About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2017
>>
[2017] ZASCA 85
|

|

Director of Public Prosecutions: Gauteng Division, Pretoria v Moabi (959/2015) [2017] ZASCA 85; 2017 (2) SACR 384 (SCA) (2 June 2017)

Links to summary

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 959/2015
In
the matter between:
THE DIRECTOR OF PUBLIC
PROSECUTIONS:
GAUTENG
DIVISION, PRETORIA

APPLICANT
and
DANIEL
CHAKA
MOABI

RESPONDENT
Neutral
Citation:
The
Director of Public Prosecutions: Gauteng Division, Pretoria v Moabi
(959/15)
[2017] ZASCA 85
(2 June 2017)
Coram:
Maya AP, Theron,
Dambuza JJA
and
Molemela and Gorven AJJA
Heard:
15 February 2017
Delivered:
2 June 2017
Summary:
Appeal
in terms of
s 311
of the
Criminal Procedure Act 51 of 1977
:
s
311
provides for an appeal as of right, without leave: question of
law upheld: ‘intent to do grievous bodily harm’ not an

element in a rape contemplated in
Part I
(c)
of
the
Criminal Law Amendment Act 105 of 1997
: conviction and sentence
imposed by the regional court reinstated and matter remitted to the
high court for appeal to proceed on
sentence.
ORDER
On
appeal from
Gauteng
Division of the High Court, Pretoria (Louw J and Kooverjie AJ sitting
as court of appeal):
1
The appeal is upheld in respect of the question of law.
2
The order of the high court on sentence is set aside.
3
The sentence imposed by the regional court is reinstated.
4
The matter is remitted to the high court for the appeal to proceed on
sentence.
JUDGMENT
Molemela
AJA (Dambuza JA concurring):
[1]
This
is an application by the Director of Public Prosecutions, Gauteng
Division, Pretoria (DPP) for special leave to appeal to this
court on
a question of law in terms of s 311(1) of the Criminal Procedure
Act 51 of 1977 (CPA).
[2]
The
respondent was arraigned in the Regional Division of North West held
at Klerksdorp (Magistrate Nzimande) (the regional court)
on a charge
of housebreaking with intent to rape and rape, read with the
provisions of s 51(1) of the Criminal Law Amendment Act
105 of 1997
(CLAA). On 16 May 2014 the regional court convicted the respondent
and sentenced him to life imprisonment as contemplated
in s 51(1),
read with Part I
(c)
[1]
of the CLAA on the basis that the complainant had suffered grievous
bodily harm during the course of the rape.
[3]
The facts leading to the respondent’s conviction and sentence
are the following.  On the night of 3 April 2012, the
heavily
pregnant complainant was asleep on her sofa in the dining room of her
house in Jouberton, Klerksdorp, when she felt something
touching her.
She opened her eyes only to find an intruder standing near her feet.
The intruder closed her mouth with his hand
and pressed a sharp
object against the side of her mouth. The complainant wrestled with
her assailant and broke a window pane so
as to alert her neighbour to
her plight. At some point during the scuffle she switched on the
light and recognized her assailant
as the respondent – a man
who had accompanied her boyfriend to her house earlier that day.
[4]
During the scuffle that ensued, the respondent managed to overpower
the complainant. He strangled her until she lost consciousness.
When
she regained consciousness, the respondent dragged her to her bedroom
and ordered her to undress. She refused. He then pushed
her onto the
bed, undressed her, undressed himself and raped her. She pleaded with
him to stop, impressing upon him that he was
hurting her unborn
twins. He ignored her pleas and hit her with fists on the buttocks.
After the respondent’s departure the
complainant went to her
neighbour’s house and reported the rape to her. The neighbour
arranged for a car to take her to the
police station, after which the
complainant was transported to the hospital, where she received
medical attention for the injuries
she had sustained.
[5]
Pursuant to the sentence of life imprisonment being imposed by the
regional court, the respondent lodged an appeal against his

conviction and sentence by virtue of the automatic right of appeal
granted in terms of s 309(1)
(a)
of the CPA. The appeal was heard by two Judges of the Gauteng
Division of the high court, Pretoria (Louw, J and Kooverjie, AJ (high

court). The high court confirmed the conviction but set aside the
sentence on the basis that life imprisonment was not the applicable

minimum sentence because the State had failed to prove that the
respondent had the intent to inflict grievous bodily harm on the

complainant. In making that conclusion, the high court reasoned as
follows:
‘
.
. . . We are not satisfied that the element of “intent”
exists. Hence there was assault but not intention to do grievous

bodily harm.’
[6]
The
high court concluded that the failure of the State to prove the
element of intent resulted in the rape not falling within the
purview
of s 51(1) read with
Part
I
(c)
of
Schedule 2 of the CLAA, which attracted a minimum sentence of life
imprisonment. It regarded the rape as falling within the purview
of s
51(2) read with Part III of Schedule 2 of the CLAA,
[2]
which attracts a minimum sentence of 10 years’
imprisonment. The high Court then found that, having regard to all
the appropriate factors, the aggravating factors far outweighed the
mitigating factors. It considered the appropriate sentence for
the
respondent to be 14 years’ imprisonment.
[7]
Aggrieved by the high court’s finding, the DPP lodged an
application for special leave to appeal to this court on a question

