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[2011] ZASCA 94
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Senkhane v S (300/10) [2011] ZASCA 94; 2011 (2) SACR 493 (SCA); [2011] 4 All SA 257 (SCA) (31 May 2011)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 300/10
VALENTINE SENKHANE
...........................................................................................
Appellant
and
THE STATE
.............................................................................................................
Respondent
______________________________________________________________
Neutral citation:
Senkhane v
S
(300/10)
[2011] ZASCA 94
(31 May 2011)
CORAM:
Navsa, Snyders, Bosielo, Shongwe and Seriti JJA
HEARD:
20 May 2011
DELIVERED:
31 May 2011
SUMMARY:
Refusal of application for condonation by high court sitting as a
court of appeal ─ practice of allowing an automatic
right of
appeal abandoned ─ now requiring an application to the high
court for leave to appeal ─ prior practice tending
to bring
administration of justice into disrepute ─ principles relating
to appeals discussed.
______________________________________________________________
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Free State High
Court (Bloemfontein) (Ebrahim and Jordaan JJ sitting as court of
first instance).
The appeal is struck from the roll
with the effect that the sentence imposed by the regional magistrate
remains effective.
______________________________________________________________
JUDGMENT
______________________________________________________________
NAVSA JA (Snyders, Bosielo, Shongwe
and Seriti JJA concurring)
[1] This is an
appeal against a refusal by the Free State High Court (Jordaan J,
Ebrahim J concurring) of an application for condonation
for the late
prosecution of an appeal. The appeal in respect of which condonation
had been sought was directed against a judgment
of the Regional
Court, Kroonstad, in terms of which the appellant, Mr Valentine
Senkhane, was convicted on one count of contravening
s 1(1)(b)(i)
read with s 3 of the Corruption Act 94 of 1992 ─ which was in
existence at the time of the commission of the
alleged offence
1
─
and on two
counts of fraud. The application for condonation was refused by the
high court on the basis that there were no prospects
of success on
the merits of the appeal.
[2] After his conviction in the
regional court the appellant was sentenced as follows:
(a) In respect of the corruption
conviction, one year’s imprisonment;
(b) in respect of the one count of
fraud, five years’ imprisonment; and
(c) on the other count of fraud, five
years’ imprisonment.
It was ordered that the sentences on
the counts of fraud run concurrently with the sentence imposed in
respect of the corruption
count in such a way that an effective
sentence of six years’ imprisonment was imposed by the regional
court. The contemplated
appeal was directed against both conviction
and sentence.
[3] In terms of established case law
the appellant has an automatic right of appeal to this court against
the refusal of an application
for condonation by a high court sitting
as a court of appeal. This is an aspect that will be dealt with
extensively later in this
judgment. At this juncture it is necessary
to set out in some detail the background culminating in the present
appeal.
[4] The appellant,
a manager of corporate services for the Moqhaka Municipality (the
Municipality), was charged in the Regional
Court, Kroonstad, with two
counts of contravening the Corruption Act and two counts of fraud.
The State’s case on the two
contraventions of the provisions of
the Corruption Act was that the appellant had procured payment from
members of two businesses
who had tendered for municipal projects on
the basis that he would secure the tenders for them.
2
In respect of the
first of the fraud charges the State’s case was that the
appellant had arranged for a business, which provided
security
services to the Municipality, to install palisade fencing, automatic
garage doors and gates and an alarm system at his
residence in
Kroonstad. According to the State, the appellant had thereafter
fraudulently arranged for the business to amend its
invoice to
reflect that services had been rendered to the Municipality at a cost
equal to the amount due for the installation of
the items referred to
above, namely, R39 612.33. The Municipality consequently paid
the business concerned that amount.
[5] In respect of the second count of
fraud the State’s case was that the appellant had been
authorised by the Municipality
to have five air conditioners
installed at municipal premises but that contrary to the
authorisation he had fraudulently arranged
for one of the five air
conditioners to be installed at his residence in Kroonstad. The
Municipality paid the total amount owing
for the five air
conditioners to the business responsible for the installation,
namely, an amount of R25 980. The value of the
unit installed at the
appellant’s house was R5 800.
