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[2011] ZASCA 113
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Kriel v S (483/10) [2011] ZASCA 113; 2012 (1) SACR 1 (SCA) (1 June 2011)
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IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case no.: 483/10
In the matter between:
PETRUS JACOBUS KRIEL
............................................................................
Appellant
and
THE STATE
...................................................................................................
Respondent
Neutral citation
:
Kriel v The State
(483/10)
[2011] ZASCA
113
(01 June 2011)
Coram
: Cloete, Cachalia JJA and Meer AJA
Heard: 26 May 2011
Delivered: 01 June 2011
Summary:
Criminal Procedure − Leave to
appeal − Appeal against refusal of − Where an accused
obtains leave to appeal against
the refusal in a high court of a
petition seeking leave to appeal against a conviction or sentence in
the regional court, the issue
is whether leave to appeal should have
been granted by the high court and not the merits of the appeal
itself − The test
is whether there is a reasonable prospect of
success in the envisaged appeal against sentence, rather than whether
the appeal ought
to succeed or not.
ORDER
On appeal from:
KwaZulu-Natal High Court (Durban)
Nicholson and Swain JJ sitting as court of first instance:
1 The appeal succeeds.
2 The order refusing appellant leave to appeal is set
aside and is replaced with an order granting the appellant leave to
appeal
to the KwaZulu-Natal High Court against the sentence imposed
on him in the regional court.
JUDGMENT
MEER AJA (Cloete and Cachalia JJA concurring)
[1] This matter comes before us on appeal with leave of
the KwaZulu- Natal High Court. It is an appeal against a sentence
imposed
in a regional court. For the reasons set out in this judgment
the issue before us is not the appeal itself on the merits, but
whether
the petition for leave to appeal to the KwaZulu-Natal High
Court against the sentence imposed in the Vryheid Regional Court,
should
have been granted by the KwaZulu-Natal High Court.
[2] The relevant facts are as follows. On 11 December
2004 a collision occurred on a public road between Vryheid and
Dundee, KwaZulu-Natal
between a Toyota Landcruiser driven by the
appellant in the direction of Dundee and a Nissan double cab driving
in the opposite
direction towards Vryheid. The impact caused the
death of two of the occupants of the Nissan. Other passengers were
injured.
[3] On 18 January 2008 the appellant was convicted in
the Vryheid Regional Court following a plea of guilty on a charge of
driving
under the influence of liquor in contravention of s 65 (1)
(a) of the National Road Traffic Act 93 of 1996 (count one), and two
charges of culpable homicide (counts 2 and 3). On the same day he was
sentenced on count one to six years’ imprisonment.
On counts
two and three, which were taken together for the purpose of sentence,
the appellant was sentenced to eight years’
imprisonment of
which two years were suspended for five years on condition that he
was not again convicted of culpable homicide
involving a motor
collision. The appellant’s drivers’ license was suspended
for a period of two years and he was declared
unfit to possess a
firearm licence in terms of
s 103(1)
of the
Firearms Control Act 60
of 2000
. Leave to appeal against sentence was refused by the regional
magistrate.
[4] In his plea of guilty in terms of
s 112
of the
Criminal Procedure Act 57 of 1977
and his statement setting out the
facts upon which the plea was based, the correctness of which was
accepted by the State, the
appellant admitted that he had caused the
collision and the deaths of two deceased, women aged 70 and 57. He
said he had consumed
several beers until about 01h00 during the night
before the collision but said that he had sobered up. At
approximately 10h00 the
next morning he had about two brandies before
setting out from Vryheid for Dundee. He felt fatigued and believed
that he could
continue driving. But he nodded off to sleep briefly,
lost control of the vehicle, crossed the double barrier line in the
middle
of the road and collided with the oncoming vehicle. He
admitted that alcohol had a part to play in causing the collision.
His statement
concluded with his offering his deepest sympathy to the
family of the bereaved and praying that God might grant them patience
and
willingness to forgive him. Equally, he expressed his sincere and
utter remorse for his actions.
[5] Anita Groenewald, the daughter of one of the
deceased women, testified for the State on sentence. The two deceased
and the child
who was seriously injured were all members of the same
family that was preparing for a wedding to be held that very day. The
witness
was summonsed to the scene of the accident where she
discovered that the two elder women were dead. The child, Germaine,
who had
sustained brain injuries, had to be taken by helicopter to
hospital in Pietermaritzburg. In all some R200 000 was paid to cover
the costs of medical services. There were also burial costs of R15
000
[6] After the accident Germaine, who was six at the
time, could not maintain proper posture and fell over when trying to
sit upright.
She crawled for some time before re-learning to walk,
had to be potty trained, fed and was helpless. Although nearly ten at
the
time of the trial, she had a mental age of a six year old and had
failed both Grade one and Grade two. Germaine had lost all the
sparkle in her life and showed little emotion. The two deceased women
had been energetic and healthy at the time of the collision.
Mrs
Groenewald also described the considerable trauma occasioned to the
rest of the family as a result of the collision. She was
being
treated for depression.
