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[2013] ZASCA 96
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Sengama v S (306/13) [2013] ZASCA 96; 2013 (2) SACR 377 (SCA) (23 August 2013)
REPORTABLE
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 306/13
In the matter between:
WASHMAN SENGAMA
....................................................................
Applicant
and
The State
...........................................................................................
Respondent
Neutral citation:
Sengama v State
[
2013]
ZASCA 96
(23 August 2013)
Coram:
BRAND, LEACH et WALLIS JJA.
Delivered
: 23 August 2013
Summary:
Criminal Procedure Amendment Act 8 of
2013
– amendment of
s 316(10)
(c)
of the
Criminal
Procedure Act 51 of 1977
– effect.
ORDER
On
petition:
The
application for leave to appeal is dismissed.
JUDGMENT
WALLIS JA (BRAND et LEACH JJA concurring)
[1] The Applicant was convicted of murder and various
other offences by Willis J in the South Gauteng High Court. He was
sentenced
on the charge of murder to life imprisonment and on the
other counts to varying periods of imprisonment that would run
concurrently
with the sentence of life imprisonment. An application
for leave to appeal against conviction and sentence was dismissed and
he
now petitions this court for such leave. He was legally
represented at the trial and is legally represented in pursuing this
petition.
[2] The only issue at the trial was whether the
applicant and his co-accused were two of three men who abducted a
young woman, Posiswa
Pungani, from the room in which she was sleeping
with her boyfriend at the Sitoka Hostel, Tembisa, and then took her
to a place
near the hostel and murdered her. The applicant’s
co-accused admitted that he was one of the perpetrators of this crime
but
denied that the applicant had participated or was present. This
is the strongest point in favour of the petition but it is outweighed
by the evidence of identification of the applicant by the deceased’s
boyfriend and another witness and the fact that the
gun used to kill
the deceased was found in the applicant’s possession. The
applicant’s defence was an alibi in that
he claimed at the time
to have been in bed with his girlfriend. That young lady was not
however called as a witness and no explanation
was proffered for this
failure. In addition the applicant was a poor witness whose evidence
was rejected by the trial judge.
[3] In those circumstances we are satisfied that there
is no merit in the petition. However, until the recent amendment of
s 316(10)
of the Criminal Procedure Act 51 of 1977 (the CPA) we
could not have disposed of the petition until we had received the
full record
of the trial. This provision (introduced by way of an
amendment in 2008) has resulted in considerable delays in this court
dealing
with petitions and the incurring of substantial costs in
preparing and lodging records with this court. A substantial backlog
of
petitions has built up as members of this court awaited the
provision of records. That did not delay the disposition of
meritorious
petitions as these were granted on the basis of the
material in the petition.
[4] There was and is no practical need for records to be
lodged before disposing of petitions as applicants are obliged in
terms
of s 316(4)
(a)
of the CPA to set out clearly and
specifically the grounds upon which leave to appeal is sought. That
requirement is reinforced
by the rules of this court, which require
petitioners to set out the grounds upon which they submit that leave
to appeal should
be granted and to identify any relevant passages in
the records that need consideration in the determination of the
petition. In
addition the judges are empowered if necessary to call
for the whole or any part of the record to enable there to be a just
determination
of the petition. The requirement that records be filed
with this court under s 316(10)
(c)
was also anomalous in
that records were not always required in disposing of petitions in
criminal cases even though the cases were
similar. Thus, when a
petition for leave to appeal against the dismissal of an appeal
against a conviction in the magistrates’
court is lodged in
terms of s 20(4)
(b)
of the Supreme Court Act 59 of 1959,
there is no requirement for the record of the trial to be lodged with
this court and this
court’s rules frown upon it. Similarly an
application for leave to appeal against the refusal of leave to
appeal by two judges
in the high court, in terms of the petition
procedure under s 309C of the CPA, is dealt with under ss 20
and 21 of the
Supreme Court Act and there is no requirement that the
record be filed with this court. However, where special leave is
sought
to appeal from a decision of a full court, given on appeal to
it from a single judge sitting in the high court, s 316(3)
(c)
and
(d)
, read with s 316(10) of the CPA requires the
record to accompany the petition.
