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[2016] ZAGPPHC 362
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Sebopetja v S (CC 154/2013) [2016] ZAGPPHC 362 (18 May 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, PRETORIA
CIRCUIT
LOCAL DIVISON OF THE NORTHERN CIRCUIT
DISTRICT
HELD AT SEKGOSESE, MOREBENG
CASE
NO: CC 154/2013
DATE:
18 MAY 2016
In the matter between:
MODISHA
SEBOPETJA
...................................................................................................
APPLICANT
And
THE
STATE
....................................................................................................................
RESPONDENT
APPLICATIONS FOR CONDONATION AND LEAVE TO
APPEAL
WRIGHT J
1.
The
applicant is a man who was convicted by me of murder and robbery with
aggravating circumstances. He was sentenced to life imprisonment
on
the murder count and to 15 years imprisonment on the robbery count.
The trial was held at Sekgosese in the Morebeng District
in Limpopo
Province in November 2013. At the time of trial and sentencing the
applicant’s then legal representative was handed
typed and
signed copies of my judgments on both conviction and sentence. The
applicant is currently in prison in Makhado.
2.
On
21 October 2015 the applicant filed with the registrar of the “High
Court of South Africa (Pretoria) North Gauteng ”
a bundle of
documents prepared by himself, possibly with lay help. The applicant
seeks leave to appeal his convictions and sentences.
He seeks
condonation for the late filing of his application for leave to
appeal. I received the applications in February 2016 in
my chambers
in Johannesburg.
3.
His
application was launched nearly two years out of time. He seeks
condonation for the late filling of his application on the grounds
of
lack of funds read with reasonable prospects on appeal. Although the
applicant was legally represented at the trial he was unrepresented
until after the filing of his application for leave to appeal. The
applicant did not serve a copy of his application on the DPP.
My
clerk sent a copy to the DPP. Because I was concerned about further
delay I set the matter down for hearing on 10 March 2016.
Mr
Matlapeng appeared for the applicant at very short notice. Ms Van der
Westhuysen appeared for the State. I postponed the hearing
to give
both counsel an opportunity to prepare, particularly on the question
of which court is to hear the appeal in the event
of my deciding to
grant leave to appeal. I thank both for their industry in preparing
heads of argument. Ms MMP Masete appeared
at the hearing for the
applicant.
4.
The
appellant is short of money and has been in prison since the date of
sentencing. Ms Van der Westhuysen, quite sensibly did not
oppose the
condonation application. I am inclined to hear the application for
leave to appeal on its merits as I understand the
applicant’s
predicament and I think that he has reasonable prospects of success
on appeal.
5.
Under
section 316(1)(a)
of the
Criminal Procedure Act 51 of 1977
any
accused convicted of any offence by a High Court may apply to that
court for leave to appeal against such conviction or against
any
resultant sentence or order. Under
section 316(2)(a)
such application
must be made to the judge whose conviction or sentence is the subject
of the prospective appeal provided that
if in the case of a
conviction before a circuit court the said court is not sitting the
application may be made to any other judge
of the High Court
concerned. The said court is not still sitting but in my view I am
the appropriate judge to hear the application.
6.
Under
section 315(1)(a)
of the
Criminal Procedure Act the
court of appeal,
for appeals in cases originally heard by the High Court, shall be the
Supreme Court of Appeal except where, under
section 315(2)(a)
, the
judge hearing the application for leave to appeal is satisfied that
the matter does not require the attention of the SCA.
In such a case
the judge shall direct that the appeal be heard by a full court. In
my view, this case does not need the attention
of the SCA.
7.
The
relevant portion of
section 315(3)
reads:
“An
appeal which is to be heard by a full court in terms of a direction
under paragraph (a) of subsection (2) which has not
been set aside
under paragraph (b) of that subsection, shall be heard
(a)
in the case of an appeal in a
criminal case heard by a single judge of a provincial division, by
the full court of the provincial
division concerned (my emphasis);
(b)
in the case of an appeal in a
criminal case heard by a single judge of a local division other than
the Witwatersrand Local Division,
by the full court of the provincial
division which exercises concurrent jurisdiction in the area of
jurisdiction of the local division
concerned”.
8.
Most
of the provisions of the
Superior Courts Act 10 of 2013
came into
operation on 23 August 2013. See Presidential Proclamation R36, 2013
in Government Gazette 36774 of 22 August 2013. Those
sections of the
Superior Courts Act which
did not then come into operation are not
relevant to this case.
9.
Under
6(1) of the
Superior Courts Act the
High Court of South Africa
consists of a number of stated Divisions. Under
section 6(1
)(c)
there is a Gauteng Division with its main seat in Pretoria. Under
section 6(1
)(e) there is a Limpopo Division with its main seat in
Polokwane. Under
section 6(3)(a)
the
Minister
responsible for the administration of justice must, after
consultation with the Judicial Service Commission, by notice
in the
Gazette, determine the area under the jurisdiction of a Division, and
may in the same manner amend or withdraw such a notice.