[6] The appellant pleaded not guilty
to all four counts. The trial proceeded with a number of witnesses
testifying against the appellant.
In his judgment the regional
magistrate examined all the evidence extensively. In respect of the
first count it was common cause
that R2 000 had been deposited into
the appellant’s mother’s account by a person who had
tendered for municipal work.
That person also testified that in
addition he had handed the appellant R2 000 in cash. The appellant
denied that he had received
any cash and his explanation for the R2
000 that had been deposited into his mother’s account was that
it had been a donation
to the African National Congress, the ruling
political party in the country, for the purposes of a workshop. The
regional magistrate
accepted the evidence against the appellant and
rejected his explanation for the receipt of the money. The magistrate
set out a
number of criticisms of the appellant’s evidence.
[7] In respect of
the second count of corruption, the magistrate criticised the
evidence of the principal witness against the appellant
and acquitted
the latter. In respect of both counts of corruption the regional
magistrate, in evaluating the evidence, took into
account that the
complainants were witnesses who had been warned in terms of
s 204
of
the
Criminal Procedure Act 51 of 1977
3
(the 1977 CPA).
[8] In respect of the fraud charges
the regional magistrate considered the common cause facts, including
documentation as well as
the evidence of the employees and owners of
the businesses concerned. In addition the evidence of municipal
employees and the appellant’s
was carefully evaluated. In
respect of the first count of fraud, the regional magistrate
concluded that there was no reason for
the number of witnesses
against the appellant to have concocted a version of events so as to
falsely implicate him. In respect
of both counts of fraud the
appellant’s version had been that he had contracted personally
with the businesses concerned
and had undertaken to pay them sometime
in future when his bonus became due. He denied that he had requested
them to complete invoices
to show that the Municipality was the
receiver of services for which it later paid. After considering the
common cause facts and
the evidence of the witnesses on behalf of the
State and the evidence of the appellant the regional magistrate held
that the State
had proven its case beyond a reasonable doubt on both
counts of fraud.
[9] The appellant prosecuted an appeal
against his conviction and sentence in the Free State High Court.
Initially, the matter was
enrolled in that court for hearing on
1 September 2008. The appellant’s heads of argument were
not filed in time and
the appeal was struck off the roll. There were
further mishaps. The matter was re-enrolled for 16 February 2009 but
did not proceed
because a complete record had not been filed on
behalf of the appellant. Consequently, the appeal was postponed to 22
June 2009
and it was postponed one more time, to 27 July 2009.
[10] It is common cause that on the
last mentioned date an application for condonation for the late
prosecution of the appeal was
argued on behalf of the appellant. An
explanation for the delay was proffered. In the high court counsel
for the appellant conceded
that in the event of it being held that
there were no prospects of success the application for condonation
would be bound to fail.
The Free State High Court went on to consider
the application for condonation on the basis of the strength of the
merits of the
appellant’s case.
[11] The Free State High Court
scrutinised the material parts of the evidence adduced during the
appellant’s trial. It took
great care in assessing the regional
court’s evaluation of the evidence. In respect of the
conviction related to a contravention
of provisions of the Corruption
Act the high court held that the magistrate had correctly rejected
the appellant’s explanation
for the receipt of R2 000 paid
into his mother’s account. The high court held that the
appellant’s conviction
on that charge could not be faulted.
[12] In respect of the first count of
fraud the high court considered the documentary evidence and the
evidence of the witnesses
on behalf of the State. It had regard to
the appellant’s explanation that he had assumed personal
responsibility for payment
to the security company for the
installation of the items set out earlier in this judgment and
rejected it. The high court held
that the regional court was correct
in its acceptance of evidence against the appellant and concluded
that he had rightly been
convicted on the first count of fraud.
[13] Similarly, the evidence,
including documentation, in respect of the second count of fraud was
considered by the high court
and it concluded that the appellant’s
conviction on that count was in order.
[14] Insofar as sentence is concerned,
the high court reasoned that the appellant occupied a senior position
of trust within the
municipality and was in a position to take
decisions and influence the decisions of others by way of inputs and
advice. The high
court had regard to his high level of income and
considered that he had not resorted to crime because he was in need
but because
of greed. In respect of the sentence imposed by the
regional court the high court concluded that the appellant had no
prospects
of success. Consequently, the application for condonation
coupled to the appeal against conviction and sentence was refused.
