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[2016] ZASCA 180
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Mthimkhulu v S (1135/15) [2016] ZASCA 180 (28 November 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 1135/15
Not
reportable
In
the matter between:
VUSUMUZI
CHRISTOPHER
MTHIMKHULU
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
Citation:
Mthimkhulu
v The State
(1135/15)
[2016] ZASCA 180
(28 November 2016)
Coram:
Seriti, Mathopo, Van der Merwe and
Mocumie JJA and Nicholls AJA
Heard:
11 November 2016
Delivered:
28 November 2016
Summary:
Criminal Procedure
– appeal against conviction – leave to appeal refused by
regional magistrate – petition refused
by the court a quo –
special leave to appeal against conviction granted by the Supreme
Court of Appeal – Section 309
of the Criminal Procedure Act –
whether leave to appeal ought to have been granted.
ORDER
On
appeal from:
KwaZulu-Natal
Division of the High Court, Pietermaritzburg (Seegobin J and Barnard
AJ sitting as court of appeal):
1
The appeal is upheld.
2
The order of the KwaZulu-Natal Division of the High Court,
Pietermaritzburg is set aside and replaced with the following:
‘
The
appellant is granted leave to appeal to the KwaZulu-Natal Division of
the High Court, Pietermaritzburg against his conviction
of robbery
with aggravating circumstances.’
3
The registrar is directed to forward a copy of the judgment to the
Legal Aid Board with the request that the Legal Aid Board take
steps
as might be necessary to bring before the KwaZulu-Natal Division of
the High Court, Pietermaritzburg, appeals by Gxekathini
Bernard
Ngubane and Sibusiso Ngqulunga against their convictions and
sentences of robbery with aggravating circumstances.
JUDGMENT
Mathopo
JA (Seriti, Van der Merwe and Mocumie JJA and Nicholls AJA
concurring):
[1]
The appellant and his two co-accused were arraigned in the regional
court, Pietermaritzburg on a charge of robbery with aggravating
circumstances read with the provisions of s 51 of the Criminal
Law Amendment Act 105 of 1997 (the Act). They were convicted
and
sentenced to 15 years’ imprisonment, the magistrate having
found that there were no substantial and compelling circumstances
justifying a lesser sentence. The magistrate refused the appellant
leave to appeal against conviction and sentence. On petition
to the
KwaZulu-Natal Division of the High Court, Pietermaritzburg (the high
court) in terms of
s 309C
of the
Criminal Procedure Act 51 of
1977
, Seegobin J and Barnard AJ granted him leave to appeal against
sentence only. As regards the conviction the high court refused him
leave to appeal ‘on the basis that the reasons of the learned
magistrate cannot be faulted in any way and there are no prospects
that another court will come to a different conclusion’.
[2]
Aggrieved by this decision the appellant lodged an application for
special leave in this court against his conviction in terms
of
s 16(1)
(b)
of the
Superior Courts Act 10 of 2013
.
[3]
It bears mentioning that when the petition served before the high
court the record of the proceedings was incomplete in that
parts of
the appellant’s evidence including the second part of his
cross-examination as well as the whole of his re-examination
was
missing. Attempts to have the record reconstructed failed because the
magistrate lost or misplaced his notes. In addition the
appeal’s
clerk could not locate the prosecutor’s notes in the docket. To
compound the problem the attorney who represented
the appellant and
his two co-accused before the regional court also could not be
located. Notwithstanding these difficulties the
high court dealt with
the petition and refused the appellant’s leave to appeal
against the conviction. This appeal is against
that finding with the
special leave of this court.
[4]
The question whether this court has jurisdiction to entertain the
appeal on the merits under the circumstances of this case
was
considered by this court in various decisions which include:
S
v Khoasasa
[2002]
ZASCA 113
;
2003 (1) SACR 123
(SCA),
S
v Matshona
[2008]
ZASCA 58
;
2013 (2) SACR 126
(SCA),
S
v Tonkin
[2013]
ZASCA 179
;
2014 (1) SACR 583
(SCA), and
Van
Wyk v S
,
Galela
v S
[2014] ZASCA
152
;
[2014] 4 All SA 708
(SCA);
2015 (1) SACR 584
(SCA),
Dipholo
v S
[2015] ZASCA
120
and most recently in
Lubisi
v S
[2015] ZASCA
179.