10.
Under
section 7
of the
Superior Courts Act the
Judge President of a
Division may by notice in the Gazette, within the area under the
jurisdiction of that Division establish circuit
districts for the
adjudication of civil or criminal matters, and may by like notice
alter the boundaries of any such district.
11.
Under
section 50(2)
, notwithstanding
section 6(1)
, the Gauteng Division
shall also function as the Limpopo and Mpumalanga Divisions,
respectively, until a notice published in terms
of
section 6(3)
in
respect of those Divisions comes into operation.
12.
Under
section 50(3)
, any circuit court established under any law repealed
by the
Superior Courts Act and
in existence immediately before the
commencement of this Act, shall be deemed to have been duly
established in terms of the
Superior Courts Act as
a circuit court of
the Division concerned.
13.
Under
section 52(1)
, subject to
section 27
, proceedings pending in any
court at the commencement of the
Superior Courts Act must
be
continued and concluded as if the Act had not been passed.
14.
When
I presided over the trial I did so as a single judge of the Gauteng
Division, with its main seat in Pretoria as referred to
in
section
6(1
)(c) of the
Superior Courts Act. Even
though the trial was held
in Limpopo Province the Gauteng Division functioned as the Limpopo
Division under
section 6(2).
15.
On
21 December 2015, some two months after the present application was
launched, the Minister of Justice and Correctional Services
caused to
be published in Government Gazette 39540 notice 1266 determining the
areas under the jurisdiction of the Divisions of
the High Court of
South Africa. The Minister later withdrew notice 1266 under notice 31
published in Government Gazette 39601 of
15 January 2016. On the same
date and in the same Gazette, under notice 30 the Minister determined
the areas of jurisdiction of
certain Divisions of the High Court. He
determined areas of jurisdiction for the Limpopo Division with its
main seat at Polokwane
and for its local seats at
Lephalale
and Thohoyandou. The determination is by reference to magisterial
districts.
16.
The
proceedings before me are applications for leave to appeal and for
condonation for the late filing of the application for leave
to
appeal. The trial and sentencing procedures were concluded in
November 2013.
17.
The
present application, launched as it was prior to the Minister’s
determination on 15 January 2016 is a proceeding pending
in the
Gauteng Division, Pretoria, within the meaning of the phrase
“proceedings pending ” in
section 52(1)
of the
Superior
Courts Act and
falls to be concluded in this court.
18.
Under
section 1
of the
Superior Courts Act the
word “appeal ”
is defined to exclude an appeal in a matter regulated in terms of the
Criminal Procedure Act or
in terms of any other criminal procedural
law. I have made reference to the
Superior Courts Act because
not all
aspects of the present application and forthcoming appeal are
regulated by the
Criminal Procedure Act or
any other criminal
procedural law.
19.
A
question is what test to apply when considering an application for
leave to appeal such as the present. The
Criminal Procedure Act does
not set out the test which is applicable. For many years, at common
law, which I take to be a form of “criminal procedural
law ”
as set out in
section 1
of the
Superior Courts Act, an
applicant who
can show reasonable prospects of success is entitled to leave to
appeal.
20.
In
my view the accused has reasonable prospects on appeal against his
convictions and sentences. Given that I am of the view that
the
appeal does not need the attention of the SCA I need to decide to
which court to direct the appeal. In my view the full bench
of the
Gauteng Division, Pretoria should hear the appeal. I say so for two
reasons. Firstly, the Gauteng Division is “the
provincial
division concerned ” as referred to in
section 315(3)(a)
of the
Criminal Procedure Act, particularly
because during the trial I sat
as a judge of the Gauteng Division. Secondly, even if a circuit court
is a local division as referred
to in
section 315(3)(b)
of the
Criminal Procedure Act (I
make not finding on this point) the appeal
would lie to the full court of the provincial division.
21.
The
appeal itself will be heard after the Minister’s determination.
In my view the determination does not supplant the provisions
of
section 315(3)
of the
Criminal Procedure Act nor was
it intended by
the Minister to do so. It would take an Act of Parliament to alter
the effect of
section 315.
ORDER
1.
The late filing of the application for
leave to appeal is condoned.
2.
The applicant is granted leave to appeal
his convictions and sentences.
3.
Leave is granted to the full bench of
the Gauteng Division, Pretoria.
GC WRIGHT
JUDGE OF THE HIGH COURT,
GAUTENG DIVISION,
PRETORIA
On behalf of the Applicant: Ms MMP Masete
On behalf of the State: Adv. J Van der
Westhuysen
012 351 6722 083 755 4265
Date of Hearing: 18 May 2016
Date of Judgment: 18 May 2016