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[2012] ZASCA 74
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Mkhize v S (741/11) [2012] ZASCA 74 (25 May 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 741/11
Not Reportable
In the matter between:
SIBUSISO JOHANNES
MKHIZE
…...................................................................
Appellant
and
THE STATE
…................................................................................................
Respondent
Neutral citation
:
Mkhize v The State
(741/11) ZASCA 74 (25 May 2012)
Coram:
VAN
HEERDEN, MAJIEDT JJA and PETSE AJA
Heard:
09 May 2012
Delivered:
25 May
2012
Summary:
Criminal
Procedure – Appeal against a refusal by a high court to grant
leave to appeal on petition seeking leave to appeal
against a
sentence imposed by a regional court – the issue is whether
leave to appeal should have been granted by the high
court and not
the merits of the appeal.
____________________________________________________________________________________
ORDER
On appeal from:
North
West High Court (Mafikeng) (Mpshe AJ sitting as court of appeal):
The appeal is upheld.
The order of the court
below refusing the appellant leave to appeal is set aside and
substituted with an order granting the appellant
leave to appeal to
the North West High Court (Mafikeng) against the sentence imposed on
him in the regional court.
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
PETSE AJA (VAN HEERDEN,
MAJIEDT JJA concuring):
[1] The appellant, Mr
Sibusiso Johannes Mkhize, was arrested and arraigned before a
regional magistrate in Mmabatho on a charge
of theft of a motor
vehicle. It was alleged that, on 29 September 2007 at Mafikeng, the
appellant unlawfully and intentionally
stole a navy-blue Opel Corsa,
the property of or in the lawful possession of one Mr Kenneth Lobelo.
[2] Despite his plea of
not guilty, the appellant was found guilty as charged and then
sentenced to ten years’ imprisonment.
Disenchanted with his
sentence, he applied for leave to appeal to the North West High Court
in terms of s 309B of the Criminal
Procedure Act 51 of 1977 (the
Act). The trial magistrate refused this application. Subsequently he
petitioned the North West High
Court under s 309C of the Act but this
petition suffered a similar fate. His subsequent application for
leave to appeal to this
court against the refusal of his petition
under s 309C was successful (per Mpshe AJ).
[3] It is necessary to
comment briefly on the terms of the order of the court below –
incorporated in a judgment by Mpshe
AJ dated 12 August 2011 –
granting leave to appeal to this court. It reads as follows:
‘
I
therefore order that
the
application for leave to appeal for special leave to the Supreme
Court of Appeal is granted.
’
This order, on its terms,
is obviously not elegantly crafted. This shortcoming is further
compounded by the terms of the order issued
by the Registrar of the
North West High Court on 12 August 2011. It reads as follows:
‘
The
application for leave to appeal to the Supreme Court of Appeal
against sentence be and is hereby granted
.’
[4] Because
of the potential confusion if the orders mentioned in the preceding
paragraph are taken at face value, I propose dealing
first with the
current state of the law concerning the ambit of this appeal. This is
all the more important given that counsel
in their heads of argument
also addressed at length the merits of the appellant’s ‘appeal
against sentence’.
1
[5] In
S
v Khoasasa
2003 (1) SACR 123
(SCA) this court
concluded, after a comprehensive analysis of the provisions of the
Act relating to appeals, that an order of the
high court refusing
leave to appeal (be it against conviction or sentence or both) was an
order of a provincial division against
which an appellant, either
with leave from the high court itself or, failing which, with leave
of this court, could appeal. It
went on to hold that a
sentence imposed in the
regional court – which is what occurred in this appeal –
can only be appealed against in this
court after an appeal against
such sentence has failed in the high court.
[6] This
court subsequently described the reasoning in
Khoasasa
as unassailable.
2
Another pertinent decision is the unreported judgment of
this court in
Smith v The State
[2011] ZASCA 15
(15 March 2011) in which the same
question had arisen.
