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[2014] ZASCA 152
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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)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
No: 20273/2014
In
the matters between:
HENDRICK
VAN
WYK
...................................................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
Case No: 20448/2014
BONILE
GALELA
............................................................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
Neutral
citation
:
Van
Wyk v The State
(20273/2014) and
Galela
v The State
(20448/2014)
[2014] ZASCA
152
(22 September 2014)
Coram
:
Navsa ADP, Brand, Ponnan, Swain JJA and Mathopo AJA
Heard
:
22 September 2014
Delivered:
29 September
2014
Summary
:
North Gauteng High Court dismissing
appeal on the merits – Western Cape High Court refusing
petition in terms of
s 309C
of the
Criminal Procedure Act 51 of 1977
– in either event special leave required of the SCA in terms of
s 16(1)(
b
)
of the
Superior Courts Act 10 of 2013
to appeal further.
Order
Hendrick
Van Wyk v The State
, Case No 20273/2014
On
appeal from:
North Gauteng High Court, Pretoria (Raulinga J with
Louw AJ concurring, sitting as the court of appeal):
1.
The appellant is granted special leave to appeal in terms of
s
16(1)(
b
) of the
Superior Courts Act 10 of 2013
against the
sentence of imprisonment imposed by the Regional Court,
Pretoria-North, confirmed on appeal by the North Gauteng High
Court.
2.
The appeal is upheld. The order of the court a quo is set aside and
substituted with the following order:
‘
The
appeal is upheld. The sentence imposed by the trial court is set
aside and the following sentence is substituted:
The
appellant is sentenced to imprisonment for a period of three years
five months and 28 days.
The
substituted sentence is antedated to 25 March 2011.’
Bonile
Galela v The State
, Case No 20448/2014
On
appeal from:
Western Cape High Court,
Cape Town (Erasmus J with Rogers J concurring, sitting as the court
of appeal):
1.
The application for special leave to appeal in terms of
s 16(1)(
b
)
of the
Superior Courts Act 10 of 2013
, against the dismissal of the
applicant’s petition for leave to appeal by the Western Cape
High Court in terms of
s 309C
of the
Criminal Procedure Act 51 of
1977
is refused.
JUDGMENT
Swain
ja
(
Navsa
ADP, Brand, Ponnan JJA and Mathopo AJA
concurring):
[1]
The passing of the Superior Courts Act 10
of 2013 (the Act) which repealed the Supreme Court Act 59 of 1959
(the SC Act) from 23
August 2013, has given rise to uncertainty
concerning the rights of accused persons convicted in the
magistrates’ court,
to appeal against the dismissal of their
appeals by the high court, to this court.
[2]
Uncertainty has also arisen in regard to
the right of accused persons who have unsuccessfully petitioned the
high court for leave
to appeal to that court against their
convictions in the magistrates’ court or the sentences imposed
pursuant to those convictions,
to then seek the leave of this court
to appeal to the high court.
[3]
The uncertainty relates to whether the high
court, sitting as a court of appeal, has jurisdiction to grant leave
to appeal against
its own order dismissing an appeal on its merits or
where, in terms of s 309C of the Criminal Procedure Act 51 of 1977
(the CPA),
it dismissed a petition against a magistrates refusal to
grant leave to appeal.
[4]
The present appeals are representative of
each of these categories. In
Hendrick
van Wyk v The State
the appellant was
convicted by the Regional Court, Pretoria North of one count of rape
in terms of s 3 of the Sexual Offences and
Related Matters Amendment
Act 32 of 2007 (the Sexual Offences Act) and one count of sexual
assault in terms of s 5(1) of this Act
and sentenced to an effective
term of 15 years’ imprisonment. An application by the appellant
for leave to appeal against
conviction and sentence in terms of s
309B of the CPA was dismissed by the regional court. The appellant in
terms of s 309C(2)
of the CPA then petitioned the North Gauteng High
Court, Pretoria against the refusal of leave to appeal. The petition
was partially
successful in that the appellant was granted leave to
appeal against the sentence imposed. This appeal was subsequently
dismissed
by the high court (Raulinga J and Louw AJ). The appellant
then filed an application for special leave to appeal to this court,
in respect of sentence in terms of s 16(1) of the Act.
