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[2011] ZASCA 15
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Smith v S (475/10) [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) (15 March 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No 475/10
In the matter between:
BAREND
STEPHANUS SMITH
............................................................................
APPELLANT
and
THE
STATE
.......................................................................................................
RESPONDENT
Neutral citation:
Smith v S
(475/10)
[2011] ZASCA 15
(15 March 2011)
Coram
: CLOETE, MAYA JJA and
PLASKET AJA
Heard
: 3 March 2011
Delivered
: 15 March 2011
Summary
: Criminal Procedure –
Appeal against a refusal to grant leave to appeal on petition –
Issue to be decided is whether
the appellant has reasonable prospects
of success on appeal, and not the merits of the appeal –
Reasonable prospects of success
present if a sound, rational basis
exists for the conclusion that the appellant has prospects of success
on appeal.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from: Eastern Cape High
Court (Grahamstown) (Jansen and Pickering JJ) (sitting as a court of
appeal).
1. The appeal is upheld and the order
of the court below is set aside.
2. The order of the court below is
replaced with the following order:
‘
The
appellant is granted leave to appeal against his convictions to the
Eastern Cape High Court, Grahamstown.’
JUDGMENT
PLASKET AJA (CLOETE and MAYA JJA
concurring):
[1] The appellant was convicted, in
the Regional Court, East London, of indecent assault and kidnapping.
He was sentenced to seven
years’ imprisonment, both counts
being taken together for purposes of sentence. He applied to the
trial magistrate for leave
to appeal against both conviction and
sentence. He was granted leave to appeal against sentence only. He
then applied, by way of
petition to the Judge President of the
Eastern Cape High Court, Grahamstown in terms of
s 309
of the
Criminal Procedure Act 51 of 1977
, for leave to appeal against his
conviction. His petition was dismissed. With the leave of the judges
who refused the petition
(Jansen and Pickering JJ) he now appeals to
this court against the dismissal of the petition.
[2] This court held
in
S
v Khoasasa
1
that a refusal of
leave to appeal on petition to two judges of a high court is a
‘judgment or order’ or a ‘ruling’
as
contemplated by
s 20(1)
and s 21(1) of the Supreme Court Act 59 of
1959; that a petition for leave to appeal to the high court is, in
effect, an appeal
against the refusal of leave to appeal by the court
of first instance; and that a refusal of leave to appeal by the high
court
is appealable to this court with the leave of the high court.
[3] In
Matshona
v S
2
this court endorsed
the reasoning in
Khoasasa,
describing it as
‘unassailable’. The court proceeded to emphasise that the
issue to be determined at this stage is ‘whether
leave to
appeal should have been granted by the High Court and not the appeal
itself’.
3
As a result, the
test to be applied ‘is simply whether there is a reasonable
prospect of success in the envisaged appeal .
. . rather than whether
the appeal . . . ought to succeed or not’.
4
[4] It was argued by counsel for the
appellant that the test of reasonable prospects of success means –
and I quote from his
heads of argument – that leave should only
be refused ‘where there is absolutely no chance of success or
where the
court is certain beyond reasonable doubt that such an
appeal will fail’. In argument he articulated the test as being
that
if there was a possibility of success on appeal, leave must be
granted.
[5] Both of these
submissions are incorrect and neither is supported by the cases cited
by counsel. The first,
R
v Ngubane & others
,
5
is to the opposite
effect. In that case, the court said the following:
6
‘
It
was for the applicants to satisfy the Court that there was a
reasonable prospect of success on appeal if leave were granted.
When
in
Rex
v Nxumalo
(1939
AD 580
at p588), the present Chief Justice stated that there was “no
probability of the applicant succeeding”, that did not
mean, of
course, that he had merely failed to show that there was a balance of
probabilities in his favour. That test would obviously
place too
heavy a burden upon the applicant. Equally clearly, when Lord De
Villiers CJ, in
Rex
v Gannon
(1911
AD 269
at p270), spoke of the appeal as “hopeless”, or
Innes CJ, in
Rex
v Mahomed
(1924
AD 237
at p238), referred to “the possibility of success”,
they did not mean that leave will only be refused where the appeal
is
hopeless or where the Court is certain beyond all reasonable doubt
that the appeal would fail. In all the cases, no matter what
form of
words was used, the same thing was, in my opinion, intended to be
conveyed, namely, that it is for the applicant for special
leave to
satisfy the Court that, if that leave be granted, he has a reasonable
prospect of success on appeal.’
