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[2015] ZASCA 120
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Dipholo v The State (094/2015) [2015] ZASCA 120 (16 September 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 094/2015
Not
reportable
In
the matter between:
STEVEN
OFENTSE
DIPHOLO
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Dipholo
v The State
(094/15)
[2015] ZASCA 120
(16 September 2015)
Coram:
Bosielo,
Petse JJA and Van der Merwe AJA
Heard:
02 September 2015
Delivered:
16 September 2015
Summary
:
Appeal against effective sentence
of 40 years’ imprisonment –
leave to appeal refused by presiding magistrate – petition
refused by full bench
of the court below – leave to appeal to
the Supreme Court of Appeal granted by the Supreme Court of Appeal –
whether
this Court has jurisdiction to hear appeals on the merits
directly from the magistrates’ court –
Section 309
of the
Criminal Procedure Act 51 of 1977
.
ORDER
On
appeal from
:
North West Division of the High Court, Mahikeng (Landman and Gura JJ
sitting as court of appeal).
a)
The appeal is upheld.
b)
The order of the court below refusing the appellant leave to appeal
is set aside and replaced with the following:
‘
The
applicant is granted leave to appeal against the sentence imposed on
him by the regional magistrate to the North West Division
of the High
Court, Mahikeng.’
JUDGMENT
Bosielo
JA (Petse JA and Van der Merwe AJA concurring)
[1]
The appellant was convicted in the regional court, Lichtenburg on 17
March 2009 of rape read with the provisions of
s 51(2)
and
Part II
Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
, robbery
with aggravating circumstances and sexual assault. He was sentenced
as follows:
(a)
Count 1 – rape: 15 years’ imprisonment.
(b)
Count 2 – robbery with aggravating circumstances: 15 years’
imprisonment.
(c)
Count 4 – sexual assault: 10 years’ imprisonment.
[2]
The regional magistrate did not order the sentences to run
concurrently and as a result, the appellant was sentenced to 40 years
of direct imprisonment. The appellant then applied for leave to
appeal against his sentence only, to the regional court. The regional
magistrate dismissed the application for leave to appeal on 1 May
2009. On 10 August 2012, the appellant’s petition for leave
to
appeal against the judgment of the regional magistrate to the North
West Division, Mahikeng (Landman and Gura JJ) was also dismissed.
[3]
Aggrieved by this, the appellant filed an application for special
leave to appeal to this Court. On 16 January 2015 this Court
granted
him leave to appeal against his sentence only to this Court. Hence
this appeal before us.
[4]
In their heads of argument and relying on
S
v Tonkin
2014
(1) SACR 583
(SCA), the appellant raised the question whether this
Court had jurisdiction to hear this appeal against the sentences on
the merits
in terms of
s 16(1)(
b
)
of the Superior Court Act 10 of 2013. As a result, we raised this
crisp issue with both counsel as a preliminary issue. After
being
referred to a long list of cases from this Court which included
S
v Khoasasa
(515/2001)
[2002] ZASCA 113
(20 September
2002); 2003 (1) SACR 123
(SCA),
S
v Matshona
(509/2007)
[2008] ZASCA 58
;
2013 (2) SACR 126
(SCA),
S
v Tonkin
(938/12)
[2013] ZASCA 179
;
2014 (1) SACR 583
(SCA) and
Van
Wyk v S; Galela v S
(20273/2014,
20448/2014)
[2014] ZASCA 152
;
[2014] 4 All SA 708
(SCA);
2015 (1)
SACR 584
(SCA) (29 September 2014) both counsel conceded, correctly
in my view, that this Court does not have jurisdiction to hear this
appeal on the merits as it does not have the jurisdiction to hear
appeals directly from the magistrates’ court. In terms
of
the law and the current jurisprudence of our courts such appeals must
be heard first by the high court.
[5]
It is correct that in terms of our current law appeals from the
magistrates’ court must be heard by the high court. Section
309(1)(
a
) of the Criminal Procedure Act 51 of 1997 (CPA).
There is no provision in the law for this court to hear appeals on
the merits
directly from the magistrates’ courts. However,
confusion has reigned in the various divisions of the high court in
recent
times regarding the proper procedure to be followed by an
accused in instances where a high court has refused leave to appeal a
judgment from the magistrates’ court. One would have hoped that
the position was settled in
S v Khoasasa
(supra) paras 19-22.
