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[2014] ZAWCHC 66
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Imador v S (A167/2013) [2014] ZAWCHC 66 (3 April 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
CASE
NO: A167/2013
DATE:
03 APRIL 2014
In the matter
between
LUCKY
IMADOR
..........................................
Applicant
/Appellant
And
THE
STATE
.................................................................
Respondent
JUDGMENT
IN APPLICANT’S APPLICATION FOR LEAVE TO APPEAL
DELIVERED ON 3
APRIL 2014
BLIGNAULT J:
[1] Applicant
(appellant in the appeal heard by this court) was convicted on 13
August 2012 in the regional court at Bellville on
a charge of money
laundering in contravention of s 4 of the Prevention of Organised
Crime Act 121 of 1988. He was sentenced on
26 November 2012 to 5
years’ imprisonment.
[2] Applicant
appealed against his conviction and sentence to this Division of the
High Court. The appeal was heard by this court,
a full bench
consisting of two judges. On 9 December 2013 his appeal against his
conviction was dismissed but his appeal against
his sentence was
upheld. His sentence of 5 (five) years’ imprisonment was set
aside and replaced by a sentence of 3 (three)
years’
imprisonment.
[3] Applicant
thereafter brought an application in this court for leave to appeal
to the Supreme Court of Appeal against his conviction.
He did not
apply for leave to appeal against the sentence imposed by the
regional court and varied by this court.
[4] At the hearing
of the application the preliminary question arose whether this court
has the power to entertain applicant’s
application for leave to
appeal. This question is dependent on a more fundamental issue,
namely whether the Supreme Court of Appeal
has jurisdiction to
consider applicant’s proposed appeal.
[5] Prior to the
commencement of the Superior Courts Act 10 of 2013 (‘the
Superior Courts Act&rsquo
;) on 23 August 2013 it was settled law that
the Supreme Court of Appeal had the power to determine a second
appeal of an accused
person against his conviction or sentence in a
lower court in the event of his first appeal to the High Court being
unsuccessful.
This power was derived from the provisions of
s 20(1)
read with s 21(1) of the Supreme Court Act 59 of 1959 (‘the
Supreme Court Act’). They read as follows:
‘20 Appeals to
Supreme Court in general.
(1) An appeal from a
judgment or order of the court of a provincial or local division in
any civil proceedings or against any judgment
or order of such a
court given on appeal shall be heard by the appellate division.
… … …
21 Appeals to
appellate division
(1) In addition to
any jurisdiction conferred upon it by this Act or any other law, the
appellate division shall, subject to the
provisions of this section
and other law, have jurisdiction to hear and determine an appeal from
any decision of the court of a
provincial or local division.’
[6] The right of the
accused person to pursue a second appeal against his conviction to
the Supreme Court of Appeal was, however,
subject to leave to appeal
being granted by the High Court or, failing that, by the Supreme
Court of Appeal. See section 20(4)
of the Supreme Court Act:
‘(4) No appeal
shall lie against a judgment or order of the court of a provincial or
local division in any civil proceedings
or against any judgment or
order of that court given on appeal to it except—
(a) in the case of a
judgment or order given in any civil proceedings by the full court of
such a division on appeal to it in with
the special leave of the
appellate division;
(b) in any other
case, with the leave of the court against whose judgment or order the
appeal is to be made or, where such leave
has been refused, with the
leave of the appellate division.’
[7] Du Toit et al
Commentary on the Criminal Procedure Act, at 30-48D, in a discussion
of appeals from criminal proceedings in the
lower courts, summarises
the position that pertained under the Supreme Court Act as follows:
‘The decision
given on appeal by a provincial or local division of the High Court
is final in the sense that such court on
appeal may not reconsider
it. But if the accused’s appeal is dismissed, with the leave
of the court against whose decision
he wishes to appeal or with the
special leave of the Supreme Court of Appeal, he may appeal further
to the latter division. The
power to appeal further in this way is
derived from s 21 of the Supreme Court Act 59 of 1959.’
[8] The
Superior
Courts Act came
into operation on 23 August 2013. In terms of
s
55(1)
thereof, read with Schedule 1 to the statute, it repealed the
whole of the Supreme Court Act.
[9] The
Superior
Courts Act contains
a section, numbered 16, which contains provisions
that are comparable to s 21 of the Supreme Court Act. It reads as
follows:
‘16 Appeals
generally
(1) Subject to
section 15 (1), the Constitution and any other law-
(a) an appeal
against any decision of a Division as a court of first instance lies,
upon leave having been granted-
(i) if the court
consisted of a single judge, either to the Supreme Court of Appeal or
to a full court of that Division, depending
on the direction issued
in terms of section 17 (6); or
(ii) if the court
consisted of more than one judge, to the Supreme Court of Appeal;
(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; and
(c) an appeal
against any decision of a court of a status similar to the High
Court, lies to the Supreme Court of Appeal upon leave
having been
granted by that court or the Supreme Court of Appeal, and the
provisions of section 17 apply with the changes required
by the
context.’