[5]
In
Bonile
Galela v The State
the appellant was
convicted by the Regional Court, Winburg of one count of rape in
terms of s 3 of the Sexual Offences Act and
sentenced to a term of 17
years’ imprisonment. An application for leave to appeal in
terms of s 309B of the CPA was dismissed
by the regional court. The
appellant in terms of s 309C(2) then unsuccessfully petitioned the
Western Cape High Court, Cape Town
(Erasmus and Rogers JJ) for leave
to appeal. The appellant then applied to this court for leave to
appeal in terms of s 16(1) of
the Act.
[6]
The parties in
Van
Wyk
were directed to present argument
on the following issues:
‘
a)
Whether, in view of the definition of “appeal” in
section
1
of the
Superior Courts Act 10 of 2013
, the provisions of
section
16(1)(
b
)
of that Act may be invoked for purposes of applying to the Supreme
Court of Appeal for special leave to appeal.
b)
If not, whether the North Gauteng High Court, which dismissed the
applicant’s appeal, has jurisdiction to consider the
applicant’s application for leave to appeal to this Court.
c)
If not, whether leave to appeal is required from this Court for it to
consider the appeal? The Applicant and Respondent are referred
to
National Union of Metalworkers of SA v Fry’s Metals (Pty)
Ltd
2005 (5) SA 433
(SCA) and
American Natural Soda Ash
Corporation & another v Competition Commission & others
2005 (6) SA 158
(SCA).’
[7]
To answer the first two questions in
relation to criminal appeals it is necessary to briefly set out the
law under the SC Act, pertaining
to criminal appeals from the then
supreme court (now high court) to this court, as well as petitions to
this court for leave to
appeal to the high court from the magistrates
court. Whether the Act has changed the existing law can then be
considered.
[8]
Section
309 of the CPA provides that subject to leave to appeal being granted
in terms of s 309B or 309C, any person convicted of
any offence by
any lower court may appeal against such conviction and sentence to
the high court having jurisdiction. In terms
of s 309B any accused
who wishes to note an appeal against any conviction or sentence of a
lower court must apply to that court
for leave to appeal against the
conviction or sentence. If leave to appeal is refused by the lower
court, the accused may in terms
of s 309C petition the Judge
President of the high court having jurisdiction to grant leave to
appeal. In terms of s 309C(5) the
petition is considered by two
judges in chambers. Section 309 was amended to ensure its
constitutional validity after a series
of cases revealed its
constitutional shortcomings.
[1]
[9]
These provisions of the CPA have to be
considered alongside the applicable sections of the SC Act which
regulated appeals from the
high court to this court. These were ss
20(1), 20(4) and 21(1). Section 20(1) provided that:
‘
An
appeal from a judgment or order of the court of a provincial or local
division in any civil proceedings or against any judgment
or order of
such a court given on appeal shall be heard by the appellate division
or a full court as the case may be.’
[10]
Section 20(4) provided that:
‘
(4)
No appeal shall lie against a judgment or order of the court of a
provincial or local division in any civil proceedings or against
any
judgment or order of that court given on appeal to it except –
(a)
in the case of a judgment or order given in any civil proceedings by
the full court of such a division on appeal to it in terms
of
subsection (3), with the special leave of the appellate division;
(b)
in any other case, with the leave of the court against whose judgment
or order the appeal is to be made or, where such leave
has been
refused, with the leave of the appellate division.’
[11]
Section 21(1) provided that:
‘
In
addition to any jurisdiction conferred upon it by this act or any
other law, the appellate division shall subject to the provisions
of
this section and any other law, have jurisdiction to hear and
determine an appeal from any decision of the court of a provincial
or
local division.’
Sections
21(2) and (3) of the SC Act made provision for application to be made
to this court by way of petition for leave to appeal
as referred to
in s 20(4).
[12]
Section
21(1) of the SC Act was applicable to both civil and criminal
cases
[2]
and conferred a
jurisdiction upon this court that it did not possess in terms of s 20
of the SC Act.
[3]
[13]
This court held in
S
v Khoasasa
2003 (1) SACR 123
(SCA)
paras 14 and 19-22, that a petition for leave to appeal to a high
court in terms of s 309C of the CPA, was in effect an appeal
against
the refusal of leave to appeal by the magistrates court in terms of s
309B of the CPA. It concluded that such refusal of
leave to appeal by
the high court was a ‘judgment or order’ of the high
court as contemplated in ss 20(1) and 20(4)
of the SC Act, given by
the high court on appeal to it. Accordingly, in terms of s 20(4)(
b
)
the refusal of leave to appeal by the high court, was appealable to
this court with the leave of the high court (being the court
against
whose order the appeal was to be made) or where leave was refused,
with the leave of this court. The order appealed against
was the
refusal of leave with the result that this court could not decide the
appeal itself.
