About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2013
>>
[2013] ZASCA 179
|
|
Tonkin v S (938/12) [2013] ZASCA 179; 2014 (1) SACR 583 (SCA) (29 November 2013)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No: 938/12
In the matter
between:
OLIVER JON
TONKIN
....................................................................
APPELLANT
and
THE
STATE
....................................................................................
RESPONDENT
Neutral
citation
: Tonkin v The State (938/12)
[2013] ZASCA 179
(29
November 2013)
Coram
:
Brand, Lewis, Cachalia, Leach et Majiedt JJA
Heard
: 26
November 2013
Delivered
: 29 November 2013
Summary: Appeal against refusal of petition for leave to appeal by
high court - question whether this court can entertain appeal
on the
merits revisited - concluded that it has no jurisdiction to do so -
dolus eventualis
- element of reconciliation with foreseen
harmful consequences materialising - not satisfied by mere fact that
perpetrator proceeded
with proposed conduct.
ORDER
On appeal from
: Free State High Court, Bloemfontein (Jordaan J
and Snellenburg AJ sitting as court of appeal on appeal from the
Magistrates’
Court):
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 Free State
High Court, Bloemfontein against his conviction of malicious
injury
to property in the Harrismith Magistrate’s Court.’
JUDGMENT
Brand JA (Lewis, Cachalia, Leach
et
Majiedt JJA
concurring):
[1]
This is
an appeal against the refusal by the Free State High Court,
Bloemfontein, of the appellant’s application for leave
to
appeal to that court against his conviction of malicious injury to
property in the Harrismith Magistrate’s Court. The
appeal is
with the leave of the court a quo. It arose in the following way. The
appellant was charged in the Magistrate's Court
Harrismith on three
counts, to wit:
(a)
malicious injury to property; (b)
assault with intent to do grievous bodily harm; and (c) crimen
injuria. He was, however, convicted
of the first count only. This
conviction rested on the basis that he intentionally broke a
window-pane thereby causing damages
of R120, ie R80 for the pane and
R40 for repairs. Thereupon he was cautioned and discharged. His
application to the trial court
for leave to appeal to the high court
against the conviction, under
s 309B
of the
Criminal Procedure Act 51
of 1977
, did not succeed.
In consequence, the appellant petitioned the Judge President of the
Free State High Court in terms of
s 309C
of the same Act for such
leave. In the event, that petition was dismissed by Jordaan J and
Snellenburg AJ.
Thereafter he sought and obtained leave in the high court (by Kruger
J and Jordaan J) to appeal to this court against the dismissal
of his
petition. This brought about the rather inconsistent result that,
while the high court first held that the appellant had
no reasonable
prospects of success on appeal, it then decided that the appellant
did indeed have reasonable prospects of succeeding
in this court.
[2]
In
S
v Khoasasa
2003 (1) SACR 123
(SCA) paras 14 and 19-22 this court
held that a petition for leave to appeal to a high court is, in
effect, an appeal against the
refusal of leave to appeal by the
Magistrate’s court. In consequence it concluded that such
refusal of leave by the high
court is an order given by the high
court on appeal and is therefore governed by s 20(4) of the Supreme
Court Act 59 of 1959, which
provides in relevant part:
‘(4) No appeal shall lie against a judgment or order of a . . .
[high court] in any civil proceedings or against any judgment
or
order of that court given on appeal to it except:-
(a)
. . .
(b)
. . .
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 [this court].’
