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[2014] ZASCA 190
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S v Mudau and Others (631/2013) [2014] ZASCA 190 (27 November 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 631/2013
In
the matter between:
THE
STATE
...............................................................................................................................
Appellant
and
MUVHULAWA
ERICK
MUDAU
...............................................................................
First
Respondent
NENGWENANI
KHATHUTSHELO
NDOU
........................................................
Second
Respondent
TSHITEREKE
SHANDUKANI
MAMPHODO
.....................................................
Third
Respondent
Neutral
citation:
The State v Mudau
(631/2013)
[2014] ZASCA 190
(27
November 2014)
Coram:
MAYA, WALLIS JJA and DAMBUZA AJA
Heard:
27 November 2014
Delivered:
27 November 2014
Summary:
Section 53A
of the
Criminal Law
Amendment Act 105 of 1997
– decision that the regional court
had no jurisdiction to impose sentences of life imprisonment wrong –
Supreme Court
of Appeal has no inherent jurisdiction to hear appeals
directly from the Regional Court – appeal referred back to the
high
court to deal with the merits of the appeal against convictions
and sentences.
ORDER
On
appeal from:
Limpopo High Court
(Thohoyandou) (Makhafola J and Ebersohn AJ sitting as court of
appeal)
1 The appeal against
the order granted by the court below is upheld.
2
The matter is referred back to the court below to consider the appeal
against the convictions and sentences.
JUDGMENT
MAYA
JA (WALLIS and DAMBUZA concurring):
[1]
The respondents were convicted by the Sibasa Regional Court, Limpopo
(Mr Coetzee) for rape, indecent assault and two counts
of robbery
with aggravating circumstances. Pursuant to these convictions, they
were each sentenced respectively to undergo life
imprisonment, twelve
months imprisonment, and two terms of 15 years’ imprisonment.
On appeal to the Limpopo High Court, Thohoyandou
(Makhafola J and
Booi AJ) against the convictions and sentences, it was held that the
sentences were incompetent. They were accordingly
set aside and the
matter was referred back to the regional court to be dealt with in
terms of s 52 of
the Criminal Law Amendment
Act 105 of 1997 (the Act). The State challenged this decision and the
court below (Makhafola J and Ebersohn
AJ) consequently granted leave
to appeal to this court against both its order and the convictions
and sentences imposed by the
regional court.
[2]
The order of the court below was based on its finding that when the
regional court sentenced the respondents on 14 January 2009,
it had
no jurisdiction to impose life imprisonment and ought to have
referred the matter to the high court for sentencing in terms
of s 52
of the Act. The latter section, which has since been repealed,
provided for the committal of an accused by the high court
after a
plea of guilty or trial in the regional court. The relevant part
read:
‘
52(1)
If a regional court, after it has convicted an accused of an offence
referred to in Schedule 2 following on–
(a)
A plea of guilty; or
(b)
A plea of not guilty,
but
before sentence, is of the opinion that the offence in respect of
which the accused has been convicted merits punishment in
excess of
the jurisdiction of a regional court in terms of s 51, the court
shall stop the proceedings and commit the accused for
sentence by a
High Court having jurisdiction.’
[3]
However, on 31 December 2007, the
Criminal Law (Sentencing) Amendment
Act 38 of 2007
inserted
s 53A
into the Act. It reads:
‘
If
a regional court has, prior to the date of the commencement of [this]
Act—
(a)
committed an accused for sentence by a
High Court under [the Criminal Law Amendment Act, 32 of 2007], the
High Court must dispose
of the matter as if [this] Act had not been
passed; or
(b)
not committed an accused for sentence
by a High Court under this Act, then the regional court must dispose
of the matter in terms
of this Act, as amended by the
Criminal Law
(Sentencing) Amendment Act, 2007
.’
[4]
Thus, with effect from the date of commencement (31 December 2007) of
these provisions jurisdiction was conferred on a regional
court to
impose life imprisonment for offences referred to in
Part 1
of
Schedule 2 of the Act which include rape of the nature for which the
appellants were convicted. It was therefore within the
regional
magistrate’s powers to sentence the respondents as he did as
the appellants correctly conceded. The court below
erred in finding
that the magistrate’s invocation of s 53A of the Act was
improper and it should not have set the sentences
aside. It was
therefore correct to grant leave to appeal in that regard.
[5]
But the order of the court below went too far. It should not have
granted the appellants leave to appeal to this court in respect
of
the convictions and sentences. This court’s appellate
jurisdiction to hear criminal appeals is not an inherent
jurisdiction
[1]
. It has no
jurisdiction to hear appeals against convictions and sentences of
lower courts.
[2]
And the high
court is not authorised to grant leave to appeal directly to this
court against convictions and sentences imposed
by the regional
court. Such convictions and sentences can only be appealed against in
this court when an appeal against them has
failed in the high
court.
[3]
As Leach AJA pointed
out in
S
v Matshona
:
[4]
‘
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 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 be finalised in the High Court.’
The
court below must therefore deal with the appeal originally placed
before it by the respondents.
[6]
Accordingly, the following order is made:
1
The appeal against the order granted by the court below is upheld.
2
The matter is referred back to the court below to consider the appeal
against the convictions and sentences.’
_______________________
MML
Maya
Judge
of Appeal
APPEARANCES
For
Appellant: A Madzutha
Instructed
by: Office of the DPP,
Thohoyandou
Office
of the DPP, Bloemfontein
For
Respondent: AL Thomu
Instructed
by: Thohoyandou Justice Centre
Bloemfontein
Justice Centre
[1]
Sefatsa
& others v Attorney-General, Transvaal & another
1989
(1) SA 821
(A) at 833E-G;
S
v Mamkeli
1992 (2) SACR 5
(A);
S
v Fourie
2001 (2) SACR 118
(SCA) para
13.
[2]
S
v Khoasasa
2003
(1) SACR 123
(SCA) at 133d-g.
[3]
S
v Kriel
2012
(1) SACR 1
(SCA) para 10;
[4]
Matshona
v S
[2008]
4 All SA 68
(SCA) para 6.