[14]
As
pointed out by this court in
S
v Matshona
2013 (2) SACR 126
(SCA) para 4, the issue to be determined is not
whether the appeal against conviction and sentence should succeed,
but whether
the high court should have granted leave, which in turn
depends upon whether the appellant could be said to have reasonable
prospects
of success on appeal.
[4]
[15]
In
S v Tonkin
2014 (1) SACR 583
(SCA) para 4, Brand JA pointed out that if an
appeal of this nature should succeed ‘the result is cumbersome
and wasteful
of both time and money. After two rounds before the high
court and one round before this court, the appeal process will remain
uncompleted. Two judges of the high court will still have to hear the
appeal on its merits with the possibility of a further appeal
to this
court’.
[16]
Brand JA in
Tonkin
(para 6) set out the reasons why this court could not ‘short-circuit
the cumbersome process by entertaining the appeal against
conviction
directly’ in the exercise of its inherent jurisdiction.
‘
(
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 ss 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 higher 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.
(
c
)
As to this court’s inherent jurisdiction to regulate its own
process it goes without saying that it is to be exercised within
the
confines of statutory limitations. With regard to appeals against
judgments and orders by the high court, the procedure is
dictated by
s 20(4)(
b
).’
[17]
This court in
AD
v The State
(334/2011)
[2011] ZASCA 215
para 13, called for ‘thought to be given to legislative reform
so that petitions can be finalised speedily at the high court
level’.
Whether the Act has provided this reform requires a consideration of
s 16(1) of the Act.
[18]
Section
1 of the Act provides that ‘appeal’ in Chapter 5, does
not include an appeal in a matter regulated in terms
of the CPA, or
in terms of any other criminal procedural law. The CPA does not
contain any provision dealing with a right of appeal
to this court
from a decision of the high court taken on appeal to it from a
magistrates’ court.
[5]
A
right of appeal from the high court sitting as an appeal court to
this court in criminal cases, consequently falls within Chapter
5 of
the Act. Sections 16(1)(
a
)
and (
b
)
which are relevant provide as follows:
‘
(1)
Subject to s 15(1), the Constitution and any other law –
(
a
)
an appeal against any decision of a division as a court of first
instance lies upon leave having been granted -
(i)
if the court consisted of a single judge, either to the Supreme Court
of Appeal or to a full court of that division, depending
on the
directions issued in terms of s 17(6); or
(ii)
if the court consisted of more than one judge, to the Supreme Court
of Appeal;
(
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, . . .’
[19]
The jurisdiction of this court to hear
appeals from the high court whether as a court of first instance, or
an appeal court is derived
from this section and s 19 of the Act.
Whereas under s 20(4) of the SC Act, the special leave of this court
was only required in
respect of an appeal from a decision of the full
court (three judges) given on appeal to it, the special leave of this
court is
now also required where leave to appeal is sought in respect
of a decision of two judges, given on appeal to it.
[20]
A
‘decision’ of the high court in refusing a petition in
terms of s 309C of the CPA for leave to appeal is one taken
on appeal
to it and is governed by s 16(1)(
b
)
of the Act.
[6]
Accordingly, the
refusal of leave to appeal by the high court is appealable with the
special leave of this court. Although s 16(1)(
b
)
of the Act has ameliorated the ‘cumbersome procedure’ to
the extent that an unsuccessful petitioner in the high court
no
longer has to obtain the leave of the high court to appeal to this
court, it has replaced it with the more stringent requirement
that
‘special leave’ be obtained from this court.
[21]
An applicant for special leave to appeal
must show, in addition to the ordinary requirement of reasonable
prospects of success,
that there are special circumstances which
merit a further appeal to this court. This may arise when in the
opinion of this court
the appeal raises a substantial point of law,
or where the matter is of very great importance to the parties or of
great public
importance, or where the prospects of success are so
strong that the refusal of leave to appeal would probably result in a
manifest
denial of justice. See
Westinghouse
Brake and Equipment v Bilger Engineering
1986
(2) SA 555
(A) at 564H-565E.
