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[2011] ZASCA 215
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Abram de Sousa v S (334/11) [2011] ZASCA 215 (29 November 2011)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 334/11
ALBERTO ABRAM de SOUSA
…..............................................................
Appellant
and
THE STATE
….........................................................................................
Respondent
Neutral citation:
AD v The
State
(334/2011)
[2011] ZASCA 215
(29 November 2011)
Coram:
Harms AP, Shongwe JA and
Plasket AJA
Heard:
23 November 2011
Delivered:
29 November 2011
Summary:
Criminal Procedure Act
51 of 1977
–
s 309C
– appeal against refusal of petition
– issue to be determined is whether appellant enjoys reasonable
prospects of success,
not the merits of the appeal.
ORDER
On appeal from: Free State High Court,
Bloemfontein (Hancke J and Claasen AJ sitting as 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 and
sentences to the Free State High Court, Bloemfontein.’
JUDGMENT
PLASKET AJA (HARMS AP and SHONGWE JA
concurring)
[1] The appellant was convicted, in
the regional court sitting at Welkom, of two counts of indecent
assault and one count of rape
as defined by the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
. He was
sentenced to terms of imprisonment of five, ten and 15 years in
respect of these offences. The sentences were ordered to
run
concurrently. He applied unsuccessfully to the trial court for leave
to appeal against both the convictions and the sentences.
[2] He petitioned the Judge President
of the Free State High Court, in terms of
s 309C
of the
Criminal
Procedure Act 51 of 1977
, for leave to appeal. His petition was
refused by Hancke J and Claasen AJ. He then applied for leave to
appeal against the refusal
of the petition. This application was
heard by Hancke and Kruger JJ, Claasen AJ not being available. Having
found reasonable prospects
of success in respect of both the
convictions and the sentences, the high court granted the appellant
leave ‘to appeal to
the Supreme Court of Appeal against his
convictions and sentences’. This course of events brought about
the rather strange
and illogical result that while the high court
decided at first that the appellant had no reasonable prospects of
succeeding on
appeal to it, it then decided that the appellant had
reasonable prospects of succeeding on appeal to this court.
[3] 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 a 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 a high court is appealable
to this court with the leave
of the high court.
[4] In
Matshona
v S
2
this court endorsed the reasoning in
Khoasasa
.
Leach AJA stated 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
[5] The reason why this is so is that
this court‘s power to hear criminal appeals is a statutory
power and does not derive
from its inherent jurisdiction; ss 20 and
21(1) of the Supreme Court Act only grant jurisdiction to this court
to hear appeals
from high courts and
s 309(1)
of the
Criminal
Procedure Act provides
that appeals from lower courts (including
regional courts) lie to a high court.
5
The result is, in the words of
Streicher JA in
Khoasasa
,
the following:
6
‘
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 Plaaslike Afdeling misluk
het dat ‘n
beskuldigde met die nodige verlof na hierdie Hof appél kan
aanteken.’
[6] There are good reasons why this is
so. They were set out thus by Leach AJA in
Matshona
:
7
‘
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 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.’
(I note in passing that in his
petition, the appellant states that ‘it would not be necessary
to burden the Supreme Court
of Appeal with the appeal. Leave may be
granted to the High Court’.)
[7] It is clear that the high court’s
order was made in error: in the first paragraph of the judgment the
correct position
is set out, namely that the court was dealing with
an application for leave to appeal against the dismissal of the
appellant’s
petition; in the second paragraph the court, with
reference to
Khoasasa
,
stated that ‘the applicant must ask this court for leave to
appeal against the dismissal of his petition’; but then,
contrary to what it had said initially, it granted leave to appeal
against the convictions and sentences. On account of what I
would
term a patent error on the part of the court below, it is, in my
view, open to this court to deal with the appeal on the
basis that
the court below intended to grant leave against the refusal of the
petition and not in the terms in which it ultimately
expressed
itself.
[8] As the issue to be determined at
this stage is whether the appellant has reasonable prospects of
success on appeal, it is necessary
to examine the merits. In
Smith
v S
8
this court said the following of the
test for whether reasonable prospects of success exist:
‘
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. 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.’
[9] I turn now to that enquiry. It is
not necessary – and neither is it desirable – to deal
with the merits in any detail.
