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[2020] ZASCA 68
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Chauke v S (807/2019) [2020] ZASCA 68 (18 June 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 807/2019
In
the matter between:
VINCENT
CHAUKE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Chauke v The State
(Case no 807/2019)
[2020] ZASCA 68
(18 June 2020)
Coram:
SALDULKER, MBHA, VAN DER MERWE AND
SCHIPPERS JJA and MABINDLA-BOQWANA AJA
Heard:
Disposed of without the hearing of oral
argument in terms of
s 19
(a)
of the
Superior Courts Act 10 of 2013
Delivered:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by email, publication on
the Supreme Court of Appeal
website and release to SAFLII. The date for hand down is deemed to be
18 June 2020.
Summary:
Criminal law and procedure – application for leave to appeal
against the refusal of a petition by a high court against the
sentence imposed by a regional court – test – whether
there are reasonable prospects of success – leave granted
to
the high court.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Johannesburg (
Nicholls J and Manyathi AJ
sitting
as court of first instance):
1
The appeal succeeds.
2
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
Gauteng Division of the High Court, Johannesburg, against the
sentence imposed on him in the regional court.
JUDGMENT
Saldulker
JA (Mbha, Van der Merwe and Schippers JJA and Mabindla-Boqwana AJA
concurring):
[1]
The appellant was charged in the regional court, Johannesburg
(regional court) with robbery with aggravating circumstances,
read
with the provisions of
s 51
of the
Criminal Law Amendment Act 105 of
1997
. He was convicted as charged, and after the court had found that
there were no substantial and compelling circumstances in his case,
he was sentenced to 15 years’
imprisonment. An application for leave to appeal to the high court
against the sentence was
refused. The appellant then petitioned the
Judge President of the Gauteng Division, Johannesburg (high court) in
terms of
s 309C
of the
Criminal Procedure Act 51 of 1977
for leave to
appeal. On 5 May 2016, Nicholls J and Manyathi AJ dismissed
the petition. With the necessary leave
of this Court, the
appellant now appeals against the refusal of his petition in the high
court.
[2]
The issue to be decided is whether leave to appeal to the high court
against the sentence imposed by the regional court should
have been
granted.
In
S
v Matshona
[1]
Leach JA summarised the position as follows:
‘
It
is clear. . . that. . . where …an accused obtains leave to
appeal to this court against the refusal in a high court of
a
petition seeking leave to appeal against a conviction or sentence in
the regional court, the issue before this court is whether
leave to
appeal should have been granted by the high court, and not the appeal
itself. . . .’
The
test is simply whether there is a reasonable prospect of success in
the envisaged appeal against sentence.
[2]
[3]
It is not necessary to deal with the facts in any great detail, in
the light of the outcome of the appeal. Suffice it to state
that the
appellant together with three others accosted a domestic helper in
Mulbarton, Johannesburg, and ransacked the house where
she was
employed and stole goods valued at approximately R50 000. During
the appellant’s arrest, goods belonging to
the robbed home were
found in his car.
[4]
At the time of sentencing, the regional magistrate was informed by
the appellant’s legal representative that the appellant
was
serving a sentence of 15 years’ imprisonment, imposed in the
previous year, for a conviction of armed robbery. This was
apart from
what was reflected on the SAP 69, that he had a previous conviction
for robbery committed in 2006, and for which he
had been sentenced to
seven years’ imprisonment. Despite this, the regional
magistrate did not request or obtain confirmation
of the existence of
the appellant’s previous conviction and sentence (other than
what was reflected on the SAP 69). The record
before us confirmed
this previous conviction and sentence.
[5]
In passing sentence, the regional magistrate stated that as he had no
documentation referring to the alleged sentence that the
appellant
was currently serving, he was not in a position to make an order
regarding the concurrency of the sentence. In the result,
the
regional court did not consider the cumulative effect of the two
sentences of 15 years’ imprisonment each.
[6]
The same applies to the decision of the high court. In dismissing the
petition for leave to appeal, it stated: ‘There
is no evidence
before court of the Accused serving the sentence with which he seeks
this current sentence to run concurrently’.
Accordingly,
bearing the factors mentioned herein in mind, there exists a
reasonable prospect that a court of appeal might consider
that the
regional magistrate ought to have obtained the requisite proof of the
sentence that the appellant was serving and ought
to have considered
the cumulative effect of both sentences when imposing the sentence in
the current matter. This appeal must therefore
succeed.
[7]
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
Superior Courts Act 10 of 2013
.
[3]
[8]
In the result, the following order is made:
1 The appeal succeeds.
2 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 Gauteng Division of the
High Court, Johannesburg against the sentence imposed on him in the
regional court.
______________________
H
K SALDULKER
JUDGE
OF APPEAL
APPEARANCES
For
appellant:
W A Karam
Instructed
by: Legal Aid SA, Johannesburg
Legal
Aid SA, Bloemfontein
For
respondent:
M Mashego
Instructed
by: Director of Public Prosecutions, Johannesburg
Director
of Public Prosecutions, Bloemfontein
[1]
[2008]
ZASCA 58
;
2013 (2) SACR 126
(SCA) para 5. See also
S
v Khoasasa
2003(1) SACR 123 (SCA);
[2002]
4 All SA 635 (SCA).
[2]
S v
Kriel
;
2012 (1) SACR 1
(SCA) para 12.
[3]
Section 19(a)
provides: ‘The Supreme Court of Appeal or
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’.