IN THE CONSTITUTIONAL COURT OF 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, Road, 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.

7.4.3. It is further submitted that if I was informed, this would have had a substantial impact on the case itself.

7.4.4. By not informing the me of the minimum sentence, the Court a quo infringed on the my right to a fair trial in terms of Section 35 of the Constitution.

See: Moses Tshoga v The State (635/2016) 2016 ZASCA 205.

Magano v S (849/12) 2013 ZASCA 192.

Mabitle v S (CAF 4/2016) [2016] ZANWHC 24; 2017 (1) SACR 325 (NWM).

7.5. In Mabitle v S (CAF 4/2016) [2016] ZANWHC 24; 2017 (1) SACR 325 (NWM) it was held that:

It is common cause that the indictment did not refer to the Criminal Law Amendment Act 105 of 1997. However, at the sentencing stage, the court a quo required the appellant to show that there were substantial and compelling circumstances present which would obviate the imposition of life imprisonment. The absence of any forewarning, at the commencement of the trial, that the minimum sentence dispensation was applicable means that the court a quo was not entitled to impose sentence in terms of that law. See S v Ndlovu 2003 (1) SACR 331 (SCA). It follows that the sentence imposed by the court a quo should be set aside and this court is at liberty to impose sentence afresh.

7.6. In Magano v S (849/12) 2013 ZASCA 192 it was held that:

[3] As already mentioned Khumalo J dealt with the case on the footing that the provisions of the minimum sentencing legislation applied. Although the record is incomplete and we do not have a copy of the indictment before us we were informed by counsel for the State that it did not refer to s 51(1) and that Mr Magano was at no stage warned that the legislation might be invoked against him when it came to sentence. In a series of judgments of this and other courts subsequent to his trial it has been held that such a warning, either by way of a reference to the section in the indictment or by some other means, such as an explanation by the presiding judicial officer, is required before the provisions of the minimum sentencing legislation may be invoked against an accused. There was accordingly an irregularity in the learned judge invoking those provisions in this case. For that reason alone the sentence he imposed must be set aside and replaced.

7.7. It is submitted that if the accused was informed, this would have moved the accused to consider pleading guilty and/or to enter into a Section 105A plea agreement with the state for a lighter sentence.

7.8. The Court a quo and the Supreme Court of Appeal failed to exercise their role as monitors of the statutory provisions.

AD GROUNDS FOR APPEAL IF LEAVE IS GRANTED:

8.

Should this Honourable Court grant me leave to appeal, my grounds of appeal will be as follows:

8.1. The Honourable Judge erred by sentencing the Applicant to a sentence that is shockingly inappropriate, for the following reasons:

8.1.1. Erred by not informing the Applicant of the minimum sentence Applicable in terms of Section 51(1) of Act 105 of 1997 at the commencement of his trial and/or when the charges were put to the Applicant.

8.1.2. Erred by not finding that a departure from the minimum standard of said sentence will be justified in specific cases.

8.1.3. Erred in not finding that substantial and compelling circumstances exists to deviate from the minimum sentence.

8.1.4. Erred by not imposing a lighter sentence, since the Applicant was not warned of the minimum sentence Applicable in terms of Section 51(1) of Act 105 of 1997 at the commencement of his trial.

8.1.5. Erred in over emphasizing the seriousness and the interest of society by over emphasizing the moral reprehensibility of the offense of which the Applicant was convicted and by attaching insufficient weight to his personal circumstances.

8.1.6. Erred by not considering any of the alternative forms of sentence.

8.1.7. Erred by finding that there is no process of success.

8.1.8. Erred by refusing Leave to Appeal.

9.

9.1. I humbly submit that I have good prospects of success if this matter is referred to the above Honourable Court.

9.2. It is submitted that the resolution of the issue that I have raised above constitute an arguable point of law of general public importance as contemplated in the amended section 167(3) of the Constitution of the Republic of South Africa, 1996, which ought to be considered by this Honourable Court.

9.3. I humbly submit that there is a reasonable prospect that this Honourable Court may place a different emphasis on the requirement that Accused’s should be informed of the minimum sentence applicable at the commencement of a trial.

AD GROUNDS FOR DIRECT APPEALS:

10.

10.1. First and foremost, I respectfully aver that, in lights of the reasons and arguments that have been advanced above, I have reasonable prospects of success in succeeding with the proposed appeal in this Honourable Court.

10.2. I approached the High Court and Supreme Court of Appeal to protect my rights.

10.3. I have already highlighted the fundamental legal errors committed by both the High Court and Supreme Court of Appeal.

10.4. I respectfully submit that this sets a dangerous president and is contrary to established jurisprudence and case law on this point. At the very least, The Courts and Law Fraternity require clarity on the status hereof.

10.5. I accordingly humbly submit that the resolution of the issue raised in this matter involves an arguable point of law of general public importance as contemplated in the amended section 167(3) of the Constitution of the Republic of South Africa, 1996, and that it should be considered by this Honourable Court.

10.6 I therefore request the Honourable Court to grant special leave based on these circumstances and the case that I have made out above, to appeal to this Court, alternatively to the High Court and/or Supreme Court of Appeal.

AD CONCLUSION:

11.

I accordingly and respectfully seek the relief set out in the Notice of Motion, and that I be granted leave to appeal to the above Honourable Court.

______J SEPTEMBER

SIGNED AND SWORN TO AT BLOEMFONTEIN ON THIS _____ DAY OF ______2017 BY THE DEPONENT WHO HAS STATED THAT: a. He knows and understands the contents hereof and that it is true and correct; and b. He has no objection to taking the prescribed oath; and c. That he regards the prescribed oath as binding on her conscience.

Signed before me,

______Commissioner of oaths