I shall do no more than make a limited
number of points in respect of the appellant’s convictions and
the sentences imposed
on him in order to determine whether it can be
said that he has reasonable prospects of succeeding on appeal.
[10] As far as conviction is
concerned, the complainant was a young single witness whose evidence
had to be approached with caution.
There was no corroboration for her
version and the magistrate relied on her evidence being satisfactory
in all material respects
in order to satisfy the cautionary rules
that applied. She also seems to have relied on the evidence of Ms
Charmaine De Waal, a
forensic social worker employed by the South
African Police Service, who, having interviewed the complainant on a
number of occasions,
was of the opinion that she had told the truth.
[11] Whether the complainant was a
satisfactory witness in all material respects – and
consequently whether the cautionary
rule was satisfied – was
challenged by the appellant’s counsel who pointed out a number
of contradictions and other
unsatisfactory aspects of the
complainant’s evidence. Whether the evidence of an expert to
the effect that, in her opinion,
the complainant told the truth is
admissible, and can serve as ‘corroboration’, appears to
me to be eminently arguable.
What strikes one is that the magistrate
rejected the version of the appellant as not being reasonably
possibly true in the most
perfunctory way and without any analysis of
his evidence. Furthermore, the State has conceded that there is no
evidence that count
three was committed after 16 December 2007, the
date on which the new statutory offence of rape came into effect.
That being so,
the appellant has an unassailable prospect of this
conviction being set aside on appeal, even if it is to be substituted
with a
conviction of indecent assault in terms of the common law. I
conclude that the appellant enjoys reasonable prospects of succeeding
on appeal against his convictions.
[12] The appellant was sentenced to 15
years’ imprisonment in respect of count three. He was sentenced
to five years’
imprisonment in respect of count 1 (which was
the least serious of the three counts) and ten years’
imprisonment in respect
of count 2, even though the
actus
reus
in respect of counts 2
and 3 was identical. It would appear that the only reason why he was
sentenced to 15 years’ imprisonment
in respect of count 3, and
so much less severely in respect of count 2, was because he had been
convicted of rape, even though,
at common law, his acts amounted to
indecent assault. In the light of the certainty that the rape
conviction will be set aside,
the sentence will also require
re-assessment even if the conviction is substituted with a conviction
of indecent assault. There
is much to be said, in my view, for the
argument that when the appellant’s deeds, in respect of all
three counts, are properly
assessed within the triad of factors that
informs sentencing, they may well be found to be ‘disproportionate
to the crime,
the criminal and the needs of society’.
9
I am therefore of the view that, on
sentence, the appellant has reasonable prospects of success on
appeal.
[13] That being so, this appeal must
succeed. Before making the order, however, it is necessary to say
something of the procedure
involved in cases such as this. That
procedure is cumbersome and time consuming. It has involved a total
of three high court judges
and three judges of this court and the
process is not completed. A further two judges of the high court
still have to hear the
appeal on its merits. It is perhaps time for
thought to be given to legislative reform so that petitions can be
finalised speedily
at the high court level.
[14] The following order is made:
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 and
sentences to the Free State High Court, Bloemfontein.’
______________________
C PLASKET
ACTING JUDGE OF APPEAL
APPEARANCES
APPELLANT J Nel
Instructed by
Muller Attorneys
Welkom
EG Cooper Majiedt Inc
Bloemfontein
RESPONDENT WJ Harrington
Director of Public Prosecutions
Bloemfontein
1
S
v Khoasasa
2003
(1) SACR 123
(SCA) paras 14 and 19-22.
2
Matshona
v S
[2008]
4 All SA 68
(SCA) para 4.
3
Para
5.
4
Para
8.
5
S
v Khoasasa
(note
1) paras 11-12;
Matshona
v S
(note
2) paras 4-5;
S
v N
1991
(2) SACR 10
(A) at 16a-d.
6
Para
12.
7
Para
6.
8
Smith
v S
(475/10)
[2011] ZASCA 15
(15 March 2011) para 7.
9
S
v Malgas
2001
(1) SACR 469
(SCA) para 25I. See too
S
v Vilakazi
2009
(1) SACR 552
(SCA) paras 18-20.