[10] The power of
the High Court to grant leave to appeal is found in
s 17
of the
Superior Courts Act. These
provisions do not, however, expand the
ambit of the kind of cases in which the Supreme Court is empowered to
consider appeals.
[11]
Sections 16
and
17
of the
Superior Courts Act are
, however, subject to the definition
of ‘appeal’ in
s 1
thereof which reads as follows:
‘'appeal' in
Chapter 5, does not include an appeal in a matter regulated in terms
of the Criminal Procedure Act, 1977 (Act
51 of 1977), or in terms of
any other criminal procedural law;’
[12]
Sections 16
and
17
of the
Superior Courts Act both
appear in Chapter 5 of the
Superior Courts Act. They
do not, therefore, apply to applicant’s
proposed appeal to the Supreme Court of Appeal.
[13]
Section 52
of
the
Superior Courts Act contains
certain transitional provisions.
The section reads as follows:
‘52 Pending
proceedings when the Act commences
(1) Subject to
section 27, proceedings pending in any court at the commencement of
this Act, must be continued and concluded as
if this Act had not been
passed.
(2) Proceedings
must, for the purposes of this section, be deemed to be pending if,
at the commencement of this Act, a summons had
been issued but
judgment had not been passed.’
[14] Sub-section
s
52(1)
of the
Superior Courts Act thus
provides that ‘pending
proceedings’ must be continued an concluded as if the
Superior
Courts Act had
not been passed. The definition of ‘pending
proceedings’ is found in sub-sec 52(2). In my view the use of
terms ‘summons’
and ‘judgment’ is a strong
indication that the latter sub-section applies to civil matters only.
Even if it is assumed
that these terms are to be interpreted as
applying, mutatis mutandis, to criminal matters, then it seems to me
that a ‘judgment’
should be equated to a conviction and
sentence in a criminal trial. Applicant’s criminal trial was
therefore no longer
‘pending’ in the regional court
within the meaning of
s 52
of the
Superior Courts Act when
it came
into operation.
[15] I conclude
therefore that sections 20 and 21 of the Supreme Court Act have been
repealed and, as far as they dealt with criminal
appeals, no
comparable provision of the
Superior Courts Act has
been substituted
for them.
[16] I turn to the
relevant provisions of the Criminal Procedure Act 51 of 1977 (‘the
CPA’) in order to determine whether
they provide applicant with
a right of a second appeal against his conviction in the regional
court. Chapter 31 thereof is headed
‘Appeals in Criminal
Proceedings in Superior Courts’. The first section in this
chapter is s 315. It reads as follows:
‘315 Court of
appeal in respect of superior court judgments
(1) (a) In respect
of appeals and questions of law reserved in connection with criminal
cases heard by a High Court, the court of
appeal shall be the Supreme
Court of Appeal, except in so far as subsections (2) and (3)
otherwise provides.’
[17] Kruger
Hiemstra’s Criminal Procedure 31-1 expresses the view that
chapter 31 of the CPA applies only to criminal cases
that were heard
by the high court as a court of first instance and not to further
appeals in cases which originated in a lower
court. The author
relies for this statement, in my view with justification, on the
judgment of the Appellate Division in S v Mahomed
1977 (2) SA 531
(A). In Mahomed the court was dealing with s 362 of the Criminal
Procedure Act 56 of 1955 (‘the 1955 CPA’). Its wording
and context were similar to those of s 315(1) of the CPA. It read as
follows:
‘362 (1) In
respect of appeals and questions of law reserved in connection with
criminal cases dealt with by a provincial
or local division of the
Supreme Court... the court of appeal shall be the Appellate Division
of the Supreme Court.
(2) An appeal shall
lie to the court of appeal only as provided in secs 363 to 366
inclusive, and not as of right.’
[18] In S v Mahomed,
supra, Trollip J said the following, at 541 C-G:
‘In my view
the answer to Mr. Stephen's contention is that the limitation on
appeals in criminal cases contained in sec. 362
(2) only extends to
those cases that are dealt with by Superior Courts as Courts of first
instance; both Lembada's and Heller's
were cases of that kind; it
does not apply to those criminal matters, like appeals under sec. 97,
which originate in the magistrates'
courts and are dealt with by
Superior Courts as Courts of second instance. That is clear, I think
from the whole context of Chap
of the Code that contains, inter alia,
secs. 362 to 366. Lembada's case, supra, in fact recognized and drew
that distinction at
p. 420C - F. It also seems to have been assumed
in Sita's case, supra. And in S. v Mtimkulu,
1975 (1) SA 209
(T), the
distinction was expressly and correctly affirmed and given effect to.