[5] This situation was largely remedied by the passage
of the
Criminal Procedure Amendment Act 8 of 2013
. It amends
s 316(10)
(c)
of
the CPA so that the registrar of a high court who receives notice of
a petition is no longer automatically obliged to forward
the record
of the trial to this court. Registrars are now only obliged to do so
if:
‘(i) the accused was not legally represented at the trial; or
(ii) the accused is not legally represented for the purposes of the
petition; or
(iii) the prospective appeal is not against sentence only; or
(iv) the judges considering the petition, in the interest of justice,
request the record or only a portion of the record.’
There is a corresponding amendment to
s 316(12)
authorising the judges considering an appeal to call for a copy of
all or a portion of the record of the proceedings if it was
not
submitted in terms of
s 316(10)
(c)
.
[6] The use of the word ‘or’ to separate
each of these sub-sections may cause some confusion to arise in
relation to
the obligations of registrars of the high court to
furnish records to this court when they receive notice of a petition.
If they
are taken as reflecting four separate alternatives, that is,
they are all read disjunctively, then the amendment would be
self-defeating,
because registrars will be obliged to furnish the
record to this court in almost every case. The only exception will be
where the
applicant seeks to appeal against sentence alone and was
legally represented at the trial and is similarly represented in
lodging
the petition. If that were indeed the effect of the amendment
there would have been little or no purpose in inserting, in both
s 316(10)
(c)
and
s 310(12)
, a provision authorising the judges to call for all or
part of the record. In an appeal against sentence alone the court
must consider
the appropriateness of the sentence in the light of the
findings of fact made by the court when convicting the applicant. It
will
only be in rare cases that it is necessary or permissible to
have regard to the record of the trial for the purposes of
considering
a petition seeking leave to appeal against sentence.
[7] Clearly the word ‘or’ is not intended to
be read disjunctively in every case where it has been used in the
amended
s 316(10)
(c).
It
is accordingly permissible to read it conjunctively where that is
necessary to give effect to the manifest purpose of the legislation,
which was to dispense with the need to file the record of proceedings
in most cases.
1
As Innes CJ pointed out in
Barlin
v Licencing Court for the Cape
:
2
‘Now the words "and" and "or" are sometimes
inaccurately used; and there are many cases in which one
of them has
been held to be the equivalent of the other.’
This is such a case. Accordingly where ‘or’
is used at the end of the new sub-section (ii) it is to be read
conjunctively
as if the word ‘and’ had appeared at that
point. There will then be two circumstances in which the registrar of
a high
court will furnish the record of the proceedings to this court
immediately on receiving notice of a petition. They will be in cases
where leave is being sought to appeal against conviction, whether or
not in conjunction with leave to appeal against sentence,
and the
applicant for leave was either not legally represented at the trial
or is not legally represented for the purposes of the
petition.
Registrars will also be obliged to furnish all or portion of the
record if the judges dealing with the petition call
for it under
s 316(1)
(c)
(iv).
[8] To summarise, a registrar must furnish the record of
proceedings to this court on receiving notice of a petition in cases
where:
(a) leave is being sought to appeal against conviction
and the applicant was not legally represented at the trial;
(b) leave is being sought to appeal against conviction
and the applicant is not legally represented for the purposes of the
petition.
Where the judges dealing with the petition after it has
been filed, in circumstances where it was not necessary for the
registrar
to prepare and file the record of proceedings, request that
all or a portion of the record be furnished the registrar shall
comply
with that request forthwith.
[9] It was accordingly not necessary for us to await the
furnishing of the record of proceedings in the high court before
disposing
of this petition. The application for leave to appeal is
accordingly dismissed.
M J D WALLIS
JUDGE OF APPEAL
1
Ngcobo
and Others v Salimba CC; Ngcobo v Van Rensburg
1999 (2) SA 1057
(SCA) para 11.
2
1924
AD 472
at 478.