of law  in terms of s 311(1) of the CPA, read with the
provisions of s
16(1)
(b)
[3]
and s
17(3)
[4]
of
the Superior Courts Act 10 of 2013 (Superior Courts Act).
The
applicant formulated the question of law as follows:
‘
That
the Honourable Court
a
quo
erred in law by holding that s 51(1) and Schedule 2 Part I of the
Criminal Law Amendment Act 105 of 1997
, providing for a minimum
sentence of life imprisonment to be imposed in circumstances where an
accused is convicted of rape involving
the infliction of grievous
bodily harm, requires also an intent on the part of the convicted
person to cause such harm.’
[8]
This
court then referred the application for special leave to appeal for
oral argument in terms of
s 17(2)
(d)
of the
Superior Courts Act and
issued a directive requiring the
appellant to clarify on what basis it considered this court to have
jurisdiction to hear the intended
appeal.
[9]
In argument before us it was contended on behalf of the DPP
that
this court’s jurisdiction to hear the matter is derived from
the provisions of
s 311
of the CPA.
The
respondent disputed
that
the question raised on appeal was one of law within the meaning of
s
311(1)
of the CPA. He averred that there are no provisions in the CPA
and the
Superior Courts Act providing
for the reservation of a
question of law from appeal proceedings in relation to sentence. He
argued that this appeal is misguided
and is an impermissible appeal
against sentence.
The
respondent further contended that
s 16(1)
(b)
of the
Superior Courts Act is
not applicable to
s 311
appeals because
s 1
of the Superior Court Acts
[5]
provides that an appeal envisaged in Chapter 5 of that Act does not
include an appeal in a matter regulated by the CPA, or
in terms of
any criminal procedural law.
[10]
The issues for our determination were therefore whether: (a) this
court has jurisdiction to hear an appeal brought by the State
on a
question of law against the decision made by the high court, on
appeal, in favour of a convicted person as contemplated in
s 311 of
the CPA; and (b) the high court was correct in finding that the
intention to do grievous bodily harm is one of the elements
that the
State must prove in a rape contemplated in the provisions of Part
I
(c)
of
Schedule 2 to the CLAA.
[11]
Section 311 of the CPA reads:
‘
311 Appeal
to Appellate Division
(1) Where the provincial
or local division on appeal, whether brought by the attorney-general
or other prosecutor or the person
convicted, gives a decision in
favour of the person convicted on a question of law, the
attorney-general or other prosecutor against
whom the decision is
given may appeal to the Appellate Division of the Supreme Court,
which shall, if it decides the matter in
issue in favour of the
appellant, set aside or vary the decision appealed from and, if the
matter was brought before the provincial
or local division in terms
of-
(a)
section
309 (1), re-instate the conviction, sentence or order of the lower
court appealed from, either in its original form or in
such a
modified form as the said Appellate Division may consider desirable;
or
(b)
section
310 (2), give such decision or take such action as the provincial or
local division ought, in the opinion of the said Appellate
Division,
to have given or taken (including any action under section 310 (5)),
and thereupon the provisions of section 310 (4)
shall
mutatis
mutandis
apply.
(2) If an appeal brought
by the attorney-general or other prosecutor under this section or
section 310 is dismissed, the court dismissing
the appeal may order
that the appellant pay the respondent the costs to which the
respondent may have been put in opposing the
appeal, taxed according
to the scale in civil cases of that court: Provided that where the
attorney-general is the appellant, the
costs which he is so ordered
to pay shall be paid by the State.’
[12]
It is evident from the wording of s 311 of the CPA that an appeal
lies to this court under this section only if the basis for
the
appeal is a question of law decided by a high court, sitting as a
court of appeal, in favour of the convicted person.
I
turn now to consider whether this appeal is indeed based on a
question of law.
It
was held in
Magmoed
v Van Rensburg
[6]
that the question whether the proven facts bring the conduct of an
accused person within the ambit of the crime charged, is one
of
law.
[7]
The provisions of
Part
I and III of Schedule 2 of the CLAA do not create separate offences
of rape
.
[8]
They
do, however, prescribe different penalties depending on the
circumstances
which
warrant the categorisation of the rape as falling within the purview
of either Part I or Part III of Schedule 2 of the CLAA.
If the
proven facts establish that the convicted person inflicted grievous
bodily harm in the course of the rape, then that would
bring the rape
within the ambit of Part I of the CLAA, which prescribes a harsher
minimum sentence than the one contemplated in
Part III. Clearly, the
question raised involves the interpretation of the CLAA in order to
ascertain what must be proved to bring
the rape within the ambit of
either Part I or III of Schedule 2 of the CLAA. I am satisfied that
the DPP has indeed raised a question
of law.
[13]
I now turn to determine whether
the
high court was correct in finding that the intention  to do
grievous bodily harm must be proven in a rape involving contemplated

in Part I
(c)
of
Schedule 2, read with s 51(1) of the CLAA.
I
deem it instructive to pay regard to the following remarks made by
Hoexter JA in a concurring judgment in
R
v Jacobs
[9]
pertaining to the infliction of grievous bodily harm, albeit
in
the context of the offence of robbery with aggravating circumstances:
‘
The
question whether grievous bodily harm has been inflicted depends
entirely upon the nature, position and extent of the actual
wounds or
injuries,
and
the intention of the accused is irrelevant in answering
that question.
’
(My emphasis.)
In
the majority judgment Va
n
Winsen AJA, in deciding whether or not grievous bodily harm was
inflicted, said:
‘
In
deciding whether the Crown has proved the infliction of grievous
bodily harm by the accused, the jury would, in my opinion, be

