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[2019] ZASCA 84
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De Almeida v S (728/2018) [2019] ZASCA 84 (31 May 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Non-Reportable
Case no: 728/2018
In
the matter between:
DANIëL
DA SILVA MARQUES DE
ALMEIDA APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
De Almeida v S
(728/2018)
[2019] ZASCA 84
(31 May 2019)
Coram:
Leach, Saldulker, Zondi and Mocumie JJA
and Eksteen AJA
Heard:
20 May 2019
Delivered:
31 May 2019
Summary:
Criminal Procedure – appeal against sentence
of 8 years’ imprisonment – leave to appeal refused by
regional court
– petition refused by the high court –
special leave granted by this court – the test is whether the
appellant
has shown reasonable prospect of success on appeal against
the sentence.
ORDER
On
appeal from
:
Gauteng
Local Division, Johannesburg (Msimeki, J and Dosio, AJ sitting as
court of appeal):
1 The appeal is upheld.
2 The order of the high court refusing
the appellant leave to appeal against his sentence in terms of
s 309C
of the
Criminal Procedure Act 51 of 1977
, is set aside and replaced
with the following:
‘
The
applicant is granted leave to appeal against his sentence.’
JUDGMENT
Mocumie
JA (Leach, Saldulker and Zondi JJA and Eksteen AJA concurring):
[1]
This is an appeal against the refusal of a petition for leave to
appeal by the Gauteng Local Division, Johannesburg (Msimeki,
J and
Dosio, AJ). The appellant, Mr Daniel Marques De Almeida, appeared in
the regional court, Johannesburg on one count of attempted
murder.
Despite his plea of not guilty, he was convicted as charged and
sentenced to 8 years’ imprisonment. The appellant,
aggrieved by
this, sought leave to appeal against his sentence. The regional court
refused leave to appeal. An application to the
high court for leave
to appeal against sentence in terms of s 309C of the Criminal
Procedure Act 51 of 1977 (the CPA) was also
refused. Subsequently,
this court granted special leave to appeal to this court against the
refusal of leave by the high court.
[2]
Both counsel for the appellant and the State laboured under the
impression that this matter was to be heard on the merits of
the
appeal against the appellant’s sentence that was imposed by the
regional court. In consequence thereof, in this court,
counsel for
the appellant argued that the regional court misdirected itself when
it imposed the sentence of eight years’
imprisonment. This
indicates that despite several judgments of this court since
S
v Khoasasa
[1]
on the
current law on appeals from the magistrate courts under s 309 of the
CPA, the confusion on where the appeal lies in circumstances
such as
those before us, still persists. Therefore, it makes it imperative
once more to highlight the ambit of this appeal. It
is more apt to
quote from this court in
Dipholo
v The State
[2]
which dealt
with the issue of where the appeal lies in such circumstances:
‘
It
is correct that in terms of our current law appeals from the
magistrates’ court must be heard by the high court. Section
309(1)
(a)
of the Criminal Procedure Act 51 of 1997 (CPA). There is no provision
in the law for this court to hear appeals on the merits directly
from
the magistrates’ courts. However, confusion has reigned in the
various divisions of the high court in recent times regarding
the
proper procedure to be followed by an accused in instances where a
high court has refused leave to appeal a judgment from the
magistrates’ court. One would have hoped that the position was
settled in
S
v Khoasasa
(supra) paras 19-22. However, as this confusion persisted, this Court
once again restated the correct approach in
S
v Tonkin
2014 (1) SACR 583
(SCA) in para 6 as follows:
“
In
response to our invitation, counsel for the appellant submitted a
well prepared argument urging us to entertain the merits of
the
appeal. But on reflection it appears to me that, unfortunate as it
may be, we have no authority to do so. The reason why it
is so have
been stated in
Khoasasa
and elaborated upon in the decisions following upon it to which I
have referred. On reflection, these reasons cannot, in my view,
be
faulted. In broad outline they are as follows:
(a)
Although this Court has inherent jurisdiction to regulate its own
procedure, it has no inherent or original jurisdiction to
hear
appeals from other courts. In the present context, its jurisdiction
is confined to that which is bestowed upon it by sections
20 and 21
of the Supreme Court Act. In terms of these sections the jurisdiction
of this Court is limited to appeals against decisions
of the high
court. (b) When leave to appeal has been refused by the high court,
that court rather obviously, did not decide the
merits of the appeal.
If this court were therefore to entertain an appeal on the merits in
those circumstances, it would in effect
be hearing an appeal directly
from the magistrates‟ court. That would be in direct conflict
with s 309 of the Criminal Procedure
Act, which provides that appeals
from lower courts lie to a high court. The “order on appeal”
by the high court –
in the language of s 20(4) – that is
appealed against is the refusal of the petition for leave to appeal
and nothing else.”’
[3]
This legal position was also set out by this court in
Matshona
v The State
[3]
which, in
the light of the confusion still reigning, bears repeating:
‘
[T]he
reasoning in
Khoasasa
is unassailable. The appeal of an accused convicted in a regional
court lies to the high court under section 309(1)
(a)
,
although leave to appeal is required either from the trial court
under s 309B or, if such leave is refused, from the high court
pursuant to an application made by way of a petition addressed to the
judge-president under s 309C (2) and dealt with in chambers.
