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[2019] ZASCA 155
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Gwiba v S (117/2019) [2019] ZASCA 155 (27 November 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 117/2019
In the
matter between:
JOSEPH
BONGANI
GWIBA APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Gwiba v State
(117/2019)
[2019] ZASCA 155
(27
November 2019)
Coram:
Petse DP, Mbha and Mocumie JJA, Koen and Gorven AJJA
Heard
:
13 November 2019
Delivered:
27 November 2019
Summary:
Criminal Procedure –
a
ppeal –
special leave granted against refusal of high court to grant leave to
appeal from the regional court – appeal
relates to whether the
high court should have granted leave to appeal – not the merits
of the appeal –
reasonable prospects of
success exist – leave to appeal granted to the high court
.
ORDER
On
appeal from:
Free State
Division
of the High Court (Kruger J and Boonzaaier AJ on petition to them):
1
The appeal against the refusal of the petition to the High Court is
upheld.
2
The order of that court is set aside and substituted with the
following order:
‘
The
applicant is granted leave to appeal to the Free State Division of
the High Court against his convictions and sentence.’
JUDGMENT
Gorven
AJA (Petse DP, Mbha and Mocumie JJA and Koen AJA concurring)
[1]
The appellant was tried
in the Regional Court, Bothaville on three counts of robbery with
aggravating circumstances. Despite pleading
not guilty to all three
counts, he was convicted as charged. The counts were taken together
for purposes of sentence. He was sentenced
to a period of
imprisonment of 15 years. Two other persons were charged and
convicted with him but their fate does not arise
here.
[2]
The appellant applied
for leave to appeal against his convictions and sentences in terms of
s 309B of the Criminal Procedure
Act (the CPA).
[1]
The regional magistrate refused the application. As a result, the
appellant petitioned the High Court of South Africa, Free State
Division for leave to appeal in terms of s 309C of the CPA. This
was likewise refused. He then approached this court for special
leave
to appeal. On 13 December 2018 this court granted the following
order:
‘
1. The application for condonation is
granted.
2. Special leave to appeal . . . is granted to the Supreme Court of
Appeal.
. . . .’
It
is this order which has resulted in the matter being set down before
us.
[3]
The appeal of an
accused convicted in a regional court lies to the high court under
s 309(1)
(a)
of the CPA.
[2]
There are various procedures when leave to appeal is desired. The
first step is an application to the regional magistrate under
s 309B(1)
(a)
of the CPA. In its relevant parts, this provides:
‘
. . . any accused . . . who wishes to note
an appeal against any conviction or against any resultant sentence or
order of a lower
court, must apply to that court for leave to appeal
against that conviction, sentence or order.’
The
next step is provided by s 309C(2)
(a)
of the CPA:
‘
If any application—
(i) for condonation;
(ii) for further evidence; or
(iii) for leave to appeal,
is refused by a lower court, the accused may by
petition apply to the Judge President of the High Court having
jurisdiction to grant
any one or more of the applications in
question.’
[4]
In order to understand
the next step to be taken, it is necessary to recognise that if such
a petition is refused, that refusal
is an order granted on appeal to
it by a high court.
[3]
Under the Supreme Court Act,
[4]
if the petition was refused, the next step was to appeal to this
court with leave of the High Court.
[5]
This is no longer the case. The Superior Courts Act
[6]
repealed the Supreme Court Act. A high court no longer has the power
to grant leave to appeal to this court against the refusal
of a
petition.
[5]
Section 1 of the
Superior Courts Act excludes from the definition of ‘appeal’
one which is regulated by the CPA. The
CPA does not provide for a
right of appeal to this court from a decision of the high court taken
on appeal to it from a magistrates’
court.
[7]
Because the appeal in question is not regulated by the CPA, such an
appeal falls within the definition of ‘appeal’
in the
Superior Courts Act. It is accordingly governed by the provisions of
Chapter 5 of the Superior Courts Act.
[6]
Because the refusal of
the petition is a ‘decision of a Division on appeal to it’,
special leave must be sought from
this court as provided for by
s 16(1)
(b)
of
the Superior Courts Act:
[8]
‘
(1) Subject to section 15(1), the
Constitution and any other law —
. . .
(b)
an appeal against any decision of a Division on
appeal to it, lies to the Supreme Court of Appeal upon special
leave having
been granted by the Supreme Court of Appeal’.
