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[2016] ZASCA 34
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Gonya v S (891/15) [2016] ZASCA 34 (24 March 2016)
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THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 891/15
DATE: 24 MARCH
2016
Reportable
In the matter
between:
MUZI
GONYA
...................................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Neutral Citation:
Gonya v S (891/15)
[2016] ZASCA 34
(24 March 2016)
Coram: Lewis,
Leach, Pillay, Willis JJA and Victor AJA
Heard: 9 March
2016
Delivered: 24
March 2016
Summary: Criminal
law and procedure – appeal for leave to appeal against refusal
by high court to grant leave to appeal brought
by way of petition
from the regional court - Supreme Court of Appeal does not have
jurisdiction to hear the appeal directly
from the regional court –
trial commenced prior to promulgation of the
Superior Courts Act 10
of 2013
– appeal must be determined in terms of the Supreme
Court Act 59 of 1959 – appellant granted leave to appeal
against
the non-parole period of the sentence –
s 276B
of the
Criminal Procedure Act 51 of 1977
.
ORDER
On appeal from:
Gauteng Division of the High Court, Pretoria (Mothle and Kubishi JJ
sitting as court hearing application for
leave to appeal).
1 The appeal
succeeds to the limited extent set out below.
2 Leave to appeal
is granted to the Gauteng Division of the High Court, Pretoria, but
is limited to determining only whether a non-parole
period of
imprisonment should have been imposed in terms of
s 276B
of the
Criminal Procedure Act.
JUDGMENT
Victor AJA
(Lewis, Leach, Pillay and Willis JJA concurring)
[1]
On 23 August 2008 t
he appellant was
convicted of rape in the Regional Court, Gauteng. He had raped a 15
year old girl more than once and was sentenced
to 20 years’
imprisonment. The regional court magistrate imposed a sentence that
carried a non-parole period in terms of
s 276B
of the
Criminal
Procedure Act 51 of 1977
. He was required to serve a minimum of two
thirds of the sentence amounting to 13 years and four months before
he would be eligible
for parole. The appellant sought leave to appeal
against the conviction and sentence of 20 years. The regional court
refused leave
to appeal.
[2]
On 1 March 2013 the appellant’s
petition on conviction and sentence by the regional court magistrate
to the Judge President
of the North Gauteng High Court, Pretoria was
refused by Mothle and Margardie JJ.
At the
time of his conviction and sentence the
Superior Courts Act 10 of
2013
had not been promulgated. That Act was promulgated on 23 August
2013 during the course of the petition process. The appellant applied
for leave to appeal against the refusal of the petition from the high
court. T
hat application failed and a
petition to this court followed.
[3]
The order granted by Mothle and Kubushi JJ on 3 December 2013 was
worded as follows: ‘That the application for leave to
petition
to the Supreme Court of Appeal on both conviction and sentence are
granted.’ This wording has led to some confusion
as to whether
the order was to be interpreted to mean that this court is to hear
the actual appeal or whether it is an appeal against
the refusal of
the petition for leave to appeal.
[4]
It is probable that certain errors crept into the order when it was
typed as it is clear that the judges intended to grant leave
to
appeal against their refusal of the petition to this court. The order
should have read as follows: ‘That the application
for leave to
appeal against the refusal of the petition is granted to the Supreme
Court of Appeal on both conviction and sentence.
Counsel for the
State agreed with this interpretation of the order.
[5]
The Act provides for pending proceedings at the time of its
promulgation:
Section
52 of the Superior Courts Act provides:
‘
(1)
Subject to section 27, proceedings pending in any court at the
commencement of this Act, must be continued and concluded as
if this
Act had not been passed.
(2)
Proceedings must, for the purposes of this section, be deemed to be
pending if, at the commencement of this Act, a summons had
been
issued but judgment had not been passed.
[6]
The trial in this matter commenced on 21 November 2011. The Supreme
Court Act was promulgated on 23 August 2013. On 1 March
2013 the
petition was dismissed by the high court. The appellant thereafter
sought leave to appeal against the refusal of the petition
to this
court. Leave was granted on 3 December 2013.