[15] Aggrieved, the appellant applied
to the high court for leave to appeal to this court against the
former’s refusal of
condonation. That application too was
unsuccessful. This was followed by an application for leave to appeal
to this court which
was also refused. That notwithstanding, the
appellant, relying on decisions of this court to the effect that an
appellant has an
automatic right of appeal to this court against the
refusal of an application for condonation by a high court sitting as
a court
of appeal, prosecuted the present appeal.
[16] It is necessary to examine the
genesis and the development of the established practice reflected in
the decisions of this court,
referred to in the preceding paragraph,
and then to proceed to consider whether it should be continued. It
will ultimately be necessary
to decide how best to dispose of the
present appeal.
[17] Section 20(1) of the Supreme
Court Act 59 of 1959 under the heading ‘Appeals to the Supreme
Court in general’ reads
as follows:
‘
An
appeal from a judgment or order of the court of a provincial or local
division in any civil proceedings or against any judgment
or order of
such a court given on appeal shall be heard by the appellate division
or a full court, as the case may be.’
As can be seen from the provisions of
this subsection any appeal against an order of a provincial or local
division given on appeal
to it lies to a full court or to this court.
In the present case, the decision given on appeal by two judges lies
only to this
court.
[18] Section 21(1) of the Supreme
Court Act provides:
‘
In
addition to any jurisdiction conferred upon it by this Act or any
other law, the appellate division shall, subject to the provisions
of
this section and any other law, have jurisdiction to hear and
determine an appeal from any decision of the court of a provincial
or
local division.’
[19] Sections 362
and 363 of the Criminal Procedure Act 56 of 1955 (the 1955 CPA) prior
to its amendment by the 1977 CPA provided
for appeals from judgments
of superior courts sitting as courts of first instance. Section 363
of the 1955 CPA obliged an accused
convicted of any offence, who
intended to pursue an appeal against his conviction or against any
sentence or order following thereon,
to apply first to that court for
leave to appeal and then upon refusal to this court.
4
[20] Section 316 of
the 1977 CPA, which is currently in operation, is entitled
‘Applications for condonation, leave to appeal
and further
evidence’ and in essence mirrors the material provisions of s
363 of the 1955 CPA. It provides that an accused
convicted of any
offence by a high court may apply to that court for leave to appeal
against such conviction or against any resultant
sentence or order.
Section 316(3)(a) provides that no appeal shall lie against a
judgment or order of a full court given on appeal
to it in terms of s
315(3), except with the leave of this court, on application made to
it by an accused. The full court contemplated
by this section sitting
as a court of appeal is a court hearing an appeal against a judgment
or order of a high court in a criminal
case heard by a single judge.
5
[21] Neither the 1955 CPA nor the 1977
CPA nor the Supreme Court Act made express provision for the
situation where a superior court
sitting as a court of appeal refused
an application for condonation related to the prosecution of such an
appeal.
[22] It is against that statutory
framework that decisions of this court dealing with decisions on
condonation by a high court sitting
as a court of appeal have to be
understood. The first decision that we could find in this regard is
Sweigers v S
1969 (1) PH H110. The following appears in the
judgment, per Botha AJ:
‘
Appellant
het sy regsmiddel teen die afwysing deur die Hof
a
quo
van
sy aangeskrewe tydperk appèl aan te teken teen sy
skuldigbevinding op die eerste en tweede aanklagte, verkeerd begryp.
Daar is geen voorgeskrewe prosedure waarvolgens hy by die Hof
a
quo
,
en by die Hoofregter, na die afwysing van sy aansoek om kondonasie,
aansoek kon doen om teen sy skuldigbevinding deur die landdros
op
bedoelde aanklagte na hierdie Hof in hoër beroep te gaan nie.
Daar bestaan trouens geen voorsiening vir ‘n regstreekse
appèl
na hierdie Hof teen ‘n skuldigbevinding deur ‘n landdros
nie. Die enigste regsmiddel tot sy beskikking
teen die afwysing van
sy aansoek om kondonasie was ‘n appèl na hierdie Hof
teen bedoelde afwysing ingevolge die bepalings
van artikel 21 (1) van
die Wet op die Hooggeregshof, 1959.’
