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[2008] ZASCA 58
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S v Matshona (509/2007) [2008] ZASCA 58; [2008] 4 All SA 68 (SCA); 2013 (2) SACR 126 (SCA) (28 May 2008)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE NO 509/2007
In the matter between
SIPHO SIANETH LAWRENCE MATSHONA
...
Appellant
and
THE STATE
...
Respondent
Coram: Navsa, Ponnan JJA and Leach AJA
Heard: 07 MAY 2008
Delivered: 28 MAY 2008
Summary
:
Appeal to Supreme Court of Appeal against the refusal in a high court
of a petition seeking leave to appeal against a sentence imposed
in a
regional court â leave to appeal to the high court should have been
granted â merits of the appeal against sentence to be
determined by
the high court.
Neutral
citation
:
Matshona v The State (509/2007)
[2008] ZASCA 58
(28 May 2008)
___________________________________________________________
JUDGMENT
__________________________________________________________
LEACH AJA
[1] The appellant was arraigned in the
regional court in Pretoria on 45 charges of fraud. Following a plea
of guilty to 37 of these
charges which was accepted by the State, the
appellant was duly convicted on those counts. They were taken
together for the purposes
of sentence and the appellant was sentenced
to seven years imprisonment. His application for leave to appeal to
the high court against
the sentence brought under
s 309B
of the
Criminal Procedure Act 51 of 1977
was dismissed. A subsequent
petition to the high court under
s 309C
was similarly unsuccessful,
as was a further application for leave to appeal against the refusal
of the petition. With the necessary
leave of this court, the
appellant now appeals against the refusal of his petition in the high
court.
[2] It is necessary at the outset to
consider the ambit of this appeal, particularly as counsel on both
sides urged us to deal with
the merits of the appeal against the
appellantâs sentence. Tempting though it might be to do so as the
full record is available,
for the reasons set out below the
invitation must be declined.
[3] In
S v Khoasasa
2003 (1) SACR 123
(SCA)
([2002]
4 All SA 635)
, after a detailed analysis of the relevant
provisions relating to appeals, this court concluded that an order of
the high court refusing
leave to appeal was an order of a provincial
division against which an appellant, either with leave of the high
court or with leave
of this court, could appeal. It also held
1
that a sentence imposed in the
regional court can only be appealed against in this court when an
appeal against such sentence has
failed in the high court.
[4] In my view, the reasoning in
Khoasasa
is
unassailable. The appeal of an accused convicted in a regional court
lies to the high court under
section 309(1)(a)
, although leave to
appeal is required either from the trial court under
s 309B
or, if
such leave is refused, from the high court pursuant to an application
made by way of a petition addressed to the judge-president
under
s
309C(2)
and dealt with in chambers. In the event of this petition
succeeding, the accused may prosecute the appeal to the high court.
But,
if it is refused, the refusal constitutes a " judgment or
order " or a ârulingâ of a high court as envisaged in
s
20(1)
and s 21(1) of the Supreme Court Act 59 of 1959
2
,
against which an appeal lies to this court on leave obtained either
from the high court which refused the petition or, should such
leave
be refused, from this court
3
by way of petition.
4
[5] It is clear from this that where,
as is here the case, an accused obtains leave to appeal to this court
against the refusal in
a high court of a petition seeking leave to
appeal against a conviction or sentence in the regional court, the
issue before this
court is whether leave to appeal should have been
granted by the high court and not the appeal itself which has been
left in limbo,
so to speak, since the accused first sought leave to
appeal to the high court. After all, in the present case, the
appellant's appeal
against his sentence has never been heard in the
high court and, as was held in
S
v N
1991 (2) SACR 10
(A) at
16, the power of this court to hear appeals of this nature is limited
to its statutory power.
5
Section 309(1) prescribes that an
appeal from a magistratesâ court lies to the high court, and an
appeal against the sentence
imposed on the appellant in the regional
court is clearly not before this court at this stage. As was observed
by Streicher JA in
Khoasasa
:
6
â
Geen
jurisdiksie word aan hierdie Hof verleen om ân appél aan te hoor
teen ân skuldigbevinding en vonnis in ân laer hof nie.
Dit is
eers nadat ân appél vanaf ân laer hof na ân Provinsiale of ân
Plaaslike Afdeling misluk het dat ân beskuldigde
met die nodige
verlof na hierdie Hof appél kan aanteken.â
[6] 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 both 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.
[7] Consequently this court cannot
determine the merits of the appeal but must confine itself to the
issue before it, namely whether
leave to appeal to the high court
should have been granted. It follows that in
S
v Nel
2007 (2) SACR 481
(SCA) the court erred in assuming that it had jurisdiction to
entertain an appeal against sentence at this stage. While the
judgment
in that case referred to
Khoasasa
,
the ratio set out therein was not applied.
[8] I turn now to consider whether
leave to appeal to the high court against the sentence imposed by the
regional court should have
been granted. The test in that regard is
simply
whether there is a
reasonable prospect of success in the envisaged appeal against
sentence, rather than whether the appeal against
the sentence ought
to succeed or not.
[9] The appellant was a first offender
who, at the time of his trial, was 37 years of age. He was employed
as the manager of a branch
of a country wide-chain store and abused
the position of trust in which he had been placed by making
fraudulent credit refunds which
led to substantial sums of money
being paid from his employer's bank account into the accounts of
himself, members of his family
and friends. The charges to which he
pleaded guilty had resulted in a loss of more than R300 000 to his
employer, and were committed
over a period of some eight months
during which he had more than adequate time to reflect on his actions
and to decide to desist.
He did not.
[10] On the other hand, the appellant
has been left in no doubt that crime does not pay. Not surprisingly,
he was discharged by his
employer and, although he was fortunate
enough to obtain other employment, it was at a lesser rate of
remuneration. His wife's reaction
to learning of his criminal conduct
led to the failure of their marriage and, in addition, a confiscation
order in an amount of R309,000.00
was made against him under
s 18
of
the
Prevention of Organised Crime Act 121 of 1998
.
[11] In the light of the outcome of
this appeal, it is neither necessary nor desirable to deal further
with the facts. Suffice it
to say that, bearing the factors mentioned
above in mind, there exists a reasonable prospect that a court of
appeal might consider
the sentence imposed to be too severe, even
should it take the view that direct imprisonment is warranted. That
much was conceded
by counsel for the state, and this appeal must
therefore succeed.
[12] In the result:
(a) The appeal succeeds.
(b) The order refusing the appellant
leave to appeal is set aside and is replaced with an order granting
the appellant leave to appeal
to the High Court (Pretoria) against
the sentence imposed on him in the regional court.
____________________
L E LEACH
ACTING JUDGE OF APPEAL
CONCUR: ) NAVSA JA
) PONNAN JA
1
At
[12].
2
Khoasasa
at [14].
3
Section
20
(4)(b) as read with s 21(1) and (2) of the Supreme Court Act
.
4
Section
23 of the Supreme Court Act.
5
See
s 315(1).
6
At
[12].