This
is then the next step to take. The procedure to obtain special leave
is set out in s 17(3) of the Superior Courts Act:
‘
An application for special leave to appeal
under section 16 (1) (
b
) may
be granted by the Supreme Court of Appeal on application filed with
the registrar of that court within one month after
the decision
sought to be appealed against, or such longer period as may on good
cause be allowed . . .’.
The
special leave granted is to appeal to this court ‘against any
decision of a Division on appeal to it’. The special
leave
granted is thus to appeal the decision of the high court. The next
step is to prosecute that appeal in this court.
[7]
The high court refused
to grant leave to appeal. So the appeal to be considered by this
court is an appeal against the refusal of
the high court to grant
leave to appeal. The issue for consideration is whether the high
court correctly refused leave to appeal.
[9]
If the appeal succeeds, the appropriate order is that which the high
court ought to have granted on petition, viz. to grant leave
to
appeal to the high court. The resultant appeal in the high court
deals with the merits of the appeal. This court does not deal
with
the merits of the appeal.
[10]
[8]
This court has granted
special leave to appeal. It must have held that special circumstances
exist which satisfy the higher threshold
for special leave to appeal
against the refusal of the petition by the high court.
[11]
We are thus to decide an appeal against the refusal of the high court
to grant leave to appeal.
[12]
It is clear that this court cannot decide the merits of the appeal,
which must, if leave is given, be decided by the high court.
[13]
[9]
The matter must
accordingly be dealt with on the basis of whether the magistrate, and
subsequently the high court, should have found
that there are grounds
for leave to appeal. The test for this is whether the appellant has
reasonable prospects of success on appeal.
[14]
[10]
It is clear from both
sets of heads of argument that a pointing out was held. This pointing
out may have amounted to a confession
but no finding to that effect
is appropriate at this point. This was contested evidence. No trial
within a trial was held. For
the rest, eyewitnesses did not testify
that the appellant was at the scene of the crime. He was not
identified at an identification
parade. One witness testified that
items were found in the boot of the vehicle of the appellant. Two
other witnesses testified
that they searched the vehicle and did not
find any such items.
[11]
From this, it is clear
that the learned magistrate, and later the high court on petition,
should have come to the conclusion that
the appellant has reasonable
prospects of success on appeal. It must be made clear that the
factors set out above are not definitive
findings which in any way
affect the findings to be made by the court hearing the appeal. They
are simply weighed in the mix in
considering the issue before us.
[12]
Counsel for the respondent identified correctly
the manner in which the appeal should be dealt with. He also, with
respect, correctly
conceded that there are reasonable prospects of
success on appeal. After the appeal was heard, an order was made and
it was indicated
that reasons would follow. These are those reasons.
[13]
The following order was made:
1 The appeal against the refusal of the petition to the
High Court is upheld.
2 The order of that court is set aside and substituted
with the following order:
‘
The
applicant is granted leave to appeal to the Free State Division of
the High Court against his convictions and sentence.’
__________________
T
R Gorven
Acting
Judge of Appeal
Appearances
For
the Appellant: DC Hattingh
Instructed
by: Julian Knight & Associates Inc, Brooklyn
Rossouws
Attorneys, Bloemfontein
For
the Respondent: S Chalale
Instructed
by:
The
Director of Public Prosecutions, Bloemfontein
[1]
Criminal Procedure Act 51 of 1977
.
[2]
This provides, in its relevant parts:
‘
[A]ny
person convicted of any offence by any lower court . . . may,
subject to leave to appeal being granted in terms of
section
309B
or
309C
, appeal against such conviction and against
any resultant sentence or order to the High Court having
jurisdiction’.
[3]
S v Khoasasa
2003 (1) SACR 123
(SCA);
[2002] 4 All SA 635
paras 14 & 19-22.
[4]
Supreme Court Act 59 of 1959.
[5]
Section 20(4)
(b)
of the Supreme Court Act.
[6]
Superior Courts Act 10 of 2013
.
[7]
S v Van Wyk & another
[2014] ZASCA 152
;
2015 (1) SACR 584
(SCA) para 18.
[8]
Van Wyk
para 20.
[9]
S v Matshona
[2008] ZASCA 58
;
2013 (2) SACR 126
(SCA) para 4.
[10]
Section 309(1)
(a)
of the CPA. See also
S v Tonkin
2014 (1) SACR 583
(SCA) para 4.
[11]
Van Wyk
para 21.
[12]
Matshona
para 7.
[13]
Ibid.
[14]
Matshona
para 8.