entitled to have regard to the whole complex of objective
factors involved in the accused's assault upon the deceased. It
could
take into consideration the shock which would inevitably result to
the deceased by reason of the fact that the accused directed
two
blows at his face with a knife. It could have regard to the wounds
resulting from the stabs in the face, their number, nature
and
seriousness, as well as to the two blows directed to the
accused's stomach, their severity and the results which flowed
from
their infliction.’
[10]
I
respectfully echo these
sentiments.
[14]
In the absence of any interpretative factors which would warrant a
different approach in this matter, I am inclined to adopt
the same
reasoning
in the interpretation of
the same phrase in relation to the rape contemplated in Part I
(c)
of the CLAA. It is clear
from this case that the test for ascertaining whether grievous bodily
harm has been inflicted is factual
and objective. The correct
approach to that
enquiry necessitates a
holistic consideration of all objective factors pertaining to the
incident, with a view to ascertaining whether
bodily injuries were
inflicted and whether they are of a serious nature.
[15]
In my view, the high court’s reliance on cases where the
accused was charged with the offence of assault with intent
to do
grievous bodily harm was clearly wrong.
By
importing the intention of the respondent into the enquiry, the high
court disregarded the principles laid down in
Jacobs.
It
committed
an error of
law as
‘
intent’
is irrelevant in the determination of whether grievous bodily harm
was inflicted on a complainant in the rape envisaged
in Part I
(c)
of
the CLAA. Rather, the question to be answered is whether, as a matter
of fact, the victim of such a rape sustained grievous bodily
harm.
It is evident from the high court’s
judgment that its erroneous conclusion that t
he
DPP had failed to prove the element of intent resulted in it
concluding that the rape committed by the respondent did not fall

within the purview of s 51(1) read with
Part
I
(c)
of Schedule 2 of the CLAA and instead considered the applicable
minimum sentence to be 10 years imprisonment as stipulated in Part

III of the CLAA. T
his
erroneous finding pertaining to the applicable minimum sentence was
clearly made in favour of the respondent.
[11]
The applicant has thus shown a basis for invoking the provisions of s
311(1) of the CPA and this court has jurisdiction to hear
the appeal.
[16]
The respondent contended that the definition of appeal in
s 1
of the
Superior Courts Act precluded
this court from entertaining appeals
brought at the instance of the Director of Public Prosecutions in
respect of decisions made
by the high court on appeal.
I
disagree with that contention.
Section
1
of the
Superior Courts Act provides
that ‘appeal’ in
Chapter 5, does not include an appeal
in
a matter regulated in terms of the CPA, or in terms of any other
criminal procedural law.
’
Section
311
of the CPA grants the State the right to appeal to this court against
the judgment of the high court given on appeal, on a question
of law
decided in favour of the convicted person. However, it does not go as
far as laying down a procedure pertaining to how this
right must be
exercised. None of the general provisions of the CPA regulating
appeals and applications for leave to appeal specifically
deal with
how the right of appeal granted in
s 311
must be exercised.
Furthermore, no other criminal procedural law makes provision for
this.
[17]
In view of the fact that neither the CPA nor any other criminal
procedural law regulates
s 311
appeals, there is simply no basis for
concluding that
s 311
appeals are excluded from the application of
the
Superior Courts Act by
virtue of
s 1
of that Act. It stands to
reason that an appeal envisaged in s 311 of the CPA does not fall
within the category of those excluded
from the application of the
Superior Courts Act in
terms of
s 1
and falls to be regulated by
s 16(1)
(b)
of the
Superior Courts Act. This
court does have jurisdiction to consider an
appeal
against
a decision of the high court on appeal to it
on
a question of law as contemplated in
s 311
of the CPA.
[18]
I turn now to consider whether the DPP has an automatic right to
appeal to this court or whether leave has to be sought. Sections

