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[2009] ZAGPJHC 48
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Gardiner v S (A243/09) [2009] ZAGPJHC 48 (10 September 2009)
IN THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO: A243/09
In the matter between
RICHARD JAMES
GARDINER
APPELLANT
and
THE STATE
RESPONDENT
J
U D G M E N T
TSOKA J:
[1] On 10 August
2004 the appellant was convicted
in
the Regional Court sitting in Wynberg on all together six charges,
including robbery with aggravating circumstances. He was sentenced
to
an effective term of imprisonment of 17 years.
[2] On 10 May
2005, in terms of s 309(B) of the Criminal Procedure Act 51 of 1977
(the Act), the appellant applied to the trial
court for leave to
appeal against his convictions and sentences. The application was
refused.
[3] In terms of
s
309(C) of the Act, the appellant petitioned the Judge President of
this Division for leave to appeal which was considered by Willis
J.
On 22 June 2005 Willis J granted the appellant’s petition for
leave to appeal against the sentences, but refused leave
to appeal
against the convictions.
[4] The appellant’s
appeal against sentence proceeded and was heard on 26 February 2008
by Tshiqi J and Hoffman AJ. The appeal
was upheld. The sentences
imposed by the trial court were reduced
inter
alia
to an effective term of 5 years imprisonment and the appellant’s
immediate release from prison was ordered.
[5] The appellant
in the meanwhile launched an application for leave to appeal against
Willis J’s order of 22 June 2005. On
21 January 2009 the
learned Judge granted leave to appeal in the following terms:
The
applicant is granted leave to appeal against the order of this Court
(in terms of
Section 309C
of the
Criminal Procedure Act, No.51 of
1977
as amended) dismissing the Applicant’s leave to appeal on
convictions on 22
nd
June 2005.
The
appeal is directed to the Full Bench of this division.
The
Court hearing the appeal is called upon to consider and give
judgment on whether there are reasonable prospects of success
on an
appeal against convictions.
In
the event of the Court hearing the appeal referred to in 2 above,
finding that such reasonable prospects of success on appeal
against
convictions exist, the Court is called upon, in the exercise of its
inherent jurisdiction, to consider hearing and disposing
of the
appeal immediately.
This is the appeal
presently before us.
[6
]
Prior to the hearing of the appeal counsel were requested to file
supplementary heads of argument on the question whether Willis
J was
competent to grant the appellant leave to appeal to this Court. In
the view I take of the matter it is only necessary to
decide this
issue.
[7
]
In terms of s 309(C)(5)(a) of the Act, and on 22 June 2005, a
petition was considered by a single judge designated by the Judge
President. Since the decision in
Shinga
v The State and Another (Society of Advocates (Pietermaritzburg Bar)
intervening as amicus curiae); S v O’Connell and
Others
2007
(2) SACR 28
(CC)
,
a
petition in terms of this section now has to be considered by two
judges. The petition in this matter was considered prior to
the
decision in
Shinga
by
a single judge. Nothing however turns on this point.
[8] In order to
resolve the issue, it is essential to properly characterize the
function performed by the learned judge when he
granted leave to
appeal to this Court. Failure to properly characterize the function
will inevitably lead to a wrong conclusion.
[9] The starting
point is to consider the provisions of s 20 of the Supreme Court Act
59 of 1959 (the Supreme Court Act). The section
deals with appeals to
the High Court in general, regarding judgments or orders made by
either a provincial or local division. Although
Section 20 deals with
civil appeals, the power of the Supreme Court of Appeal to deal with
appeals from a provincial or local division
in terms of Section 21(1)
of the Supreme Court Act is not limited to civil appeals. It applies
to criminal appeals as well (see
S
v Khoasasa
2003
(1) SACR 123
(SCA),
2002 4 All SA 635
(SCA) para [12]).
Of
relevance in this matter is s 20(4)(b) of the Supreme Court Act. It
provides that no appeal shall lie against an order of a provincial
or
local division, where such leave has been refused, except with the
leave of the Supreme Court of Appeal.
[10] The question
that arise is: Does the order of Willis J of the 21 January 2009 fall
within the provisions of Section 20(4)(b)
of the Supreme Court Act?
[11] This question
was affirmatively answered in
S
v Khoasasa
supra,
where Streicher JA, writing for the court, put it thus-
[19]
Die aansoek om verlof om te appelleer teen ‘n skuldigbevinding
of vonnis van ‘n laer hof gerig aan die Regter-President van ‘n
Provinsiale Afdeling nadat verlof deur die laer hof
geweier is, word
nie in art 309C beskryf as ‘n appél nie maar is nogtans
daarop gerig om ‘n regstelling te verkry
van wat die aansoeker
beskou as ‘n verkeerde beslissing in die laer hof. In effek is
dit niks anders as ‘n appél
teen die landdros se
weiering van verlof om te appelleer nie. Ek is gevolglik van mening
dat die bevel van die Hof benede ingevolge
waarvan verlof om te
appelleer aan die appellant geweier is, ‘n bevel van daardie
Hof is wat op appél na hom gegee
is, soos bedoel in art 20(4).
[12
]
Having regard to the statutes and the case law, the correct procedure
to be followed where leave to appeal against either the
conviction or
sentence or both, was refused, is firstly, to petition the Judge
President of a division for leave to appeal and
secondly, in the
event that such petition for leave to appeal is refused, to petition
the President of the Supreme Court of Appeal
for leave to appeal.
[13] In the present
matter, the appellant followed an incorrect procedure. Willis J had
no jurisdiction to grant the appellant leave
to appeal to the full
Court (see
S
v Zulu
2003
(2) SACR 22
(SCA) para [6]). The order accordingly is a nullity.
There is therefore no proper appeal before this Court. The appeal
ought to
be struck off the roll.
[14
]
In the result the appeal is struck off the roll.
_______________________
M P TSOKA
JUDGE OF THE HIGH COURT
I agree.
________________________
F H D VAN OOSTEN
JUDGE OF THE HIGH COURT
I
agree.
________________________
M JAJBHAY
JUDGE OF THE HIGH COURT
COUNSEL FOR THE APPELLANT ADV
CTH MCKELVEY
COUNSEL FOR
THE RESPONDENT ADV P MARASELA