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[2017] ZASCA 49
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Llale v S (663/2016) [2017] ZASCA 49 (26 April 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 663/2016
In
the matter between:
KHANTSHO
LLALE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Llale
v S
(663/2016)
[2017] ZASCA 049
(25 April 2017)
Coram:
Cachalia
and Wallis JJA and Molemela, Gorven and Mbatha AJJA
Heard
:
No
oral hearing in terms of
s 19
(a)
of the
Superior Courts Act 10
of
2013
.
Delivered
:
26 April 2017
Summary:
Conviction
and Sentence – special leave to appeal – reasonable
prospects of success on appeal against conviction to
the high court,
and special circumstances present which would justify the grant of
special leave to appeal to the high court –
failure by the
trial court to take account of inconsistencies in written statement
and oral testimony of single witness –
failure to consider
elements of charge of attempt to steal a motor vehicle – leave
to appeal to high court granted.
ORDER
On
appeal from:
Gauteng
Local Division of the High Court, Johannesburg (Fourie J and Denge AJ
sitting as court of first instance):
1
The appeal is upheld.
2
The order of the court a quo is set aside and substituted with the
following order:
'The
appellant’s petition for leave to appeal in terms of
s 309C
of
the
Criminal Procedure Act 51 of 1977
against conviction and sentence
is granted.’
JUDGMENT
Mbatha
AJA (Cachalia and Wallis JJA and Molemela and Gorven AJJA concurring)
[1]
The appellant, Mr Khantsho Llale, was arrested at FNB Stadium on 17
August 2013. He, together with his erstwhile co-accused,
appeared in
the Regional Court for the Regional Division of Gauteng,
Johannesburg, on 15 January 2014. They faced one count of
attempted
theft of a white Toyota Hilux bakkie (the motor vehicle) and another
count of theft of three wheel caps of a different
motor vehicle.
[2]
In respect of count two, namely the theft charge, the appellant and
his co-accused were acquitted and discharged at the close
of the
State case. At the conclusion of the trial on 12 May 2014 they were
all convicted on one count of attempted theft of a motor
vehicle.
They were each sentenced to undergo three years’ imprisonment.
Their applications for leave to appeal against conviction
and
sentence were dismissed.
[3]
All three of them subsequently petitioned the Judge President of the
court a quo in terms of
s 309C
of the Act,
[1]
for leave to appeal. For reasons that do not emerge from the record
before us the appellant’s application was separated from
those
of his co-accused. His application was dismissed on 27 May 2015, even
though theirs must by then have been granted as their
appeal was
upheld on 29 May 2015. The appellant then approached this court for
special leave to appeal in terms of
s 16(1)
(b)
of the
Superior Courts Act 10 of 2013
, against the dismissal of his
petition for leave to appeal. He was granted special leave on 13 June
2016.
[4]
The only issue in this case is whether there are reasonable prospects
of success in the appellant’s appeal,
and
whether there are special circumstances present which would justify
the grant of special leave to appeal to the high court
.
[2]
The fact that Mr Llale’s co-accused succeeded in having their
convictions set aside on appeal is on its own a special circumstance
that justifies the grant of leave appeal. But in addition the full
bench took the view that the three men had been convicted on
the
evidence of a single witness, a Mr Scheepers, and that his evidence
was not convincing and was improbable in several respects,
while
there was no reason to reject the accuseds’ versions. That must
mean that there are reasonable prospects of success
in an appeal by
Mr Llale.
[5]
In light of those considerations the appeal must succeed. Although
the appeal has been set down for hearing of oral argument
on 3 May
2017, I am of the view that the matter may be disposed of in terms of
s 19
(a)
of
the
Superior Courts Act 10 of 2013
, without hearing any oral
argument. In this regard, I agree with the views expressed by Wallis
JA in
Zulu
v S
[3]
that:
‘
It
is appropriate for us to exercise that power in the interest of the
expeditious disposal of the appeal. It will be an appropriate
use of
judicial resources and will both speed the process of setting down Mr
Zulu’s appeal for hearing and save costs that
would otherwise
have been incurred from the public purse.’
The
appellant’s counsel has confirmed that he was in agreement with
the court in this respect.
[6]
In the circumstances, I make the following order.
1
The appeal is upheld.
2
The order of the court a quo is set aside and substituted with the
following order:
’
The
appellant’s petition for leave to appeal in terms of
s 309C
of
the
Criminal Procedure Act 51 of 1977
against conviction and sentence
is granted.’
Y
T MBATHA
ACTING
JUDGE OF APPEAL
Appearances
For
appellant:
MD Baloyi (with I Mabunda)
Instructed
by:
I Mabunda Attorneys, Randburg
Symington & De
Kok, Bloemfontein
For
respondent:
Adv P Marasela
Instructed
by:
Director of Public Prosecutions, Johannesburg
Director of Public
Prosecutions, Bloemfontein
[1]
Section 309C(2)
(a)
of the Act provides that if any application … ‘(iii)
for leave to appeal, is refused by a lower court, the accused
may by
petition apply to the Judge President of the High Court having
jurisdiction to grant any one or more of the applications
in
question’.
[2]
See:
S
v Van Wyk & another
[2014]
ZASCA 152; 2015 (1) SACR 584 (SCA).
[3]
Zulu
v S
unreported case
no 226/2016
[2016] ZASCA 207
(21 December 2016) para 4.