[6] In
S
v Ackerman & 'n ander
,
7
cited in support of
the second proposition set out above, the sentence of the English
headnote from which counsel quoted, if taken
out of its proper
context, does not reflect correctly what was held in the body of the
judgment. The Afrikaans headnote is similarly
misleading. The court
quoted with approval
8
what had been held
in
S
v Shabalala
9
to be the correct
approach to the granting of leave to appeal, namely:
10
‘
Omstandigheidsgetuienis
kan sterker wees as 'n onbetroubare ooggetuie, en die “moontlikheid”
dat die Hof van Appèl
'n “moontlike” fout in die
beredenering sou kon vind en “miskien” tot die konklusie
kon kom dat die verhaal
van die beskuldigde waar kan wees, is so 'n
anemiese toets dat 'n aansoek vir verlof in enige saak daarop sou kon
slaag. Alleen
dan wanneer die Verhoorregter tot 'n weloorwoë
konklusie kom dat daar gronde is waarop die Hof van Appèl tot
'n ander
afleiding van die feite kan kom as wat hy gekom het, en daar
dus 'n redelike moontlikheid van sukses vir die applikant bestaan,
behoort verlof toegestaan te word. Bestaan daardie moontlikheid,
behoort verlof ook toegestaan te word sonder huiwering of teësin.’
[7] What the test
of reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law, that
a court of appeal
could reasonably arrive at a conclusion different to that of the
trial court.
11
In order to
succeed, therefore, the appellant must convince this court on proper
grounds that he has prospects of success on appeal
and that those
prospects are not remote but have a realistic chance of succeeding.
More is required to be established than that
there is a mere
possibility of success, that the case is arguable on appeal or that
the case cannot be categorised as hopeless.
There must, in other
words, be a sound, rational basis for the conclusion that there are
prospects of success on appeal.
[8] The appellant’s
argument is that there are indeed reasonable prospects of success on
appeal because the magistrate misdirected
himself in various ways. In
broad terms, the following are the major misdirections alleged to
have been committed by the magistrate:
first, even though the
magistrate stated that the complainant’s evidence had to be
approached with caution, his evaluation
of the evidence showed that
he did not do so because the corroboration that he relied on was
insufficient and the complainant could
not be said to have been a
satisfactory witness; secondly, he failed to take into account, when
evaluating the evidence of the
complainant, that during the events
giving rise to the charge against the appellant, she had lied on a
number of occasions, and
that her explanations for doing so, with one
possible exception, had not been considered; thirdly, a number of
contradictory answers
given by the complainant on various issues were
not taken into account and properly evaluated by the magistrate; and
fourthly,
the magistrate had convicted the appellant purely on the
probabilities and had made no credibility findings of any sort
against
him that could have justified a conclusion that his evidence
was not reasonably possibly true. In addition, the magistrate’s
finding that the report made by the complainant to her boyfriend and
his father, on her arrival at their house, ‘is strong
confirmation of her version that she had been indecently assaulted’
is a misdirection, although the magistrate’s reliance
on her
distressed state is not.
12
On the other hand,
however, there are without question facts and probabilities that
point to the appellant’s guilt.
[9] In my view, and without wishing to
comment on the merits in any detail, the alleged misdirections that
have been listed above
can be said to be sufficiently weighty to
justify a conclusion that, if leave to appeal is granted, the
appellant’s prospects
of success are reasonable. In the result,
the appeal must succeed.
[10] The following order is issued:
1. The appeal is upheld and the order
of the court below is set aside.
2. The order of the court below is
replaced with the following order:
‘
The
appellant is granted leave to appeal against his convictions to the
Eastern Cape High Court, Grahamstown.’
_____________________
C. PLASKET
ACTING JUDGE OF APPEAL
APPEARANCES
APPELLANT: T N Price instructed by
Changfoot and Van Breda, East London and Symington De Kock,
Bloemfontein
RESPONDENT Z Mdolomba of the office of
the Director of Public Prosecutions, Grahamstown
1
2003
(1) SACR 123
(SCA) paras 14 and 19-22.
2
[2008]
4 All SA 69
(SCA) para 4.
3
Para
5.
4
Para
8.
5
1945
AD 185.
6
At
186-7.
7
1973
(1) SA 765
(A).
8
At
768D-E.
9
1966
(2) SA 297 (A).
10
At
299C-D.
11
S
v Mabena & another
2007
(1) SACR 482
(SCA) para 22.
12
See
S
v Hammond
2004
(2) SACR 303
(SCA).