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[2015] ZASCA 189
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Masike v The State [2015] ZASCA 189 (30 November 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 20565/2014
In
the matter between:
SAMSON
GIVEN MASIKE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Masike
v The State
(20565/2014)
[2015] ZASCA 189
(30 November 2015)
Coram:
Ponnan,
Bosielo, Leach, Petse and Zondi JJA
Heard:
11
November 2015
Delivered:
30
November 2015
Summary:
Criminal
Procedure ─ Appeal against order of the High Court refusing
leave to appeal in terms of
s 309(7)
(c)
of the
Criminal Procedure Act 51 of 1977
─ refusal of
condonation by lower court when there are no reasonable prospects of
success of appeal may be appealed against
to the high court if leave
to appeal is granted by the high court. Necessity for judges
considering petition to have at their disposal
documents listed in
s
309C(4)
of the CPA for a proper adjudication of petition explained.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria
(Makgoba
and Louw JJ sitting as court of appeal):
The
matter is struck from the roll.
JUDGMENT
Petse
JA (
Ponnan,
Bosielo, Leach and Zondi JJA
concurring):
Introduction
[1]
On 20 June 2008 an armed robbery took place at the Blue Ribbon Bakery
in Vereeniging. In a bid to evade arrest, the robbers’
getaway
motor vehicle drove against a red traffic-signal into an intersection
and collided with another motor vehicle and in consequence
two
passengers travelling in the getaway motor vehicle were fatally
injured.
[2]
Subsequently the appellant, who was the owner and driver of the
getaway motor vehicle was charged, together with two other persons
who do not feature in this appeal, in the Vereeniging Regional Court
on six charges, to which he pleaded not guilty namely: (a)
robbery
with aggravated circumstances ; (b) two counts of possession of an
unlicensed firearm in contravention of
s 3
read with ss 1, 103, 117,
120(1)
(a)
and 121 of the Firearms Control Act 60 of 2000; (c) possession of
unlicensed ammunition in contravention s 3 read with of ss 1,
103,
117, 120(1)
(a)
and 121 of the Firearms Control Act; and (d) two counts of culpable
homicide.
[3]
The appellant was convicted on the robbery and culpable homicide
charges but acquitted on the remaining charges. He was sentenced
to
15 years’ imprisonment on the robbery charge ─ this being
the prescribed minimum sentence in terms of s 51(2) read
with Part II
of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (the Act)
─ and five years’ imprisonment on
each of the two counts
of culpable homicide. The latter sentences were ordered to run
concurrently with the 15 year term of imprisonment.
Delays
and consequent applications for condonation
[4]
The appellant subsequently applied for leave to appeal against both
his conviction and sentence. As this application was out
of time, it
was supported by an application for condonation. Both applications
served before the trial court on 17 January 2011.
The only reason
proffered by the appellant for the delay is contained in a single
sentence being that ‘due to financial difficulties
[he] was
unable to give [his] current attorneys proper instructions to file
leave to appeal within the 14 days’ period prescribed
in terms
of s 309B(1)
(b)
(ii)
of the Criminal Procedure Act 51 of 1977 (the CPA).
[5]
At the outset the magistrate called into question the truthfulness of
this explanation. It would appear that he held this view
because the
attorney who represented the appellant at the trial had previously
approached him on 10 December 2010 intimating that
he had come to
move an application for leave to appeal. However this application did
not proceed as the appellant was not brought
to court from gaol. In
the event, the magistrate refused the application for condonation. He
did so without considering the application
for leave to appeal on its
merits, after he had remarked that he could not ‘grant leave on
a perjurious affidavit’.
[6]
Aggrieved at this result the appellant, by way of a petition, applied
to the Judge President of the Gauteng Division of the
High Court,
Pretoria for leave to appeal, not against the refusal of his
condonation application, but what he chose to call the
dismissal of
his application for leave to appeal against his conviction and
sentence. That petition was similarly out of time and
consequently
the appellant also applied for condonation for its late filing. The
petition served before Makgoba and Louw JJ who,
having found that
there were ‘no prospects of success on appeal in respect of
both conviction and sentence’, dismissed
the application on 22
September 2011.
[7]
The appellant, almost nine months later, applied to the high court in
terms of s 316 of the CPA for leave to appeal against
the order
refusing him leave to appeal to this court. This application was
similarly accompanied by an application seeking condonation
in
respect of its late filing. Again, the reason proffered for the
inordinate delay by the appellant was that he lacked funds to
enable
him to instruct an attorney and counsel and was ‘recently being
financially supported by [his] family’. In a
terse judgment
(per Louw J in which Makgoba J concurred) the court a quo was somehow
persuaded that there was indeed ‘a reasonable
possibility that
another court could come to a different conclusion’ in regard
to the prospects of success on appeal. Consequently
it granted leave
to appeal to this court. What motivated its change of mind in regard
to the reasonable prospects of success was
not articulated.