[22]
Rule
6 of the rules of this court, which deals with applications for leave
to appeal must be scrupulously followed. The application
must
succinctly set out the respects in which it is alleged the high court
erred and the judgment must be subjected to a critical
analysis,
either as to the findings of fact or as to the exposition and
application of the law.
[7]
A
generalised attack on the findings of the high court is insufficient,
as is reliance on the notice of appeal, or a recitation
of the
grounds of appeal.
[8]
[23]
Reasons
must be given why special leave is justified. The special
circumstances relied upon must be clearly and succinctly set out.
This is not an invitation to practitioners to conjure up the
requisite special circumstances if they do not exist. If these
specific
requirements are not adhered to, the application may be
rejected by the Registrar or an adverse order
de
bonis propriis
may be granted.
[9]
[24]
I turn to consider the questions which were
posed in paragraph [6] above.
(a)
The definition of ‘appeal’ in s 1 of the Act renders the
provisions of s 16(1)(
b
) applicable to criminal appeals from
the high court sitting as a court of appeal to this court.
(b)
In
Van Wyk
the Gauteng High Court did not have jurisdiction to
hear an application for leave to appeal to this court. This court has
jurisdiction
to hear the appellant’s appeal, against the
dismissal by the Gauteng High Court of the appellant’s appeal
against the
sentence imposed by the regional court.
(c)
In
Galela
the Western Cape High Court did not have
jurisdiction to hear an application for leave to appeal to this
court. This court has
jurisdiction to hear the appellant’s
appeal, against the dismissal by the Western Cape High Court of the
appellant’s
petition for leave to appeal in terms of s 309C(2)
of the CPA, against his conviction and sentence imposed by the
regional court.
(d)
In both appeals the appellants will have to satisfy this court that
special leave to appeal should be granted. In
Van Wyk
the
appellant has to satisfy this court that special leave to appeal
against the sentence imposed should be granted. In
Galela
the
appellant will have to satisfy this court that special leave to
appeal against the refusal of his petition for leave to appeal
against his conviction and sentence to the high court should be
granted.
(e)
The decisions of this court in
National
Union of Metalworkers
and
American
Natural Soda Ash,
referred to in para 5 supra, are not applicable.
[10]
[25]
I turn to examine the merits of the
applications for special leave to appeal to this court in terms of s
16(1)(
b
)
of the Act.
[26]
In
Van Wyk
,
the applicant seeks special leave to appeal against the dismissal of
his appeal against sentence by the Gauteng High Court. The
appellant
was sentenced to 15 years’ imprisonment on one count of rape
and two years’ imprisonment on one count of
sexual assault, the
sentences being ordered to run concurrently.
[27]
The salient facts giving rise to the
appellant’s conviction were as follows. The complainant, a 15
year old girl, testified
that there had been a party at her home on
New Year’s Eve 2009. During the course of the evening the
complainant a minor
had been allowed by her mother to consume vodka,
champagne and beer which must have affected her state of sobriety.
The appellant
who was at the party, asked to sleep at the home after
the party, because he did not wish to ride his motorcycle after
having consumed
alcohol. It was agreed that the appellant could sleep
in the complainant’s room, whilst the complainant and other
children
slept in the sitting room. During the night, the appellant
approached the complainant and asked her for a beer. She took the
appellant
to the kitchen and showed him the beers in the fridge. The
appellant went outside to smoke, then returned to the house and sat
at a table behind the complainant and drank his beer. When he had
finished the beer he moved a girl sleeping next to the complainant
and lay down next to her on her mattress. The complainant testified
that she dozed off but woke up when she realised the appellant
was
touching her breasts underneath her clothes. The appellant then
inserted his finger into her vagina and took the complainant’s
hand and placed it on his private parts. The appellant then started
to pull the complainant’s pants down from the back. The
complainant turned around to look at the appellant who kissed her.
She then pushed the appellant away who asked why she was pushing
him
away. The complainant insisted he should leave which he did,
returning to the room where he was sleeping. The complainant then
reported to her mother that the appellant had molested her. The
appellant denied the incident and insisted the complainant was
falsely implicating him.
