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[2019] ZASCA 156
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Hlongwa v S (1380/2018) [2019] ZASCA 156 (27 November 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 1380/2018
In
the matter between:
MZOMISI
HLONGWA APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Hlongwa v The State
(1380/2018) ZASCA 156 (27 November
2019)
Coram:
Petse DP, Mbha and Mocumie JJA and Koen
and Gorven AJJA
Heard:
13 November 2019
Delivered:
27 November 2019
Summary:
Criminal Procedure – Special leave
granted against refusal of high court to grant leave to appeal from
Regional Court –
whether the high court should have granted
leave to appeal – not on the merits of the appeal –
reasonable prospects
of success exist – leave to appeal granted
to the high court.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Johannesburg (Masipa and Maluleke JJ dismissing an
application for leave to appeal on petition
to it.):
1 The appeal is upheld.
2 The order of the high court is set
aside and substituted with the following:
‘
Leave
to appeal against sentences is granted to the Gauteng Division of the
High Court.’
JUDGMENT
Mocumie
JA (Petse DP and Mbha JA and Koen and Gorven AJJA concurring):
[1]
The Regional Court, Westonaria (the regional court) convicted the
appellant on four counts of robbery with aggravating circumstances,
one count of attempted murder; one count of possession of an
unlicensed firearm; and one count of possession of live ammunition
without a licence, the latter two in contravention of the Arms and
Ammunition Act 75 of 1969.
[1]
He was
sentenced as follows: 20 years’ imprisonment on each of the
four counts of robbery with aggravating circumstances all
of which
were ordered to run concurrently; 10 years’ imprisonment on the
count of attempted murder; and 3 years’ imprisonment
for the
possession of a firearm and the possession of live ammunition, which
latter two offences were taken together for the purposes
of sentence.
In effect, he was sentenced to an effective term of 33 years’
imprisonment. The regional court refused leave
to appeal against his
convictions and sentences. The appellant petitioned the Gauteng
Division of the High Court, Johannesburg
(the high court) where,
likewise, leave was refused. This court was then petitioned for
special leave to appeal. Despite the indication
in the petition that
it was for special leave, ordinary leave to appeal was granted by
this court in respect of the sentences only.
It is clear that the
order was made
per
incuriam
and can be corrected without any formal application.
[2]
The
appropriate order should have been to grant special leave to appeal
to this court.
[2]
In their heads of argument, both parties dealt with the matter as if
this court was to hear an appeal against the sentences.
In order to
arrest this misconception that continues despite the numerous
judgments of this court, it is apt to quote from the
judgment of
Dipholo
v The State
[3]
where this
court stated in the most clear language:
‘
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”.’
One
would have thought that by now these cases would be common knowledge
amongst practitioners.
[3]
Following the line of the cases referred to in the preceding
paragraph, including
S
v Khoasasa
[4]
and
Van
Wyk v S, Galela v S
,
[5]
it is clear
that the leave that has been granted is special leave to appeal to
this court against the refusal of the high court
to grant leave to
appeal on petition. If successful, this court would then grant leave
to appeal to the high court since it is
that court that must hear
such appeal in terms of s 309(1)
(a)
of the Criminal Procedure Act 51 of 1977 (the CPA). This means that
the merits of the appeal itself are not before us, only the
question
whether the high court ought to have granted leave to appeal on
petition to it against the refusal by the regional court
to do so.
[4]
I revert to the crux of the appeal, whether the appellant should be
granted leave to appeal to the high court against the sentences
only.
The test is whether there are reasonable prospects that another court
may impose a different sentence. In
Smith
v S
[6]
this court
stated:
‘
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. 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. More is required to be established
than that there is a mere possibility of success,
that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound,
rational basis for
the conclusion that there are prospects of success on appeal.’