20(1), 20(4) and 21(1) of the Supreme Court Act
59
of 1959,
which
is the predecessor of the
Superior Courts Act, conferred
jurisdiction
on this court to hear and determine appeals from any decision of
provincial or local division.
The
question whether leave to appeal was required for the State to
prosecute appeals on a question of law was considered in
Attorney-General,
Transvaal v Nokwe & others.
[12]
Having considered the provisions of s 21(2)
(a)
of
the Supreme Court Act (in its earlier form, prior to its amendment in
1982), the court concluded that leave was indeed necessary.
[13]
After the 1982 amendment, s 20(4) of the Supreme Court Act made the
granting of leave a pre-requisite to the hearing of an appeal
by this
court in the following terms:
‘
(4)
No appeal shall lie against a judgment or order of the court of a
provincial or local division in any civil proceedings or against
any
judgment or order of that court given on appeal to it except-
(a)
in
the case of a judgment or order given in any civil proceedings by the
full court of such a division on appeal to it in terms
of subsection
(3), with the special leave of the appellate division;
(b)
in
any other case
,
with
the leave of
the court against whose judgment or order the appeal is to be made,
or where such leave has been refused,
with
the leave of
the appellate division.’
(My
emphasis).
[19]
I have already concluded that
s 1
of the
Superior Courts Act does
not
serve as a bar to the adjudication of appeals envisaged in
s 311
of
the CPA. The general provisions applicable to appeals to this court
are set out in
s 16
of that Act. The granting of leave to appeal from
the judgment of a high court, or court of similar status, to this
court is a
pre-requisite in terms of ss 16(1)
(a)(b)
and (c)
[14]
of the
Superior Courts Act. This
is not surprising, for the
indisputable purpose of a party having to apply for leave to appeal
is to limit appeals to those which
have reasonable prospects of
success.
[15]
In my view, it would be an anomaly for leave to appeal to this court
to be required in respect of all appeals except for those
that are at
the instance of the State on a question of law. I see no basis for
such a distinction.
[16]
[20]
If the legislature intended to grant an automatic right of appeal, it
would have done so expressly.
[17]
It is significant that
s 16(1)
(b)
of the
Superior Courts Act
expressly
states that an appeal against the decision of the high
court
on appeal to it
lies to this court upon special leave having been granted. It is
self-evident that an appeal envisaged in
s 311
of the CPA relates to
a decision made by the high court
on
appeal,
which is the case
in the matter at hand. The provisions of
s 16(1)
(b)
have therefore been
triggered. The respondent correctly conceded that ‘apropos the
application of
s 311
in general, where an appeal is permissible,
the respondent is in agreement with the appellant’s submissions
that special
leave would be required from this honourable court in
terms of
s 16(1)
(b)
of
the
Superior Courts Act.’ For
all the reasons stated above, I
conclude that the appellant’s application for special leave to
appeal on a question of law
relating to the sentence imposed by the
high court on appeal to it is therefore correctly before us.
[21]
I now consider whether
special leave ought to be granted in this matter. The factors
relevant to the granting of special leave are
well established. The
general principle is that in addition to reasonable prospects of
success, an applicant for special leave
to appeal must show that
there are special circumstances which merit a further appeal to this
court. This court, in
Westinghouse
Brake & Equipment (Pty) Ltd v Bilger Engineering
[18]
held that the word ‘special’ denotes that some additional
factor or criterion is to play a part in the granting of
leave. It
considered special circumstances as (i) where the appeal raises a
substantial point of law; (ii) where the matter turns
on factual
issues but the prospects of success are so strong that the refusal of
leave would result in a manifest denial of justice;
(iii) where the
matter is of very great importance to the parties or to the
public.
[19]
This list is by no means exhaustive. The existence of the first two
special circumstances is self-evident from the consideration
of the
facts of this matter in the preceding paragraphs and need not be
repeated here.
[22]
Turning now to consider whether this matter is of substantial
importance to the parties or the public,
[20]
I have already found that the high court erred in considering intent
to be a consideration in determining whether there was infliction
of
grievous bodily injury on the complainant.
If
this court does not intervene, the unfortunate result will be that
the high court’s erroneous decision will, on the basis
of the
doctrine of
stare
decisis,
continue
to be considered as a precedent, thus perpetuating the error of law
it committed. I therefore conclude that this matter
is indeed of
substantial importance to the State and to the public and that there
are compelling reasons which justify the hearing
of the appeal. I am
satisfied that all the requirements for the granting of special leave
to appeal have been met.
[23]
Having
found that the decision made by the high court in favour of the
respondent was based on an error of law and that  the
DPP
has met the threshold for the granting of special leave to appeal, it
stands to reason that the appeal is to be upheld.
Section 311(1)
of
the CPA sets out the powers which an appeal court has after a
successful appeal. These depend on whether it was the DPP or the

accused person who originally appealed against the decision of the
lower court. In terms of
s 311(1)
(b)
of
the CPA, if, pursuant to
s 309(1)
, the accused had successfully
appealed against the decision of a lower court, and the Director of
Public Prosecutions in turn had
succeeded with an appeal to the
Supreme Court of Appeal in terms of
s 311
, the latter court may
restore, in its original or amended form, the sentence or order of
the lower court which the accused had
originally appealed.
[24]
Notably, there is no provision in
s 311
of the CPA for remittal of
the matter to the high court whose decision is the subject of this
appeal. In
Attorney-General
v Steenkamp,
[21]
Van den Heever JA held that it could hardly have been the intention
of the legislature that where the order of this court does
not
finally dispose of the issues raised in the first court of appeal,
those issues must arbitrarily be deemed to have been decided
or be
left hanging in the air. In
The
Director of Public Prosecutions KwaZulu- Natal v Mekka
[22]
this
court upheld the appeal on the question of law. Having found that the
regional court had correctly convicted and sentenced
the respondent,
it set aside the order of the high court and re-instated the
conviction and sentence imposed by the regional court.
I am of the
view that the circumstances of this matter warrant the remittal of
the matter back to the high court for a de novo
hearing on the
respondent’s appeal on sentence.
[25]
In the result, I would grant special leave to appeal; uphold the
appeal in respect of the question of law; set aside the order
of the
high court on sentence and remit the matter to the high court,
Gauteng Division, for a de novo hearing on the respondent’s

