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[2016] ZASCA 114
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Essop v S (31/2016) [2016] ZASCA 114 (12 September 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 31/2016
DATE: 12
SEPTEMBER 2016
Not Reportable
In
the matter between:
MOSHINA
ESSOP
.........................................................................................................
APPELLANT
And
THE
STATE
.................................................................................................................
RESPONDENT
Neutral
citation
:
Essop
v S
(31/2016)
[2016] ZASCA 114
(12
September 2016)
Coram:
Bosielo, Zondi and Van der Merwe JJA and
Schoeman and Potterill AJJA
Heard:
18 August 2016
Delivered:
12 September 2016
Summary:
Criminal Procedure: appeal against
refusal by court below to grant leave to appeal on petition: test is
whether the appellant has
reasonable prospects of success on appeal:
leave to appeal against refusal of petition is granted.
ORDER
On
appeal from:
KwaZulu-Natal
Division, Pietermaritzburg (Ntshangase and Seegobin JJ sitting as
court of appeal
)
:
1 The appeal
succeeds.
2 The order refusing
the appellant leave to appeal is set aside and is replaced with the
following order:
‘
The
appellant is granted leave to appeal against sentence imposed by the
regional court, Pietermaritzburg to the KwaZulu-Natal Division,
Pietermaritz-burg.’
JUDGMENT
Zondi
JA
(Bosielo and Van der Merwe JJA
and Schoeman and Potterill AJJA concurring):
[1]
This is an appeal against the refusal by the KwaZulu-Natal Division,
Pietermaritzburg (Ntshangase and Seegobin JJ) of the appellant’s
petition for leave to appeal against the sentence imposed by the
regional court.
[2]
The appellant appeared in the regional court, Pietermaritzburg facing
17 counts of theft of attorneys’ trust funds totalling
R406 811.64 under the control of her employers, Stowell and
Company. She pleaded guilty to all the counts and was duly convicted.
After all counts were taken together for the purposes of sentence,
she was sentenced to 10 years’ imprisonment, five years
of
which were suspended for a period of five years on condition that she
was not convicted of theft or any competent verdict of
theft
committed during the period of suspension. After her application for
leave to appeal against sentence was refused by the
trial court the
appellant petitioned the Judge President (KwaZulu-Natal Division,
Pietermaritzburg) for leave to appeal against
sentence. Her petition
was dismissed.
[3]
The appellant thereafter applied to the court below for leave to
appeal to this court against dismissal of her petition for
leave to
appeal by the court below. Ntshangase and Seegobin JJ initially heard
the application for leave to appeal, but they could
not agree on
whether or not to grant leave. In consequence, the application was
postponed and a full court was constituted to hear
it. Ntshangase,
Pillay and Seegobin JJ, now sitting as the full court heard the
application and granted leave to appeal to this
court against the
refusal of the petition.
[4]
As this application for leave was brought prior to the coming into
operation of the
Superior Courts Act 10 of 2013
, the procedure as set
out in
S v Kriel
[2011] ZASCA 113
;
2012 (1) SACR 1
(SCA) must
therefore be followed. In
Kriel
, this court held at para 12:
‘
Like
the court in
Matshona
we, too, cannot determine the merits of the appeal. The issue before
us is whether leave to appeal to the High Court should have
been
granted and not the appeal itself.’
[5]
The issue before this court is whether the petition for leave to
appeal against the sentence imposed by the trial court should
have
been granted by the KwaZulu-Natal Division. In other words, at this
stage what we need to decide is whether leave should have
been
granted by the two judges before whom the petition served and not the
appeal itself.
[1]
In
Matshona
this court held that the test to be applied is whether there is a
reasonable prospect of success in the intended appeal and not
whether
the appeal itself ought to succeed or not.
[6]
What the test entails was explained in these terms by this court in
Smith
at para 7:
‘
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the
appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote, but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of
success, that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be
a sound, rational basis for
the conclusion that there are prospects of success on appeal.’
[7]
In an attempt to demonstrate that there are reasonable prospects of
success on appeal, counsel for the appellant referred to
various
findings made by the trial court which he submitted were clearly
wrong and constituted a misdirection on its part. He submitted
that
contrary to the trial court’s findings, there was no evidence:
first, that the appellant resigned because it had become
too
dangerous to continue working for the complainant; secondly, that the
appellant was a danger to society or its property and
that it needs
to be protected; and thirdly, that the appellant’s three minor
children would not be left destitute should
a custodial sentence be
imposed on the appellant as her husband and his family are available
to care for them. He pointed out that
the evidence was that the
appellant’s family, due to their own personal circumstances,
were not willing to care for the children
and that their father, who
had not been involved in their upbringing since divorce, was
reluctant to care for them. In this regard,
he submitted that the
magistrate’s finding demonstrated that she failed to consider
the rights of the children as she was
enjoined to do so by s 28(2) of
the Constitution.
[2]
He
submitted further that the magistrate erred by failing to properly
recognise that the appellant was the primary caregiver, the
impact
her incarceration will have on the children and, if they would be
adequately cared for whilst the appellant is in prison.
[8]
It is instructive to note that as regards an enquiry under s 28 of
the Constitution, the magistrate’s finding was that
the
children would be adequately cared for while the appellant is
incarcerated because ‘Welfare is there and they will
[intervene]
and foster care can be organised if there is a problem’.
The interests of the minor children must be considered independently,
not subsumed into a consideration of the appellant’s
circumstances. The appellant’s contention that the interests of
the minor children were not properly considered, might be correct.
[9]
Furthermore, it was submitted that the magistrate failed to give due
consideration to a sentence in terms of s 276(1)(
h
)
or (
i
) of
the
Criminal Procedure Act 51 of 1977
and sufficient weight to the
pre-sentence reports recommending that the appellant was a suitable
candidate for correctional supervision
and that such sentence would
be an appropriate sentence in the circumstances.
[10]
In my view, having regard to the issue that is before us for
consideration, there is merit in the appellant’s submissions
that the magistrate misdirected herself in determining or applying
the facts for assessing the appropriate sentence to be imposed
on the
appellant. It follows that I am persuaded that there are reasonable
prospects that the appeal might succeed. Leave to appeal
should have
been granted.
[11]
In the result the following order is made:
1 The appeal
succeeds.
2 The order refusing
the appellant leave to appeal is set aside and is replaced with the
following order:
‘
The
appellant is granted leave to appeal against sentence imposed by the
regional court, Pietermaritzburg to the KwaZulu-Natal Division,
Pietermaritz-burg.’
D
H Zondi
Judge
of Appeal
Appearances
For
the Appellant: B S Osborne
Instructed
by: Carlos Miranda Attorneys, Pietermaritzburg
Matsepes
Inc, Bloemfontein
For the
Respondent: Z G Mshololo
Instructed
by:The Director of Public Prosecutions, Pietermaritzburg
The Director of
Public Prosecutions, Bloemfontein
[1]
S
v Khoasasa
[2002] ZASCA 113
;
2003 (1) SACR 123
(SCA) paras 14 and 19-20;
S
v Matshona
[2008] ZASCA 58
;
[2008] 4 All SA 68
(SCA) para 4;
S
v Smith
[2011] ZASCA 15
;
2012 (1) SACR 567
(SCA) para 3.
[2]
Section 28(2) of the Constitution of the Republic of South Africa
provides as follows:
‘
A
child’s best interests are of paramount importance in every
matter concerning the child.’