N THE HIGH COURT OF SOUTH AFRICA

In the matter between:
1.	EMILY VAN DALEN
2.	ANGELIQUE VAN DALEN
3.	CHRISTO VAN DALEN 
versus
THE STATE

	JUDGMENT (Application for Leave to Appeal)

On 31 October 2008 I heard an argument from counsel on applications for leave to appeal and a special entry brought by the defence simultaneously and made orally immediately after imposition of sentence.

A further ground for an application in terms of section 316 was  that the Court misdirected itself again in not giving reasons for judgment pertaining to the application in terms of section 174, that is failure to discharge the accused at close of the State case.

Furthermore, he concluded that the statement by accused No 3 was inadmissible, and according to him was found as corroborating the evidence against No 2. According to him that was in contradiction with section 219 of the Criminal 10    Procedure Act.

He further argued that the Court misdirected itself in finding that an exculpatory  statement by accused No 1 was adequateto satisfy the deficiencies in the State case.

									

He further sought to deny that there was a common thread, as concluded by the Court, running through the uncontradicted evidence of Mr Swan and the statements that were tendered by the State into evidence implicating the accused in other words.

It was his further submission that there were prospects of success on appeal. And if heard in front of another Court, another   decision   could   have   been   granted   and   more irregularities could be found.

He further hoped that another Court interpreting or considering the document in question might come to a different conclusion to that of the Court, or might well exclude the document.

It was his further submission that an appeal is a vehicle and not manifestly doomed to failure.

It was his further submission that the problem that the defence 5 experienced was further that the only evidence that was before Court was that of the State and the accused elected not to testify, and therefore there was nothing to gainsay the evidence of Mr Swan, and it was evident that the application for leave to appeal should not succeed.

The Court is further mindful of the fact that special entry is necessary in those cases where the irregularity or illegality complained of is discovered after the conclusion of trial, and the procedure may not be followed where the irregularity or illegality appears from the record of the case.     In such an event, the irregularity or illegality may form the basis of an

A further uncertainty related to whether he made that application in order to get the Appeal Court to make a legal 20 pronouncement on the relevant submission. Unfortunately, a reasonable prospect of success on appeal is not a factor which may be taken into account when one considers the question whether special entry should be noted or not.

He referred to section 316 of the Criminal Procedure Act, and raised the question whether the Court should have accepted the statements as a confession or not. I wish to say that section 316 of the Criminal Procedure Act does not deal with 15 the statements or confessions, but with the applications for condonation, leave to appeal and further evidence.

On the aspect that the Court inhibited his cross-examination, the Court specifically wanted him to elucidate what he meant by that, and according to him, as I have already indicated, the Court denied him an opportunity to ask a question and, according to him, he then said, "Then I may not ask questions", and he obviously sat down. I am not certain as I am sitting here whether that amounts to inhibiting further

The statement he referred to that was admitted as a confession was a statement by accused No 3, or Mr Pretorius, who had made a confession. In that statement he had made the admissions that would render him unequivocally guilty of 15 the crime of conspiracy to commit murder. He admitted all the essential elements of the offence. Hence the Court branded his statement a confession relating to the offence which he was convicted of.

As I said, most of the grounds of appeal are not in agreement with the record. What is manifest from the record is that all three accused exercised their right to remain silent on the face of the evidence tendered by the State that there was conspiracy to murder and harm the deceased amongst all the three accused. That evidence remained uncontroverted. The contradictions in Mr Swan's evidence relating to their part in the murder of the deceased were irrelevant when one has regard to the verdict that the court returned. The Court concedes that it made no credibility findings relating to Mr Swan's evidence because his evidence relating to conspiracy went unchallenged.

Accused No 3 also made a confession admitting conspiracy. There is no basis, therefore, for the allegation that the guilt of the accused was not proved beyond reasonable doubt.

I must say that the record was not complete. Before we adjourned on the last occasion, I asked for a transcript of the record, which was not provided up to today, and some of the other points raised, I could not verify them from the record.

NGEWU, J