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[2015] ZASCA 179
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Lubisi v The State (230/2015) [2015] ZASCA 179 (27 November 2015)
SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 230/2015
In
the appeal between:
ELPHAS
ELVIS LUBISI
First
Appellant
and
THE STATE
Respondent
Neutral
citation:
Lubisi
v
The
State
(
230/2015
)
[2015] ZASCA (179) (27 November 2015).
Coram:
Mhlantla, Shongwe,
Theron, Dambuza, and Mathopo JJA
Heard:
5 November 2015
Delivered:
27
November 2015
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 – this court has no jurisdiction
to hear appeals on the
merits directly from the magistrates’ courts.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Mngqibisa–Thusi J and
Makhubela AJ sitting as court of appeal):
1
The appeal is upheld.
2
The order of the court a quo is set aside and replaced with the
following:
‘
The
applicant is granted leave to appeal to the Gauteng Division of the
High Court against his conviction of murder in the Regional
Court,
Nelspruit, Mpumalanga.’
JUDGMENT
Mhlantla
JA (Shongwe, Theron, Dambuza, and Mathopo JJA concurring):
[1]
The appellant was arraigned in the Regional Court, Nelspruit,
Mpumalanga on a charge of murder read with the provisions of s
51 of
the Criminal Law Amendment Act 105 of 1997 (the Act). At the end of
the trial he was convicted as charged and sentenced to
ten years’
imprisonment. His application for leave to appeal against conviction
was dismissed by the regional magistrate.
[2]
Aggrieved by the outcome of his application, the appellant lodged a
petition for leave to appeal against conviction and sentence
in the
Gauteng Division of the High Court, Pretoria, in terms of s 309C of
the Criminal Procedure Act 51 of 1977 (the CPA). The
petition was
dismissed by the full bench of that division (Mngqibisa–Thusi J
and Makhubela AJ).
[3]
The appellant thereafter lodged an application in this court for
special leave to appeal against conviction and sentence in
terms of
s
16(1)
(b)
of
the
Superior Courts Act 10 of 2013
. In his affidavit, the appellant
set out the history of his application and the fact that on 21
November 2014 the court a quo had
dismissed his petition in terms of
s 309C(2)
of the CPA. In the following paragraph, he averred that he
was approaching this court in terms of
s 16(1)
(b)
read
with
s 17(2)
(b)
of
Superior Courts Act for
special leave to appeal the order refusing
his petition in terms of
s 309C(2).
This court granted the appellant
special leave to appeal against conviction.
[4]
The respondent in its heads of argument raised a point
in
limine
that this court lacked jurisdiction to adjudicate the appeal on the
merits and that the appeal was in fact directed against the
order of
the court a quo refusing the appellant leave to appeal by way of
petition. As this point was raised by the respondent
after the
appellant had already filed his written submissions, we granted the
appellant an opportunity to file supplementary heads
of argument and
for the respondent to reply, if it so wished. Both parties filed
written submissions on this point.
[5]
Before us, counsel for the appellant submitted that this court was
seized with the appeal against conviction by virtue of the
order
granted by it. He further argued that
s 19
of the
Superior Courts
Act
[1
]
conferred jurisdiction on
this court to consider the merits of the appeal. He therefore urged
us to entertain the merits of the
appeal notwithstanding the fact
that the appeal had not been adjudicated by the court a quo.
[6]
It is apposite at this stage to have regard to the relevant
legislative framework.
Section 309(1)
(a)
of the CPA provides:-
‘
Appeal
from lower court by person convicted
‘
(1)
(a)
Subject
to section 84 of the Child Justice Act, 2008 (Act 75 of 2008), any
person convicted of any offence by any lower court (including
a
person discharged after conviction) may, subject to leave to appeal
being granted in terms of section 309B or 309C, appeal against
such
conviction and against any resultant sentence or order to the High
Court having jurisdiction….’