[5]
Coming to the facts of this case, there is no doubt that the offences
of which the appellant was convicted are very serious
and prevalent
in our society. However, it is also trite that where there are
multiple convictions, as happened in this case, the
court has to
consider the cumulative effect of the sentences that it intends to
impose. In
S
v Young
[7]
this court
stated:
‘
Where
multiple counts are closely connected or similar in point of time,
nature, seriousness or otherwise, [a court must ensure]
that the
punishment imposed is not unnecessarily duplicated or its cumulative
effect is not too harsh on the accused.’
[6]
On the face of it, the effective sentence of 33 years’
imprisonment, which was imposed on the appellant, in the
circumstances
of this matter, seems excessive. In addition, despite
the regional magistrate stating so, it seems that he did not place
sufficient
weight or emphasis on the personal circumstances of the
appellant namely, the time he spent in custody awaiting trial, the
fact
that none of the complainants sustained physical injury, the
blending of the sentences with some measure of mercy, as the regional
magistrate himself correctly observed was required, and the
provisions of s 280(2) of the CPA, which confer a discretion on the
court to order sentences to run concurrently in circumstances such as
the present, where the commission of the offences formed
part of a
single
tableau
of
events at the scene of the offences that gave rise to this case. This
list is not exhaustive of the appropriate factors that
should have
been taken into consideration in sentencing.
[7]
In the light of the factors outlined above, it is unnecessary to deal
with the other points that counsel for the appellant raised
during
argument before us including the applicability or otherwise of the
Criminal Law Amendment Act 105 of 1997
, specifically, whether the
state was entitled to rely on the minimum sentencing provisions of
this Act for one offence and not
the other offences and, if not,
whether the regional magistrate was, nonetheless, obliged to apply
those provisions; and whether
it was incumbent upon the regional
magistrate to have forewarned the appellant of the severe sentences
it intended to impose. These
points are best left for the high court
to decide.
[8]
I am of the view that there are reasonable prospects that another
court may impose a different sentence to that imposed by the
regional
magistrate. In the result, the appeal ought to succeed and the
following order is granted:
1 The appeal is upheld.
2 The order of the high court is set
aside and substituted with the following:
‘
Leave
to appeal against sentences is granted to the Gauteng Division of the
High Court.’
_______________
B C Mocumie
Judge of Appeal
APPEARANCES:
For
Appellant: W A Karam
Instructed
by: Legal Aid SA, Johannesburg
Bloemfontein
Justice Centre, Bloemfontein
For
Respondent: P J Schutte
Instructed by: DPP Gauteng Division of
the High Court, Johannesburg
DPP,
Free State Division of the High Court, Bloemfontein
[1]
This was the
Act that governed the offences at the time of their commission. It
has since been repealed by the
Firearms Control Act 60 of 2000
which
came into operation in 2004.
[2]
Jacobs
& others v S
[2019]
ZACC 4
;
2019 (5) BCLR 562
(CC);
2019 (1) SACR 623
(CC)
para
97.
[3]
Dipholo v The State
[2015]
ZASCA 120
para 5.
[4]
S
v Khoasasa
[2002]
ZASCA 113; 2003 (1) SACR 123 (SCA);
[2002] 4
All SA 635 (SCA).
[5]
Van
Wyk v S,
Galela
v S
[2014]
ZASCA 152
;
[2014] 4 All SA 708
(SCA);
2015
(1) SACR 584
(SCA). See also
Tonkin
v S
[2013] ZASCA 179
;
2014 (1) SACR 583
(SCA);
Matshona
v S
[2008] ZASCA 58
;
[2008] 4 All SA 68
(SCA);
2013 (2) SACR 126
(SCA);
Radebe
v S
[2016] ZASCA 172
;
2017 (1) SACR 619
(SCA);
Lubisi
v S
[2015] ZASCA 179.
[6]
Smith v
S
[2011] ZASCA 15
; 2012 (1) SA SACR 567 (SCA) para 7.
[7]
S v
Young
[1977]
1 All SA 654
(A);
1977 (1) SA 602
(A) at 610E-H. See also
S
v Rantlai
2018 (1) SACR 1
(SCA). Take note of the warning meted out by this
court in
S
v Kruger
[2011] ZASCA 219
;
2012
(1) SACR 369
(SCA) para 10.