[7] In the light of the
aforegoing it should be emphasised that what was before Mpshe AJ on
12 August 2011 was an application by
the appellant in terms of which
he sought leave to appeal against the refusal (per Kgoele J and Mpshe
AJ) of his application for
leave to appeal, to the North West High
Court, against the sentence imposed on him in the regional court,
Mmabatho. This appeal
is consequently not before us on the merits.
What we are called upon to decide at this stage is the question
whether the court
below was correct in refusing leave to appeal when
it considered the appellant’s petition under
s 309C of the Act.
[8] In order
to answer that question we should in turn ask ourselves whether or
not there is a reasonable prospect of success in
the envisaged appeal
to the high court against the sentence imposed on the appellant in
the regional court.
3
[9] It is to
that question that I now turn. Before us, various grounds were relied
upon by Mr Skibi, counsel for the appellant,
in pursuit of the
appellant’s quest for leave to appeal against his sentence. I
do not propose to mention all of them. Suffice
to say that it was,
inter alia
, contended
that the trial magistrate committed several misdirections and in
particular (a) failed to have proper regard to appellant’s
personal circumstances and only did so, albeit in a perfunctory
fashion, when dealing with the appellant’s application for
leave to appeal under s 309B of the Act; (b) found that the
complainant had suffered psychological trauma as a consequence of
both the theft of and damage to his motor vehicle, when there was not
even a shred of evidence to sustain such a funding; (c) that,
taking
cognisance of the previous decisions
4
of this and other courts, the sentence imposed on the
appellant was severe to a degree demonstrating that the trial court
exercised
its discretion unreasonably.
5
[10]
Bearing,
inter alia
,
the above factors in mind, we are persuaded that there is a
reasonable prospect that a court of appeal might consider the
sentence
imposed to be excessive. This was conceded by counsel for
the State. This appeal must therefore succeed.
[11] Before concluding
there is one further aspect that requires mention. The appellant was
sentenced on 17 March 2010 which means
that he has already been
incarcerated for over two years. Moreover the appellant was in
custody for almost five months prior to
his release on reduced bail.
Bearing this in mind, it is hoped that the Director of Public
Prosecutions, North West will consider
placing the appeal on the roll
for hearing at the earliest opportunity.
[12] In the result the
following order is made:
The appeal is upheld.
The order of the court
below refusing the appellant leave to appeal is set aside and
substituted with an order granting the appellant
leave to appeal to
the North West High Court (Mafikeng) against the sentence imposed on
him in the regional court.
____________________
X M Petse
Acting Judge of Appeal
APPEARANCES
FOR APPELLANT: N L Skibi
Instructed by Legal Aid
South Africa, Mafikeng
Legal Aid South Africa,
Bloemfontein
FOR RESPONDENT: M G N
Ndimande
Instructed by the
Director of Public Prosecutions,
Mafikeng
Director of Public
Prosecutions, Bloemfontein
1
I
have put the words ‘appeal against sentence’ in
parenthesis for reasons that will become apparent once I have
considered this very point.
2
Matshona
v S
[2008] 4 All SA 68
(SCA) para 4.
3
R
v Baloi
1949 (1) SA 523
(A) at 524;
S v Sikosana
1980 (4)
SA 559
(A) at 562D-563A;
S v Mabena & another
2007 (1)
SACR 482
(SCA) para 22.
4
S
v Gerber
[2006] ZASCA 27
;
2006 (1) SACR 618
(SCA) para 18;
Mthembu v S
[2008] ZASCA 51
;
2008 (2) SACR 407
(SCA) para 38;
S v Naidoo
2010 (1) SACR 499
(GSJ);
S v Nxopo
2012 (1) SACR 13
(ECG).
5
S
v Giannoulis
1975 (4) SA 867
(A) at 868G-H;
S v Kgosimore
1999 (2) SACR 238
(SCA) para 10.