 2017 a quote for the record was received from Lepelle Transcribers in the amount of R 43 358.00. A copy of the quote is hereby attached as Annexure “JS10”. 7.7. Due to the limited scope of the Appeal, a further quote was requested from the transcribers for the relevant parts of the record, that was not in the Applicants possession, being: 7.7.1. Putting of the Charges; 7.7.2. Plea Proceedings; 7.7.3. Mitigating Circumstances and Address; 7.7.4. Aggravating Circumstances and Address. 7.8. On the 2nd of October 2017 a quote in this regard was received from Lepelle Transcribers in the amount of R 640.00. A copy of the quote is hereby attached as Annexure “JS11”. 7.9. After the quotes were received, a meeting was arranged with the Registrar of the Supreme Court of Appeal. 7.10. Due to the Applicants financial position and the limited scope of the appeal, a request was made to only file the relevant parts of the record to the scope of the grounds of the appeal. 7.11. On the 17th of October 2017 the Registrar, Mr. Paul Myburgh informed the Applicants Attorney of Record that the Judges presiding over the matter would consider the request made and revert in due time regarding which parts of the record needed to be filed. A Confirmatory Affidavit of the Applicant’s Attorney of Record is hereby attached as Annexure “JS12”. 7.12. On the 7th of November 2017 the Applicants Attorney of Record was contacted by the Supreme Court of Appeal and requested to collect a letter. Upon receiving the call, it was expected that an outcome to the request made in regard to the filing of the record would be received, instead the Applicant was handed an Court Order dismissing the Application. AD GROUNDS FOR THIS APPLICATION: 7. 7.1. This Application is brought in terms of Section 35(3) of the Constitution of the Republic of South Africa, 108 of 1996, read with Section 38. 7.2. Section 35(3) of the Constitution states: 35(3) Every accused person has a right to a fair trial, which includes the right— (a) to be informed of the charge with sufficient detail to answer it; (b) to have adequate time and facilities to prepare a defence; (c) to a public trial before an ordinary court; (d) to have their trial begin and conclude without unreasonable delay; (e) to be present when being tried; (f) to choose, and be represented by, a legal practitioner, and to be informed of this right promptly; (g) to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly; (h) to be presumed innocent, to remain silent, and not to testify during the proceedings; (i) to adduce and challenge evidence; (j) not to be compelled to give self-incriminating evidence; (k) to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language; (l) not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted; (m) not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted; (n) to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and (o) of appeal to, or review by, a higher court. 7.3. Section 38 of the Constitution states: 38. Enforcement of rights Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are – (a) anyone acting in their own interest; (b) anyone acting on behalf of another person who cannot act in their own name; (c) anyone acting as a member of, or in the interest of, a group or class of persons; (d) anyone acting in the public interest; and (e) an association acting in the interest of its members. 7.4. I humbly submit that, for the following reasons, my constitutional right to fair Trial has been infringed: 7.4.1. It is my submission that I was never informed of the minimum sentence either by the Court a quo, my attorney and/or the prosecutor. 7.4.2. I humbly submit that I was for the first time informed of same by Judge Jansen during the Sentence proceedings.
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