[7]
Section 16(1)
(b)
of the
Superior Courts Act states
:
‘
Appeals
generally
(1)
Subject to
section 15(1)
, the Constitution and any other law–
(b)
an
appeal against any decision of a Division on appeal to it, lies to
the Supreme Court of Appeal upon special leave having been
granted by
the Supreme Court of Appeal.’
[8]
The question whether this court has jurisdiction to entertain the
appeal on the merits under the circumstances of this case
has been
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]
ZSACA 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), and
most recently, in
Dipholo
v
S
[2015]
ZASCA 120
.
[9]
In
Dipholo
,
[2]
the appellant had also been granted special leave by this court after
his application for leave to appeal by way of petition had
been
refused and no appeal on the merits had been adjudicated by the high
court. Bosielo JA held:
‘
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 judgment of the regional magistrate.
S
v
Tonkin
(supra) para 3.’
[10]
It is evident that the circumstances of this appeal are on all fours
with
Dipholo
.
It follows then that the decision of the court a quo which is the
subject of the present appeal is the refusal of the petition
and that
the question for determination is whether the court a quo was correct
when it dismissed the petition in terms of s 309C
of the CPA. If it
was, that will be the end of the matter. However, if the court a quo
erred, then leave to appeal to the full
court will have to be granted
for the appeal on the merits to be adjudicated by that court.
[11]
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 deal with the merits in detail. I shall only refer to a
limited number of points to determine whether there
are reasonable
prospects of success on appeal. The appellant’s counsel
challenged the evidence of the eye-witnesses. In this
regard, he
pointed out a number of contradictions and questioned their
credibility and reliability due to their state of sobriety.
Another
aspect related to the chain evidence regarding the ballistic evidence
and circumstances surrounding the discovery of the
cartridge case.
[12]
What is of concern is the manner in which the regional magistrate
evaluated the evidence and in particular, the ballistic evidence.
In
this regard, he appears to have placed too much emphasis on the
cartridge case that was found, yet dealt with that evidence
in a
perfunctory manner. In the end, one is left in the dark about what
the trial court’s opinion was with regards to that
evidence. In
my view and without wishing to comment on the merits in any detail,
the alleged contradictions and other unsatisfactory
aspects of the
evidence of the eye-witnesses as well as the the basis upon which the
trial court accepted and relied upon the ballistic
evidence are not
dealt with adequately in the judgment. This can be said to be
sufficiently weighty to justify a conclusion that,
if leave to appeal
is granted, the appellant’s prospects of success are
reasonable. It follows that the appeal must succeed.
[13]
In the result the following order is made:
1
The appeal is upheld.
2
The order of the high court a quo is set aside and replaced with the
following:
‘
The
applicant is granted leave to appeal to the Gauteng Division of the
High Court against his conviction of murder in the Regional
Court,
Nelspruit, Mpumalanga.’
__________________
N Z
MHLANTLA
JUDGE
OF APPEAL
APPEARANCES:
For
Appellant: P J de Necker
Instructed
by: Coert Jordaan Attorneys Inc
Giorgi
& Gerber Attorneys, Bloemfontein
For
Respondent: P W Coetzer
Instructed
by: Director of Public
Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
It provides:
‘
19
Powers of court on
hearing of hearing of appeals
The
Supreme Court of Appeal or a Division exercising appeal jurisdiction
may, in addition to any power as may specifically be
provided
for in any other law-
(a)
dispose of an
appeal without the hearing of oral argument;
(b)
receive
further evidence;
(c)
remit the case
to the court of first instance, or to the court whose decision is
the subject of the appeal, for further hearing,
with such
instructions as regards the taking of further evidence or otherwise
as the Supreme Court of Appeal or the Division
deems necessary; or
(d)
confirm, amend or set
aside the decision which is the subject of the appeal and render any
decision which the circumstances may
require.’
[2]
Dipholo
v
S
[2015]
ZASCA 120
para 6.