[8]
Against that backdrop, the registrar of this court was directed to
address a note, at our behest, to counsel for the parties
inviting
them to file supplementary heads of argument addressing the
following:
(a)
what precisely served before the high court when it:
(i)
first refused the application for leave to appeal;
(ii)
subsequently granted leave to appeal to this court.
(b)
precisely what serves before this court on appeal.
(c)
on what basis is it contended that:
(i)
the high court had jurisdiction to entertain the matter;
(ii)
this court has jurisdiction to hear the matter.
(d)
in the event of this court having jurisdiction and the appeal
succeeding, what order, is it envisaged, will be sought of this
court?
[9]
Both counsel filed supplementary heads of argument in response to our
invitation. The thrust of the submission was
that we
should determine whether or not the appellant’s application for
leave to appeal against his conviction and sentence
was correctly
refused in the high court.
[10]
It is convenient at this stage to set out the dates and events
relevant to the determination of this appeal.
1.
On 6 December 2010 the appellant was convicted and sentenced by the
regional court on three charges.
2.
On 10 December 2010 an application for leave to appeal against both
conviction and sentence was scheduled to be heard by the
regional
court but was not dealt with because the appellant was not in
attendance in court.
3.
On 17 January 2011 an application for leave to appeal served before
the regional court brought outside the 14 day period prescribed
by s
309B(1)
(b)
(i) of the CPA and for this reason it was supported
by an application for condonation. On the same day condonation was
refused.
No order was made on the application for leave to appeal.
4.
On 30 August 2011 the appellant applied for leave to appeal against
his conviction and sentence to the court a quo.
5.
On 22 September 2011 the court a quo refused leave to appeal.
6.
On 20 June 2012 the appellant brought an application for leave to
appeal to this court against the refusal of his petition in
terms of
s 316 of the CPA.
7.
On 10 August 2012 the court a quo granted leave to appeal to this
court.
Legal
framework
[11]
The key statutory provisions are ss 309B and 309C of the CPA. The
material parts of s 309B read thus:
‘
309B
Application for leave to appeal
(1)
(a)
Subject to
section
84
of
the Child Justice Act [75 of 2008], any accused, other than a person
referred to in the first proviso to section 309(1)
(a)
,
who wishes to note an appeal against any conviction or against any
resultant sentence or order of a lower court, must apply to
that
court for leave to appeal against that conviction, sentence or order.
(b)
An application
referred to in paragraph
(a)
must be made ─
(i) within
14 days after the passing of the sentence or order following on the
conviction; or
(ii) within such
extended period as the court may on application and for good cause
shown, allow.
(2)
(a)
Any application in terms
of subsection (1) must be heard by the magistrate whose conviction,
sentence or order is the subject of
the prospective appeal
(hereinafter referred to as the trial magistrate) . . .
(4)
(a)
If an application for
leave to appeal under subsection (1) is granted, the clerk of the
court must, in accordance with the rules
of the court, transmit
copies of the record and of all relevant documents to the registrar
of the High Court concerned: Provided
that instead of the whole
record, with the consent of the accused and the Director of Public
Prosecutions, copies (one of which
must be certified) may be
transmitted of such parts of the record as may be agreed upon by the
Director of Public Prosecutions
and the accused to be sufficient, in
which event the High Court concerned may nevertheless call for the
production of the whole
record.
(b)
If any application
referred to in this section is refused, the magistrate must
immediately record his or her reasons for such refusal.’
[12]
The relevant portions of s 309C provide as follows:
‘
309C Petition
procedure
(1) In this section─
(a)
“
application
for condonation”
means an application referred to in the proviso to section 309(2), or
referred to in section 309B (1)
(b)
(ii);
(b)
“
application
for leave to appeal”
means an application referred to in section 309B(1)
(a)
;
. . .
(d)
“
petition”
,
unless the context otherwise indicates, includes an application
referred to in subsection (2)
(b)
(ii).
(2)
(a)
If any application─
(i) for condonation;
(ii) . . .
(iii)
for leave to appeal,
is
refused by a lower court, the accused may by petition apply to the
Judge President of the High Court having jurisdiction to grant
any
one or more of the applications in question.
(b)
Any petition
referred to in paragraph
(a)
must be made-
(i) within 21 days
after the application in question was refused; or
(ii) within such
extended period as may on an application accompanying that petition,
for good cause shown, be
allowed.
(3)
(a)
If more than one
application referred to in subsection (1) relate to the same matter,
they should, as far as is possible, be dealt
with in the same
petition.