It was there held that the refusal by the T.P.D.
to condone an
inadequate notice of appeal against a magistrate's decision in a
criminal case was appealable under sec. 21 (1) of
the Supreme Court
Act.’
[19] The CPA also
contains provisions regulating criminal appeals against the
conviction and sentence of an accused person in a
magistrate’s
court. They are governed by the provisions of sections 309, 309A,
309B and 309C of the CPA. They do not contain
any provision granting
an accused person the right to a second appeal against his/her
conviction or sentence.
[20] In Sefatsa and
Others v Attorney-General, Transvaal, and Another
1989 (1) SA 821
(A)
the Appellate Division confirmed that a superior court - including
itself - is a creature of statute and that it does not have
a
jurisdiction which is general and unlimited unless cut down or
forbidden by law. It follows from this judgment and the authorities
referred to therein that the Supreme Court of Appeal has no inherent
jurisdiction to determine applicant’s proposed appeal.
[21] In these
circumstances it seems to me that an accused in a criminal case that
was heard in the first instance in a lower court,
does not have a
further right of appeal to the Supreme Court of Appeal after his/her
appeal has been determined by a full bench
of the High Court. The
concomitant legal position is that the Supreme Court of Appeal has no
jurisdiction to hear such an appeal.
[22] A final
question that arises is whether applicant is not able to rely on the
common law principle, embodied in sub-sections
12(2)(c) and (d) of
the Interpretation Act 33 of 1957, that the repeal of a statute does
not affect pending legal proceedings.
[23] The leading
case is Bell v Voorsitter van die Rasklassifikasieraad
1968 (2) SA
678
(A). At 684 E-F,Botha JA said the following:
‘Die
aanvaarding as deel van ons reg van die reël dat waar 'n
wetsbepaling terugwerkend of andersins gewysig word onderwyl
'n
geding hangende is, die regte van die gedingvoerende partye, by
ontstentenis van 'n ander bedoeling, volgens die wetsbepalings
wat
ten tyde van die instelling van die geding gegeld het, beoordeel moet
word, blyk dus duidelik te wees. Dat dit die reël
is wat ook
deur die Engelse Howe by die uitleg van Wette toegepas word, blyk
duidelik uit die gewysdes waarna in Bartman v Dempers,
supra, verwys
word. (Sien ook Maxwell, Interpretation of Statutes, 11de uitg., bl.
212).
[24] The learned
judge pointed out that the position under the common law corresponds
with the provisions of sub-sec 12(2) of the
Interpretation Act 33 of
1957 which read as follows:
‘Where a law
repeals any other law, then unless the contrary intention appears,
the repeal shall not-
… …
(c) affect any
right, privilege, obligation or liability acquired, accrued or
incurred under any law so repealed; or
(d) affect any
penalty, forfeiture or punishment incurred in respect of any offence
committed against any law so repealed;
and any such
investigation, legal proceeding or remedy may be instituted,
continued or enforced, and any such penalty, forfeiture
or punishment
may be imposed, as if the repealing law had not been passed.’
[25] In S v Mhlungu
and Others
[1995] ZACC 4
;
1995 (3) SA 867
(CC) para [67] the Constitutional Court
formulated this principle as follows:
‘[67] There is
still another well-established rule of construction namely, that even
if a new statute is intended to be retrospective
insofar as it
affects vested rights and obligations, it is nonetheless presumed not
to affect matters which are the subject of
pending legal proceedings.
See Bell v Voorsitter van die Rasklassifikasieraad en Andere
[1968
(2) SA 678
(A)]; Bellairs v Hodnett and Another
[1978 (1) SA 1109
(A)] at 1148).’
[26] At the time of
applicant’s conviction and sentence in the regional court he
had the statutory right of appeal to this
court and the right of a
second appeal to the Supreme Court of Appeal. It seems to me
therefore that applicant’s right to
a second appeal to the
Supreme Court of Appeal was not affected by the repeal of the Supreme
Court Act.
[27] Applicant’s
right to a second appeal to the Supreme Court of Appeal was subject
to the condition that leave to appeal
be granted by the High Court
or, failing that, by the Supreme Court of Appeal. In my view
applicant’s right to pursue a
second appeal must as a matter of
logic be subject to the same condition.
[28] I am
accordingly of the view that this court has jurisdiction to consider
applicant’s application for leave to appeal
against his
conviction to the Supreme Court of Appeal.
[29] I proceed to
deal with the merits of applicant’s application. I have
considered applicant’s grounds of appeal
as set forth in his
application for leave to appeal and the oral argument presented to
the court at the hearing of the application.
In my view, however, he
does not have any prospects of success on appeal.
[30] Applicant’s
application for leave to appeal to the Supreme Court of Appeal
against his conviction is accordingly dismissed.
A P BLIGNAULT
NYMAN AJ: I
agree
R NYMAN