[23] The next case in chronological
order is
S v Tsedi
1984 (1) SA 565
(A). The headnote, which
correctly reflects the findings of the court, reads as follows:
‘
Where
a Provincial Division, having dismissed a criminal appeal originating
in a magistrate’s court, refuses to grant an order
condoning
the late noting of an appeal to the Appellate Division, the only
remedy available is an appeal to the Appellate Division
against such
refusal in terms of s 21(1) of the Supreme Court Act 59 of 1959, for
which appeal no leave is required in terms of
s 22(2) of the said
Act. There is no provision for an application to the Provincial
Division concerned for leave to appeal against
its refusal to grant
condonation, and should such an application indeed be made and
granted, the purported order will be ineffective.’
[24] In
S
v Gopal
1993 (2) SACR 584
(A) at 585b-e the following appears:
‘
Hierdie
appèl illustreer die ongewenstheid van die (vermoedelik
onvoorsiene) teenstrydigheid tussen die bepalings van die
Strafproseswet 51 van 1977 ten aansien van appèlle en art
21(1) . . . van die Wet op die Hooggeregshof 59 van 1959. Meer
spesifiek, indien ‘n persoon in die landdroshof aan ‘n
misdryf skuldig bevind en gevonnis word en sy appèl na
die
Provinsiale (of, indien van toepassing, die Plaaslike) Afdeling van
die Hooggeregshof misluk, mag hy alleen met die nodige
verlof na
hierdie Hof appelleer. As hy egter sou nalaat om sy eerste appèl
na behore voort te sit en dit nodig is om kondonasie
te verkry (soos
bv vir die laat aantekening van appèl) en dié aansoek
misluk, het hy ‘n outomatiese reg van
appèl teen die
afwys van sy aansoek na hierdie Hof. Dit geld selfs indien sy aansoek
vanweë ‘n gebrek aan vooruitsigte
op appèl afgewys
is.
S
v Tsedi
1984
(1) SA 565
(A);
S
v Absalom
1989
(3) SA 154
(A). En sou hierdie Hof argumentsonthalwe bevind dat die
Hof
a
quo
verkeerd
was in sy beoordeling van die kanse op sukses, en die appèl
slaag, moet die strafappèl dan waarskynlik deur
daardie Hof
bereg word met die wete dat hierdie Hof reeds oordeel, wat nie
bindend is nie, oor die meriete uitgespreek het.’
[25] The reservation expressed in the
last sentence of the dictum in the preceding paragraph is with
respect correct and, as will
be demonstrated in this case, such a
view on the merits in the present case will have been expressed
several times even though
an appeal proper on the merits of the case
had not yet been heard. In
Gopal
,
the following incongruity was highlighted: When a person is convicted
and sentenced by a magistrate’s court and his appeal
to a local
or provincial division fails he can only appeal to this court with
the necessary leave but where he neglects to prosecute
his appeal in
terms of the applicable legislation and rules of court and requires
condonation but is unsuccessful in an application
to court in
relation thereto he has an automatic right of appeal.
[26] In
S
v Farmer
2001 (2) SACR 103
(SCA) para 6, after the cases cited above were referred to, the
following was stated:
‘’
n
Afwysing van ‘n aansoek vir kondonasie bloot op die basis dat
daar nie redelike vooruitsigte van sukses is nie, kan dus
onwenslike
gevolge hê. Na my mening blyk die praktiese oplossing die
volgende te wees. Waar die enigste dispuut in ‘n
aansoek om
kondonasie die meriete van ‘n beoogde appèl is moet die
appèl as sulks afgehandel word. Dit sal
dan die onwenslikheid
wat in die
Gopal
saak,
supra
,
beskryf is, uitsluit. In die huidige geval is hierdie roete
ongelukkig nie gevolg nie. Dit is dus nodig om die appèl soos
hy tans voor ons dien te besleg.’
