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[2020] ZASCA 47
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Pretorius v S (705/2019) [2020] ZASCA 47 (4 May 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case no: 705/2019
In the matter between
ANDRE
PRETORIUS
Appellant
and
THE
STATE
Respondent
Neutral
citation
: Pretorius v The State (705/2019)
[2020] ZASCA 47
(4 May
2020)
Coram:
Ponnan, Saldulker, Van der Merwe,
Mokgohloa JJA and Matojane AJA
Delivered:
This judgment was handed down electronically by circulation to the
parties' representatives by email, publication on the Supreme
Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10:00 am on 4 May 2020.
Summary:
Appeal to Supreme Court of Appeal against the refusal in a high court
of a petition seeking leave to appeal against a sentence
imposed in a
regional court – leave to appeal to the high court should have
been granted – merits of the appeal against
sentence to be
determined by the high court.
ORDER
On
appeal from:
Gauteng Division of the High Court, Pretoria
(Louw and Baqwa JJ, sitting as court of first instance):
(a) The appeal succeeds.
(b) The order refusing
the appellant leave to appeal is set aside and is replaced with an
order granting the appellant leave to
appeal to the High Court
(Pretoria) against his conviction on three counts of rape by the
regional court.
JUDGMENT
Ponnan
JA (
Saldulker, Van der Merwe and Mokgohloa
JJA and Matojane AJA
concurring)
[1]
On 13 September 2012 the appellant, Mr Andre Pretorius, was convicted
by the Regional Court, Pretoria of three counts of rape
of his then
step daughter. On 17 January 2013 the appellant was sentenced to an
effective term of 18 years’ imprisonment.
On 13 October 2013
the appellant sought leave from the regional magistrate to appeal to
the High Court against his conviction in
each instance, which was
refused. The appellant then petitioned the Judge President of the
Gauteng Division of the High Court,
Pretoria in terms of s 309C of
the Criminal Procedure Act 51 of 1977 (the CPA) for leave to appeal.
On 2 February 2016 the appellant’s
application was dismissed by
Louw and Baqwa JJ. The appellant thereupon petitioned this court for
special leave to appeal in terms
of s 16(1)(
b
) of the Superior
Courts Act 10 of 2013 (the SCA), which succeeded on 10 June 2019
before the two judges of this court who considered
the application.
[2]
It is necessary at the outset, to say something about the scope and
ambit of the present appeal.
In
S v Khoasasa
,
[1]
after a
detailed analysis of the relevant provisions relating to appeals,
this court concluded that a refusal of leave to appeal
by two judges
of the high court constitutes a ‘judgment or order’ of
that court on appeal to it. Thus, where leave
to appeal has been
refused by the high court circumstances such as these, the only order
appealed against is the refusal of leave
and not the appeal on the
merits, with the result that this court cannot, upon the granting of
special leave, decide the merits
of an appeal that has not yet been
considered by the High Court.
[2]
[3]
It follows, that the issue to be decided presently is whether leave
should have been granted by Louw and Baqwa JJ, to the appellant,
to
appeal to the high court and not the appeal itself. The test in this
regard is this simply whether there is a reasonable prospect
of
success in the envisaged appeal.
[3]
[4]
In heads of argument filed with this court, it was contended on
behalf of the appellant that two key witnesses for the prosecution,
the complainant and her friend, both of whom were minors, had not
been properly placed under oath or admonished to speak the truth
in
terms of ss 162, 163 and 164 of the CPA. Accordingly, so it was
contended, the testimony of both witnesses lacked the status
and
character of evidence and was thus inadmissible.
[4]
Moreover, and in addition to the aforesaid point
in
limine
,
various misdirections on the part of the regional magistrate were
alluded, culminating in the submission that the court had erred
in
concluding that the appellant was indeed guilty beyond a reasonable
doubt.
[5]
That was met in the heads of argument filed by counsel for the State,
as follows:
‘
. . . There is a
sound, rational basis for the conclusion that there are prospects of
success on appeal in respect of both the point
in limine
and
whether on equal inspectors of the evidence as a whole the state has
proven its case beyond reasonable doubt.
. . .
It is therefore
respectfully submitted that the appellant has made out a compelling
case that he has reasonable prospect of success
on appeal.’
In
my view, those concessions by counsel for the State were fairly and
properly made.
[6]
It remains to record that both counsel were agreed that this appeal
could be disposed of without the hearing of oral argument
in terms of
s 19(
a
)
of the SCA.
[5]
[7] In the result:
(a) The appeal succeeds.
(b) The order refusing
the appellant leave to appeal is set aside and is replaced with an
order granting the appellant leave to
appeal to the High Court
(Pretoria) against his conviction on three counts of rape by the
regional court.
_____________________
PONNAN
JA
JUDGE
OF APPEAL
Appearances
For
appellant: F van As
Instructed
by: Justice Centre Local Office, Pretoria
Justice
Centre Local Office, Bloemfontein
For
respondent: AP Wilsenach
Instructed
by: Director of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein.
[1]
S v Khoasasa
2003
(1) SACR 123
(SCA); [2002]
4
All SA 635 (SCA).
[2]
S v
Matshona
[2008] 4 All SA 68 (SCA); 2013 (2) SACR 126 (SCA).
[3]
S v
Kriel
2012
(1) SACR (1) (SCA) para 12.
[4]
S v
Matshivha
2014
(1) SACR 29
(SCA) paras 10 and 11.
[5]
Section 19(
a
)
provides: ‘The Supreme Court of Appeal or a Division
exercising appeal jurisdiction may, in addition to any power as may
specifically be provided for in any law - dispose of an appeal
without the hearing of oral argument.