THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 1025/2022
In the matter between:
VUMANI OSCAR NTULI APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Vumani Oscar Ntuli v The State (1025/2022) [2023] ZASCA 150
(10 November 2023)
Coram: GORVEN, HUGHES AND MATOJANE JJA AND KOEN AND MASIPA
AJJA
Heard: No oral hearing in terms of s 19(a) of the Superior Courts Act 10 of 2013.
Delivered: 10 November 2023.
Summary: Appeal to the Supreme Court of Appeal against the refusal of the high
court of a petition seeking leave to appeal against conviction and sentence imposed
by a r egional court – special leave granted by this court in terms of s 16(1) of the
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Superior Courts Act 10 of 2013 in respect of sentence only – conceded misdirection
or misdirections – reasonable prospect of success on appeal against sentence.
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ORDER
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On appeal from: Gauteng Division of the High Court, Johannesburg (Mabesele J and
Vorster AJ sitting as court of appeal):
(a) The appeal succeeds.
(b) The order of the court below to the extent that it refused the petition against the
sentences imposed is set aside and replaced with the following:
‘The application for leave to appeal against the sentences imposed on the applicant
succeeds and the applicant is granted leave to appeal against his sentences to the
Gauteng Division of the High Court, Johannesburg.’
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JUDGMENT
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Hughes JA (Gorven, Matojane JJA and Koen and Masipa AJA concurring)
[1] This is an appeal where special l eave to appeal was granted by this Court in
respect of sentence only, against the dismissal of a petition. The appellant was one of
three accused. He was charged before the regional court, Lenasia, Gauteng (regional
court) and was convicted on two counts of robbery with aggravating circumstances,
one of unlawful possession of a firearm, and one of attempted murder . He was
acquitted on a further count.
[2] For each of the first three counts he was sentenced to 15 years’ imprisonment
and was sentenced to ten years’ imprisonment for the attempted murder count. The
sentence in the first count was ordered to run concurrently with that imposed for the
second count. Ten years of the sentence for the third count was ordered to run
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concurrently with that imposed for the first. The cumulative effect was thus that the
appellant was sentenced to an effective term of thirty years imprisonment.
[3] In terms of s 309B of the Criminal Procedure Act 51 of 1977 (CPA) the
appellant applied for leave to appeal against conviction and sentence which was
refused by the magistrate in the regional court . He then petitioned the Gauteng
Division of the High Court, Johannesburg in terms of s 309C(2) for leave against his
convictions and sentences. Mabesele J and Vorster AJ dismissed the petition . The
appellant applied for special leave to appeal from this Court in terms of s 16(1)(b) of
the Superior Courts Act 10 of 2013, which leave was duly granted only in respect of
the sentences.
[4] As the appeal does not concern the merits of the matter , I set out very briefly
the background facts that culminated in the charges preferred. The appellant and his
co-accused attacked and robbed the complainant, Ms Regina Siyabela, in
Meadowlands, of about R14 000 at gunpoint. He was identified as the person who was
in possession of the firearm. In addition, they robbed two Makro workers, of their
personal belongings, whils t they were delivering goods at Ms Siyabela’s premises.
The appellant fled the scene with his co -accused in a Toyota Tazz , the police gave
chase and a shootout ensued between the appellant, his co-accused and the police.
Ultimately, the appellant and his co-accused abandoned the vehicle and fled on foot .
They were arrested shortly after the incident.
[5] In sentencing the appellant, the magistrate imposed the minimum sentences
prescribed in terms of the C PA for each count, having found that there were no
substantial and compelling factors to deviate from them. The appellant submitted that
his personal circumstances and, in particular the three and a half years that he was in
custody awaiting trial , were not considered and that the cumulative effect of the
sentences was too harsh.
[6] This Court has held that ‘a petition for leave to app eal to the high court is , in
effect, an appeal against the refusal of leave to appeal by the court of first instance ’.1
1 Smith v S [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) (Smith) para 2.
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This means that, in refusing such a petition, the high court decided a matter on appeal
to it. Section 16(1)(b) of the Superior Courts Act provides that ‘an appeal against any
decision of a Division on appeal to it, lies to the Supreme Court of Appeal upon special
leave having been g ranted by the Supreme Court of Appeal ’. ‘[T]he issue to be
determined at this stage is “whether leave to appeal should have been granted by the
High Court and not the appeal itself ”. As a result the test to be applied “is simply
whether there is a reasonable prospect of success in the envisaged appeal . . . rather
than whether the appeal . . . ought to succeed or not”.’2
[7] The appellant contends, that indeed, reasonable prospects of success exist for
this court to grant leave to appeal. He submitted that the three and a half years spent
awaiting trial ought to have been taken into account when he was being sentence d,
as this would have reduced his cumulative sentence. The respondent conceded that
the magistrate should have considered the time spent by the appellant in custody while
awaiting trial. In Radebe and Another v S,3 Lewis JA held:
‘A better approach, in my view, is that the period in detention pre-sentencing is but one of the
factors that should be taken into account in determining whether the effective period of
imprisonment to be imposed is justified: whether it is proportionate to the crime committed.
Such an approach would take in to account the conditions affecting the accused in detention
and the reason for a prolonged period of detention. And accordingly, in determining, in respect
of the charge of robbery with aggravating circumstances, whether substantial and compelling
circumstances warrant a lesser sentence than that prescribed by the Criminal Law
Amendment Act 105 of 1997 (15 years’ imprisonment for robbery), the test is not whether on
its own that period of detention constitutes a substantial and compelling circumstance, but
whether the effective sentence proposed is proportionate to the crime or crimes committed:
whether the sentence in all the circumstances, including the period spent in detention prior to
conviction and sentencing, is a just one.’4
[8] The failure of the magistrate to take into account the time spent by the appellant
in custody while awaiting trial thus amounted to a misdirection on the part of the
learned magistrate. In my view, had the magistrate engaged in that exercise, this could
2 Ibid para 3, citing S v Matshona [2008] ZASCA 58; [2008] 4 All SA 68 (SCA); 2013 (2) SACR 126
(SCA) (Matshona) para 8.
3 Radebe and Another v S [2013] ZASCA 31; 2013 (2) SACR 165 (SCA).
4 Ibid para 14.
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have had a bearing on the sentences imposed. This omission is apparent from the
record and conceded by the respondent. As such there are reasonable prospects that
the appellant could be successful on appeal against sentence. 5 The high court erred
in failing to grant the appellant that leave.
[9] I accordingly make the order set out below.
(a) The appeal succeeds.
(b) The order of the court below to the extent that it refused the petition against the
sentences imposed is set aside and replaced with the following:
‘The application for leave to appeal against the sentences imposed on the applicant
succeeds and the applicant is granted leave to appeal against his sentences to the
Gauteng Division of the High Court, Johannesburg.’
___________________
W HUGHES
JUDGE OF APPEAL
5 Smith paras 2-3; Matshona para 8.
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Appearances
For the Appellant: Heads of argument prepared by EA Guarneri
Instructed by: Johannesburg Justice Centre, Johannesburg
Bloemfontein Justice Centre, Bloemfontein
For the Respondent: Heads of argument prepared by EHF Le Roux
Instructed by: The Director of Public Prosecutions, Johannesburg
The Director of Public Prosecutions, Bloemfontein