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[2016] ZASCA 172
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Radebe v S (1163/2015) [2016] ZASCA 172; 2017 (1) SACR 619 (SCA) (24 November 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No.1163/2015
In
the matter between:
MZUVIKILE
RADEBE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Radebe
v S
(1163/15)
[2016] ZASCA 172
(24 November 2016)
Coram:
Bosielo,
Pillay and Petse JJA
Heard:
11
November 2016
Delivered:
24
November 2016
Summary
:
Criminal Law and Procedure – appeal against the refusal of
application for leave to appeal by high court following a refusal
to
grant leave to appeal against both the conviction and sentence by the
trial court – Section 16(1)(
b
)
of the
Superior Courts Act 10 of 2013
.
ORDER
On
appeal from
:
Eastern Cape Division of the High Court, Grahamstown (Goosen J and
Brooks AJ sitting as a court of first instance).
1.
The appeal is upheld.
2.
Leave is granted to the appellant to appeal against both his
conviction and sentence by the trial court to the Eastern Cape
Division of the High Court (Grahamstown).
JUDGMENT
Bosielo
JA (Pillay and Petse JJA concurring):
[1]
On 11 November 2016, this court granted an order as set out above,
without reasons and intimidated that judgment would be delivered
in
due course. This is the judgment containing reasons for the order
made.
[2]
The background facts to this appeal can be summarised as follows. The
appellant was convicted on 3 June 2014 of stock theft
of two bulls in
the Magistrates’ Court, Ugie in the Eastern Cape. He was
subsequently sentenced to 18 months’ imprisonment.
His
application for leave to appeal against both his conviction and
sentence was refused by the trial court. This was followed
by a
petition to the Eastern Cape Division of the High Court Grahamstown,
which suffered the same fate. However, this Court granted
special
leave to appeal against the refusal of his petition for leave to
appeal.
[3]
I pause to observe that this appeal is not against the merits of the
conviction and sentence, but is only against the refusal
by the high
court of leave to appeal against the judgment of the trial court.
This is so because this Court does not have the authority
to hear
appeals directly from the magistrate courts. In terms of the system
of the hierarchy of our courts, appeals from magistrates’
courts lie to the high court having jurisdiction. See
s 309(1)(
a
)
of the Criminal Procedure Act 51 of 1977 (CPA). Such appeals require
leave being granted by the trial court in terms of s 309B
of the CPA.
If leave to appeal is refused by the trial court, the accused can
direct a petition to the Judge-President of the specific
high court
having jurisdiction over that trial court in terms of s 309C(2) of
the CPA, for leave to appeal against the decision
of the trial court.
Upon leave being granted, the accused is free to prosecute the appeal
in the high court having jurisdiction.
S
v Khoasasa
[2002]
ZASCA 113
;
2003 (1) SACR 123
(SCA),
S
v
Matshona
[2008]
ZASCA 58
;
2013 (2) SACR 126
(SCA) paras 4-6,
S
v Van Wyk
& another
[2014] ZASCA 152
;
2015 (1) SACR 584
(SCA).
[4]
However, if leave to appeal is refused by the high court, that
refusal is a judgment or order of the high court as contemplated
by s
20(1) and 21(1) of the old Supreme Court Act 59 of 1959. It is
therefore appealable to the high court having jurisdiction.
However,
for the accused to appeal against it, leave should be granted by the
high court, which refused leave to appeal against
the judgment of the
trial court. Where the high court refuses leave to appeal, such an
accused may appeal to this Court but only
with the special leave of
this Court. Such leave to appeal will not be against the conviction
or sentence by the trial court, but
against the refusal of leave to
appeal by the high court. What this means is that the envisaged
appeal will be suspended, pending
the application for leave to appeal
against the high court’s refusal to grant leave. I am
constrained to comment that, notwithstanding
a veritable body of
judgments from this Court, there is still some misunderstanding from
various divisions of the high courts about
the correct approach in
such instances. See
Potgieter
v S
(20109/2014)
[2015] ZASCA 15
(17 March 2015);
Maringa
& another v S
[2015] ZASCA 28
;
2015 (2) SACR 629
(SCA) paras 4-5 and
Hattingh
v S
(20099/2014)
[2015] ZASCA 84
(28 May 2015) para 7. Section 309 (1)(
a
)
of the CPA makes it abundantly clear that no appeal shall lie
directly from a lower court to this Court. Such appeals must be
heard
in the specific high court having jurisdiction. See
S
v Khoasasa
(supra).
