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[2017] ZASCA 150
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Umude and Others v S (148/2017) [2017] ZASCA 150 (21 November 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
no: 148/2017
In
the matter between:
FREDERICK
UMUDE
FIRST APPELLANT
DOMINIQUE
NWAFOR
SECOND APPELLANT
HENRY
OHAERI
THIRD APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Umude
& others v The State
(148/2017)
[2017] ZASCA 150
(21 November 2017)
Coram:
Ponnan, Petse, and
Willis JJA and Lamont and Schippers AJJA
Heard:
1 November 2017
Delivered:
21 November 2017
Summary:
Criminal Procedure
– appeal against conviction – leave to appeal refused by
magistrate – petition refused by the
courts a quo –
special leave to appeal against conviction granted by the Supreme
Court of Appeal – Section 309 of the
Criminal Procedure Act –
whether leave to appeal ought to have been granted.
ORDER
On
appeal from
:
Eastern Cape Division of the High
Court, Grahamstown (Lowe J and Mgxaji AJ (14 May 2015 in respect of
the second appellant) case
no CA&R 264/2014 and Brooks J and May
AJ (08 October 2014 in respect of the first and third appellants)
case no CA&R 264/2014
sitting as court of appeal):
1
The appeal is upheld.
2
The orders of the Eastern Cape Division of the High Court,
Grahamstown made respectively on 8 October 2014 under case number
CA&R264/2014 and 14 May 2015 under case number CA&R264/2014
dismissing each appellant’s petition against sentence
are set
aside and replaced with the following:
‘
The
three applicants are granted leave to appeal to the Eastern Cape
Division of the High Court, Grahamstown against the sentences
imposed
on them on 2 October 2013 by the Port Elizabeth Regional Court,
Eastern Cape.
’
JUDGMENT
Lamont
AJA (Ponnan, Petse and Willis JJA and Schippers AJA concurring)
[1]
On 1 October 2013 each of the appellants was convicted by the Port
Elizabeth Regional Court, Eastern Cape (Specialised Commercial
Crime
Court) of three counts of fraud and sentenced the next day to 15
years' imprisonment. The appellants’ application to
that court
in terms of s 309B of the
Criminal Procedure Act 51 of 1977 (the CPA) for leave to appeal
against conviction and sentence was
dismissed. In terms of s 309C(2)
of the CPA, each then
petitioned to the
Eastern Cape Division, Grahamstown. Those applications likewise
failed.
[2]
The appellants thereupon petitioned this court in terms of s 16(1)
(b)
of the
Superior Courts Act 10 of 2013 (the Act)
[1]
for special leave to appeal. This court issued the following order:
‘Special leave to appeal against sentence is granted
to the
Supreme Court of Appeal’. That order conduces to confusion.
[3]
The order by the court a quo dismissing the appellants’
petition is an order of that court (see
S
v Khoasasa
[2]
)
,
which stands until set aside on appeal by this court. In terms of the
Supreme Court Act 9 of 1959, an application for leave to
appeal the
order had to be lodged with that court (the high court). If that
court took the view that it was wrong in its earlier
decision to
dismiss the petition to it and that on further reflection there were
indeed reasonable prospects of the contemplated
appeal succeeding,
then it granted leave to appeal to this court. However, all that
served before this court on appeal was the
correctness of the high
court’s dismissal of the appellant’s petition to it
.
This court therefore did not enter into substantive merits of the
envisaged appeal, save for the limited purposes of considering
whether or not it had reasonable prospects of succeeding.
[4]
In terms of the Act, the high court lacks jurisdiction, as it
previously did to consider an application for leave to appeal
against
its dismissal of a petition to it. As a dismissal by the high court
of a petition in terms of s 309C(2) is a decision
on appeal to
it, an application for special leave to appeal against that decision
now lies to this court in terms of s 16(1)
(b)
of the Act.
[5]
Thus what served before the two judges on petition to this court was
whether the court a quo was correct in dismissing the appellants’
petition to it. This court evidently took the view that there were
reasonable prospects of success in the contemplated appeal against
sentence. Accordingly, each appellant was granted leave to appeal
against sentence. In truth, leave ought to have been granted
against
the order of the court a quo refusing the appellants leave to appeal
against sentence.
[6]
Accordingly, what this court has to decide is whether or not the high
court was correct in dismissing the appellants’
petitions to
it. If that court erred, then this court will set aside the order of
the high court; grant the appellants’ leave
to appeal and refer
the matter back to the court a quo to hear the appeal on its merits.
[7]
The appellants were convicted of three counts of fraud involving
R109 649.87. The regional court found that the provisions
of
s 51(2)
of the
Criminal Law Amendment Act 105 of 1997
were
applicable. It then held that there were no substantial and
compelling circumstances and took the three counts together in
imposing the prescribed minimum sentence. There is something to be
said for the contention that the regional court should have,
but
failed to, adequately consider whether the prescribed sentence was a
reasonable and appropriate punishment for each of the
appellants
having regard to the amount involved and their personal
circumstances.
[3]
It follows
that there is a reasonable prospect of an appeal against sentence
succeeding. Accordingly, the petitions to the Eastern
Cape Division
of the High Court, Grahamstown should have succeeded in respect of
sentence.
[8]
In the result:
1
The appeal is upheld.
2
The orders of the Eastern Cape Division of the High Court,
Grahamstown made respectively on 8 October 2014 under case number
CA&R264/2014 and 14 May 2015 under case number CA&R264/2014
dismissing each appellant’s petition against sentence
are set
aside and replaced with the following:
‘
The
three applicants are granted leave to appeal to the Eastern Cape
Division of the High Court, Grahamstown against the sentences
imposed
on them on 2 October 2013 by the Port Elizabeth Regional
Court, Eastern Cape.
’
C
G LAMONT
ACTING
JUDGE OF APPEAL
Appearances:
For
the Appellant:
A Williams
Instructed by:
Legal Aid South Africa,
Port Elizabeth
Legal Aid South Africa,
Bloemfontein
For
the Respondent:
U De Klerk
Instructed by:
The Director of Public
Prosecutions, Grahamstown
The
Director of Public Prosecutions, Bloemfontein
[1]
‘
Section
16
(1) Subject to
section 15
(1), the Constitution and any other
law-
. . .
(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….’
[2]
S v Khoasasa
[2002] ZASCA 113; 2003 (1) SACR 123 (SCA).
[3]
S v
Vilakazi
[2008] ZASCA 87
;
2012 (6) SA 353
(SCA) para 15.