[7] The appellant did not testify in mitigation of
sentence. His attorney, addressing the court in mitigation, provided
the following
information, which was not put in issue by the State.
The appellant was a first offender. At the time of the trial he was
46 years
of age and had three children aged 21, 19 and 12. His wife
was unemployed. The appellant, who has a diploma in agriculture, had
been a wealthy farmer but had lost everything early in 2000. As a
consequence he had sought solace in alcohol, becoming an alcoholic.
Since the collision appellant had been working with a priest towards
his personal rehabilitation. At the time of his trial he had
not
stopped drinking but his drinking habits were under control. His only
asset was his farm which was heavily bonded. The appellant
was
working as a consultant on contract, teaching fire fighting skills
and earned between R10 000 and R12 000 per month.
[8] Three days after he had been sentenced, on 21
January 2008, during an application for bail pending a petition for
leave to appeal
against his sentence to the KwaZulu-Natal High Court,
the magistrate who had sentenced the appellant stated that due to an
oversight
he had neglected to order that the sentences imposed on
each count were to run concurrently. The magistrate thereafter
amended
the sentence as follows:
‘
(1) It is also directed in terms of
section
280
of Act 51 of 1977 THAT THE SENTENCES ON COUNTS 1 AND 2 TO RUN
CONCURRENTLY. In other words you will serve an effective six (6)
years’ imprisonment and not the previous incorrect twelve (12)
years.
(2) In terms of section 276 (b) of Act 51 of 1977 it is directed that
the accused serves half of his sentence before he qualifies
for
parole.
(3) In terms of section 35 THE DRIVER’S LICENCE IS SUSPENDED
FOR TWO (2) YEARS.
(4) In terms of section 103 (1) of Act 60 of 2000 YOU ARE EX LEGE
DECLARED UNFIT TO OBTAIN A FIREARM LICENCE.’
[9] The magistrate expressed concern about his
competency to rectify the sentences as it could be argued that he was
functus officio
at the time he corrected the sentences. He
accordingly directed that the proceedings be sent on urgent special
review to the KwaZulu-Natal
High Court. The appellant was granted
bail in the sum of R2 000 pending petition. On 19 February 2008 the
conviction and sentences
were confirmed on review by the high court
and it was ordered that the sentences should run concurrently.
[10] A petition to the KwaZulu-Natal
High Court, Pietermaritzburg for leave to appeal against sentence was
refused on 14 August
2009. The appellant then applied to the high
court for leave to appeal to this court against the refusal by the
high court of his
petition for leave to appeal. Nicholson and Swain
JJ, sitting as a full bench in granting leave to appeal, cited
S
v Khoasasa
1
and then proceeded to grant leave to
appeal directly to this court against the sentence imposed by the
regional court. They were
wrong in so doing, as, in
S
v Khoasasa
2
it was held that a sentence imposed
in the regional court can only be appealed against in this court when
an appeal against such
sentence has failed in the high court.
[11] In
Matshona
v S
3
,
a case similar to the present,
this
court was asked to consider an appeal against a sentence imposed in
the Pretoria Regional Court. A petition for leave to appeal
had been
refused in the high court and leave to appeal was granted to this
court. Leach AJA at paragraphs 4 to 6 set out why the
appeal on its
merits could not be entertained. These paragraphs are repeated:
‘
4 In my view, the reasoning in
Khoasasa
is unassailable. The appeal of an accused convicted in a regional
court lies to the High Court under section 309(1)(a), although
leave
to appeal is required either from the trial court under section 309B
or, if such leave is refused, from the High Court pursuant
to an
application made by way of a petition addressed to the
Judge-President under Section 309C(2) and dealt with in chambers.
In
the event of this petition succeeding, the accused may prosecute the
appeal to the High Court. But, if it is refused, the refusal
constitutes a " judgment or order " or a “ruling”
of a High Court as envisaged in section 20(1) and section
21(1) of
the Supreme Court Act 59 of 1959, against which an appeal lies to
this court on leave obtained either from the High Court
which refused
the petition or, should such leave be refused, from this court by way
of petition.
5 It is clear from this that where, as is here the case, an accused
obtains leave to appeal to this Court against the refusal in
a High
Court of a petition seeking leave to appeal against a conviction or
sentence in the regional court, the issue before this
court is
whether leave to appeal should have been granted by the High Court
and not the appeal itself which has been left in limbo,
so to speak,
since the accused first sought leave to appeal to the high court.
After all, in the present case, the appellant's
appeal against his
sentence has never been heard in the high court and, as was held in
S
v N
1991 (2) SACR 10
(A) at 16, the power of this Court to hear
appeals of this nature is limited to its statutory power.