appeal on sentence.
________________
M B Molemela
Acting
Judge of Appeal
Gorven,
AJA (Maya AP and Theron JA concurring)
[26]
I have read the judgment of my colleague Molemela AJA. The high court
held that intent must be proved when establishing whether
grievous
bodily harm was inflicted. This was clearly wrong as is pointed out
in paragraph 15 of the minority judgment. This conclusion
was
accordingly a question of law wrongly decided in favour of the
respondent. The provisions of
s 311
of the CPA
[23]
are therefore
triggered. This is so whether the question of law relates to
conviction or sentence. The appeal must be allowed on
the question of
law. I agree, also, that, as a result of the error of law, the appeal
court did not properly consider whether the
offence fell within the
ambit of
Part I
or
Part III
of Schedule 2 to the CLAA. This means
that the merits of the appeal on sentence were not dealt with by the
appeal court. The matter
should therefore be remitted for this to
take place.
[27]
I write because it is my view that special leave to appeal is not
required in a matter arising from
s 311
of the CPA.  This
section provides for an appeal as of right, without leave. An appeal
under
s 311
of the CPA is also an appeal ‘regulated in
terms of the
Criminal Procedure Act&rsquo
;.
[24]
It is therefore one to which the provisions of Chapter 5 of the
Superior Courts Act,
[25
]
and in particular
s 16(1)
(b)
thereof, do not apply.
[28]
The minority judgment finds that, ‘[i]f the legislature
intended to grant an automatic right of appeal, it would have
done so
expressly.’ In para 17 of the judgment it is stated:
‘
In
view of the fact that neither the CPA nor any other criminal
procedural law regulates
s 311
appeals, there is simply no basis
for concluding that
s 311
appeals are excluded from the application
of the
Superior Courts Act by
virtue of
s 1
of that Act. It stands to
reason that an appeal envisaged in s 311 of the CPA does not fall
within the category of those excluded
from the application of the
Superior Courts Act in
terms of
s 1
and falls to be regulated by
s 16(1)
(b)
of
the
Superior Courts Act.’
The
minority judgment goes on, in para 19, to say:
‘
The
granting of leave to appeal from the judgment of a high court, or
court of similar status, to this court is a pre-requisite
in terms of
ss 16(1)
(a)(b)
and
(c)
of the
Superior Courts Act. This
is not surprising, for the
indisputable purpose of a party having to apply for leave to appeal
is to limit appeals to those which
have reasonable prospects of
success. In my view, it would be an anomaly for leave to appeal to
this court to be required in respect
of all appeals except for those
that are at the instance of the State on a question of law. I see no
basis for such a distinction.’
[26]
I
respectfully differ from this approach.
[29]
The introduction of the definition of an appeal in
s 1
of the
Superior Courts Act has
given rise to a new situation. This must
prompt fresh enquiries on matters settled under the previous
legislation. Certain appeals
are now excluded from the operation of
Chapter 5 of the
Superior Courts Act. This
was not the position
under the Supreme Court Act.
[27]
The enquiry which must be made prior to concluding that s 16(1)
(b)
,
which requires special leave to appeal, applies, is whether the
appeal in question is subject to the provisions of Chapter 5.
I now
turn to that enquiry.
[30]
Section 1
of the
Superior Courts Act provides
that an appeal in
Chapter 5 ‘does not include an appeal in a matter regulated in
terms of the
Criminal Procedure Act
. . . or in terms
of any other criminal procedural law’. Chapter 5 of the
Superior Courts Act comprises
ss 15
-
20
. This means that, if an appeal
is ‘regulated in terms of’ the CPA, the provisions of
s 16(1)
(b)
requiring special leave to appeal do not apply. The crisp issue in
this regard is whether an appeal under
s 311
is one ‘regulated
in terms of’ the CPA.
[28]
[31]
Section 311
of the CPA reads:
‘
(1)
Where the provincial or local division on appeal, whether brought by
the attorney-general or other prosecutor or the person
convicted,
gives a decision in favour of the person convicted on a question of
law, the attorney-general or other prosecutor against
whom the
decision is given may appeal to the Appellate Division of the Supreme
Court, which shall, if it decides the matter in
issue in favour of
the appellant, set aside or vary the decision appealed from and, if
the matter was brought before the provincial
or local division in
terms of–
(a)
section
309(1)
, re-instate the conviction, sentence or order of the lower
court appealed from, either in its original form or in such a
modified
form as the said Appellate Division may consider desirable;
or
(b)
section
310(2)
, give such decision or take such action as the provincial or
local division ought, in the opinion of the said Appellate Division,

