About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2021
>>
[2021] ZASCA 112
|
|
Grifhs v S (433/2020) [2021] ZASCA 112 (1 September 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 433/2020
In the matter between:
LUNGISA
GRIFHS
APPELLANT
and
THE
STATE
RESPONDENT
Neutral citation:
Lungisa
Grifhs v The State
(433/2020)
[2021]
ZASCA 112
(1 September 2021)
Coram:
VAN DER MERWE, MOLEMELA, MBATHA and CARELSE JJA
and POTTERILL AJA
Heard
:
Appeal disposed of without the hearing of oral argument in terms of
s19(a)
of the
Superior Courts Act 10 of 2013
.
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication
on the Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down of the judgment is deemed to be 10h00
on 1 September 2021.
Summary:
Criminal procedure – appeal
against refusal of petition by High Court – reasonable
prospects of success on appeal against
conviction and sentence on
account of inconsistencies in the written statement and oral
testimony of single witness – leave
to appeal to High Court
granted.
ORDER
On
appeal from:
Eastern Cape Division of
the High Court, Mthatha (Beneke AJ and Dawood J concurring, sitting
as court of appeal):
1
The appeal is upheld.
2
The order of the court a quo is set aside and substituted with the
following:
‘
The
appellants’ petition for leave to appeal in terms of
s 309C
of
the
Criminal Procedure Act 51 of 1977
against both conviction and
sentence is granted.’
JUDGMENT
Mbatha JA (Van der
Merwe, Molemela and Carelse JJA and Potterill AJA concurring):
[1]
On 28 November 2018, the appellant, Mr Lungisa Grifhs, was convicted
together with two of his erstwhile
co-accused in the Regional Court
for the Eastern Cape Region, Mthatha, on one count of murder read
with the provisions of s 1(1)
of the Criminal Law Amendment Act 105
0f 1997. The Regional Court found substantial and compelling
circumstances that warranted
the imposition of a sentence less than
the one prescribed in the Criminal Law Amendment Act. The appellant
was accordingly sentenced
to 16 years imprisonment. His
application for leave to appeal against both conviction and sentence
was dismissed.
[2]
The appellant subsequently petitioned the Judge President of the
Eastern Cape Local Division of the
High Court, in terms of
s 309
of
the
Criminal Procedure Act 51 of 1977
, for leave to appeal. The
petition met with the same fate. Consequently, the appellant
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 to appeal on 15 May 2020.
[3]
Pursuant to that order, the parties agreed that this court may
dispose of the appeal without hearing
oral argument, in terms of
s
19
(a)
of the Superior Court’s Act. There are two
preliminary applications that must be disposed of before delving into
the appeal.
First, the appellant applied in terms of
rule 12
of the
Rules of the Supreme Court of Appeal (the rules) for the condonation
of his failure to comply with
rule 7(1)
(b)
of the rules, by
not filing a notice of appeal within the prescribed one-month period
from the date of the granting of leave to
appeal. Second, the
appellant applied for condonation for the late filing of the heads of
argument within the prescribed time.
The applications were not
opposed by the respondent. Accordingly, the appellant’s
non-compliance should be condoned and,
likewise, the appeal be
revived and re-instated.
[4]
The only issue on this appeal is whether there are reasonable
prospects of success in the appellant’s
appeal. (
Van Wyk v
The State and Galela v The State
[2014] ZASCA 152
;
[2014] 4 All
SA 708
(SCA); 2015(1) SACR 584 (SCA)). The appellant was convicted on
the evidence of a single witness, Mr Bavu. It is trite that the
appellant could only have been properly convicted if the evidence of
the single witness was clear and satisfactory in all material
respects. The appellant contended that it was not reliable, as it was
improbable and inconsistent with the admitted statement that
the
witness had made to the police. It suffices to say that it appears
that there are substantial unexplained contradictions between
Mr
Bavu’s oral testimony and his written statement to the police.
[5]
Accordingly, without pre-judging the merits, I find that there are
reasonable prospects of success on
the appeal against both conviction
and sentence.
[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:
‘
The
appellants’ petition for leave to appeal in terms of
s 309
C of
the
Criminal Procedure Act 51 of 1977
against both conviction and
sentence is granted.’
Y T MBATHA
JUDGE OF APPEAL
Appearances
For
appellant:
S C Vutula
S C Vutula & Co., Mthatha
For respondent:
M Ntlakaza
Director of Public Prosecutions, Mthatha