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[2008] ZAWCHC 107
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Van Der Merwe v S (A449/07) [2008] ZAWCHC 107; 2009 (1) SACR 673 (C) (30 May 2008)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: A449/07
In
the appeal of:
CHRISTIAAN
VAN DER MERWE
Appellant
and
THE
STATE
Respondent
JUDGMENT
DELIVERED ON 30 MAY 2008
E
JSSTEYN AJ:
[1]
This is a judgment on a point raised
in
limine
when
the appeal was first argued in this court on 18 April 2008 before us.
[2]
The relevant facts that gave rise to such appeal were that the
appellant was convicted in the Regional Court Parow on 4 counts
of
indecent assault and was sentenced to effectively 12 years
imprisonment; leave to appeal however was granted only on sentence
but not conviction by this division in terms of s 309C(7)(a) of the
Criminal Procedure Act 51 of 1977 ("the Act").
The
appellant sought leave to appeal against the conviction and sentence
when he petitioned this division.
[3]
After perusing the record Moosa J and I, both had serious
reservations regarding the conviction. We requested counsel to argue
at the hearing of the 18
th
April 2008
in
limine
whether
this court had the necessary jurisdiction to interfere with the
conviction, bearing in mind that two judges of this division,
after
perusal of the record, had decided that leave to appeal should be
granted only against the sentence imposed.
[4]
At the time of argument on the point
in
limine
we
were of the view that the appellant should no longer be detained. The
appellant was then released, conditionally on R2 000.00
(Two thousand
rand) bail pending the outcome of this judgment. Counsel acting for
Mr van der Merwe confirmed that the amount is
within the means and
resources of the appellant.
[5]
Applications for leave to appeal from the lower court to the High
court are governed by s 309 of the Act which provides that
an accused
may, subject to leave to appeal being granted in terms of s 309B or s
309C of the Act, appeal against conviction and
sentence. The right to
appeal in a criminal matter is therefore not unlimited except where
the convicted person was at the time
of the commission of the
offence:
"(i)
below the age of 14 years;
(ii)
at least 14 but below the age of 16 years and was not assisted by a
legal representative at the time of conviction in a regional
court;
and
(iii)
was sentenced to any form of imprisonment as contemplated in s 276
(1) of the Act, that was not wholly suspended."
1
The
categories listed in s 309(1 )(a) are not applicable to the
appellant. Whether these excepting provisions of the section
discriminate
against the appellant or infringes upon his right to
equality
2
as provided for in the Constitution of the Republic of South Africa,
1996 ("the Constitution") is not a matter I need
express an
opinion on at this point.
[6]
Where an application in terms of s 309B is refused by a lower court,
the accused may by way of the petition apply to a Judge
President of
a High Court having jurisdiction to grant the application in terms of
s 309C(7)(a).
[7]
Section 309C(5)(a) of the Act provides:
"...
that a petition contemplated in this section must be considered in
chambers by a judge designated by the Judge President;
Provided that
the Judge President may, in exceptional circumstances, at any stage
designate two judges to consider such petition".
[8]
In accordance with the rule laid down in
Shinga
v the State and another (Society of Advocates, Pietermaritzburg Bar,
as Amicus Curiae); O'Connel and Others v The State(1)
1
the
legal position now is to appoint two judges to consider each and
every petition submitted in terms of s 309(C) of the Act in
chambers.
In the appellant's case it was no different and two judges of this
division decided on the merits of his petition and
granted leave only
against the sentence imposed.
[9]
I will now turn to deal with the arguments raised and other issues
relevant to the point
in
limine
to
consider whether this court has the jurisdiction to consider an
appeal against conviction in circumstances where leave to appeal
was
granted only against sentence.
[10]
Generally the right of appeal must be exercised against the
background of existing legislation.
4
When dealing with appeals it should always be borne in mind that in
terms of the provisions of the- Act, different procedures apply
to
appealing against convictions in the lower court as opposed to
convictions by the Superior Court. There is a plethora of statutory
provisions, cases and views of different scholars on this topic, so
much so that one has to tread cautiously not to loose your
way in the
legal labyrinth.
[11]
In S
v
Langa en Andere
5
the
Supreme Court of Appeal held that a court of appeal lacks
jurisdiction to consider any appeal against conviction in
circumstances
where leave to appeal was granted only against
sentence.
6
In 2003 the Supreme Court of Appeal in S
v
Khoasasa
2
held
that the refusal of two Judges of a Provincial Division, to grant
leave to appeal, sought by way of a petition in terms of
s 309C of
the Act, is a ruling of the Court of the Provincial Division as
intended in s 20(1) and s 21(1) of the Supreme Court
Act 59 of 1959.