to have given or taken (including any action under
section 310(5))
,
and thereupon the provisions of
section 310(4)
shall
mutatis
mutandis
apply.
(2)
If an appeal brought by the attorney-general or other prosecutor
under this section or
section 310
is dismissed, the court dismissing
the appeal may order that the appellant pay the respondent the costs
to which the respondent
may have been put in opposing the appeal,
taxed according to the scale in civil cases of that court: Provided
that where the attorney-general
is the appellant, the costs which he
is so ordered to pay shall be paid by the State.’
[32]
It can be seen that
s 311
gives jurisdiction to this court when
a high court ‘on appeal . . . gives a decision in favour of the
person convicted on
a question of law’. Jurisdiction is founded
on
s 311
itself and is clear and express. The present matter was
brought before the high court by way of an appeal in terms of
s 309(1)
of the CPA. We have found that, in that appeal, the
high court decided a question of law in favour of the respondent.
Accordingly,
the provisions of
s 311(1)
(a)
find application. In those circumstances, this court’s
jurisdiction is established under
s 311.
[33]
As mentioned, the introduction of the definition of appeal in
s 1
of the
Superior Courts Act has
brought about a new situation
requiring the consideration of whether an appeal is regulated by the
CPA. In
S
v Van Wyk & another
,
[29]
in the context of an appeal by an accused person, this court held
that ‘[t]he CPA does not contain any provision dealing
with a
right of appeal to this court from a decision of the high court taken
on appeal to it from a magistrates’ court.’
Accordingly,
it was held, such an appeal is not regulated by the CPA and is not
excluded from the operation of Chapter 5 of the
Superior Courts Act.
As
a result, the provisions of
s 16(1)
(b)
govern such an appeal.
[30]
This requires the grant of special leave to appeal by this court. In
contrast to the position dealt with in
Van
Wyk
,
s 311
of the CPA clearly does ‘contain [a] provision
dealing with a right of appeal to this court from a decision of the
high court
taken on appeal to it from a magistrates’
court’.
[31]
This distinguishes the position under
s 311
from that dealt with
in
Van
Wyk
.
Applying the dictum in
Van
Wyk
,
because
s 311
of the CPA gives a right of appeal, such an appeal
is excluded from the operation of Chapter 5 of the
Superior Courts
Act.
[34
]
In
DPP
Western Cape v Kock
,
[32]
this court held that, where the state seeks to appeal against
sentence under the provisions of
s 316B(1)
of the CPA, that
right of appeal ‘is specifically regulated by the CPA,
therefore the provisions of
s 16(1
)(b)
do not find application.’
[33]
And in
Director
of Prosecutions v Olivier
,
[34]
this court held that it only has jurisdiction to deal with an appeal
against sentence brought by the state under
s 316B
of the CPA
where the high court acted as a court of first instance and not as an
appeal court.
[35]
These both dealt with attempts to appeal against sentence in this
court where that sentence had been imposed by the high court
sitting
as a court of appeal. In both of those matters this court held that
it had no jurisdiction to entertain such an appeal.
In each of those
cases the appeal was struck from the roll, which is the appropriate
order when there is a lack of jurisdiction
to adjudicate an appeal.
Neither of those matters dealt with an appeal brought under
s 311
of the CPA.
[35]
The context of
s 311
of the CPA must be considered. Most other
sections of the CPA which allow for an appeal require applications
for leave to appeal.
These include
s 309(1
)(a)
,
s 309B(1)
(a)
,
s 310A(1)
,
s 316(1)
(a)
and
s 316B(1)
of the CPA. It is clear that these are appeals
‘regulated in terms of’ the CPA. They give the right of
appeal and deal
with the procedure for the exercise of that right. In
all cases, the procedure requires an application for leave to appeal.
[36]
Leaving aside
s 311
for the moment, the exceptions to the
requirement of leave to appeal in the CPA are twofold. The first is
the proviso to
s 309(1)
(a)
:
‘
Provided
that if that person was sentenced to imprisonment for life by a
regional court under section 51(1) of the Criminal
Law
Amendment Act, 1997 (Act 105 of 1997), he or she may note such an
appeal without having to apply for leave in terms of section
309B’.
There
is therefore an explicit provision that an accused person in the
circumstances set out in the proviso to s 309(1)
(a)
‘may note such an appeal without having to apply for leave’.
The reason for specifying this is clear. It is stated
as an exception
to the general provision in that section requiring leave to appeal.
In this section, the right to appeal is given,
it is expressly stated
that no leave to appeal is required and the person is directed to
exercise that right by simply noting an
appeal.
[37]
The second is s 310, the relevant parts of which provide:
‘
(1)
When a lower court has in criminal proceedings given a decision in
favour of the accused on any question of law . . . the
attorney-general
. . . may require the judicial officer concerned to
state a case for the consideration of the provincial or local
division having
jurisdiction, setting forth the question of law and
his decision thereon and, if evidence has been heard, his findings of
fact,
in so far as they are material to the question of law.
(2)
When such case has been stated, the attorney-general or other
prosecutor, as the case may be, may appeal from the decision to
the
provincial or local division having jurisdiction.
(3)
The provisions of section 309(2) shall apply with reference to an
appeal under this section.’
Section
309(2) provides that such an appeal must be noted and prosecuted
according to the rules of court. Section 310 thus gives
a right of
appeal. Unlike s 309(1)
(a)
,
it does not provide in terms that no leave to appeal is required. It
does specify that the right to appeal must be exercised by
noting and
prosecuting the appeal according to the rules of court. It is clear
that leave to appeal is not first required and that
it is also an
appeal as of right.
[38]
The wording of s 311 is similar to that of s 310(2).
Section 311 says that ‘the attorney-general or other prosecutor