[5]
It follows that what we are called upon to decide in this appeal, is
simply whether leave to appeal by the high court should
have been
granted or not, see
S v Matshona
(supra) para 5. This could
only be done if the high court was satisfied that there were
reasonable prospects of success. See
S v
Smith
[2011]
ZASCA 15
;
2012 (1) SACR 567
(SCA) para 7 where this Court enunciated
the correct approach as follows:
‘
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.’
See
also
Molema
v S
(555/10)
[2011] ZASCA 62
(1 April 2011) para 8. As already alluded to
earlier, the crisp question that we are called upon to decide in this
appeal is whether
the high court was correct in refusing leave to
appeal against the trial court’s judgment refusing leave to
appeal. In other
words, whether the high court erred in finding that
the envisaged appeal has no reasonable prospects of success.
[6]
In answering this question, we turn to the facts of the case. The
appellant was charged with stock theft of two bulls. These
bulls were
described by various state witnesses as ‘Ntsundu’ and the
other one being red with a white face. Interestingly,
this accords
with the appellant’s description of the two bulls. Although he
admitted having fetched the two bulls from Mr
Matshata, the appellant
denies that he stole them. He explained that he kept them at Mr
Ndakana’s kraal after he had discovered
that the pound was
closed by the time he had wanted to deliver them to it. During
February 2012, he fetched them from Ndakana’s
kraal and
delivered them to the pound which was managed by Mr Ndabambi.
[7]
Mr Ndakana corroborated the appellant’s version that he brought
two bulls to his kraal for safekeeping. He confirmed that
the
appellant explained to him that the pound was already closed. The
appellant subsequently fetched these two bulls from Mr Ndakana
and
took them to the pound which was managed by Mr Ndabambi. Mr Ndakana
testified that he subsequently saw the bulls at the pound
after the
appellant had fetched them from his kraal.
[8]
Mr Ndabambi who was in charge of the pound confirmed that the
appellant brought the two bulls to them which they registered
in
their register as required by the law. Mr Sibotsha, his assistant,
confirmed this.
[9]
Importantly, both Ndabambi and Sibotsha confirmed that the two bulls
which had been brought to the pound by the appellant were
fetched on
4 May 2012 by one Mr Mazanzi who claimed to be their lawful owner.
They confirmed that Mr Mazanzi produced satisfactory
proof that he
was the lawful owner. Significantly, they both confirmed that these
were the same two bulls which had been brought
to the pound by the
appellant. There is undisputed evidence that these two bulls were
never found in the appellant’s possession.
[10]
The only evidence adduced by the state, which incriminates the
appellant, is that of Mr Nxenye from whose farm the appellant
fetched
the two bulls. However, he is not their owner. Essentially, his
evidence is to the effect that after the appellant fetched
the two
stray bulls from his farm instead of taking them to the pound, he
swapped them and took the wrong ones to the pound.
[11]
In convicting him, the trial court reasoned that, because he delayed
for two hours before he took the two bulls to the pound
after he had
fetched them from Mr Mxenge, and secondly that when he ultimately
took them to Ndakane’s kraal, he was using
a different vehicle,
he was therefore guilty. This finding begs two legal questions: is
this evidence sufficient to pass the legal
test of proof of theft of
the two bulls by the appellant beyond reasonable doubt? Put
differently, do these findings mean that
the appellant’s
version is not reasonably possibly true?
[12]
Based on the above exposition, I am of the view that reasonable
prospects exist that another court might find that the state
did not
prove its case beyond reasonable doubt against the appellant. It
follows that the appeal must succeed and the appellant
must be
granted leave to appeal to the high court having jurisdiction against
both his conviction and sentence by the trial court.
Hence the order
which we made on 11 November 2016.
____________
L
O Bosielo
Judge
of Appeal
APPEARANCES:
For
Appellant:
JE Howse
Instructed
by:
Cloete
and Company, Grahamstown
Honey
Attorneys, Bloemfontein
For
Respondent: D Els
Instructed
by:
Director
of Public Prosecutions, Grahamstown
Director
of Public Prosecutions, Bloemfontein