Summary of Judgment

1. Introduction

This was an appeal in the Supreme Court of Appeal of South Africa (SCA), brought with the special leave of that court, concerning whether a petition for leave to appeal had correctly been refused by the North West Division of the High Court, Mahikeng. The appeal was disposed of without oral argument by agreement between the parties, in terms of s 19(1)(a) of the Superior Courts Act 10 of 2013.

The appellant, Mr Kedumetse Macwilliam Ngakantsi, was the accused person in the underlying criminal proceedings. The respondent was the State. The judgment under consideration was not the substantive merits of a criminal appeal, but rather the correctness of the high court’s refusal of leave to appeal under s 309C of the Criminal Procedure Act 51 of 1977 (CPA).

Procedurally, the matter originated in the Vryburg Regional Court, where the appellant was convicted of corruption and also convicted on two additional offences relating to failure to appear while released on warning. His application for leave to appeal was refused by the regional court. He then petitioned the high court under s 309C of the CPA, but that petition was dismissed in chambers. He thereafter petitioned the SCA for special leave to appeal against the high court’s refusal. The SCA’s order granting special leave was limited to (a) the convictions and sentences relating to the contraventions of s 72 of the CPA, and (b) the sentence imposed for the corruption conviction.

The general subject-matter of the dispute concerned the threshold for granting leave to appeal, namely whether the appellant had shown reasonable prospects of success in the envisaged appeal to the high court, in relation to the s 72 convictions and sentences, and the corruption sentence.

2. Material Facts

The facts were described by the SCA as largely common ground. The appellant was a constable in the Stock Theft Unit of the South African Police Service (SAPS). He was charged in the regional court with one count of corruption under s 4(1) of the Prevention and Combating of Corrupt Activities Act 12 of 2004. The State alleged that, in January 2012, he corruptly sold a stray cow for R3 000 cash for his own benefit. He was convicted of that offence and sentenced to five years’ imprisonment.

During the trial, the appellant had been released on warning, but he failed to appear in court on two occasions, namely 8 October 2015 and 18 April 2016. In relation to the first absence, the appellant had consulted a family doctor who referred him to a psychiatrist; the psychiatrist admitted him to hospital for approximately three weeks and certified that the appellant was unable to attend court proceedings for a period stated as 5 October 2015 to 9 December 2015. In relation to the second absence, the appellant stated that his body had become weak and he submitted a medical certificate indicating that he was suffering from psychosis and was indisposed from 15 to 19 April 2016.

An enquiry was held in terms of s 72(2) of the CPA into his failures to appear. At that enquiry the appellant adduced psychiatric evidence, including from a psychiatrist he consulted on 16 May 2016, who diagnosed him as suffering from a severe major depressive disorder, with associated physical conditions and suicidal tendencies. The appellant testified that he became anxious close to each court date when he was due to be sentenced, that his body became weak, and that he consulted a doctor; he denied that the absences were planned and stated that his body reacted in that manner.

The regional court nonetheless concluded that the appellant’s failure to appear was wilful, convicted him on two counts of contravening s 72(2) of the CPA, and sentenced him to a fine of R200 000 on each count.

3. Legal Issues

The central legal question before the SCA was whether the high court ought to have granted leave to appeal under s 309C of the CPA, which depended on whether the contemplated appeal to the high court enjoyed reasonable prospects of success.

The dispute thus primarily concerned the application of law to fact at the leave-to-appeal stage. It required assessment of whether, given the evidentiary material summarised in the judgment, there was a reasonable prospect that an appellate court might conclude that the appellant’s failures to appear were not due to fault on his part, applying the statutory threshold under s 72(4) of the CPA as constitutionally interpreted.

A further legal issue related to sentence: whether there were reasonable prospects that an appellate court would interfere with (a) the fines imposed for the s 72 convictions, particularly given the statutory maximum under s 72(4), and (b) the five-year imprisonment sentence imposed for the corruption conviction, given the circumstances recorded in the judgment (including that it was a single count involving R3 000 and that the appellant was a first offender).

4. Court’s Reasoning

The SCA emphasised that, because the petition for leave to appeal had been refused by the high court, the SCA was not required to determine the substantive merits of the criminal appeal. The SCA’s task was confined to deciding whether the high court should have granted leave to appeal, applying the established test of reasonable prospects of success.