In S
v
Khoasasa,
supra,
at 131G-H, Streicher JA, with reference to the nature of the
prescribed process in terms of s 309C of the Act, stated the
following:
[19]
Die aansoek om verlof om te appelleer teen 'n skuldigbevinding of
vonnis in '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 appel 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 appel 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 appel
na horn gegee is, soos
bepaal in art 20(4)."
3
[12]
It was argued by counsel for the appellant that this court by way of
its inherent jurisdiction has the necessary jurisdiction
to hear the
appeal against conviction. Another argument advanced was that this
court has statutory and inherent review jurisdiction
to deal with the
matter. Lastly it was argued that this court should rely on its
expanded jurisdiction in terms of s 173 of the
Constitution
9
to entertain an appeal against conviction when such leave against
conviction had not been granted in terms of s 309C of the Act.
Each
of these will be considered.
Inherent
Jurisdiction
[13]
The essential question to be considered is whether this court does
have such power to interfere with a conviction based on
its inherent
jurisdiction as provided for in ss 19(1)(a) and 19(3) of the Supreme
Court Act 59 of 1959, when leave to appeal against
such conviction
was not granted by two judges of this Division. Inherent jurisdiction
has been defined at times as jurisdiction
which is 'general and
unlimited unless cut down or forbidden by law.'
10
For
a discussion of the constitutional provisions applicable to reviews
and appeals, see N Steytler 'Constitutional Criminal Procedure
- A
commentary on the Constitution of the Republic of South Africa, 1996'
(Butterworths) 1998 at 391 et seq.
See
S
v
Sefatsa
1989
(1) SA 831
(A)at832C-F. For a discussion of inherent jurisdiction see
Van Winsen et al 'Civil Practice of the Superior Courts in South
Africa'
4
th
ed at 33 et seq and the statement by Botha J in
Moulded
Components and Rotomoulding South South Africa (Pty) Ltd v
Coucourakis and Another 1979
(2)
SA457 (W) at 463A that... the Court will exercise an inherent
jurisdiction whenever justice requires that it should do so.'
[14]
Our courts have, however, always dealt with appeals within the four
corners of existing legislation. In S
v
Matshoba and Another"
Galgut
AJA
at
677
H,
in
dealing with s 363(2) of Act 56 of 1955,
4
held that the words in the aforementioned sub-section preclude the
Appeal Court from expanding the ambit of an appeal against the
sentence so as to include an appeal against the conviction. I am
mindful of the statement by the learned judge, that pointed to
the
possibility of an expanded jurisdiction:
I
pause
to say that it may well be that in an exceptional and proper case the
Appeal Court, being as it is the ultimate Court of the
land, might
decide to assume jurisdiction not expressly provided for in the
Statute. I express no opinion".
[15]
More recently, however, in S
v
Zulu'
5
the
Supreme Court of Appeal held that a court has no jurisdiction to act
contrary to the statutory powers under which it operates.
6
In S
v
Fourie
7
it was held that the power of a Superior Court to regulate its
procedure does not include the power to hear a matter which is not
the proper subject of the appeal, moreover it reaffirmed the notion
that the Court's appellate jurisdiction is not an inherent
jurisdiction. In S
v
Gentle,
16
however,
Knoll
J
referred
to s 168 of the Constitution, 1996 and held:
"In
my view inasmuch as s 168(3) of the Constitution has been held not to
have changed the position that the Supreme Court
of Appeal's
appellate jurisdiction is not an inherent one, (S v Fourie (supra),
so also did s 169(b) of the Constitution not change
the position with
regard to a High Court's appellate jurisdiction".
17
[16]
Matjila
v DPP, Transvaal Provincial Division
18
dealt
with an application for leave to appeal and an application to amend
the grounds for leave to appeal in terms of ss 316(1)
and (3) and s
317 after leave to appeal was refused.
Jordaan
AJ
held
that there is a long line of cases in our law which indicates that
once an application for leave to appeal has been refused
a subsequent
2003
(1) SACR 395
(C). Also see S
v
Gentle
(1)
SACR 420 (SCA) at 425h -i, where the Supreme Court of Appeal held
that leave to appeal against conviction was required where
the
accused had been sentenced by the High Court in terms of the
Criminal
Law Amendment Act 105 of 1997
.
See
S
v
Gentle
2003(1)
SACR 395 (C) at 402c -d.