[5]
This court has in a number of decisions stated that what is to be
adjudicated upon is whether the decision of the high court
dealing
with the refusal of the petition was correct in terms of
s 309C
of the CPA and if it is,
cadit
quaestio
. However,
if the court erred in holding that there were no reasonable prospects
of success then leave to the full bench will have
to be granted on
the merits to be adjudicated by the court. The test in an application
of this nature is whether there are reasonable
prospects of success
in the envisaged appeal. It is not desirable to traverse the merits
in detail. I shall only refer to certain
parts of the evidence which
indicate that there are reasonable prospects of success.
[6]
Before us it was contended on behalf of the appellant that regard
being had to the missing parts of the record, the high court
should
have allowed the petition. Properly understood the gravamen of the
appellant's argument is that the missing parts of the
appellant's
evidence were crucial to the determination of whether the State had
succeeded in proving its case beyond reasonable
doubt against the
appellant and his co-accused. Counsel for the State, in his heads of
argument, conceded that the record was incomplete
but argued that
despite the deficiencies a finding or decision not to grant the
appellant's leave to appeal could still be made.
Counsel failed to
advance any cogent submission as to how this could be achieved as it
was obvious that the court was at a patent
disadvantage due to an
incomplete record.
[7]
As regards the conviction, counsel for the State conceded, correctly,
in my view that he could not support a finding that there
were no
reasonable prospects of success. In view of the discrepancies and the
mutually contradictory evidence of various witnesses,
I consider that
concession to have been properly made. On the other hand, counsel for
the appellant took aim at the regional magistrate’s
improper
evaluation of the evidence of the various State witnesses and
submitted that the regional magistrate inversed the onus
by requiring
the appellant to rebut the prima facie case against him. This was
clearly not the test. This court has repeatedly
cautioned against
placing an onus on the accused to disprove his guilt. It is trite
that in a criminal case the onus remains with
the State and does not
shift.
[8]
The issue in this case is whether the incident that occurred was an
armed robbery of the complainant by the appellant and his
co-accused
or whether it was merely a fight between the appellant and the
complainant and the role played by his co-accused. Various
witnesses
have given different accounts as to what transpired on the day in
question. In my view the appellant should be granted
an opportunity
to ask the high court to make a proper assessment and analysis of all
the evidence by, amongst others, weighing
the strength and the
weakness of the State’s case vis-à-vis that of the
appellant and his witnesses, including probabilities
and
improbabilities of both versions of events.
[9]
Another matter that requires attention is the fate of the appellant's
co-accused who did not appeal. In view of our attitude
that there are
reasonable prospects of success it would seem to me proper that they
should be assisted to commence their appeal
processes. In this
regard, the registrar of this court should be directed to refer this
judgment to the Legal Aid Board with the
request that appropriate
steps be taken to bring their appeals before the high court together
with that of the appellant.
[10]
Accordingly the following order is made:
1
The appeal is upheld.
2
The order of the KwaZulu-Natal Division of the High Court,
Pietermaritzburg is set aside and replaced with the following:
‘
The
appellant is granted leave to appeal to the KwaZulu-Natal Division of
the High Court, Pietermaritzburg against his conviction
of robbery
with aggravating circumstances.’
3
The registrar is directed to forward a copy of the judgment to the
Legal Aid Board with the request that the Legal Aid Board take
steps
as might be necessary to bring before the KwaZulu-Natal Division of
the High Court, Pietermaritzburg, appeals by Gxekathini
Bernard
Ngubane and Sibusiso Ngqulunga against their convictions and
sentences of robbery with aggravating circumstances.
________________________
R
S MATHOPO
JUDGE
OF APPEAL
APPEARANCES:
For
appellant:
G H Penzhorn SC
Instructed
by:
Stowell
& Co Inc, Pietermaritzburg
Webbers,
Bloemfontein
For
respondent:
J du
Toit
Instructed
by:
Director
of Public Prosecutions, Pietermaritzburg
Director
of Public Prosecutions, Bloemfontein