(b)
An accused who
submits a petition in terms of subsection (2) must at the same time
give notice thereof to the clerk of the lower
court referred to in
subsection (2)
(a)
.
(4) When receiving the notice referred
to in subsection (3), the clerk of the court must without delay
submit to the registrar of
the High Court concerned copies of-
(a)
the
application that was refused;
(b)
the
magistrate’s reasons for refusal of the application; and
(c)
the
record of the proceedings in the magistrate’s court in respect
of which the application was refused. . . .’
Nature
of the application by court a quo
[13]
As I have already stated, the trial court did not deal with the
application for leave to appeal against conviction and sentence.
It
focussed its attention on the application for condonation, which it
refused. But the appellant misconceived the nature of his
remedy
following the dismissal of the condonation application. Instead, he
petitioned the court a quo for leave to appeal against
his conviction
and sentence. This course would have been competent only if the trial
court had considered and determined his application
for leave to
appeal against his conviction and sentence which it clearly did not.
The appellant ought to have petitioned the high
court under
s 309C(2)(
a
)(i)
which he did not do. The court a quo similarly misconstrued the
nature of the remedy available to the appellant. It seemed
to believe
that it was considering an application properly before it under s
309C(2)(
a
)(iii).
Consequently it determined the application for leave to appeal
against conviction and sentence, which it subsequently dismissed,
but
which had never been properly before it. In reaching this conclusion
it, in essence, held that the envisaged appeal was bereft
of any
reasonable prospect of success, although, subsequently it changed its
view in granting leave to appeal to this court against
its earlier
refusal of leave.
Discussion
[14]
Counsel for the State submitted that the interests of justice
dictated that we consider the question whether the court a quo
had
erred in refusing the appellant leave to appeal. And if so, that we
grant leave to the appellant to appeal to the Gauteng Division
of the
High Court.
[15]
In
S
v Khoasasa
2003 (1) SACR 123
(SCA) para 12, this court held that a refusal by a
high court of a petition for leave to appeal against the refusal of
leave to
appeal by a magistrate’s court does not vest this
court with power to decide the envisaged appeal itself. If it finds
that
the petition should have succeeded it must grant leave to appeal
to the relevant Division of the High Court.
Khoasasa
has since been followed in subsequent decisions of this court.
[1]
[16]
But different considerations apply in this case. There was no
substantive order refusing leave to appeal against conviction
or
sentence that could have been the subject of a petition for leave to
appeal to the court a quo under s 309C(2)(
a
)(iii)
of the CPA. The judges in the court below considered the application
as if condonation had been granted and the application
for leave to
appeal had been refused on its merits, when it had not.
[17]
But what seems clear from the provisions of s 309C(2)
(a)
(i)
of the CPA is that when a lower court refuses an application for
condonation, as it happened in this case, it is open to an
accused to
apply, by way of a petition, to the Judge President of the Division
of the High Court having jurisdiction, for leave
to appeal against
such refusal. This, the appellant did not do.
[18]
In the light of what has been said above, it is plain that the court
a quo misconceived the position. It lost sight of the
fact that all
that the trial had done was to refuse condonation. An appeal against
the refusal of condonation is to be dealt with
in terms of s
309C(2)(
a
)(i)
of the CPA. It follows that the order of the court a quo granting
leave to appeal to this court amounts to a nullity
[2]
and that in consequence this court suffers a want of jurisdiction. It
was submitted that in the interests of justice we should
nonetheless
exercise our discretion in favour of the appellant by entering into
the merits of the matter. In a situation such as
this, where we lack
jurisdiction, we are not possessed of any discretion that can be
exercised in the appellant’s favour.
But even were we to have a
discretion, a careful perusal of the record leaves me in doubt that
such discretion ought, in the circumstances
of this case, to be
exercised in favour of the appellant.
Order
[19]
The matter is struck from the roll.
__________________
X M PETSE
JUDGE
OF APPEAL
APPEARANCES:
For
Appellant:
AB Burger
Instructed
by:
David
Mey & Partners, Vereeniging
Van
Pletzen Lambrechts Attorneys, Bloemfontein
For
Respondent:
P Vorster
Instructed
by:
The
Director of Public Prosecutions, Pretoria
The
Director of Public Prosecutions, Bloemfontein
[1]
See for example,
S
v Smith
2012 (1) SACR 567
(SCA) paras 2-3.
[2]
See for example
Sefatsa
& others v Attorney-General, Transvaal, & another
1989
(1) SA 821
(A) at 834E;
S v Absalom
1989 (3) SA 154
(A) at 163C-164E-G;
Todt
v Ipser
1993 (3) SA 577
(A) at 589C-D.