About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2009
>>
[2009] ZANCHC 25
|
|
Stallenberg v S (RC 37/04) [2009] ZANCHC 25 (8 May 2009)
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
IN THE HIGH COURT OF
SOUTH AFRICA
(Northern Cape
Division)
Case
Nr:
APPEAL
NO: 1 /2009
CASE NO:RC
37/04
Case
Heard:
04/05/2009
Date
delivered:
08/05/2009
In
the matter between:
D
A St
allenberg APPELLANT
and
The
State
RESPONDENT
Coram:
Majiedt J et Henriques AJ
JUDGMENT
Henriques
A
J:
The
Appellant was convicted
in
the Kuruman Regional Court on 31 October 2005 of assault with intent
to cause grievous bodily harm and possession of an explosive
device.
He was sentenced to 5 years imprisonment of which two years were
suspended for a further period of five years.
He
subsequently
sought leave to appeal against such conviction and sentence which
application was refused. He then petitioned this
Court. The petition
was drafted by the Appellant without the benefit of legal
representation and dealt with the conviction only.
I may add that
letters addressed by the Appellant to the Clerk of Court Kuruman
referred to an intention to petition both on
conviction and
sentence. On 23 October 2008, after having considered the petition
and the record of the proceedings, Majiedt
J and Williams J granted
the Appellant leave to appeal against sentence only.
Prior
to hearing argument on the appeal and on receipt of the heads of
argument it became clear that the Appellant intended arguing
the
appeal on both conviction and sentence. In view of the fact that we
were of the view that we could only deal with the appeal
in respect
of sentence, Majiedt J addressed a letter to the Appellantâs
attorneys of record, in which the Appellant was requested
to show
cause why this Court was not
de
jure functus
officio
in
respect of the conviction.
In
her heads of argument, and at the
hearing of the matter, Advocate Mabaso who appeared on behalf of the
State, argued that having granted leave to appeal only against
sentence this court had no jurisdiction to deal with the appeal. She
further submitted that there were no reasons to interfere
with the
sentence imposed.
Advocate
Strydom, who appeared for the Appellant, sought to persuade us that
we could in fact consider the appeal against conviction
as well as
sentence. In this regard he referred us to the judgment of the
Supreme Court of Appeal in
Bongani
Phillip Vilakazi v The State
,
delivered on 2 September 2008. Such case dealt with an appeal
against a sentence on a charge of rape in terms of the
Criminal Law
Amendment Act, 105 of 1997
. Leave to appeal had been granted only in
respect of sentence.
In
addition he argued that this Court now had the benefit of
submissions by a legal representative which were not available at
the time of the petition being considered. In his heads of argument
he submitted that as the Appellant had already served his
sentence,
no purpose would be served to hear the appeal only on the question
of sentence.
We
were specifically referred to paragraph 8 of the
Vilakazi
judgment as the basis for us to consider the current appeal on
conviction, which reads as follows:
â
Although
leave to appeal was granted only against sentence Mr de Meillon
properly accepted that the appeal might be broadened to
include the
conviction if upon reflection on the evidence we were to be of the
view that the appellant should not have to been
convicted.
â
What
is of importance is the footnote to the paragraph which reveals that
the record of the trial was not before court when the
petition was
considered. It is this factor which makes Vilakaziâs case
distinguishable from the present one. It is apparent
that when the
petition was considered by this Court, the entire record of the
trial together with the Magistrateâs judgment
was available and
considered.
Section
309C of the Criminal Procedure Act
,
51 of 1977 deals with the petition procedure where leave to appeal
has been refused by a lower court. The section provides for
a
petition to be considered by a Judge of a division designated by the
Judge President.
Following
the decision in
Shinga
v The State and Another (Society of Advocates(Pietermaritzburg Bar)
Intervening as
Amicus
Curiae)
;S
v OâConnell and Others
2007 (2) SACR 26
(CC)
two Judges of a Division consider a petition.
In
the event of the petition being unsuccessful a party has recourse to
the provisions of section 21 of the Supreme Court Act
and can
petition the President of the Supreme Court of Appeal.
There
does not appear to be any statutory provision which allows
this
Court to deal with the question of conviction where leave to appeal
was only granted against sentence. This view is reinforced
having
regard to Du Toit, Commentary on the Criminal Procedure Act, and
having considered the judgment in
Van
der Merwe v The State
[2008] JOL 22155.
Steyn
AJ, as she then was, and Moosa J had to consider the very same
issue-in that matter leave to appeal had been granted against
sentence only. I am in agreement with such decision and it would
appear that this court does not have any review powers or inherent
jurisdiction to deal with a conviction where leave to appeal had not
been granted in respect thereof.
It
would thus appear that this Court is
functus
officio
in regard to the appeal against the conviction.
We
were also referred to a number of other decisions by Advocate
Strydom which after having considered same, I am of the view
do not
apply in this instance as in as much as a Court can amend,
supplement or alter its judgment the substance thereof must
remain
the same.
Advocate
Strydom
conceded during argument that the decision in
Van
der Merwe v The State
was of application but urged us not to rely on it, but to rather
rely on
Vilakazi
.
I
cannot agree with this submission. As I already indicated Vilakaziâs
decision is distinguishable
.
In addition two judges of this division after having considered the
full record and judgment granted the Appellant leave to
appeal only
against sentence.
I
am therefore of the view that this Court is
functus
officio
in
relation to the conviction as leave to appeal was not granted.
The
Appellant is not without remedy and he can petition the Supreme
Court of Appeal. He may very well be successful in doing
so in
light of the submissions which Advocate Strydom has raised in his
heads of argument.
I
n
light of that fact that the Appellant has already served his
sentence (he in fact attended the hearing of this matter) and in
light of the fact that Advocate Strydom did not pursue the appeal
against sentence, it is not necessary to consider the appeal
against
sentence save to say that the sentence may have been harsh given the
circumstances.
Accordingly
,
I make the following order:
The appeal is struck
from the roll as this Court is functus officio in relation to the
appeal against conviction.
________________________
J I HENRIQUES
ACTING
JUDGE
NORTHERN CAPE
DIVISION
I agree:
________________________
S A MAJIEDT
JUDGE
NORTHERN CAPE
DIVISION
For the
Plaintiff:
Adv
K Strydom
Instructed
by:
Engelsman
Magabane Inc, KIMBERLEY
For the
Respondent: Adv J Mabaso
On
behalf of
: Director
of Public Prosecutions, KIMBERLEY