However, as this confusion persisted, this Court once again restated
the correct approach in
S
v Tonkin
2014
(1) SACR 583
(SCA) in para 6 as follows:
‘
In
response to our invitation, counsel for the appellant submitted a
well prepared argument urging us to entertain the merits of
the
appeal. But on reflection it appears to me that, unfortunate as it
may be, we have no authority to do so .The reason why it
is so have
been stated in Khoasasa and elaborated upon in the decisions
following upon it to which I have referred. On reflection,
these
reasons cannot, in my view, be faulted. In broad outline they are as
follows:
(
a
)
Although this Court has inherent jurisdiction to regulate its own
procedure, it has no inherent or original jurisdiction to hear
appeals from other courts. In the present context, its jurisdiction
is confined to that which is bestowed upon it by sections 20
and 21
of the Supreme Court Act. In terms of these sections the jurisdiction
of this Court is limited to appeals against decisions
of the high
court.
(
b
)
When leave to appeal has been refused by the high court, that court
rather obviously, did not decide the merits of the appeal.
If this
court were therefore to entertain an appeal on the merits in those
circumstances, it would in effect be hearing an appeal
directly from
the magistrates’ court. That would be in direct conflict with s
309 of the Criminal Procedure Act, which provides
that appeals from
lower courts lie to a high court. The “order on appeal”
by the high court – in the language
of s 20(4) – that is
appealed against is the refusal of the petition for leave to appeal
and nothing else’
.
[6]
It follows therefore that what is before us is not an appeal on the
merits, as the high court has not heard the appeal
on the
merits, but an appeal against the refusal of leave to appeal by the
high court.
S
v Khoasasa
(supra)
paras 14 and 19-22;
S
v Matshona
[2008]
ZASCA 58
;
[2008] 4 All SA 68
(SCA);
2013 (2) SACR 126
(SCA) para 4.In
the circumstances, what this Court had to decide is simply whether
the court below erred in finding that there
were no reasonable
prospects of success on appeal against the sentence imposed by the
regional magistrate and thus refusing leave
to the appellant to
appeal against the judgement of the regional magistrate.
S
v Tonkin
(supra)
para 3.
[7]
It is trite that leave to appeal can only be granted where there are
reasonable prospects of success.
S v Smith
2012 (1) SACR 567
(SCA) para 7. The appellant’s counsel submitted that the
regional magistrate erred in ordering the sentences imposed on the
appellant to run consecutively and not concurrently. This,
notwithstanding the fact that all the offences happened at the same
time. As a result the appellant has had to serve a cumulative
sentence of imprisonment for 40 years, which he submitted was
disturbingly
disproportionate or shocking. See
S v Muller &
another
2012 (2) SACR 545
(SCA) paras 8, 9 and 11;
S v
Hendrick Van Wyk
(20273/2014)
[2014] ZASCA 152
;
Mudau v S
(547/13)
[2014] ZASCA 43
(31 May 2014)
[8]
Notably, the respondent’s counsel conceded that the regional
magistrate erred in failing to consider the cumulative effect
of the
sentences which he imposed on the appellant. He conceded further,
correctly and fairly in my view, that the cumulative sentence
in the
circumstances of this case, induces a sense of shock. These
concessions are, in my view, sufficient to justify the conclusion
that there are reasonable prospects of success that another court
might interfere with the sentences imposed by the regional
magistrate.
[9]
In the circumstances, I am satisfied that leave to appeal should be
granted to the North West Division of the High Court, Mahikeng.
[10]
In the result it is ordered that:
a)
The appeal is upheld.
b)
The order of the court below refusing the appellant leave to appeal
is set aside and replaced with the following:
‘
The
applicant is granted leave to appeal against the sentence imposed on
him by the regional magistrate to the North West Division
of the High
Court, Mahikeng.’
____________
L
O Bosielo
Judge
of Appeal
APPEARANCES:
For
Appellant:
LN Skibi
Instructed
by:
Legal
Aid South Africa, Mahikeng
Legal
Aid South Africa, Bloemfontein
For
Respondent:
Adv MG Ndimande
Instructed
by:
Director
Public Prosecutions, Mmabatho
Director
Public Prosecutions, Bloemfontein