[28]
In imposing sentence the trial court found
that substantial and compelling circumstances were present which
justified a departure
from the minimum sentence of life imprisonment
specified in terms of part 1 of Schedule 2 of the
Criminal Law
(Sentencing) Amendment Act 38 of 2007
where the victim of the rape
was under 16 years of age. The trial court then sentenced the
appellant as set out above. The court
a quo in dismissing the appeal
against the sentence imposed found that there was no misdirection
which was improper or unreasonable
on the part of the trial court
which would entitle the court a quo to interfere with the sentence.
No regard was paid by the court
a quo as to whether the sentence
itself was disproportionate on the facts of this case.
[29]
Counsel for the appellant submitted that
the trial court failed to have regard to the unique circumstances of
this case and as a
result sentenced the appellant to a term of
imprisonment which was out of proportion to the facts of the case.
Counsel submitted
that the trial court failed to consider that no
violence or weapon was used during the incident, the appellant did
not threaten
the complainant and alcohol played a role in the
appellant’s conduct. Counsel also drew attention to the
personal circumstances
of the appellant. He was 32 years of age,
divorced with two minor children he was supporting from fixed
employment and was a first
offender. Against this, however, must be
considered the fact that the complainant has suffered psychological
trauma as a result
of the incident and was still undergoing
counselling. In addition, the probation officer recommended a
custodial sentence be imposed.
[30]
In
S v
Bogaards
2013 (1) SACR 1
(CC) para 41
the Constitutional Court held that an appellate court’s power
to interfere with sentences imposed by lower courts
was as follows:
‘
It
can only do so where there has been an irregularity that results in a
failure of justice; the court below misdirected itself
to such an
extent that its decision on sentence is vitiated; or the sentence is
so disproportionate or shocking that no reasonable
court could have
imposed it.’
[31]
This
court has held that it would interfere with sentences imposed by a
trial court only where the degree of disparity between the
sentence
imposed by the trial court and the sentence this court would have
imposed was such that interference was competent and
required. The
appellate court must be able to arrive at a definite view as to what
sentence it would have imposed. It would suffice
that a particular
range be identified within which it would have imposed sentence.
[11]
[32]
This is a case where there is a sufficient
degree of disparity between the sentence imposed and what this court
would have imposed
to justify interference. When regard is had to all
the facts of the present case, the sentence of 15 years’
imprisonment
is so disproportionate and shocking that no reasonable
court could have imposed it. The trial court appears to have placed
undue
weight upon the need to deter sexual offenders, without having
proper regard to the particular facts of this case. The court a quo
appears to have adopted the erroneous view that in the absence of a
misdirection by the trial court it was not entitled to interfere
with
the sentence. Counsel for the state did not with any vigour argue the
contrary.
[33]
The appellant has been in prison since
being sentenced on 25 March 2011. He has served a sentence in excess
of three years’
imprisonment. If this court had been sitting as
the trial court it would not on the facts of this case have imposed
an effective
sentence of imprisonment which would have resulted in a
period of incarceration in excess of that time. It follows that the
appellant
must be granted special leave to appeal in terms of
s
16(1)(
b
)
of the Act to this court against his sentence. Special circumstances
are present in that a refusal of leave to appeal would result
in a
manifest denial of justice. The time served by the appellant in
prison accordingly constitutes a sufficient term of imprisonment.
The
effect of the substituted sentence is that the appellant is not to
undergo any further period of imprisonment and is entitled
to his
immediate release.
[34]
I turn to the appeal of
Galela
.
The appellant was convicted of the rape of a nine year old girl and
sentenced to 17 years’ imprisonment. His petition to
the
Western Cape High Court for leave to appeal in terms of s 309C(2) of
the CPA was refused. The appellant now petitions this
court for
special leave to appeal against his conviction and sentence to the
high court.
[35]
Having considered the evidence, I am
satisfied that the appellant does not have reasonable prospects of
success on appeal. In addition,
there are no special circumstances
present which would justify the grant of special leave to appeal to
the high court.
[36]
The following orders are made:
In
the appeal of
Hendrick Van Wyk v The State
, Case No 20273/2014
1.
The appellant is granted special leave to appeal in terms of s
16(1)(
b
) of the
Superior Courts Act 10 of 2013
against the
sentence of imprisonment imposed by the Regional Court,
Pretoria-North, confirmed on appeal by the Gauteng High Court.
2.