[27] It is now
necessary to consider briefly the criteria to be applied in
considering an application for condonation. In
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531
(A) this court, in dealing with whether or not sufficient
cause had been shown in terms of rule 13 of the then Appellate Rules
of Court for condonation for non-compliance stated the following (at
532C-F):
‘
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success, and the importance of the case. Ordinarily these
facts are
interrelated: they are not individually decisive, for that would be a
piecemeal approach incompatible with a true discretion,
save of
course that if there are no prospects of success there would be no
point in granting condonation. Any attempt to formulate
a rule of
thumb would only serve to harden the arteries of what should be a
flexible discretion. What is needed is an objective
conspectus
of
all the facts. Thus a slight delay and a good explanation may help to
compensate for prospects of success which are not strong.
Or the
importance of the issue and strong prospects may tend to compensate
for a long delay. And the respondent’s interest
in finality
must not be overlooked.’
See also
S
v Mohlathe
2000
(2) SACR 530
(SCA) para 9.
6
[28] In
S
v Di Blasi
1996
(1) SACR 1
(A) at 3f-g the following appears:
‘
The
general approach of this Court to applications of this kind is well
established. (See, eg,
Federated
Employers Fire and General Insurance Co Ltd and Another v McKenzie
1969
(3) SA 360
(A) at 362F-H;
S
v Adonis
1982
(4) SA 901
(A) at 908H-909A and
Ferreira
v Ntshingila
1990
(4) SA 271
(A) at 281D-F.) Relevant considerations include the degree
of non-compliance, the explanation therefor, the prospects of
success,
the importance of the case, the respondent’s interest
in the finality of the judgment, the convenience of the Court and the
avoidance of unnecessary delay in the administration of justice.’
[29] It is clear
that in the ordinary course a consideration of the merits is
essential to an adjudication of an application for
condonation. In
the present case the court below did not follow the approach
suggested in
Farmer
.
It is abundantly clear that the problems envisaged by
Gopal
and
Farmer
continue to endure
with the result that cases of the kind in question continue in a path
to and fro between a high court and this
court.
[30] Section
35(3)(o) of the Constitution gives every accused person the right to
a fair trial, which includes the right of appeal
to, or review by, a
higher court. In
S
v Rens
[1995] ZACC 15
;
1996
(1) SACR 105
(CC) the Constitutional Court considered whether a
person convicted by the high court has an absolute right of appeal.
It had regard
to a decision of the European Court of Human Rights. It
considered leave to appeal procedures in the high court and in this
court
were constitutionally justifiable.
7
Restrictive
procedures such as an application for leave to appeal have as their
objective the avoidance of court rolls being clogged
by wholly
unmeritorious cases. Of course the procedures that apply should be
such as to minimise the risk of wrongful convictions
and
inappropriate sentences. In this regard the judgment of the
Constitutional Court in
S
v Steyn
2001
(1) SACR 25
(CC) is instructive.
8
That case held that
a prior statutory procedure for applications for leave to appeal from
a magistrate’s court to the high
court was unconstitutional.
The Constitutional Court was particularly concerned about the paucity
of information that was required
to be placed before the high court
in terms of the statutory scheme and the concomitant margin for
error.
[31] The problems alluded to at the
end of the preceding paragraph do not impact on the question
presently being addressed. The
high court constituted as a court of
appeal determining the correctness of the conviction or sentence
usually, as in the present
case, has a full record before it. This
ought to be so even when condonation is sought in relation to an
appeal. When condonation
is sought for failure to comply with
prescribed time limits the high court, sitting as a court of appeal,
has all the relevant
information before it.
[32] When a condonation application is
being considered by a high court in relation to an appeal sought to
be prosecuted before
it ─ in line with the authorities cited
above ─ it has to have regard to the merits of the appeal. Put
differently,
it has to consider the prospects of success and must of
necessity consider the merits. It is specious to conclude that the
merits
have not been seriously considered, particularly when a high
court sitting as a court of appeal has the complete record before it.
[33] In
Gopal
this court pointed
out that if an appeal against refusal of condonation to this court
succeeds it will lead to the high court having
to deal with the
appeal on the merits after this court had already formed and stated a
view thereon. It gets worse. After the appeal
is disposed of by the
high court it might lead to a further appeal to this court where
another view on the merits has to be expressed.
