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[2021] ZASCA 115
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Padayachee v S (679/2020) [2021] ZASCA 115 (16 September 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 679/2020
In
the matter between:
MICHAEL
RAJU
PADAYACHEE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Padayachee
v The State
(679/2020)
[2021] ZASCA 115
(16 September 2021)
Coram:
PETSE AP and MATHOPO, MOCUMIE and
MAKGOKA JJA and MOLEFE AJA
Heard:
24 August 2021
Delivered:
This judgment was handed down
electronically by circulation to the parties' legal representatives
by email, publication on the Supreme
Court of Appeal website and
release to SAFLII. The date and time for hand-down is deemed to be
10h00 on 16 September 2021.
Summary:
Criminal procedure – leave to appeal against
convictions and sentence refused by regional court and the high court
–
whether there are reasonable prospects of success on appeal
against the conviction and sentence.
ORDER
On appeal
from
:
KwaZulu-Natal
Division of the High Court, Pietermaritzburg
(Vahed J and Bedderson AJ sitting as court of appeal):
1
The appeal is upheld.
2
The order of the court below, refusing the appellant leave to appeal
against
his convictions and resultant sentences, is set aside and
substituted with the following:
‘
The
applicant is granted leave to appeal against his convictions and
resultant sentences to the KwaZulu-Natal Division of the High
Court.
JUDGMENT
Mocumie
JA (Petse AP, Mathopo and Makgoka JJA and Molefe AJA concurring):
[1]
This is an appeal against the refusal of condonation and leave to
appeal by the KwaZulu-Natal
Division of the High Court,
Pietermaritzburg (Vahed J and Bedderson AJ) (the Full Court). The
appellant, Mr Michael Raju Padayachee,
was indicted in the regional
Court, Verulam on several charges. He was convicted of rape (count
2); two counts of assault with
intent to do grievous bodily harm
(counts 3 and 6); and attempted murder (count 7). He was sentenced as
follows:(a) count 2 –
rape, eight years’ imprisonment;
(b) count 3 – the first count of assault with intent to do
grievous bodily harm, three
years’ imprisonment; (c) count 6 –
the second count of assault with intent to do grievous bodily harm,
12 months’
imprisonment; and (d) count 7 – attempted
murder, 15 years’ imprisonment, 3 years of which were suspended
for five
years, conditionally.
None
of the aforementioned sentences was ordered to run concurrently with
the result that the appellant was sentenced to an effective
term of
24 years’ imprisonment which he is presently serving.
[2]
The appellant, aggrieved by this, sought leave to appeal against his
convictions and
effective sentence. He also sought condonation for
the late filing of his application for leave to appeal. On 9 February
2018,
the regional court refused the application for condonation and
the leave to appeal. The applications to the Full Court for leave
to
appeal against the refusal of the condonation application, as well as
against the convictions and effective sentence in terms
of s
309C(2)
(a)
of the Criminal Procedure Act 51 of 1977 (the CPA)
were also refused on 25 June 2019. Subsequently, on 31 July 2020, the
appellant
applied to this Court in terms of
s 16(1)
(b)
of the
Superior Courts Act 10 of 2013
for special leave to appeal to this
Court against the order of the Full Court. Two judges of this Court
considered the application
and granted special leave to appeal as
sought. The application for condonation for the late filing of the
application for special
leave to appeal is not opposed by the State.
[3]
In
S
v
Khoasasa,
[1]
this
Court held that the refusal, by two judges of a Division of the High
Court, of leave to appeal is a ‘judgment or order’
or ‘a
ruling’ as intended in ss 20(1) and 21(1) of the Supreme
Court Act 59 of 1959, given by the Division concerned
on appeal to
it. If the appeal succeeds, this Court would then grant leave to
appeal to the appropriate Division of the high court
since it is that
court that must hear such appeal in terms of s 309(1)
(a)
of the CPA.
[2]
This
means that the merits of the appeal itself, are not before this
Court, only the question whether the Full Court ought to have
granted
leave to appeal on petition to it, against the refusal by the
regional court to grant leave.
[4]
The test in this regard is simply whether there is a reasonable
prospect of success
in the envisaged appeal against the convictions
and the resultant sentences, rather than whether the appeal against
the convictions
and resultant sentences ought to succeed. I now
proceed to consider that question.
[5]
Counsel for the appellant submitted that: (a) there were
inconsistencies and contradictions
in the evidence of the State
witnesses; (b) the State failed to call relevant witnesses who would
have clarified crucial aspects
of its case; (c) the trial court
failed to properly evaluate the evidence of the single witness in
relation to the rape and second
assault counts. For its part, the
State conceded that there are indeed reasonable prospects of success
in the envisaged appeal.
Having had the benefit of reading the
record, I am satisfied on balance that the envisaged appeal would
have a reasonable prospect
of success.
[6]
As for the cumulative sentence, as stated earlier, the appellant was
sentenced to
an effective term of 24 years’ imprisonment. None
of the individual sentences was ordered to run concurrently. It is
sufficient
to say that, there is a reasonable prospect that another
court might well consider this to be a misdirection on the part of
the
trial court. In light of the foregoing, leave to appeal ought to
have been granted both in respect of the individual convictions
and
resultant sentences.
[7]
In the result the following order is granted:
1
The appeal is upheld.
2
The order of the court below, refusing the appellant leave to appeal
against
the convictions and resultant sentences is set aside and
substituted with the following:
‘
The
applicant is granted leave to appeal against his convictions and
resultant sentences to the KwaZulu-Natal Division of the High
Court.’
B C MOCUMIE
JUDGE
OF APPEAL
APPEARANCES:
For
Appellant:
J E Howse SC
Instructed
by:
RK Nathalal and Company
C/o Webber
Attorneys, Bloemfontein
For
Respondent:
IP Cooke
Instructed
by:
Director of Public Prosecutions, Pietermaritzburg
C/o Director
of Public Prosecutions, Bloemfontein
[1]
S v
Khoasasa
2003 (1) SACR 123
(SCA) paras 14 and 19-22.
[2]
See
S
v Van Wyk and Another
v
The State and Galela v The State
[2014]
ZASCA 152
;
[2014] 4 All SA 708
(SCA);
2015
(1) SACR 584
(SCA). See also
S
v Tonkin
[2013] ZASCA 179
;
2014 (1) SACR 583
(SCA);
S
v Radebe
[2016]
ZASCA 172
;
2017 (1) SACR 619
(SCA);
S
v Moyo
[2018] ZASCA 157
;
2019 (1) SACR 605
(SCA).