[3]
This
means that the refusal of leave to appeal by the high court in terms
of s 309C is appealable to this court with the leave of
the high
court or, where such leave has been refused, with the leave of this
court. In either event, so it was held in Khoasasa,
the order
appealed against is the refusal of leave with the result that this
court cannot decide the appeal itself. In S v Matshona
[2008] 4 All
SA 68
(SCA) para 4, Leach AJA described the reasoning in Khoasasa as
unassailable. It follows, so he said, that in an appeal of this kind,
the issue to be determined by this court is not whether the appeal
against conviction and sentence should succeed, but whether
the high
court should have granted leave, which in turn depends on whether the
appellant could be said to have reasonable prospects
of success on
appeal. The position thus stated has since been confirmed in a number
of decisions by this court (see eg S v Kriel
2012 (1) SACR 1
(SCA)
paras 11-12; S v Smith
2012 (1) SACR 567
(SCA) paras 2-3; S v De
Sousa; also referred to as A D v The State (334/2011)
[2011] ZASCA
215
paras 3-6).
[4]
The problem in matters of this kind is of course, that if the
appeal were to 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. All
this was pointed out in De Sousa with the observation (in para 13)
that ‘[i]t is perhaps time for thought to be
given to
legislative reform so that petitions can be finalised speedily at the
High Court level’. Despite two years elapsing
since delivery of
that judgment, no reaction has thus far been forthcoming.
[5]
In this light we considered a different tack. That is, whether
this court could perhaps, in the exercise of its inherent
jurisdiction
and by building on the precedent in S v Sekhane
2011 (2)
SACR 493
(SCA), short-circuit the cumbersome process by entertaining
the appeal against conviction directly. Sekhane, or course, concerned
appeals against the refusal of condonation by high courts in appeals
to them. That decision could therefore at best be relevant
by analogy
only. Nevertheless, counsel for both parties were invited to either
support or oppose the proposition in argument.
[6]
In
response to our invitation, counsel for the appellant submitted a
well prepared argument urging us to entertain the merits of
the
appeal. But on reflection it appears to me that, unfortunate as it
may be, we have no authority to do so. The reasons why this
is so
have been stated in Khoasasa and elaborated upon in the decisions
following upon it to which I have referred. On reflection,
these
reasons cannot, in my view, be faulted. In broad outline they are as
follows:
(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 sections 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 high 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
proceedings, 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).
(d)
In accordance with the procedure thus determined, leave to
appeal is first to be sought from the high court before this court
can
entertain an application to that effect. In this case leave was
only sought and obtained to appeal against the refusal of the
petition.
No leave was sought to appeal against the conviction. It
follows that even if this court were authorised to entertain an
appeal
against conviction - which, for the reasons given, I believe
it is not - leave would first have to be sought for that appeal from
the high court, which never occurred.
[7]
This
brings me back to the appellant’s contention that the high
court had erred in refusing him leave to appeal. Whether or
not this
is so obviously depends on the background facts, which are as
follows. All three charges originally brought against the
appellant
emanated from events that occurred in the charge office of the
Harrismith police station during the early hours of 5
September 2009.
In support of these charges the State relied on the testimony of two
police officials who were on duty in the charge
office at the time.
But the trial magistrate found the version of these state witnesses
so unreliable that it was incapable of
sustaining any conviction.
That gave rise to the acquittal of the appellant on the first two
charges. As to the third charge of
malicious injury to property, the
appellant was however convicted on his own version.
[8]
The appellant admitted that he broke the
glass pane which forms part of the door lending entrance to the
charge-office, when he
struck it with the palm of his hand. As to how
this came about, he explained that he was extremely frustrated by the
complete inaction
of the police officials on duty in the
charge-office when he
asked their assistance in securing bail
for his friend who was in their custody. Hence the appellant decided
to somehow demonstrate
his frustration by, as he put it, making his
exit in a dramatic way. An essential component of the appellant’s
account as
to how he proposed to do this, was that the entrance to
the charge-office consisted of two swing doors which were both made
up
of glass panes fitted into wooden frames. What the appellant
intended, according to his explanation, was to push these doors open
with sufficient force to allow them to swing back closed behind him,
in the manner he had seen happening in ‘western movies’.
In executing this manoeuvre he hit both doors with the palms of his
hand, incidentally striking the door on his left on one of
its glass
panes.