A further anomaly is
that if this court decides that condonation was rightly refused that
effectively would be the end of the road
for an accused. I can
conceive of no other way in which the merits can then be canvassed
before any court. It cannot be in the
interest of the administration
of justice for this practice to continue. The issues raised above do
not appear to have been raised
in the decisions before
Gopal
and
Farmer
.
[34] Presently, as recognised by
earlier decisions of this court, there is no statutory provision or
rule of court providing for
an access-regulating measure such as an
application for leave to appeal from a high court which refuses an
application for condonation.
The question arises whether we can lay
down such a requirement.
[35] This court
does not have original jurisdiction: its jurisdiction derives from
the Constitution.
9
It is true that at
common law a court has no automatic jurisdiction to hear an appeal
from another court. An appeal could only lie
by virtue of some
statutory provision. The Constitution subsumed the common law powers
of this court.
10
Section 173 of the
Constitution states:
‘
The
Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own process,
and to
develop the common law, taking into account the interests of
justice.’
[36] In
Numsa
& others v Fry’s Metals (Pty) Ltd
2005
(5) SA 433
(SCA) this court, after deciding that it had jurisdiction
to decide appeals from the Labour Appeal Court (LAC), concluded that
in order to do so there ought to be a procedure in terms of which
special leave to appeal should first be sought from that court.
At
para 35 it said the following:
‘
Strong
considerations suggest that the path from the LAC to this Court
should not be untrammelled. The first is the benefit of institutional
expertise. The second is the imperative of expedition. The third (and
only last in order of importance) is the workload of this
Court,
which is already such as to burden its members very considerably,
without a new inundation of cases. Nothing more need be
said about
this consideration, and we turn to the first two.’
The last mentioned consideration is of
course something that has already been touched on earlier in this
judgment.
[37] In
Fry’s
Metals
this
court was faced with the problem that there was no statute or rule of
court in place providing for a path for appeals to take
from the LAC
to this court. The Constitution did not provide that the legislature
must enact ‘access-regulating measures’
in relation to
appeals before this court. In
Fry’s
Metals
this
court reasoned that the Constitution did not leave us bereft of
solutions. In holding that it was necessary to apply for leave
to
appeal from the LAC before proceeding to this court it relied on s
173 of the Constitution, which is set out above. In doing
so it
considered that it was following the lead of the Constitutional Court
in
S
v Pennington
1997
(4) SA 1076 (CC).
11
At para 40 of
Fry’s
Metals
this
court said the following:
‘
The
same principles apply here. Although the Constitution spells out no
principles on which access to this Court should be regulated,
we
consider that this Court’s inherent power to regulate its own
process, “taking into account the interests of justice”,
empower it to lay down the requirement that prospective appellants
from the LAC apply for special leave to appeal. While it is
true that
this Court’s inherent power to protect and regulate its own
process is not unlimited ─ it does not, for instance,
“extend
to the assumption of jurisdiction not conferred upon it by statute”
─ the inherent regulatory power the
Constitution confers is
broad and unqualified. The CC has recently emphasised the ambit of
this power, and the importance of interpreting
it so as to enhance
“the SCA’s autonomous regulations of its own process”.
We consider it broad enough to deal
with the situation here.’
[38] Section 20(1)
and s 21(1) confer jurisdiction on this court. In my view, the time
has come for us to exercise our inherent
jurisdiction and to lay down
that leave to appeal should be sought first from the high court
against a refusal by it, sitting as
a court of appeal, of a
condonation application related to the appeal. In doing so, we will
be regulating the procedure to be followed
for appeals to be heard by
us. This conclusion does not, in my view, offend against
constitutional values. As pointed out in
Rens
a
person applying for leave to appeal against a conviction in a
superior court has two bites of the cherry. On being convicted and
sentenced, the accused person has an opportunity of approaching and
seeking leave from that court to appeal against the conviction
or
sentence, or both. If the application is refused the person may then
seek leave to appeal from this court by way of petition.
The
prescribed procedures relating to applications for leave to appeal
make provision for argument to be set out in writing in
the petition.
The judges of this court to whom the petition is referred may call
for further information or for oral argument or
refer the matter to
the court for its consideration. The judges of this court will refuse
the leave sought only if they are satisfied
that there are no
reasonable prospects of success on appeal.