In addressing the s 72 convictions, the SCA set out the statutory framework. Section 72(2) of the CPA criminalises failure to appear by an accused released on warning. Section 72(4) authorises the court to enquire summarily into the failure and, unless the accused satisfies the court to a specified effect, to impose a sanction. The SCA relied on the Constitutional Court’s interpretation in S v Singo, which held that words should be read into s 72(4) such that the accused need only satisfy the court that there is a reasonable possibility that the failure to appear was not due to fault on the accused’s part. The SCA treated this as materially lowering the burden from proving absence of fault to establishing a reasonable possibility thereof.

Against that legal standard, the SCA recorded the argument advanced on the appellant’s behalf that, when considering the evidence as a whole (and in particular the medical evidence), there was a reasonable prospect that an appellate court could conclude that the appellant’s failures to appear were not attributable to fault on his part. The SCA did not finally resolve that question but accepted that the contention was sufficiently arguable to support the granting of leave.

On sentence for the s 72 convictions, the SCA noted the argument that the fines of R200 000 per count appeared, on the face of the statutory provision, to exceed the maximum punishment prescribed in s 72(4) (a fine not exceeding R300 or imprisonment not exceeding three months). That statutory mismatch was treated as strengthening the conclusion that there were reasonable prospects of success on appeal in relation to sentence.

Regarding the sentence imposed for corruption, the SCA recorded submissions that, although the offence was serious, it involved a single count and did not concern a large amount; the appellant was described as a first offender and, at the time of sentencing, remained employed by SAPS (having not been dismissed following disciplinary proceedings). On that basis, it was contended that there was a reasonable prospect that an appellate court might alter the sentence, or consider a different sentencing option, while still meeting society’s expectation that corrupt officials be punished. The SCA again did not determine the sentence afresh, but accepted that these considerations supported the existence of reasonable prospects of success.

These factors cumulatively led the SCA to conclude that there was “much to be said” for the argument that the contemplated appeal enjoyed reasonable prospects of success, with the consequence that the high court should not have refused leave.

5. Outcome and Relief

The SCA upheld the appeal. It set aside the high court’s order refusing leave to appeal under s 309C of the CPA and replaced it with an order granting the appellant leave to appeal to the full court of the North West Division of the High Court.

The leave to appeal granted covered the appellant’s convictions and sentences for the contraventions of s 72 of the CPA, and the sentence only imposed for the corruption conviction under s 4 of the Prevention and Combating of Corrupt Activities Act 12 of 2004. The judgment as provided did not set out a separate costs order.

Cases Cited

S v Khoasasa 2003 (1) SACR 123 (SCA).

S v Tonkin [2013] ZASCA 179; 2014 (1) SACR 583 (SCA).

De Almeida v S [2019] ZASCA 84.

S v Singo [2002] ZACC 10; 2002 (2) SACR 160 (CC).

Legislation Cited

Criminal Procedure Act 51 of 1977, ss 72(2), 72(4), and 309C.

Prevention and Combating of Corrupt Activities Act 12 of 2004, s 4(1).

Superior Courts Act 10 of 2013, s 19(1)(a).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The SCA held that, on the material before it, there were reasonable prospects of success in the envisaged appeal to the high court. In particular, the constitutional interpretation of s 72(4) of the CPA (as requiring the accused to show only a reasonable possibility that the failure to appear was not due to fault) meant that the medical evidence and explanation advanced could reasonably lead an appellate court to a different conclusion. Additionally, the fines imposed for the s 72 convictions appeared to exceed the statutory maximum, and there were arguable grounds for interference with the corruption sentence. Accordingly, the high court’s refusal of leave to appeal under s 309C was set aside and leave to appeal was granted to the full court.

LEGAL PRINCIPLES

The test in an appeal against the refusal of leave to appeal is whether there are reasonable prospects of success in the contemplated appeal, rather than whether the appeal should ultimately succeed on its merits.

For purposes of s 72(4) of the Criminal Procedure Act 51 of 1977, following S v Singo [2002] ZACC 10; 2002 (2) SACR 160 (CC), the provision must be read as requiring that an accused need only satisfy the court that there is a reasonable possibility that the failure to appear was not due to fault on the accused’s part.

Where a sentence appears, on its face, to exceed the statutory maximum prescribed by the empowering provision, that circumstance may materially support a conclusion that there are reasonable prospects of success on appeal against sentence, sufficient to justify the granting of leave to appeal.