Plain
meaning of
s 52
of the
Superior Courts Act
[7
]
The plain meaning of the words ‘proceedings pending in
any
court’
as referred to in s 52 of
the Act must include criminal proceedings. The question raised was
whether the date of the petition proceedings
post promulgation, had
to be dealt with in terms of the
Superior Courts Act or
the Supreme
Court Act 59 of 1959. This determination also affected the higher
threshold required in terms of the
Superior Courts Act which
requires
that special leave be granted when an application for leave to appeal
is against a judgment of more than one judge. The
pure meaning of the
words
pending proceedings
must be interpreted to mean the date on which the appellant’s
proceedings commenced on 21 November 2011. The proceedings
were still
pending as at date of promulgation of the
Superior Courts Act. It
follows that the matter must be dealt with in terms of the Supreme
Court Act.
[8]
Owing to the confusion in the wording of the order granted on 3
December 2013 it is necessary to reaffirm the appropriate procedure
when a petition is refused by the high court. Streicher JA i
n
S v Khoasasa
[2002]
ZASCA 113
;
2003
(1) SACR 123
(SCA) clarified the procedural steps as set out in the
Supreme Court Act. The petition for leave to appeal to a high court
is in
terms of
s 309C
of the
Criminal Procedure Act. It
was in effect
an appeal against the refusal of leave to appeal by the magistrates'
court in terms of
s 309B
of that Act. Streicher JA concluded that
such refusal of leave to appeal by the high court was a
judgment
or order
of the high court as
contemplated in ss 20(1) and 20(4) of the Supreme Court Act, given by
the high court on appeal to it. Accordingly,
in terms of s 20(4)(b),
the refusal of leave to appeal by the high court was appealable to
the Supreme Court of Appeal with the
leave of the high court (being
the court against whose order the appeal was to be made) or, where
leave was refused, with the leave
of this court. The order appealed
against was the refusal of leave, with the result that this court
could not decide the appeal
itself.
[9]
This principle was confirmed in
S v Matshona
[2008] ZASCA 58
;
2013 (2) SACR 126
(SCA) where Leach AJA held (para 6):
‘
It
would be anomalous and fly in the face of the hierarchy of appeals
for this court to hear an appeal directly from a magistrates'
court
without that appeal being adjudicated in the high court, thereby
serving, in effect, as the court of both first and last
appeal.’
[10]
In view of the principles set out in
S v
Khoasasa
and
S
v Matshona
above this court cannot hear
an appeal directly from a lower court and in this case, directly from
the regional court.
The
requisite test to be applied when granting leave to appeal in the
court a quo
[11]
Since the Supreme Court Act applies in this matter the appellant only
has to show prospects of success and not the higher threshold
as
required in terms of the
Superior Courts Act. In
S
v Van Wyk and another
[2014] ZASCA 152
;
2015 (1) SACR 584
(SCA) the court, dealing with the test in the
Superior Courts Act, stated
that an unsuccessful petitioner in a
division of the High Court now faces a more stringent requirement in
obtaining
special leave
from this court. The appellant must show in addition to the ordinary
requirement of reasonable prospects of success, that there
are
special circumstances which merit a further appeal to this court. The
appellant’s trial was conducted when the Supreme
Court Act
applied. Leave to appeal was sought under the latter Act. This is an
important feature when considering an application
for leave to
appeal. The lower threshold of reasonable prospects of success
applies.
Prospects
of success on appeal
[12]
In order to assess the appellant’s prospects of success it is
necessary to examine the facts. On Sunday 24 July 2011
at
approximately 6h00 the complainant aged 15 years, her sister and a
friend were walking along a street in Chris Hani Township
when a male
person wearing a balaclava and wielding a knife accosted the
complainant’s sister by grabbing her from the back.
During the
struggle she managed to run away. He then turned his attention to the
complainant whom he managed to subdue by stabbing
her three times in
the back and forcing her to walk to his room blindfolded. There he
raped her and kept her captive from early
Sunday morning till 17h00
the same day. The complainant described how he had raped her twice.