12
[39] The same safeguards apply in
respect of the proposed new procedure; obliging an unsuccessful
applicant for condonation in the
high court when it is sitting as a
court of appeal to apply to it for leave to appeal. The high court
constituted as a court of
appeal provides its reasons for its refusal
and when faced with an application for leave to appeal will deal with
it on its merits.
If that is refused an accused person will have
further recourse to this court by way of petition.
[40] Because it was an important issue
essential to the proper administration of justice counsel were
requested in advance of the
hearing of the appeal to be ready to
argue the desirability of the former practice being continued and to
make legal submissions
in relation thereto. Counsel on behalf of the
State supported a change. Counsel on behalf of the appellant was
unable to advance
reasons to the contrary.
[41] In the present case, because the
appellant was ignorant of the decisions referred to earlier in this
judgment, in terms of
which he had an automatic right of appeal, he
applied to the court below for leave to appeal against its decision
refusing condonation.
Thereafter he applied for leave to appeal to
this court which was refused.
[42] We can discern no error in the
refusal of the application for condonation by the court below, nor
the rejection by our two
colleagues of the application for leave to
appeal. There is no merit in the submission on behalf of the
appellant that because
there was no evidence that the appellant had
in fact participated in the decision to grant the tender he did not
fall within the
ambit of the provisions of the Corruption Act
referred to above. It is clear from the admissible and credible
evidence that the
appellant received the money with the intention
specified in s 1(1)(b)(i) of the Act.
[43] Having regard to the conclusions
reached above, the following order is made:
The appeal is struck from the roll
with the effect that the sentence imposed by the regional magistrate
remains effective.
_________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For Appellant: P Greyling
Instructed by
Goodrick & Franklin Bloemfontein
For Respondent: K D Govender
Instructed by
Director of Public Prosecution
Bloemfontein
1
The
Prevention and Combating of Corrupt Activities Act 12 of 2004
, which
came into operation on 27 April 2004, repealed the Corruption Act 94
of 1992. The offences under the prior legislation
were allegedly
committed during 2001 and 2003.
2
Section
1(1)(b)(i) of the Corruption Act 94 of 1992, under which the
appellant was charged, reads as follows:
‘
(1)
Any person─
.
. .
(b)
upon whom any
power has been conferred or who has been charged with any duty by
virtue of any employment or the holding of any
post or any
relationship of agency or any law and who corruptly receives or
obtains or agrees to receive or attempts to obtain
any benefit of
whatever nature which is not legally due, from any person, either
for himself or for anyone else, with the intention─
(i)
that he should commit or omit to do any act in relation to such
power or duty, whether the giver or offeror of the benefit
has the
intention to influence the person upon whom such power has been
conferred or who has been charged with such duty, so
to act or not;
. . .
shall
be guilty of an offence.’
3
Section
204 deals with witnesses for the prosecution who are required to
answer questions that may incriminate them.
4
Section 363(6)
of the 1955 Act read as follows:
‘
If
any application under subsection (1) for condonation or leave to
appeal is refused or if in any application for leave to appeal
an
application for leave to call further evidence is refused, the
accused may, within a period of twenty-one days of such refusal,
or
within such extended period as may on good cause be allowed, by
petition addressed to the Chief Justice submit his application
for
condonation or for leave to appeal or his application for leave to
call further evidence, or all such applications, as the
case may be,
to the court of appeal, at the same time giving written notice that
this has been done to the registrar of the provincial
or local
division (other than a circuit court) within whose jurisdiction the
trial has taken place, and of which the judge who
presided at the
trial was a member when he so presided. Such registrar shall forward
to the court of appeal a copy of the application
or applications in
question and of the reasons for refusing such application or
applications.’
5
See
s 315(2)(a) read with s 316(1)(a) and s 316(3)(a) of the 1977 CPA.
6
Mohlathe
was also an appeal against a refusal of an
application for condonation by a high court sitting as a court of
appeal.
7
See
paras 22 to 29.
8
See
para 13 et seq.
9
See
Numsa & others v Fry’s Metals
(Pty) Ltd
2005 (5) SA 433
(SCA) para
23.
10
See
Fry’s Metals
op cit, para 23.
11
Paras
11 to 28.
12
See
S v Rens
op
cit, para 23.