[9]
When the appellant initially entered the charge-office, so he
explained, he used the door on his right which did indeed swing open
on its hinges. Unbeknown to the appellant, however, the door on the
left, unlike its counterpart on the right, was not allowed
to swing
open freely, because it was latched to the floor. Because the door
unexpectedly resisted his push, so the appellant concluded,
the
impact of his palm on the pane was much greater than he anticipated
which, in turn, caused it to break.
[10]
The
magistrate accepted the appellant’s version that he had no
motive or direct intent to break the glass pane. Yet he found
the
appellant guilty on the basis of dolus eventualis. It is clear that
the magistrate appreciated that, in accordance with trite
principle,
the test for dolus eventualis in the present context was twofold,
namely, whether the appellant (a) subjectively foresaw
the
possibility of the pane breaking as a result of his conduct; and (b)
reconciled himself with that possibility. The magistrate’s
application of these principles appears from the following statements
in his judgment:
‘
[The appellant] was the
project manager of a building site. He knew that if one applies
pressure to a window-pane it would break.
He knew that better than
the average person in the street. Even the average person in the
street would know that. . . .
The court finds that the accused did in fact have the knowledge that
it is possible that the window-pane broke, nevertheless he
proceeded
and he reconciled himself with that fact and the accused, on his own
version, had the necessary dolus eventualis in breaking
the
window-pane. . . .’
[11]
This
statement, as I see it, potentially exposes the magistrate to the
criticism that, despite his express reference to the element
of
reconciliation as an essential ingredient of dolus eventualis, he
never actually enquired into the presence of that element
at all. In
consequence he fell into the trap against which this court recently
reiterated a note of warning in S v Humphreys
2013 (2) SACR 1
(SCA)
paras 15-17. Reconciliation, so this court emphasised in Humphreys,
involves more than the perpetrator merely proceeding
with his or her
proposed conduct despite the subjective appreciation of the
consequences that ensued. If the perpetrator genuinely
believed -
despite the unreasonableness of that belief - that the foreseen
consequences would not materialise, the element of reconciliation
cannot be said to be present. The form of fault in this instance
would be luxuria or conscious negligence, but not dolus eventualis
(see eg S v Ngubane
1985 (3) SA 677
(A) at 685A-H).
[12]
The
true enquiry under this rubric is therefore, as was said in Humphreys
(para 17):
‘. . . [w]hether the appellant took the consequences that he
foresaw into the bargain; whether it can be inferred that it
was
immaterial to him whether these consequences would flow from his
actions. Conversely stated, the principle is that if it can
reasonably be inferred that the appellant may have thought that the
possible [consequences] he subjectively foresaw would not actually
occur, the second element of dolus eventualis would not have been
established.’
[13]
On the facts of this case, the magistrate’s finding of
subjective foresight of the consequences on the part of the appellant
is, in my view, of at least doubtful veracity. But assuming the
correctness of that finding, it can, as I see it, be argued with
considerable conviction that, even if the appellant foresaw the
possibility that the pane may break, he thought it would not actually
happen because the door would give way. Whether or not that argument
should be accepted, is a question for the high court to decide
in the
appeal. For present purposes I am prepared to say, however, that on
the scale of prospects of succeeding, this case falls
at the higher
end. That renders it self-evident, I think, that the present appeal
must succeed.
[14]
It is ordered that:
1.
The appeal is upheld.
The order of the court a quo is
set aside and replaced with the following:
‘The
applicant is granted leave to appeal to the Free State High Court,
Bloemfontein against his conviction of malicious injury
to property
in the Harrismith Magistrate’s Court.’
F D J BRAND JUDGE OF APPEAL
APPEARANCES:
For
Appellant: Estelle Killian
Instructed
by:
Tonkin
Clacey Attorneys Rosebank
Correspondents:
McIntyre & Van der Post Bloemfontein
For
Respondent: Colin Steyn
Director of Public Prosecutions
Bloemfontein