against whom the decision is given may appeal’.  Both
sections allow this when a decision in favour of the accused
on
any question of law has been made. The right to appeal is given. As
is the case with s 310(2), the section does not state
in terms
that no leave to appeal is required. Sections 310 and 311 differ in
two respects. First, s 310(3) imports the provisions
of
s 309(2), which specifies that the noting and prosecution of the
appeal must take place as ‘prescribed by the rules
of court’.
There is no equivalent provision in the CPA concerning an appeal
under s 311. Secondly, an appeal under s 310(2)
does not
lie to this court.
[39]
Dealing with the second of these first, an objection has been raised
that appeals without leave do not lie to this court. This
is not so.
In the context of an appeal by an accused against a refusal by the
high court of condonation for the late noting of
an appeal, this
court has consistently recognised appeals as of right without leave
in certain circumstances.
[36]
Until the coming into effect of the
Superior Courts Act, this
was
also the case for appeals against the refusal of bail or the
imposition of a condition of bail by a high court sitting as a
court
of first instance.
[37]
The
Superior Courts Act also
brought about a change of approach in
this regard.
[38]
[40]
Section 315(4)
of the CPA is of some significance:
‘
An
appeal in terms of this Chapter shall lie only as provided
in
sections 316
to
319
inclusive, and not as of
right.’
This
section is part of Chapter 31 of the CPA, comprising
ss 315
to
324
,
and deals with appeals in cases of criminal proceedings in superior
courts. Chapter 30, comprising
ss 302
to 314, must thus be taken
to allow for appeals as of right. This chapter deals with reviews and
appeals in cases of criminal proceedings
in lower courts. We have
seen that the proviso to
s 309(1)
(a)
and
s 310(2)
fall into the category of appeals as of right.
Section 311
is part of this chapter.
[41]
Section 311(2)
ties
ss 310
and
311
together. It provides
that, if an appeal arising from these two sections is dismissed, ‘the
court dismissing the appeal may
order that the appellant pay the
respondent the costs to which the respondent may have been put in
opposing the appeal’.
This provides a check against abusive
appeals which might otherwise arise from such a provision.
[42]
Similar provisions are found in
ss 310A(6)
and
316B
(3). These
allow the State to apply for leave to appeal against a sentence and,
if given leave, to appeal against sentence. What
is significant is
that, in addition to providing for an ‘order that the State pay
the accused concerned the whole or any
part of the costs to which the
accused may have been put in opposing’ the appeal, they also
provide for an ‘order that
the State pay the accused concerned
the whole or any part of the costs to which the accused may have been
put in opposing’
the application for leave to appeal. The
absence of a similar provision in
s 311(2)
for costs of an
application for leave to appeal fortifies an interpretation that no
such application is necessary.
[43]
As mentioned,
s 310(3)
specifies that the appeal must be noted
and prosecuted in terms of the rules of court. This provision does
not find echo in
s 311.
As such, no procedure for the
prosecution of the appeal is set out in the CPA. The question is
whether the absence of a provision
setting out the procedure to
exercise the right of appeal means that it is not one ‘regulated
in terms of’ the CPA.
If so, it is not excluded from Chapter 5
of the
Superior Courts Act and
the provisions of
s 16(1)
(b)
requiring special leave to appeal would apply.
[44]
Section 16(1)
(b)
of the
Superior Courts Act provides
that:
‘
an
appeal against any decision of a Division on appeal to it, lies to
the Supreme Court of Appeal upon special leave having been
granted by
the Supreme Court of Appeal . . . .’
What
this means is that, until given by this court, there is no right to
appeal. The right to appeal can be withheld or given by
this court.
But
s 311
of the CPA already gives that right if the
circumstances specified in it are met. In addition, it also specifies
that such an appeal
lies to this court. What the minority judgment
does not explain is why, if a right of appeal is given by
s 311
,
leave is required in order to obtain that right.
[45]
It is, of course, instructive that, unlike other sections in the CPA,
s 311
does not in terms specify that any form of leave to appeal
must be obtained. All of the sections requiring leave specify this
requirement.
There is also no need to specify the procedure to
exercise the right because
rule 7(1)
(a)
of the rules of this court does so:
[39]
‘
(1)
An appellant shall lodge a notice of appeal with the registrar and
the registrar of the court a quo within one month after the
date of—
(a)
the
granting of the judgment or order appealed against where leave to
appeal is not required’.
Rule 7(1)
(a)
thus deals in terms with a situation where leave to appeal is not
required. Holding that
s 311
deals with an appeal as of right
accordingly does not give rise to a procedural lacuna.
[46]
It is my view that, because a right to appeal is given in
s 311
of the CPA, such an appeal is one ‘regulated’ by the CPA.
It is not necessary, in addition, for the CPA to specify
the
procedure by which to exercise that right. The Director of Public
Prosecutions, or other prosecutor, has an appeal as of right.
That
being the case, an appeal under
s 311
is excluded from the
operation of Chapter 5 of the
Superior Courts Act. As
such, the
provisions of
s 16(1)
(b)
of the
Superior Courts Act do
not apply. An appeal under
s 311
accordingly does not require special leave to appeal.
[47]
Arising from this conclusion, accordingly, no application for special
leave to appeal was necessary in this matter. It follows
that an
order granting special leave to appeal is neither necessary nor
competent.
[48]
In the result the following order is made:
1
The appeal is upheld
in respect of the question of law.
2
The order of the high court on sentence is set aside.
3
The sentence imposed by the regional court is reinstated.
4
The matter is remitted to the high court for the appeal to proceed on
sentence.
_______________________
T
R Gorven
Acting
Judge of Appeal
APPEARANCES:
For
the Appellant:

S Mahomed SC (with C P Harmzen )
Instructed by:
Office Director of Public
Prosecutions, Pretoria
c/o Director of Public Prosecutions,
Bloemfontein
For
the Respondent:

