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[2015] ZASCA 50
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Dlamini v S (634/2013) [2015] ZASCA 50 (27 March 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 634/2013
Not
Reportable
In
the matter between:
JABULANI
DLAMINI
…......................................................................................
APPELLANT
and
THE
STATE
..........................................................................................................
RESPONDENT
Neutral
citation:
Dlamini v The State
(634/2013)
[2015] ZASCA 50
(27 March
2015)
Coram:
Bosielo, Leach and Majiedt JJA
Heard:
13 March 2015
Delivered:
27 March 2015
Summary
:
Criminal Procedure – two judges refusing application for leave
to appeal against conviction and sentence by a regional court
–two
other judges of the high court granting the appellant leave to appeal
to the Supreme Court of Appeal – consequently
the issue before
us was whether leave to the high court ought to have been granted.
ORDER
On
appeal from:
Gauteng Division, Pretoria
(Seriti J and Sapire AJ sitting as court of appeal):
The
appeal is dismissed.
JUDGMENT
Bosielo
JA (Leach and Majiedt JJA concurring):
[1]
This matter has had a chequered history. The appellant was convicted
by the regional magistrate (D Makhoba), sitting at the
North Gauteng
Regional Court, Pretoria on four counts of theft of motor vehicles,
one count of robbery with aggravating circumstances
as defined in s 1
of the Criminal Procedure Act 51 of 1977 (CPA), of a motor vehicle
and one count of assault with intent to cause
grievous bodily harm.
[2]
He was sentenced to imprisonment for 7 years on each count of theft
of a motor vehicle, 15 years for robbery and 1 year for
assault with
intent to cause grievous body harm. The regional magistrate ordered
the sentence in respect of the assault with intent
to cause grievous
bodily harm to run concurrently with that for robbery, and ordered
that ‘in total the accused is sentenced
to 44 years’
imprisonment…. I have decided to order that you serve the
maximum of 25 years’.
[3]
His application for leave to appeal against both his convictions and
sentence was dismissed by the regional magistrate. He then
petitioned
the North Gauteng High Court, Pretoria (Seriti J and Sapire AJ) for
leave to appeal which was dismissed on the basis
that there were no
prospects of success in respect of both the conviction and sentence.
Aggrieved by this decision, he applied
for leave to appeal against
this order to the high court. The application was granted by Mothle
and Baqwa JJ as follows:
‘
Your
application for condonation for the late filing of this application
is granted as well as your application for special leave
to appeal to
the Supreme Court of Appeal in terms of s 20(4) of the Supreme Court
Act 59 of 1959.’
[4]
The reference to special leave in this order was wrong and
misleading. The application for leave to appeal to this court was
granted before the introduction of the
Superior Courts Act 10 of
2013
. The position in regard to the appeal procedure at that time (it
has since changed) was explained by this court in
Matshona v S
[2008] 4 All SA 68
(SCA)
2013 (2) SACR 126
at paras 4-6 as follows:
In my view, the
reasoning in
Khoasasa
is unassailable. The appeal of an
accused convicted in a regional court lies to the high court under
section 309(1)(
a
), although leave to appeal is required either
from the trial court under
s 309B
or, if such leave is refused, from
the high court pursuant to an application made by way of a petition
addressed to the judge-president
under
s 309C(2)
and dealt with in
chambers. In the event of this petition succeeding, the accused may
prosecute the appeal to the high court. But,
if it is refused, the
refusal constitutes a "judgment or order" or a “ruling”
of a high court as envisaged
in
s 20(1)
and s 21(1) of the Supreme
Court Act 59 of 1959, against which an appeal lies to this court on
leave obtained either from the high
court which refused the petition
or, should such leave be refused, from this court by way of petition.
It is clear from this that
where, as is here the case, an accused
obtains leave to appeal to this court against the refusal in a high
court of a petition
seeking leave to appeal against a conviction or
sentence in the regional court, the issue before this court is
whether leave to
appeal should have been granted by the high court
and not the appeal itself which has been left in limbo, so to speak,
since the
accused first sought leave to appeal to the high court.
After all, in the present case, the appellant's appeal against his
sentence
has never been heard in the high court and, as was held in
S
v N
1991 (2) SACR 10
(A) at 16, the power of this court to hear
appeals of this nature is limited to its statutory power. Section
309(1) prescribes
that an appeal from a magistrates’ court lies
to the high court, and an appeal against the sentence imposed on the
appellant
in the regional court is clearly not before this court at
this stage. As was observed by Streicher JA in
Khoasasa
:
“
Geen
jurisdiksie word aan hierdie Hof verleen om ‘n appél aan
te hoor teen ‘n skuldigbevinding en vonnis in ‘n
laer hof
nie. Dit is eers nadat ‘n appél vanaf ‘n laer of
na ‘n Provinsiale of ‘n Plaaslike
Afdeling misluk het dat
‘n beskuldigde met die nodige verlof na hierdie Hof appél
kan aanteken.”