2002
(1) SACR 507
(T).
new
application for leave to appeal cannot be entertained by the Court
which refused the application for leave to appeal.
19
[17]
I am not persuaded that jurisdiction can be assumed by the High
Court's inherent jurisdiction powers in this matter.
20
Review
jurisdiction
[18]
I turn now to deal with the argument that relied on this court's
inherent and statutory review powers. These are the types
contemplated by ss 302
21
and 304 of the Act and the types listed in terms of s 24 of the
Supreme Court Act 59 of 1959.
22
My clear view is that a provincial division, unlike the Supreme Court
of Appeal, is in a position to exercise at times not only
its appeal
jurisdiction as provided for by statute but could also exercise its
See
S
v
Shezi
1984
(2) SA 577
(N) where the Natal Division held that in instances of
grave injustices the Supreme Court should exercise its inherent
power to
set a conviction aside.
s
302 of the Act provides for an automatic review process and will not
be discussed since it is not applicable to the present case.
See
comments of Bekker et al 'Criminal Procedure Handbook' 7
th
ed (Juta) 2005 at 304 where the authors state that hearing a review
in terms of s 24 of the Supreme Court Act is confined to the
relevant
provisions, strictly formal and expensive in its execution.
review
jurisdiction in terms of s 304(4) of the Act. As stated in S
v
Zulu,
by
Cloete JA:
"This
Court cannot, as is frequently done in Provincial divisions in cases
which have merit but are not properly before the
Court on appeal,
deal with the matter on review in terms of s 304(4) of the Act: those
powers are limited to Provincial and Local
Divisions"
24
[19]
In S
v
Mwambazi
25
the
Court provided a good explanation of when a specific procedure, i.e.
appeal or review, would be apposite. The Court stated as
follows:
"Proceedings
of any magistrate's court can be brought before the High Court of
Namibia by way of appeal or by way of review,
depending on the nature
of the complaint Where an accused complains about his conviction or
sentence, he should approach the High
Court by way of appeal, but
where his complaint is about an irregularity involved in arriving at
the conviction, the best procedure
is to bring his complaint by way
of review. Should he wish to bring an appeal as well as review
proceedings, he can do so simultaneously
and both can be set down
before the same Court on the same day. In
Ellis
v Morgan; Ellis v Dessai
1909 TS 576
at 581
Mason
J
said:
Section
304(4) of the Act is generally referred to as the extraordinary
review procedure.
At
para 8.
1991
(2) SACR 149
(Nm).
'But
an irregularity in proceedings does not mean an incorrect judgment;
it refers not to the result, but to the methods of a trial,
such as,
for example, some high-handed or mistaken action which has prevented
the aggrieved party from having his case fully and
fairly determined.
"
£e
[20]
In the arguments addressed to us much reliance was placed on the
court's review jurisdiction and more specifically the powers
in terms
of s 304(4) of the Act which provides as follows:
"If
in any criminal case in which a magistrate's court has imposed a
sentence which is not subject to review in the ordinary
course in
terms of section 302 or in which a regional court has imposed any
sentence, it is brought to the notice of the provincial
or local
division having jurisdiction or any judge thereof that the
proceedings in which the sentence was imposed were not in accordance
with justice, such court or judge shall have the same powers in
respect of such proceedings as if the record thereof had been laid
before such court or judge in terms of section 303 or this section."
I
am in agreement that s 304(4) of the Act is designed to intervene,
especially where a failure of justice is brought to a court's
attention in respect of a judgment of an inferior court.
8
An examination ofthe review provisions and the jurisprudence relating
to a High Court's powers to intervene in terms of s 304(4)
reveals
ample authority that real and substantial justice should always
prevail over strict adherence to legal principle. (See
S
v
Kubheka
9
and
Hansen
v The Regional Magistrate, Cape Town and Another
10
).
In
dealing with a High Court's inherent power to review,
Van
Dijkhorst
AJ,
as he then was, stated in S
v
Mametja
11
"[l]n
these circumstances review proceedings are possible in terms of this
Court's inherent power to restrain illegalities
in inferior courts.
Having said this it should immediately be stated that, as set out in
Walhaus
v Additional Magistrate, Johannesburg
1959
(3) SA 113
(A) at 119 and 120, this power should be sparingly
exercised."
12
[21]
In my view this court will not have the jurisdiction to exercise its
review powers if the decision taken by the two judges
in dealing with
the petition is considered to be judicial in nature. The SCA in S
v
Khoasasa supra
at
para [11] at 130d-e ruled that a decision in terms of s 309C of the
Act is a ruling or judgment of a Provincial
Division
as intended in ss 20(1) or 21(1) of the Supreme Court Act 59 of 1959
meaning that the decision is judicial in nature.
13
[22]
Once it has been established that the decision of the two judges upon
the petition was judicial in nature, then I am bound
by the decision
of
Portland
Cement Co Ltd and Another v Competition Commission and Others
14
where
the Court had held that it was only the proceedings of inferior
courts which could be reviewed and that proceedings of the
High Court
are not reviewable.
15
'Expanded'
jurisdiction
[23]
Having found that this Court does not have inherent or review
jurisdiction as argued, I now deal with the argument that this
court
should exercise its powers in terms of the Constitution. In
consideration of this 'expanded' jurisdiction I have considered
what
Froneman
J
stated
in
Pohlman
and Others v Van Schalkwyk and Others:
16
"Where
previously the inherent powers of superior Courts were developed
under the common law to control, amongst others, the
exercise of
public power and also its own process, these are now regulated by the
Constitution (cf Pharmaceutical Manufacturers
Association of SA and
Another: In re Ex parte President of the Republic of South Africa and
Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC)
(2000 (3) BCLR 241)
para [41]). The
practical reason is that s 173 allows for the inherent power of the
Court to be used by taking into account
'the
interests of justice
'.
It appears to me that this provision allows for flexibility and
builds upon the previous superior Courts' inherent powers - powers
which in cases of this kind were expressly stated to be exercised 'in
the interests of the proper administration of justice' (per
Corbett
JA (as he then was) in Universal City Studios Inc and Others v
Network Video (Pty) Ltd
[1986] ZASCA 3
;
1986 (2) SA 734
(A) at 754G - 755E; cf Knox
D'Arcy and Others v Jamieson and Others (supra)."
(My
emphasis)
In
Hansen
Davis
J
held
that s 173 of the Constitution confirmed a concept of inherent
jurisdiction which promotes the interests of justice within
the
context of the values of the Constitution. Furthermore that such
jurisdiction is a wider concept than that provided for in
ss 19
(1)(a) and 19(3) of the Supreme Court Act 59 of 1959 which formed the
basis of the analysis of inherent jurisdiction in
Sefatsa.
36
[24]
Although I am in agreement with the view held by
Davis
J
in
Hansen
I
am of the opinion that Hansen's case is distinguishable from the
present matter. While I am in support of the view that s 173
of the
Constitution does expand the jurisdiction of the Supreme Court, I am
not convinced that the provision confers additional
rights on the
High Court to grant leave to appeal over and above the clear
provisions and processes created by the statutes and
the various
Rules of Court.
[25]
What then of the appellant's fair trial rights in terms of the
Constitution and in particular Section 35(3)(o) which provides
as
follows:
"Every
accused person has a right to a fair trial, which includes the right-
(o)
of appeal to, or review by, a higher court."
In
my view the rationale for a provision like s 35(3)(o) of our
Constitution is of vital importance in ensuring that a reasonable
procedure exists to correct errors that occur at the trial. There
clearly rests a constitutional duty on High Courts to protect
each
and every appellant's fundamental rights and that includes the right
to a fair trial as provided for by s 35(3) of the Constitution.
[26]
Given the circumstances of this case, I am not convinced that no
reasonable procedure exists, to address any error made by
the
regional magistrate at the trial, and henceforth that there is a need
for this court to look at s 173 of the Constitution to
find expanded
jurisdiction to correct any trial error.
[27]
To my mind the provisions of the Constitution should be resorted to
by an appellant in instances where the absence of an appeal
would
result in a failure of justice and no remedy exists to protect the
infringed right of the appellant. The appellant like any
appellant
who considers that their rights have been violated is entitled to
seek a remedy to address such infringement but such
remedy should be
sought in the appropriate forum.
[28]
In S
v
Steyn
37
the
Madlanga
AJ,
in
dealing with the constitutionality of 309B of the Act, said the
following:
"In
a substantial number of criminal cases, convictions result in prison
sentences. During its term, imprisonment brings the
liberty of the
individual to a halt. It also impacts on the individual's dignity.
Therefore, it cannot be overemphasised that before
this happens,
there
must be procedural checks and balances of such a nature that wrong
convictions and inappropriate sentences are reduced to
the barest
minimum
:
an appropriate reassessment mechanism is an important cog in this
scheme of things. For it to serve the desired purpose
,
the appeal procedure must be suited to the correction of error
.
Where (as in the magistrates' courts) the potential for error is
greater, the threshold of what accords with fairness cannot
appropriately be pitched at a similar level as in the procedure for
appeal from High Courts. In those foreign jurisdictions where
restrictive appeal procedures have been introduced, the restrictions
have little to do with the self-evident truth that a less
restrictive
appeal procedure is more likely to lead to the discovery of error
than a restrictive one".
(My
emphasis)
[29]
A review of all the statutory provisions dealing with appeals from
the lower courts to the High Courts shows that there are
sufficient
procedural checks in place to deal with wrong convictions and
inappropriate sentences. In my view it is not a matter
of legislative
shortcomings that has resulted in the appellant's present dilemma but
rather his failure to appeal against the 'ruling'
of the two judges
who considered the petition.
[30]
After careful consideration of all the relevant issues it is my view
that there is no power conferred upon us, either by statute
or
inherently, to deal with the question of conviction where leave to
appeal was granted to deal only with sentence by this division.
If
the legislature had intended for this Court to have such special
jurisdiction in terms of s 309C, it would have accordingly
and
expressly provided for such jurisdiction.
[31]
The finding that we have no jurisdiction to grant leave to appeal
against conviction however, does not close the door to the
appellant
seeking relief from a higher tribunal. If the appellant is convinced
that his conviction was not in accordance with the
law and
dissatisfied with the decision of the two judges of this division in
only granting leave against sentence, his proper recourse
is to
petition the President of the Supreme Court of Appeal. Such procedure
is provided in s 21 of the Supreme Court Act.
38
See
s 21 of the Act that provides as follows:
"(1)
in addition
(2)
The
leave of the appellate division to appeal referred to in
subsection
(4) of section 20 may be granted by it on application
made to it within
21 days, or such longer period as may on good
cause be allowed,
after the judgment or order referred to in
paragraph (a) of that
subsection against which appeal is to be
made, was given or after
the court referred to in paragraph (b) of
that subsection refused leave
to appeal, as the case may be.
(3)
(a)
An application to the appellate division under subsection (2)
shall
be submitted by petition addressed to the Chief Justice,
(b)
The petition shall be considered by two judges of the appellate
division designated by the Chief Justice, and in the case
of a
difference of opinion, also by the Chief Justice or any other such
judge so designated.
In
the result, the following order is made:
The
appeal of the appellant is postponed sine die.
The
petition by the appellant, Christiaan van der Merwe, for leave to
appeal against his conviction, is to be addressed to the
President
of the Supreme Court of Appeal within 21 days from date hereof or
within such further period as the President of the
Supreme Court of
Appeal may allow.
The
application for leave to appeal should be proceeded with in
accordance with the Rules of the Court.
The
appellant's bail is extended on the same conditions as ordered on 18
April 2008.
E
J S STEYN
Moosa
J: I agree, it is so ordered.
E. MOOSA
1
2007
(4) SA 611 (CC).
2
2003
(1)SACR 123 (SCA).
3
At
para 19.
4
Section
363(2) of the Previous
Criminal Procedure Act provides
as
"2.
Upon
an appeal under
s 363
against any sentence, the court of appeal may
confirm the sentence, or may delete or amend the sentence and impose
such punishment
as ought to have been imposed at the trial."
5
2003
(2) SACR 22
(SCA).
6
See
S
v
Phakati and Another
2005
(2) SACR 361
(W) that confirms this approach.
7
2001
(2) SACR 118
(SCA).
8
See
S
v
Eli
1978
(1) SA 451
(E) and S
v
Mafu
1966
(2) SA 240
(E) at 241 where
O'Hagan
J
with
reference to extraordinary review powers stated as follows:
"where
the interests of justice clearly require the intervention of this
Court we will not hesitate to exercise the powers
conferred by
s
98(4).
"
9
28
1999
(1) SACR 65 (W).
10
1999
(2) SACR 430
(C).
11
1979
(1) SA767 (T).
12
At768E-F.
13
Before
judgment was delivered on 30 May 2008, the decision of the SCA in
Matshona
v The State
(509/2007)
[2008] ZASCA 58
(28 May 2008) came to my notice on the 29
th
May, which confirms this reasoning at para 4 of the judgment.
14
2003(2)
SA 385 (SCA).
15
Ibid
at
401G
-402C. It is clear that the Pretoria Portland decision reaffirmed a
principle of law set forth in
Gentiruco
AG v Firestone SA (Pty) Ltd
1972
(1) SA 589
(A) at 601E-F.
16
2001
(1)SA 690(E) at 697C-F.