The appeal is upheld. The order of the court a quo is set aside and
substituted with the following order:
‘
The
appeal is upheld. The sentence imposed by the trial court is set
aside and the following sentence is substituted:
The
appellant is sentenced to imprisonment for a period of three years
five months and 28 days.
The
substituted sentence is antedated to 25 March 2011.’
In
the appeal of
Bonile Galela v The State
, Case No 20448/2014
1.
The application for special leave to appeal in terms of
s 16(1)(
b
)
of the
Superior Courts Act 10 of 2013
, against the dismissal of the
applicant’s petition for leave to appeal by the Western Cape
High Court in terms of
s 309C
of the
Criminal Procedure Act 51 of
1977
is refused.
K
G B SWAIN
JUDGE
OF APPEAL
Ponnan
JA
(
Navsa
ADP, Brand, Swain JJA and Mathopo AJA
concurring):
[37]
I have had the benefit of reading the
judgment of Swain JA, with which I am in respectful agreement. I
nonetheless feel constrained
to write separately to express feelings
of disquiet that I experience in relation to the application of
s
16(1)(
b
)
of the
Superior Courts Act.
[38
]
For the present I shall restrict my
observations to the preliminary jurisdictional prerequisite of
petitions for leave to appeal
to a high court in terms of
s 309C
of
the CPA. That, as Streicher JA held in
Khoasasa
,
is in effect an appeal against the refusal of leave to appeal by the
magistrates’ court in terms of
s 309B
of the CPA. Prior to the
introduction of
s 16(1)(
b
),
if the petition failed before the high court, an accused person’s
recourse was to apply to that court for leave to appeal
against that
refusal. If that application failed, a petition to this court had to
follow. In either event, to succeed such a person
had to satisfy the
court that the envisaged appeal had reasonable prospects of success.
If the petition to this court proved successful
then leave was
granted to the accused to appeal from the magistrates’ court to
the high court.
[39]
In
Tonkin
(para 4), Brand JA lamented that cumbersome and wasteful procedure.
In answer perhaps,
s 16(1)(
b
)
has done away with an application for leave to appeal to the high
court against that court’s refusal of a petition. The
result is
that once a petition is refused by the high court it is to this court
that an accused must turn. And, having failed to
persuade at least
two judges in the high court that there are reasonable prospects of
the contemplated appeal succeeding, he or
she has to now (perhaps
somewhat incongruously) meet the higher ‘special circumstances’
threshold set by
s 16(1)(
b
)
for this court. If this court takes the view that the higher
threshold has been met then leave to appeal will be granted to the
high court for it to enter into the merits of the appeal. The high
court will then, no doubt, enter into the merits of the appeal
in the
full knowledge that this court has already taken the view that
‘special circumstances’ subsist. If the appeal
were to
fail on the merits in the high court then, as in the past, a further
appeal would lie to this court. The difference though
is that now
even though just an appeal from a full bench of the high court, it
would only lie with the special leave of this court.
But, it needs to
be remembered, that the higher threshold had previously been met by
that accused when this court granted leave
to appeal to the high
court.
[40]
What is more is that whilst the record of
the proceedings in the magistrates court would serve before the high
court when the petition
is there considered (see
s 309C(4)
of the
CPA), it does not serve before this court (SCA
rule 6(5)).
SCA
rule
6(5)(
b
)
makes plain that an application for leave to appeal shall not be
accompanied by the record, although in terms of
rule 6(6)
, the Judges
considering the petition may call for the record or portions of it.
Indeed SCA
rule 6(5)
emphasizes that every application for leave to
appeal must furnish succinctly the information necessary to enable
this court to
decide whether leave ought to be granted (
H
Merks & Co (Pty) Ltd v The B-M Group (Pty) Ltd
1996
(2) 225 at 235H – 236C). Thus an accused who has failed to meet
the much lower ‘reasonable prospects of success’
threshold in the high court whilst armed with the full record of the
proceedings is somehow expected to thereafter persuade this
court,
minus that record, that ‘special circumstances’ are
present.
[41]
Moreover, the high court is not obliged to
furnish reasons for declining to grant the petition. This court
will thus be none
the wiser as to the considerations that weighed
with it. In divesting the high courts of their jurisdiction to
consider applications
for leave to appeal against decisions on appeal
to it, an important filter has been jettisoned by the legislature.