In the
event of this petition succeeding, the accused may prosecute the
appeal to the high court. But, if it is refused, the refusal
constitutes a “judgment or order” or a “ruling”
of a high court as envisaged in s 20(1) and s 21(1) of
the Supreme
Court Act 59 of 1959, against which an appeal lies to this court on
leave obtained either from the high court which
refused the petition
or, should such leave be refused, from this court by way of
petition.’
(Footnotes omitted)
[4]
Further in
Matshona
[4]
,
this court went on to state as follows:
‘
Not
only does this court lack the authority to determine the merits of
the appellant's appeal against his sentence at this stage,
but there
are sound reasons of policy why this court should refuse to do so
even if it could. It would be anomalous and fly in
the face of the
hierarchy of appeals for this court to hear an appeal directly from a
magistrates court without that appeal being
adjudicated in the high
court, thereby serving, in effect, as the court of both first and
last appeal. In addition, all persons
are equal under the law and
deserve to be treated the same way. This would not be the case if
some offenders first had to have
their appeals determined in the high
court before they could seek leave to approach this court if still
dissatisfied while others
enjoyed the benefit of their appeals being
determined firstly in this court. And most importantly, this court
should be reserved
for complex matters truly deserving its attention,
and its rolls should not be clogged with cases which could and should
be easily
finalised in the high court.’
[5]
I now turn to consider whether leave to appeal to the high court
against the sentence imposed by the regional court should have
been
granted. The test in that regard is simply whether there is a
reasonable prospect of success in the envisaged appeal against
sentence, rather than whether or not the appeal ought to succeed.
[6]
The appellant was 55 years of age at the time of sentencing. He is
divorced with three children, two of whom are staying with
their
biological mothers. Of the three children, two are minors: one, a 17
year-old son and the youngest, a six year-old son, whose
biological
mother has since passed on. At the time of the sentencing the
appellant was the primary care giver of the youngest child.
Further,
he was employed and was a partner in a business of panel-beating
luxury motor vehicles which employed over 18 employees.
He had no
previous convictions of similar offence or offences involving
violence. As the magistrate correctly held, the charge
in respect of
which he was convicted is a serious one, attempted murder, which was
committed inside a pub where members of the
public were present and
could have been injured. He had ample opportunity to walk away from
the situation after he was assaulted
and to even proceed to lay a
charge of assault against the complainant. He did not. Instead, he
took the law into his own hands
and shot at the complainant in
revenge for the earlier assault on him.
[7]
Counsel for the appellant submitted that the sentence was excessively
severe and disturbingly inappropriate considering the
favourable
personal circumstances of the appellant which submission the State
did not challenge. Relying on the judgment of this
court in S v
De
Villiers
,
[5]
counsel for
the appellant argued that the regional court committed a material
misdirection when it ignored the three pre-sentence
reports and the
recommendations contained therein on the suitability of the appellant
as a candidate for correctional supervision.
In the circumstances of
this case, so the argument went, the suitability of the appellant to
correctional supervision arises from:
his offer to compensate the
complainant for the damage caused at his pub; the fact that the
appellant himself was severely assaulted;
and how best to cater for
the best interests of the minor child in line with the guidelines as
set out by the Constitutional Court
in
S
v M.
[6]
Counsel for
the appellant further argued, the regional court considered itself
bound to impose only a custodial sentence instead
of considering
other options of sentence under s 276(1) including correctional
supervision under ss 276(1)(h) and 276(1)(i).
[8]
Notably, although disagreeing on the appropriateness of correctional
supervision in a serious offence as attempted murder, counsel
for the
State conceded that the regional court indeed committed a material
misdirection by ignoring the three pre-sentence reports.
These
concessions are in my view, sufficient to justify the conclusion that
there are reasonable prospects of success that another
court would
interfere with the sentence imposed by the regional magistrate.
[9]
In the circumstances, I am satisfied that leave to appeal should be
granted to the Gauteng Local Division, Johannesburg.
[10]
In the result the following order is granted.
1 The appeal is upheld.
2 The order of the high court refusing
the appellant leave to appeal against his sentence in terms of
s 309C
of the
Criminal Procedure Act 51 of 1977
, is set aside and replaced
with the following:
‘
The
applicant is granted leave to appeal against his sentence.’
_________________
B C Mocumie
Judge of Appeal
APPEARANCES:
For
Appellant:
Adv F Ismail (with
Adv F McAdam and Adv P Smith)
Instructed
by:
Ulrich Roux &
Associates, Parkhurst
Symington & de
Kok Attorneys, Bloemfontein
For
Respondent:
Mr Mashego
Instructed by:
Director of Public
Prosecutions, Johannesburg
Director of Public
Prosecutions, Bloemfontein
[1]
S v
Khoasasa
[2002] ZASCA 113; 2003 (1) SACR 123 (SCA); [2002] 4 All SA 635
(SCA).
[2]
Dipholo
v The State
[2015] ZASCA 120
para 5.
[3]
Matshona
v The State
[2008]
ZASCA 58
para 4. See also
Tonkin
v The State
[2013] ZASCA 179
para 3 and
Van
Wyk v S, Galela v S
[2014]
ZASCA 152
;
[2014] 4 All SA 708
(SCA);
2015 (1) SACR 584
(SCA) para
14.
[4]
Matshona
para 6.
[5]
S
v De Villiers
[2015] ZASCA 119
;
2016 (1) SACR 148
(SCA);
[2015] 4 All SA 268
(SCA)
para 31.
[6]
S v M
[2007] ZACC 18
;
2008 (3) SA 232
(CC);
2007 (12) BCLR 1312
(CC) paras
18 and 30-39.