Not
only does this court lack the authority to determine the merits of
the appellant's appeal against his sentence at this stage,
but there
are sound reasons of policy why this court should refuse to do so
even if it could. 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
Khoasasa
at [14]. Section 20 (4)(
b
)
as read with s 21(1) and (2) of the Supreme Court Act. Section 23 of
the Supreme Court Act. See s 315(1) at [12]. Being
adjudicated
in the high court, thereby serving, in effect, as the court of both
first and last appeal. In addition, all persons
are equal under the
law and deserve to be treated the same way. This would not be the
case if some offenders first had to have
their appeals determined in
the high court before they could seek leave to approach this court if
still dissatisfied while others
enjoyed the benefit of their appeals
being determined firstly in this court. And most importantly, this
court should be reserved
for complex matters truly deserving its
attention, and its rolls should not be clogged with cases which could
and should be easily
finalised in the high court.’
[5]
That this was the position was since confirmed in
S
v Tonkin
2014 (1) SACR 610
(SCA) para
6;
S v Van Wyk
and
S v Galela
[2014]
ZASCA 152
paras 13-16. It follows that what is before us is not an
appeal on the merits as this must be heard in the high court first.
Hence
the issue before this court is simply whether the high
court should have granted leave to appeal. This it could only do if
it was
satisfied that there were prospects of success.
S
v Smith
2012 (1) SACR 567
(SCA) para 7.
[6]
Turning to the facts, in respect of the four counts of theft of
vehicles, the State relied on the evidence of the owners of
the
various vehicles who testified that their vehicles were stolen and
recovered by the police; the purchasers who testified that
the
appellant sold the vehicles to them professing to be the owner with
the right to sell them; that the vehicles were subsequently
impounded
from them by members of the South African Police Services (SAPS).
Importantly, the appellant did not deny all this. His
only defence
was that he did not know that the vehicles were stolen and further
that he sold them as an agent of a certain Mr Madisha,
who has since
died. What proved to be fatal to the appellant’s version was
the written agreement which he concluded with
one of the
witnesses-cum-purchasers, Jerwin Errol Eagen, ‘Exh O’
wherein he described himself as the seller. This statement
was signed
at Sunnyside Police Station. Based on this evidence, the regional
magistrate rejected the appellant’s version
as not being
reasonably possibly true.
[7]
Regarding the counts of robbery of a motor vehicle and assault with
intent to cause grievous bodily harm, both of which happened
simultaneously, the respondent relied on the identification of the
appellant by the two victims, Mr and Mrs Lombard. These were
the
eye-witnesses. Furthermore, the appellant’s cellular phone
records placed him at the scene where the offences took place
and
where Mr Lombard’s wallet was subsequently recovered. These
records were admitted as part of the evidence with his consent.
This
evidence proved overwhelming and fatal to the appellant’s case.
[8]
The appellant was sentenced to 7 years’ imprisonment in respect
of the four counts of theft of vehicles; 15 years in respect
of
robbery with aggravating circumstances and 1 year in respect of
assault with intent to cause grievous bodily harm. The cumulative
sentence was 44 years’ imprisonment. However, as already
mentioned, the regional magistrate made an order that the appellant
was to serve ‘a maximum of 25 years’ imprisonment’.
[9]
The appellant’s main submission is that this sentence is so
disturbingly disproportionate to the offences for which he
was
convicted that it induces a sense of shock. He contended that there
are prospects that another court might find the sentence
shocking and
interfere with it.
[10]
A sentence of 25 years’ imprisonment is a severe one. However,
sight should not be lost of the fact that the appellant
was convicted
of multiple, serious and prevalent offences. Furthermore, it is clear
from his modus operandi that these offences
were well-planned. In
fact they constituted a consistent and lucrative business, albeit
unlawful for the appellant. In the circumstances,
a sentence of 7
years’ imprisonment for each count of theft of a motor vehicle
is not shocking to me.
[11]
The same applies to the 15 years’ imprisonment for robbery with
aggravating circumstances. The evidence reveal that Mr
Lombard was
severely assaulted and his entire family traumatised. A firearm was
used. This robbery occurred inside the Lombard’s
home where
they thought they were safe. Inexplicably, their helper was subjected
to the worst indignity when one of the robbers
urinated on her.
[12]
Crimes of this nature have over the years become endemic. However, my
problem lies with the condition that the appellant shall
serve a
maximum of 25 years’ imprisonment. I interpret this to mean
that he intended to order that the sentences run concurrently
to the
extent that appellant should serve a sentence of 25 years’
imprisonment. This makes the sentence unimpeachable. Given
the
nature, gravity, prevalence of these offences and their impact on
society and the economy of this country, I am not persuaded
that a
sentence of 25 years is inappropriate. In the circumstances, I do not
think that there are any reasonable prospects that
the appeal against
both the conviction and sentence might succeed.
[13]
In the result, the appeal is dismissed.
_________________
L
O BOSIELO
JUDGE
OF APPEAL
Appearances:
For
Appellants: AB Booysen
Instructed
by:
Mashamba
Incorporated, Pretoria
SMO
Seobe Attorneys, Bloemfontein
For
Respondent: P Vorster
Instructed
by:
Director
Public Prosecutions, Pretoria
Director
Public Prosecutions, Bloemfontein