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[2018] ZASCA 157
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Moyo v The State (848/18) [2018] ZASCA 157; 2019 (1) SACR 605 (SCA) (23 November 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable/Not
reportable
Case
No: 848/18
In
the matter between:
RENIO
MOYO APPELLANT
and
THE
STATE RESPONDENT
Neutral
Citation:
Reno Moyo v The State
(848/18)
[2018] ZASCA 157
(23 November 2018)
Coram:
Cachalia, Wallis and Makgoka JJA and Carelse and Matojane AJJA
Heard:
In chambers
Delivered:
23 November 2018
Summary:
Appeal from decision of the High Court dismissing a petition in
terms of
s 309C
of the
Criminal Procedure Act 51 of 1977
–
where the High Court refuses leave to appeal against an order of a
Magistrate, appeal against such refusal lies to the
Supreme Court of
Appeal.
ORDER
On
appeal from:
Gauteng Division of the High Court, Johannesburg
(Moshidi J, Makhoba AJ concurring) sitting as a court of appeal.
1. The appeal is upheld
and the order of the High Court refusing leave is set aside and
replaced with the following order:
‘
The application
for leave to appeal against the effective sentence imposed upon the
appellant is granted.’
JUDGMENT
Matojane
AJA: (Cachalia, Wallis and Makgoka JJA and Carelse AJA concurring)
[1]
On 10 January 2012 the appellant was convicted in the Specialised
Commercial Crimes Court, Johannesburg, on 14 counts of theft
totalling R1 358 912.50. The provisions of section s 51(2)(a)
Part II
of schedule 2 of the
Criminal Law Amendment Act 105 of 1997
as amended by Act 38 of 2007 (the Act) applied to count 13 because
the amount involved exceeded R500 000.
[2]
He was sentenced as follows, in respect of counts 1 to 10, which were
taken together for purposes of sentencing, seven years’
imprisonment. In respect of counts 11, 12 and 14 taken together
for sentencing, the appellant was sentenced to seven years’
imprisonment. Concerning count 13 to which s 51(1) of the Act
applied, the appellant was sentenced to 15 years’ imprisonment
with an order that he should not be released on parole until he had
served two-thirds of his sentence. The court ordered that the
sentences on counts 1 to 10,11,12 and 14 run concurrently with the
sentence on count 13.
[3]
On 11 December 2012 the appellant’s application for leave to
appeal against sentence was dismissed by the trial magistrate.
The
appellant then applied to the Gauteng Division of the High Court (the
high court) in terms of section 309C of the Criminal
Procedure
Act 51 1977 (the
Criminal Procedure Act) for
such leave. The
application was refused by two judges of the Gauteng Division of the
High Court (Moshidi J and Makhoba AJ concurring).
[4]
The appellant subsequently applied to this Court in terms of section
16(1)(b) of the Superior Court Act 10 of 2013 for special
leave to
appeal to this court against the refusal of the high court to grant
leave against the sentence. The application was considered
by two
judges, who ordered that special leave be granted.
[5]
This Court in
S
v Khoasasa
[1]
held that the refusal, by two judges of the Provincial Division, of
leave to appeal was a ‘judgment or order’ or ‘a
ruling’ of the Court of the Provincial Division as intended in
s 20(1) or s 21(1)
of
the Supreme Court Act 59 of 1959, (the Supreme Court Act) given by
the high court on appeal to it.
[6]
The Court held that a petition for leave to appeal to a high court in
terms of s 309C of the Criminal Procudure Act, was in
effect an
appeal against the refusal of leave to appeal by the magistrates’
court in terms of
s 309B
of the
Criminal Procedure Act.
[7
]
Accordingly, the refusal of leave to appeal by the high court, is
appealable to this Court with special leave of this court. The
order
appealed against is the refusal of leave with the result that this
Court cannot decide the merits of the appeal.
[8]
It follows that the issue before us is whether leave to appeal to the
high court should have been granted and not the appeal
itself. If
such an appeal is successful, the appeal should be referred back to
the High Court to be heard on the merits.
[9]
I now proceed to consider the present application. An applicant for
special leave to appeal must show, in addition to the requirement
of
reasonable prospect of success, that there are special circumstances
which merit a further appeal to the SCA. See
Westinghouse
Brake & Equip v Bilger Engineering.
[2]
[10]
In
Van
Wyk v S, Galela v S
[3]
this court set out the requirements for granting special leave as
follows:
‘
An applicant for
special leave to appeal must show, in addition to the ordinary
requirement of reasonable prospects of success,
that there are
special circumstances which merit a further appeal to this court.
This may arise when in the opinion of this court
the appeal raises a
substantial point of law, or where the matter is of very great
importance to the parties or great public importance,
or where the
prospects of success are so strong that the refusal of leave to
appeal would probably result in a manifest denial
of justice’
[11]
Adopting the above approach and as fairly conceded by the
state, the failure of the trial court to allow the applicant
an
opportunity to address it before imposing the non-parole period in
terms of
s 276B(2)
was a misdirection
[4]
.
The court further misdirected itself by its failure to give reasons
for fixing the non-parole period. This constituted the special
circumstances required for special leave to be granted. In our view,
an appeal will have a reasonable prospect of success on count
13.
[12]
In addition, because the sentences on the other counts were ordered
to run concurrently with count 13 it shall be necessary
for the Full
Court to re-consider the cumulative effect of the effective sentence
imposed. This is provided for in the order set
out below. For the
sake of clarity the terms of that order do not grant the appellant
leave to appeal against the sentences imposed
upon him in terms of
counts 1 to 10, 11, 12 and 14.
[12]
For these reason the following order is made:
1. The order of the High
Court refusing leave is set aside and replaced with the following
order:
‘
The application
for leave to appeal against the effective sentence imposed upon the
applicant is granted’
_______________________
KE
Matojane
Acting
Judge of Appeal
APPEARANCES
For
Appellants: W A Karam
Johannesburg
Justice Centre
c/o
Bloemfontein Justice Centre
For
Respondent: B Jassat
Director
of Public Prosecutions, Johannesburg
c/o
Director of Public Prosecutions,
Bloemfontein
[1]
S v
Khoasasa
2003
(1) SACR 123
(SCA) paras 14 and 19-22
[2]
Westinghouse
Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd
1986
(2) 555 at 564H
[3]
Van Wyk
v S, Galela v S
[2014] ZASCA 152
;
[2014] 4 All SA 708
(SCA);
2015 (1) SACR 584
(SCA)
para 21.
[4]
S v
Stander
2012(1) SACR 537 (SCA),
S
v Mthimkulu
2013 JDR 0685 (SCA).