H L Alberts (with S Moeng)
Instructed by:
Legal Aid South Africa, Pretoria
c/o Bloemfontein
Justice Centre, Bloemfontein
[1]
Part I
provides
‘
Rape
as contemplated in section 3 of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act, 2007─
(a) .
. . .
(b) .
. . .
(c)
involving the
infliction of grievous bodily harm.’
‘
Section
51 provides Discretionary minimum sentences for certain serious
offences
(1) Notwithstanding
any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence
a person it has convicted of an
offence referred to in Part I of Schedule 2 to imprisonment for
life.’
[2]
Part III provides
‘
Rape
or compelled rape as contemplated in
section 3
or
4
of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act, 2007
,
respectively in circumstances other than those referred to in
Part
I.
Section
51
(2)
(b)
provides: ‘(2) Notwithstanding any other law
but subject to subsection (3) and (6), a regional court or a High
Court shall
sentence a person who has been convicted of an offence
referred to in –
(a
) . . . .
(b)
Part
III
of Schedule 2, in the case of─
(i) a
first offender, to imprisonment for a period not less than 10 years;
(ii) a
second offender of any such offence, to imprisonment for a period
not less than 15 years; and
(iii) a
third or subsequent offender of any such offence, to imprisonment
for a period not less than 20 years.
(c)
…’
[3]
Section 16
of the
Superior Courts Act states
:
‘
(1)
Subject to
section 15(1)
, the Constitution and any other law-
(a)
an
appeal against any decision of a Division as a court of first
instance lies, upon leave having been granted-
(i)
if
the court consisted of a single judge, either to the Supreme Court
of Appeal or to a full court of that Division, depending
on the
direction issued in terms of section 17(6); or
(ii)
if
the court consisted of more than one judge, to the Supreme Court of
Appeal.
(b)
an
appeal against any decision of a Division on appeal to it, lies to
the Supreme Court of Appeal upon special leave having been
granted
by the Supreme Court of Appeal; and
(c)
an
appeal against any decision of a court of a status similar to the
High Court, lies to the Supreme Court of Appeal upon leave
having
been granted by that court or the Supreme Court of Appeal, and the
provisions of section 17 apply with the changes required
by the
context.’
[4]
Section 17(3)
states:
‘
(3) An
application for special leave to appeal under section 16(1)(
b
)
may be granted by the Supreme Court of Appeal on application filed
with the registrar of that court within one month after the
decision
sought to be appealed against, or such longer period as may on good
cause be allowed, and the provisions of subsection
(2)
(c)
to
(f)
shall apply with the changes required by the context.’
[5]
In
terms of s 1 of the CPA ‘appeal’ in Chapter 5 does not
include an appeal in a matter regulated in terms of the
Criminal
Procedure Act, 1977 (Act No. 51 of 1977), or in terms of any other
criminal procedural law.
[6]
Magmoed v Van Rensburg
[1992] ZASCA 208
;
1993 (1) SA 777
(A) at 807 i-j.
[7]
See also
Director of Public Prosecutions
Gauteng v Pistorius
[2015]
ZASCA 204; [2016] 1 All SA 346 (SCA);
2016
(1) SACR 431 (SCA).
[8]
S v Kolea
[2012] ZASCA 199
;
2013
(1) SACR 409
para 16.
[9]
R v Jacobs
1961
(1) SA 475
(A) at 478A.
[10]
Ibid, at 485B-D. See also
S
v Maselani
2013 (2) SACR
172
(SCA) at para 12-13.
[11]
In
S
v Goabab
2012 JD3 1063 (Nm) at para 8, the court found that alternative
charges, viewed against maximum sentences constituted a lesser

offence and therefore the decision of the court to acquit the
accused on the main charge constituted a decision in favour of
the
accused.
[12]
Attorney-General,
Transvaal v Nokwe & others
1962
(3) 803 at 804.
[13]
Ibid at 806D.
[14]
See footnote 3.
[15]
Cronshaw &
another v Coin Security Group (Pty) Ltd
[
1996]
ZASCA 38
;
1996 (3) SA 686
(SCA) at 689B;
Pharmaceutical
Society of SA and Others v Minister of Health & Another; New
Clicks SA (Pty) Ltd v Tshabalala Msimang NO &
another
[2004] ZASCA 122
;
[2005] 1 All SA 326
(SCA) at para 20-23.
[16]
Attorney-General,
Transvaal v Nokwe & others
supra
,
at
p805D-806A.
[17]
Section 309(1)
(a)
of the CPA grants automatic leave to appeal to a High Court where
the regional court has imposed life imprisonment under s 51(1)
of
the CLAA.
[18]
Westinghouse Brake & Equipment
(Pty) Ltd v Bilger Engineering
[1986]
ZASCA 10; 1986 (2) SA 555 (A).
[19]
At p 564 –
565.
[20]
Director of
Public Prosecutions v Nokwe
(supra).
[21]
1954
(1) SA 351
(A) at 357F-G; Also see
S
v Meje
(248/11);
2011 ZASCA 127
(13 September 2011).
[22]
The Director of
Public Prosecutions KwaZulu-Natal v Mekka
57/2002;
[2003] ZASCA 17
(26 March 2003).
[23]
Criminal Procedure Act 51 of 1977
.
[24]
From
s 1
of the
Superior Courts Act 10 of 2013
– this section will be dealt
with more fully below.
[25]
Superior Courts Act 10 of 2013
.
[26]
References
omitted.
[27]
The Supreme Court
Act 59 of 1959 was repealed by the
Superior Courts Act.
[28
]
It
has not been contended that such an
appeal is regulated by any other criminal procedural law.
[29]
S v Van Wyk & another
[2014] ZASCA 152
;
2015 (1) SACR 584
(SCA) para 18.
[30]
Van Wyk
para
20.
[31]
Van Wyk
para
18.
[32]
DPP Western Cape v Kock
[2015] ZASCA 197; 2016 (1) SACR 539
(SCA).
[33]
Para 18.
[34]
Director of Public Prosecutions v
Olivier
2006 (1) SACR 380
(SCA) approved in
S v
Nabolisa
[2013] ZACC 17;
2013 (2) SACR 221 (CC).
[35]
Olivier
para
81.
[36]
S v Swiegers
1969
(1) PH H110 (A);
S v Tsedi
1984 (1) SA 565
(A) at 570A-C;
S
v Absalom
1989 (3) SA 154
(A) at 162D-E;
S v Botha en
’n ander
2002 (1)
SACR 222
(SCA) para 13.
[37]
S v Botha en ’n
ander
[2001] ZASCA 146; 2002 (2) SA 680 (SCA); 2002 (1) SACR 222; [2002]
All SA 577.
[38]
S v Banger
2016 (1) SACR 115
(SCA).
[39]
Rules Regulating the Conduct of the
Proceedings of the Supreme Court of Appeal of South Africa.