Although the appellant’s sister
and his friend came to the room
and spoke to him, the complainant did not seek help from them because
she was too scared. During
the course of the day he helped her clean
her wounds by bringing her water. In his defence he claimed to be her
lover and indeed
after the event did send the complainant messages
asking her to marry him. He claimed that she arrived at his room at
4h30 on the
Sunday morning in a terrible state asking to be let in.
She apparently told him that she had been raped and he saw she was
bleeding
from her stab wounds.
[13]
The appellant’s version was correctly rejected as false by the
regional court. It is inconceivable that, as her lover,
he would have
seen the condition she was in and not taken her to the police or
doctor or back to her parental home. Instead he
kept her in his room
for the entire day and at 17h00 walked her back home only part of the
way. Upon consideration of all
the facts the appellant has no
prospects of success on conviction.
[14]
The regional court found that there were substantial and compelling
circumstances entitling it not to impose a life sentence.
In addition
to the traditional factors such as the appellant’s personal
circumstances, the regional court also took into
account the
appellant’s awaiting trial period of one year. It was noted
that the awaiting trial conditions were far different
from those
after sentence.
[15]
The appellant was sentenced to 20 years’ imprisonment including
a non-parole period in terms of
s 276B
of the
Criminal Procedure Act.
The
appellant has a previous conviction for armed robbery and a 15
year sentence was imposed. He was still on parole when he committed
this crime of rape. It is not clear quite why the regional magistrate
did not impose life imprisonment as a sentence, but that
is not, of
course, before us as the State has not sought leave to appeal against
sentence.
[16]
The suitability of a non-parole period has been dealt with in several
judgments of this court. In
S v Mhlakaza & Another
[1997] ZASCA 7
;
1997 (1) SACR 515
(SCA) at 521 Harms JA dealt with
the topic as follows:
'The
function of a sentencing court is to determine the maximum term of
imprisonment a convicted person may serve. The court has
no control
over the minimum or actual period served or to be served . . .
The lack of control of courts over the minimum
sentence to be served
can lead to tension between the Judiciary and the Executive because
the executive action may be interpreted
as an infringement of the
independence of the Judiciary’. In particular Harms JA
emphasised that where a non-parole sentence
is imposed then it is the
duty of the judicial officer to set out the reasons explicitly in the
judgment.
[17]
In
S v Stander
2012 (1) SACR 537
(SCA) (paras 12 and 16) Snyders JA stated as
follows:
‘
Despite
the fact that
s 276B
grants courts the power to venture onto the
terrain traditionally reserved for the executive, it remains
generally desirable for
a court not to exercise that power.
.
. . An order in terms of
s 276B
should therefore only be made in
exceptional circumstances, when there are facts before the sentencing
court that would continue,
after sentence, to result in a negative
outcome for any future decision about parole.’
[18]
In this matter the regional court referred to the effect of the crime
on the complainant, the repugnance of society to this
type of crime
and the personal circumstances of the appellant, but did not mention
why the serving of his sentence could not be
left to the Department
of Correctional Services. The exceptional circumstances as
referred to in
S v Stander
above
justifying a non-parole period were not referred to or dealt with by
the regional court. In addition this aspect should have
been raised
prior to the judgment on sentence so as to afford the appellant and
the State an opportunity to deal with it.
[19]
In the result the regional court and the high court erred in this
regard. The appellant should be granted leave to appeal against
his
sentence, but only in so far as the imposition of the non-parole
period of his sentence is concerned.
[20]
Accordingly,
1
The appeal succeeds to the limited extent set out below.
2
Leave to appeal is granted to the Gauteng Division of the High Court,
Pretoria, but is limited to determining only whether a non-parole
period of imprisonment should have been imposed in terms of
s 276B
of
the
Criminal Procedure Act.
M
Victor
Acting
Judge of Appeal
Appearances:
For the
Appellant: N L Skibi
Instructed
by:
Justice
Centre, Pretoria
Justice
Centre, Bloemfontein
For the
Respondent: E Leonard SC
Instructed
by:
Director
of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein