Gentle and Another v S (A1033/2002) [2003] ZAWCHC 6; [2003] 1 All SA 669 (C) (20 February 2003)

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[2003] ZAWCHC 6
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Gentle and Another v S (A1033/2002) [2003] ZAWCHC 6; [2003] 1 All SA 669 (C) (20 February 2003)

IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NUMBER:
A1033/2002
CORAM:
Selikowitz
et Blignault et Knoll JJ
In
the matter between:
HEINRICH
GENTLE First Appellant
HENDRIK
DE VILLIERS Second Appellant
and
THE
STATE Respondent
JUDGMENT
DELIVERED ON THIS 20
th
DAY OF FEBRUARY 2003
KNOLL
J:
On
the 26
th
of July 2000, the two appellants were charged, before the Regional
Court sitting at Oudtshoorn, with one count of rape. Both appellants
were legally represented. They both pleaded not guilty to the
charge, but after evidence was adduced by the State and both
appellants,
they were found guilty as charged. In finding the
appellants guilty, the magistrate specifically found that each
appellant had raped
the complainant more than once at the time that
the offence was committed. Accordingly, the offence was found to be
one specified
in Part 1 of Schedule 2 ((a) (i) under the sub-heading
“Rape”) of the Criminal Law Amendment Act 105 of 1997 (“the
Act”).
In terms of section 51 (1) of the Act the mandatory
sentence for such an offence is imprisonment for life, unless
“substantial
and compelling circumstances
”
exist that justify the imposition of a lesser sentence. (Section 51
(3) (a) of the Act.) In terms of section 52 (1) (b) (i)of
the Act,
the proceedings were stopped and both appellants committed for
sentence by the High Court.
On
the 12
th
of November 2001, the matter came before Griesel J who was presiding
at the circuit court in Oudtshoorn. He noted that he was satisfied
that the proceedings in the Regional Court were in accordance with
justice. Such a finding is a prerequisite to the sentencing
of the
appellants in terms of section 52 (3) (b) of the Act. He noted
further that the judgment of the Regional Court stood for
the purpose
of sentence.
Griesel
J then proceeded to sentence both appellants; first appellant to 15
years imprisonment and second appellant to 10 years imprisonment.
Both
appellants applied for leave to appeal to Griesel J against their
convictions and sentences. On the same day similar applications
were
brought before the learned judge in four other similar matters. The
learned judge raised the question,
mero
motu,
whether leave to appeal was required in matters referred from a
Regional to a High Court in terms of section 52 (1) (b) (i) of the
Act. He interpreted the provisions of the Act together with the
relevant provisions of the
Criminal Procedure Act No. 51 of 1977
(“The Criminal Procedure Act”) and reached the following
conclusion:-
“
Weens
die bostaande redes kom ek tot die gevolgtrekking dat elk van die
huidige beskuldigdes ́n outomatiese reg van appél teen hul
skuldigbevindings het, maar dat verlof om teen hulle vonnisse te
appelleer ́n voorvereiste is.
Sou
die Volbank van my bogemelde benadering verskil, òf wat die feite òf
wat die reg aanbetref, word geboekstaaf dat ek in elk van
die vyf
aansoeke wat die onderwerp van die huidige uitspraak vorm sodanige
verlof sou geweier het. In daardie geval kan die gebrek
aan verlof
ondervang word deur die uitoefening deur die hof van appél van sy
wye hersieningsbevoegdhede voortspruitend uit die bepalings
van
artikel 309 (3), gelees met artikel 304 (2) van die Strafproseswet.
Dit sou myns insiens wenslik wees vir die onderskeie
regsverteenwoordigers
van die beskuldigdes sowel as die staat om by
voorbereiding vir die appèlle spesifiek met hierdie aspekte te
handel.”
The
application for leave to appeal against conviction, accordingly, did
not succeed and leave was not granted.
The
applications for leave to appeal against the sentences were refused.
This
matter, therefore, comes before us on the basis that the appellants
have an automatic right to appeal their convictions. There
is also a
submission on behalf of second appellant that Griesel J was incorrect
in his finding that leave to appeal was required
for an appeal
against sentence. It is contended that the automatic right of appeal
applies also to the sentence.
Subsequent
to the delivery of the judgement of Griesel J, the Supreme Court of
Appeal considered the issue of whether a question of
law may be
reserved in terms of
section 319
of the
Criminal Procedure Act in
matters referred from the Regional to a High Court in terms of
section 52 (1) (b) (i) of the Act. (
S
v B
2003 (1) SACR 52
SCA at 60 b - 61 f)
.
In so doing, it considered whether the question of law reserved in
that instance could be said to have arisen
“
on
the trial in a superior court
”
as
is required in
section 319
of the
Criminal Procedure Act, given
that
the appellant had been charged in the Regional Court, evidence had
been heard in the Regional Court and he had been convicted
in the
Regional Court, whereafter he had been committed to the High Court
for sentence. The judgment is in Afrikaans and the relevant
Afrikaans wording of
section 319
of the
Criminal Procedure Act reads
“
Indien
́n regsvraag
by
die verhoor van iemand in ́n hoër hof
weens ́n misdryf ontstaan....”
(My underlining).
As
in the instant case, the appellant in
S
v B (
supra
)
had pleaded not guilty. The provisions of the Act relevant to such a
situation read as follows:-
“
52. Committal
of accused for sentence by High Court after conviction in regional
Court of offence referred to in Schedule 2.
- (1) If a Regional Court, following on -
(a)....
(b).... A
plea of not guilty
has
convicted an accused of an offence referred to in -
(i)
Part 1 of Schedule 2 ...
The
court shall stop the proceedings and commit the accused for sentence
as contemplated in section 51 (1) or (2), as the case may
be, by a
High Court having jurisdiction.
(2)
.........................
(3)
(a) Where an accused is committed under sub-section (1) (b) for
sentence by a High Court, the record of the proceedings in the
regional court shall upon proof thereof in the High Court be received
by the High Court and form part of the record of that court.
The
High Court shall, after considering the record of the proceedings in
the regional court, sentence the accused as contemplated
in section
51 (1) or (2), as the case may be, and the judgment of the Regional
Court shall stand for this purpose and be sufficient
for the High
Court to pass such sentence: Provided that if the judge is of the
opinion that the proceedings are not in accordance
with justice or
that doubt exists whether the proceedings are in accordance with
justice, he or she shall, without sentencing the
accused, obtain
from the regional magistrate who presided at the trial a statement
setting forth his or her reasons for convicting
the accused.
If
a judge acts under the proviso to paragraph (b), he or she shall
inform the accused accordingly and postpone the case for judgment,
and, if the accused is in custody, the judge may make such order
with regard to the detention or release of the accused as he or
she
may deem fit.
The
court in question may at any sitting thereof hear any evidence and
for that purpose summon any person to appear to give evidence
or to
produce any document or other article.
Such
court, whether or not it has heard evidence and after it has
obtained and considered a statement referred to in paragraph (b),
may-
confirm
the conviction and thereupon impose a sentence as contemplated in
section 51 (1) or (2), as the case may be;
alter
the conviction to a conviction of another offence referred to in
schedule 2 and thereupon impose a sentence as contemplated
in
section 51 (1) or (2), as the case may be.
alter
the conviction to a conviction of an offence other than an offence
referred to in schedule 2 and thereupon impose a sentence
the court
may deem fit;
set
aside the conviction;
remit
the case to the regional court with instruction to deal with any
matter in such manner as the High Court may deem fit; or
make
any such order in regard to any matter or thing connected with such
person or the proceedings in regard to such person as
the High
Court deems likely to promote the ends of justice.”
In
S
v B (
supra
at page 60 e)
Streicher J.A observed that the trial of an accused embraces an
investigation into the issues in the case as well as a decision in
regard thereto and therefore includes the conviction. The learned
judge of appeal referred to the provisions of section 53 (3)
(a) to
(e) of the Act and concluded as follows, at page 61 c - f:-
“
Uit
hierdie bepalings blyk dit dat die verhoor van ́n beskuldigde wat
deur ́n streekhof vir vonnis na ́n Hoë Hof verwys word nie
afgehandel is nie. Die oorkonde van die verrigtinge in the streekhof
maak deel uit van die oorkonde in die Hoë Hof en indien die
Hoë Hof
van mening is dat die verrigtinge nie ooreenkomstig die reg is nie of
dat twyfel bestaan of die verrigtinge ooreenkomstig
die reg is, kan
die Hof, onder andere, nadat getuienis ingevolge art 52 (3) (d)
aangehoor is, die skuldigbevinding bekragtig, wysig,
of tersyde stel;
die saak na die streekhof terugverwys; of ́n bevel maak wat die
regspleging waarskynlik sal bevorder.
Die
skuldigbevinding in die streekhof is dus, in effek, ́n voorlopige
skuldigbevinding wat finaal word indien dit aanvaar word of
bekragtig
word deur die Hoë Hof. Met ander woorde die Strafregwysigingswet
het ́n spesiale prosedure geskep ingevolge waarvan
die verhoor van
́n beskuldigde in die streekhof begin en in die Hoë Hof afgehandel
kan word
.”
(
My
underlining
)
Accordingly,
the Supreme Court of Appeal held that it was competent to have
reserved a question of law because it had arisen “
on
the trial in a superior court
”.
The
Act was amended in certain respects, with effect from the 23
rd
of March 2001, by the
Judicial Matters Amendment Act No. 62 of 2000
.
It will be noted that the provisions of
section 53
(3) (a) to (e),
referred to by Streicher J.A, have been amended in minor respects.
In my view, the amendments do not affect the
substance of the
provisions in such a way as to make them distinguishable from the
provisions referred to by Streicher J.A when considering
the relevant
issue in
S
v B (
supra
)
and accordingly, the conclusion which he reached, as set out above,
is binding on this court.
The
issue is what effect this judgment has, if any, on the correctness of
the judgment of Griesel J wherein he concluded that the
appellants in
the instant case have an automatic right of appeal against their
convictions.
Griesel
J’s judgment is based on his view that the conviction of the
appellants in the Regional Court was a conviction of an inferior
court and that neither the High Court’s subsequent having to
satisfy itself that the proceedings in the lower court were in
accordance
with justice, nor the High Court’s consequent
non-interference therewith, transformed it into a conviction of a
High Court.
In
terms of the provisions of the
Criminal Procedure Act, different
procedures apply to appealing against convictions in the lower courts
from those applicable to convictions by a superior court.
Section
309
thereof, which relates to convictions in a lower court, does not
limit the right of a convicted person to appeal his conviction to
a
higher forum.
Section 316
thereof, which deals with convictions by a
superior court provides that the convicted person must apply for
leave to appeal to the
provincial or local division concerned and so
limits the automatic right of appeal. Thereafter, where an
application for leave to
appeal is refused by the provincial or local
division the convicted person may petition the Supreme Court of
appeal for such leave.
The decision of the Supreme Court of appeal
is final.
Section
315
(4) of the aforesaid chapter provides that “
an
appeal in terms of this chapter shall lie only as provided in
sections 316
to
319
inclusive and not as of right
”.
Although
sections 315
(4) and
section 316
limit a convicted person’s
automatic right to appeal, it has been held that these sections are
constitutional because the petition
procedure allows such person
recourse to a Higher Court to review the judgment of the trial court,
where leave is not granted. (
S
v Rens
[1995] ZACC 15
;
(1996 (1) SACR 105
(CC)
;
S
v Twala
[1999] ZACC 18
;
1999 (2) SACR 622
(CC))
.
Section
309
(1) (a) of the
Criminal Procedure Act provides
as follows:-
“
Any
person
convicted
of any offence by any lower court
(including a person discharged after conviction), may appeal against
such conviction and against any resultant sentence or order
to the
provincial or local division having jurisdiction
.”
(My underlining)
The
relevant parts of
section 316
(1) (b) of the
Criminal Procedure Act
provides
as follows:-
“
An
accused
convicted
of any offence before a superior court
may, ... apply ... , to the judge who presided at the trial ... for
leave to appeal against his conviction or against any sentence
or
order following thereon...”
(
My
underlining
)
The
jurisdictional fact, which must exist for each section to operate,
which differs in the two sections, is the identity of the court
bringing out the conviction. It is thus highly relevant to determine
whether the conviction of the appellants in the instant case
was that
of a High Court or that of a Regional Court. It is this very
question which the Supreme Court of Appeal decided in
S
v B (
supra
)
.
Accordingly, the premise from which Griesel J proceeded that a
referral in terms of
section 52
(1) (b) (i) did not transform a
Regional Court conviction into a High Court conviction has been found
to be incorrect. As it is
a High Court conviction,
section 316
of
the
Criminal Procedure Act is
the only section that can apply and
accordingly leave to appeal is required.
The
next question that arises is whether this court has the jurisdiction
to entertain the appeals of the appellants, given that no
leave to
appeal was granted on either conviction or sentence.
Where
a trial judge has granted leave to appeal only against sentence but
refused leave to appeal against conviction, the Supreme
Court of
Appeal has held that a court of appeal lacks jurisdiction to consider
any appeal against conviction. (
S
v Langa
1981 (3) SA 186
(A) at 189 E - H
).
It has furthermore held that, where a petitioner seeks leave to
appeal against sentence only and leave to appeal is granted against
conviction as well as sentence, the leave to appeal against
conviction is invalid (
S
v Cassidy
1978 (1) SA 687
(A) at 690 F - 691 A
).
Where a particular statutory provision allows an appeal against a
sentence of death without complying with the provisions of
section
316
of the
Criminal Procedure Act, it
has been held that a court of
appeal does not have the jurisdiction to consider the conviction
unless
section 316
has been complied with. (
S
v Mamkeli
1992 (2) SACR 5
(A)
).
Where leave to appeal against a regional magistrate’s decision was
refused by two judges of a Provincial Division on petition
to them,
and no leave was sought from the latter court to appeal to the
Supreme Court of Appeal against its decision, the Supreme
Court of
Appeal has very recently held that it does not have jurisdiction to
grant such leave or to entertain such an appeal. [
S
v Khoasasa
2003 (1) SACR 123
(SCA)
].
The
decisions in all the above cases are in accord with the view of the
then Appellate Division in
S
v Sefatsa and Others v Attorney General, Transvaal and Another
1989
(1) SA 821
(A) at 834 E
that a superior court’s jurisdiction in criminal matters is
determined by statute i.e. the
Criminal Procedure Act and
any other
relevant statutory provisions as there may be. In that case it was
submitted by the petitioners that a superior court
has inherent
jurisdiction
“
to
regulate its own procedures so as to do justice and to prevent the
abuse of its procedure by a dishonest litigant
”
,
and that a superior court has a jurisdiction which is
“general
and unlimited unless cut down or forbidden by law
”
.
It was held at 833 E - F that “
a
superior court - including this court - is a creature of statute, and
it is not correct to state, as a general proposition, that
it has a
jurisdiction which is general and unlimited unless cut down or
forbidden by law”
.
Furthermore, at page 839 B - C Rabie ACJ, as he then was, observed
that
“(
i)t
hardly needs saying that a court cannot have an inherent jurisdiction
which would entitle it to act contrary to an express provision
of an
act of parliament
”.
Section
315
(4) allows appeals from superior court convictions only within
the confines of
sections 316
-
319
of the
Criminal Procedure Act. In
my view it would be contrary to the express provisions of
section 315
(4) read with
section 316
of the
Criminal Procedure Act if
this
court were to hear an appeal under the circumstances of the instant
case.
Counsel
did not submit that there were, and this court is not aware of, any
statutory provisions, apart from
sections 316
to
319
of the
Criminal
Procedure Act, which
would give this court jurisdiction to hear these
appeals.
In
S
v Fourie
2001 (2) SACR 118
(SCA) at 121 a - c
,
the Supreme Court of Appeal considered the submission that, where an
appellant had been granted leave to appeal against a conviction
of
culpable homicide but had been refused leave to appeal against a
conviction, in the same case, of kidnapping and attempted rape,
the
Supreme Court of Appeal, nevertheless, had the jurisdiction to
consider appeals against the latter two convictions. 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
an appeal. It was reaffirmed that the reason for this is because the
court’s appellate jurisdiction is not an inherent
jurisdiction. It
was further held that section 168 of the Republic of South Africa
Constitution Act 108 of 1996 (“the Constitution”)
did not change
the position.
In
my view, in
S
v Fourie (
supra
)
Mthinyane JA could only have been referring to the provisions of
section 168 (3) of the Constitution when expressing the aforesaid
opinion. Section 168 (3) of the Constitution provides that the
“
Supreme
Court of Appeal may decide appeals in any matter.
...”
There
is no equivalent provision in the Constitution specifying a High
Court’s jurisdiction to hear appeals. Section 169 (a) of
the
Constitution provides for the High Court’s jurisdiction in certain
constitutional matters and subsection (b) thereof provides
as
follows:-
“
A
High Court may decide
.....
any
other matter not assigned to another court by an Act of Parliament.”
In
my view, in as much as section 168 (3) of the Constitution has been
held not to have changed the position that the Supreme Court
of
Appeals’ appellate jurisdiction is not an inherent one, (
S
v Fourie (
supra
)
)
so also did, section 169 (b) of the Constitution not change the
position with regard to a High Court’s appellate jurisdiction.
In
the matter of
Hansen
v the Regional Magistrate, Cape Town and Another
1999 (2) SACR 430
(C)
Davis J expressed the view, with which King JP concurred, that the
judgment in
Sefatsa’s
case
has now to be considered in the light of the provisions of the
Constitution. The learned judge found (at 433 e - g) that section
173 of the Constitution broadened the inherent jurisdiction of the
court
“
in
that it provides that the Constitutional Court, Supreme Court of
Appeal and High Courts have inherent power to protect and regulate
their own process, and to develop the common law, taking into account
the interests of justice. Section 173 of the Constitution
confirms a
concept of inherent jurisdiction which promotes the interests of
justice within the context of the values of the Constitution
”.
Furthermore, he distinguished the case of
Sefatsa
on the facts.
Should
Davis J and King JP be correct, as to which no opinion is expressed,
I am not of the view that, on the facts of the instant
case, section
173 of the Constitution would permit this court to assume
jurisdiction to hear an appeal in circumstances where such
assumption
would be tantamount to ignoring an express statutory provision that
leave to appeal, either from the trial court or the
Supreme Court of
Appeal, is a requirement for a convicted person to pursue an appeal
to this court. The facts of the instant case
are entirely
distinguishable from those in the
Hansen
case (
supra
)
in that an appeal process is still underway in the instant case and a
petition procedure remains available to the appellants.
In
the case of
Moch
v Medtravel (Pty) Ltd t/a American Express Travel Service
1996 (3) SA
1
(A) at 7 E - H
,
Hefer JA held that
“
the
courts ‘inherent reservoir of power to regulate its procedures in
the interests of the proper administration of justice’ ...
does not
extend to the assumption of jurisdiction not conferred upon it by
statute.”
He furthermore held that the court’s inherent power is in any event
reserved for extraordinary cases where grave injustice cannot
otherwise be prevented. Although this was a civil matter, the same
principles as are relevant to criminal matters apply, as may
be seen
by the learned appeal judge’s reference to the matter of
Sefatsa
(
supra
)
,
inter
alia
.
Even were this court to have an inherent jurisdiction to hear the
appeals in this case against conviction, I am not of the view
that it
would be in the interests of justice to do so. It cannot be said
that a grave injustice will be done by virtue of this court
not
hearing the appeals. The appellants have a remedy, in that they are
entitled to petition the Supreme Court of Appeal for leave
to appeal
and seek condonation for the late filing of their applications.
In
conclusion, it is my view that this court does not have the
jurisdiction to entertain the appeals of either appellant against
conviction
or sentence in the circumstances of this matter.
Before
the hearing, counsel were requested by the presiding judge to make
submissions as to the effect of
S
v B (
supra
)
on the correctness of the judgment of Griesel J, as also on the
jurisdiction of this court to hear the appeals. Both counsel for
appellants and the state were in agreement with the conclusions
reached in this judgment in these regards.
Apart
from the issues raised in the application for leave to appeal and the
heads of argument, certain issues which may arise on the
merits, are
noted herein and were drawn to counsels’ attention at the hearing.
These issues are as follows:-
Was
the magistrate’s warning to the minor witnesses, Mario Ewerts and
Daniël Malgas, to tell the truth competent? (Cf.
S
v B (
supra
)
)
What
effect, if any, does the absence of an allegation in the charge of a
rape more than once by each appellant have on the conviction
in the
light of the decision in
S v Legoa
2003 (1) SACR 13
(SCA)?
In
view of the conclusion reached on the jurisdictional point it is
neither necessary nor appropriate to express any opinion on these
issues.
In
the result, in summary, it is my view that the finding by Griesel J
that the appellants have the automatic right to appeal to this
court
against their respective convictions is incorrect in the light of the
subsequent decision of the Supreme Court of Appeal in
S
v B (
supra
)
and, accordingly, leave to appeal in terms of
section 316
of the
Criminal Procedure Act is
required should the appellants wish to
appeal against their convictions.
The
sentence in each case is a
“sentence
... following on
“
a superior court conviction
(Section 316
(1) (b)) and Griesel J was
correct in his finding that leave to appeal is a prerequisite for an
appeal against sentence.
Neither
leave to appeal against conviction nor sentence was granted in either
case and this court, accordingly, has no jurisdiction
to hear either
the appeals against conviction or the appeals against sentence.
In
my view the appeals should both be struck from the roll.
KNOLL
J
I
concur
BLIGNAULT
J
I
concur, and it is so ordered.
SELIKOWITZ
J