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[2019] ZASCA 51
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Tyhulu v S (1173/2016) [2019] ZASCA 51 (1 April 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
no: 1173/2016
In
the matter between:
NCEBA
TYHULU
Appellant
and
THE
STATE
Respondent
Neutral
citation:
Nceba Tyhulu v The State
(1173)
[2019] ZASCA 51
(1 April 2019)
Coram:
Cachalia, Mbha, Mocumie, Dlodlo JJA
and Matojane
AJA
Heard:
11 March 2019
Delivered:
1 April 2019
Summary:
Criminal Procedure – Appeal against a refusal to grant leave to
appeal on petition – issue to be decided is whether
the
appellant has a reasonable prospect of success on appeal and not the
merits of the appeal.
ORDER
On
appeal from
Western Cape High Court,
Cape Town.
1 The appeal against the dismissal of
the application for leave to appeal in respect of counts 1 and 2 is
dismissed
2 The appeal against the dismissal of
the application for leave to appeal in respect of count 3 and count 4
is upheld.
3 The appeal against dismissal of the
appeal against the sentence imposed on counts 3 and 4 as well as the
effective sentence of
13 years’ imprisonment is upheld.
4 The order of the court below is
replaced with the following order:
‘
The
application for leave to appeal against counts 1 and 2 is dismissed.
The appellant is granted leave to appeal to the Western
Cape High
Court, Cape Town, against the conviction and sentence imposed upon
him in respect of counts 3 and 4 as well as the effective
sentence of
13 years’ imprisonment.’
JUDGMENT
Matojane
AJA (Cachalia, Mbha and Mocumie JJA and Dlodlo AJA concurring):
[1]
This is an application for special leave against dismissal by the
high court of the application for leave to appeal against
the
convictions and sentences imposed in the magistrate’s court.
[2]
The appellant, Mr Tyhulu was convicted in the Regional Court Paarl on
two counts of contravening the provisions of the Prevention
and
Combating Corrupt Activities Act of 2004 (“POCCA”) and
two counts of contravening the provisions of section 5(a)
of the
Drugs and Drugs Trafficking Act 40 of 1992. He was sentenced on 13
July 2015 to 10 years’ imprisonment on the first
two counts
taken together, and three years’ direct imprisonment on the
second two counts which were also taken together for
purposes of
sentence.
[3]
He applied to the trial magistrate for leave to appeal against both
conviction and sentence. Leave to appeal was refused. He
then
applied, by way of petition in terms of
s 309B
of the
Criminal
Procedure Act 51 of 1977
to the Judge President of the Western Cape
High Court, Cape Town for leave to appeal against his conviction. His
petition was dismissed.
[4]
The refusal of an application for leave to appeal on petition to two
judges of the High Court is appealable with special leave
of this
court.
S
v Khoasana
[1]
,
Van
Wyk v The State; Galela v The State
2015 (1) SACR 584
(SCA). The appellant petitioned this court and
special leave to appeal was granted.
[5]
The issue to be determined at this stage is whether the appeal should
have been granted by the High Court and not the appeal
itself. As a
result, the test to be an applied is whether there is a reasonable
prospect of success in the envisaged appeal rather
than whether the
appeal ought to succeed.
[2]
In order to succeed, therefore, the appellant must convince this
court on proper grounds that he has prospects of success on appeal
and that those prospects are not remote but have a realistic chance
of succeeding.
[6]
The appellant argues that there is a reasonable prospect of success
on appeal because the magistrate misdirected herself in,
among other
things, rejecting his evidence that he was pressured and threatened
by the undercover police agent, that he has been
offered a financial
inducement to commit these offences.
[7]
Having heard the argument on the merits and considered the judgment
of the magistrate I am of the view that there are no reasonable
prospects of success that another court may come to a different
conclusion regarding the convictions on the two counts of corruption.
However, with regard to counts 3 and 4 it is doubtful whether the
state has proved beyond reasonable doubt that the appellant dealt
in
drugs. There are therefore reasonable prospects that another court
may conclude that the appellant ought to have been convicted
of
possession of tik instead of dealing in the substance. If the court
comes to this conclusion, it may consider interfering with
the
sentence imposed in respect of the said two counts and of the
effective sentence of 13 years’ imprisonment that was imposed
on the four counts. In the result, the appeal against the dismissal
of the application for leave to appeal in respect of counts
3 and 4
and the sentence imposed on these counts succeeds.
[8] The following order is issued:
1 The appeal against the dismissal of
the application for leave to appeal in respect of counts 1 and 2 is
dismissed
2 The appeal against the dismissal of
the application for leave to appeal in respect of count 3 and count 4
is upheld.
3 The appeal against dismissal of the
appeal against the sentence imposed on counts 3 and 4 as well as the
effective sentence of
13 years’ imprisonment is upheld.
4 The order of the court below is
replaced with the following order:
‘
The
application for leave to appeal against counts 1 and 2 is dismissed.
The appellant is granted leave to appeal to the Western
Cape High
Court, Cape Town, against the conviction and sentence imposed upon
him in respect of counts 3 and 4 as well as the effective
sentence of
13 years’ imprisonment.’
__________
KE Matojane
Acting Judge of Appeal
Appearances:
For the Appellant: M Calitz
Instructed by: Legal Aid South Africa
Bloemfontein
Justice Crentre
For the Respondent: M V Orban
Instructed by: Office of the Director
of Public Prosecutions,
Western
Cape
[1]
S v
Khoasana
2003
(1) SACR 123
(SCA) paras 14 and 19-22.
[2]
S v
Matshona
[2008]
ZASCA 58
;
[2008] 4 All SA 68
(SCA) para 4.