Section 309(1) prescribes
that an appeal from a Magistrates’
Court lies to the High Court, and an appeal against the sentence
imposed on the appellant
in the regional court is clearly not before
this Court at this stage. As was observed by Streicher JA in
Khoasasa
:
“
Geen jurisdiksie word
aan hierdie Hof verleen om ‘n appél aan te hoor teen ‘n
skuldigbevinding en vonnis in ‘n
laer hof nie. Dit is eers
nadat ‘n appél vanaf ‘n laer hof na ‘n
Provinsiale of ‘n Plaaslike Afdeling
misluk het dat ‘n
beskuldigde met die nodige verlof na hierdie Hof appél kan
aanteken”….
[6] Not only does this Court lack the authority to determine the
merits of the appellant's appeal against his sentence at this
stage,
but there are sound reasons of policy why this Court should refuse to
do so even if it could. It would be anomalous and
fly in the face of
the hierarchy of appeals for this Court to hear an appeal directly
from a Magistrates Court without that appeal
being adjudicated in the
High Court, thereby serving, in effect, as the court of both first
and last appeal. In addition, all persons
are equal under the law and
deserve to be treated the same way. This would not be the case if
some offenders first had to have
their appeals determined in the High
Court before they could seek leave to approach this Court if still
dissatisfied while others
enjoyed the benefit of their appeals being
determined firstly in this Court. And most importantly, this Court
should be reserved
for complex matters truly deserving its attention,
and its rolls should not be clogged with cases which could and should
be easily
finalised in the High Court.
Consequently this Court cannot determine the merits of the appeal but
must confine itself to the issue before it, namely whether
leave to
appeal to the high court should have been granted….’
[12] Like the Court in
Matshoma
we, too, cannot
determine the merits of the appeal. The issue before us is whether
leave to appeal to the high court should have
been granted and not
the appeal itself. The test in that regard is simply whether there is
a reasonable prospect of success on
appeal against sentence.
[13] The following factors have a
bearing on the reasonable prospects of success against the sentence
of six years’ direct
imprisonment imposed on appellant for
driving under the influence of liquor. The fact that two people died
must be ignored in considering
the appropriate sentence for this
offence, to avoid duplication of punishment. First offenders who are
convicted for driving under
the influence of liquor are generally not
sentenced to direct imprisonment but to a fine, alternatively
imprisonment of which a
portion is suspended. This is apparent from a
review of sentences imposed for the offence in
S
v Mtshobane.
4
The appellant’s sentence of six
years is the maximum period of imprisonment for reckless and
negligent driving under the Road
Traffic Act 93 of 1996. Evidence was
not presented about appellant’s blood alcohol level or state of
intoxication. The State
accepted that he had sobered up before
drinking the brandies. Yet the magistrate found that appellant was
‘heavily under
the influence of liquor’. Bearing these
factors in mind, there exists a reasonable prospect that a court of
appeal might
consider the sentence imposed to be disproportionately
harsh.
[14] In comparing the sentence of six
years’ imprisonment on the counts of culpable homicide with the
lesser sentences generally
imposed for culpable homicide involving
motor vehicles, as appears from the comparison done in
S
v Nyathi,
5
a court of appeal might similarly
consider the sentence to be too severe, even should it take the view
that direct imprisonment
(whether or not in terms of
s 276
(1)(i) of
the
Criminal Procedure Act) is
warranted. In
Nyathi
a sentence of five years’
imprisonment of which two were suspended, was confirmed on appeal.
The appellant in
Nyathi
took a conscious
decision to overtake on a double barrier line and a blind rise,
causing the death of six people. It was found that
the appellant’s
culpability was seriously aggravated by his conscious assumption of
risk. The appellant before us assumed
no such conscious risk, (and
for that reason does not fall into the most extreme category
mentioned in paragraph 12 of
Nyathi
),
nor were the consequences as serious as those in
Nyathi
as less people were killed, yet his
period of effective imprisonment is double that imposed in
Nyathi
.
[15] The Magistrate took the decision to suspend the
appellant’s driver’s licence for two years in terms of
s
35
of the
National Road Traffic Act 93 of 1996
without affording the
appellant an opportunity of addressing him in this regard. A court of
appeal might also decide that he misdirected
himself in doing so.
[16] In the result I am satisfied that leave to appeal
should be granted and the following order is made:
1 The appeal succeeds.
2 The order refusing the appellant leave to appeal is
set aside and is replaced with an order granting the appellant leave
to appeal
to the KwaZulu-Natal High Court against the sentence
imposed on him in the regional court.
_____________
Y S Meer
Acting Judge of Appeal
APPEARANCES:
For
Appellant: Adv P C Bezuidenhout SC (with him L Barnard)
Instructed
by
Shaheed
Abdulla & Co, Vryheid
Honey
Attorneys, Bloemfontein;
For
Respondent: A A Watt
Instructed
by
Director
Public Prosecutions, Pietermaritzburg
Director
Public Prosecutions, Bloemfontein
1
S
v
Khoasasa
2003
(1) SACR 123
SCA
2
S
vKhoasasa
at para 12
3
S
v
Matshona
[2008] 4 All SA 68
( SCA) paras 4 - 6
4
S
v M
tshobane
1999 (1) SACR 25
5
S
v
Nyathi
2005 (2) SACR 273
(SCA) paras 16 to 21