That filter
has in truth been moved up the judicial hierarchy to this
court. The practical consequence of that is that this court will
henceforth
be burdened by those applications. To be sure many of
those applications will be unmeritorious and not truly deserving of
this
court’s attention. On the other hand, there may well be a
real danger that appeals which deserve to be heard are stifled
because the bar has been set far too high once the petition to the
high court fails. Thus in failing to properly regulate the process,
the legislature may have opened the door on some worthy appeals
failing to make the cut. After all, we need to remind ourselves
that
an accused person is doing no more at this stage than seeking to
exercise a right of appeal from the magistrates’ court
to the
high court.
[42]
For now, we fortunately do not need to
consider the constitutional tolerability of the statutory provision
in issue. Regrettably
though it would appear that
s 16(1)(
b
)
falls far short of the nuanced legislative enactment that Brand JA
may have had in mind when he decried the procedure then in
force.
V
M PONNAN
JUDGE
OF APPEAL
Appearances
in
Hendrick Van Wyk v The State
:
For
the Appellant: L Augustyn (with her J Mojuto and F van As)
Instructed
by:
Legal
Aid South Africa, Pretoria
Legal
Aid South Africa, Bloemfontein
For the Respondent:
M Jansen van Vuuren (with her P Vorster)
Instructed
by:
Director
of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
Appearances
in
Bonile Galela v The State
:
For
the Appellant: M Calitz
Instructed
by:
Legal Aid Board,
Cape Town
Legal
Aid Board, Bloemfontein
For the Respondent:
S Raphels
Instructed
by:
Director
of Public Prosecutions, Cape Town
Director
of Public Prosecutions, Bloemfontein
[1]
Shinga
v The State & another
(Society of Advocates ((Pietermaritzburg Bar)) intervening as Amicus
Curiae);
S
v O’Connell & others
2007 (2) SACR 28
CC,
S
v Rens
[1995] ZACC 15
;
1996 (1) SACR 105
(CC),
S
v Ntuli
[1995] ZACC 14
;
1996 (1) SACR 94
(CC),
S
v Steyn
2001 (1) SACR 25 (CC).
[2]
S
v Botha en ‘n ander
2002 (1) SACR 222
(SCA) at 225H.
[3]
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service
1996 (3) SA 1
(A) at 8B-C.
[4]
This
position has been followed by this court.
S
v Kriel
2012 (1) SACR 1
(SCA) paras 11-12,
S
v Smith
2012
(1) SACR 567
(SCA) paras 2-3.
[5]
Sections
315
and
316
of the CPA deal with appeals to this court from the high
court sitting as the court of first instance.
[6]
There
is no distinction between a ‘decision’ of the high court
‘on appeal to it’ in terms of
s 16(1)(
b
)
of the Act, or a ‘judgment or order’ of the high court
‘given on appeal to it’ in terms of ss 20(1)
and 20(4)
of the SC Act.
[7]
National
Union of Metalworkers of South Africa v Jumbo Products CC
[1996] ZASCA 87
;
1996 (4) SA 735
(A) at 739C-H.
[8]
D
Harms
Civil
Procedure in the Superior Courts
at C-37.
[9]
H
Merks & Co (Pty) Ltd v The B-M Group (Pty) Ltd
[1995] ZASCA 45
;
1996 (2) SA 225
(A) at 235H-236B.
[10]
In
the following cases:
Mthethandaba
v S
2014 (2) SACR 154
(KZP),
Tuntubele
v S
(A524/12)
[2014] ZAWCHC 91
(6 June 2014) and
Hagin,
Patrick R v The State
Case No A113/2013 Gauteng Local Division, applications for leave to
appeal to this court, against the dismissal of the appellants’
appeals, were correctly struck from the roll, on the grounds that
the high court lacked jurisdiction to hear the applications.
(In
Mthethandaba
the appellant had sought leave to appeal against the refusal of his
petition in terms of s 309C of the CPA. In
Tuntubele
and
Hagin
the appellants sought leave to appeal to this court against the
dismissal of their appeals on the merits). In the case of
Imador
v S
(A167/2013)
[2014] ZAWCHC 66
(3 April 2014) the high court
incorrectly decided that an accused does not have a further right of
appeal to this court after
his/her appeal has been determined by two
judges in the high court.
[11]
S
v Monyane & others
2008 (1) SACR 543
(SCA) paras 23 and 26.