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[2014] ZAWCHC 91
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Tuntubele v S (A524/12) [2014] ZAWCHC 91 (6 June 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
No. A524/12
DATE:
06 JUNE 2014
In the appeal:
NKULULEKO
TUNTUBELE
.............................................................
Appellant
And
THE
STATE
.....................................................................................
Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
DELIVERED: 6 JUNE
2014
BINNS-WARD et
SCHIPPERS JJ:
[1] The appellant
has applied for leave to appeal against the judgment of this court,
delivered on 26 May 2014, dismissing his appeal
against his
conviction and sentence by the regional court in respect of one count
of armed robbery. The appellant also gave notice
of his application
to have his bail extended pending the determination of such appeal,
and, presumably, in the event of our refusing
leave to appeal,
pending the determination of any application which he might be able
to direct to a higher court for leave to appeal.
[2] The notice of
application for an extension of bail indicated the appellant’s
intention to move for the relief urgently,
on a date to be arranged
by the registrar. The appellant was constrained to treat his
application for an extension of bail as
a matter of extreme urgency
because the terms of his bail conditions, set by the Judge President
on 24 October 2013, required him
to hand himself over to the clerk of
court to commence serving his sentence within three calendar days
should his appeal not succeed.
The appellant’s legal
representative and counsel for the state were informed by the
presiding judge’s registrar during
the afternoon of Thursday,
29 May, that the applications had been set down for hearing at 9:45
on Monday, 2 June 2014.
[3] The appellant’s
legal representative failed to appear at the hearing on 2 June. When
he had not arrived by 10:00, the
application for leave to appeal was
heard in his absence. Counsel for the state raised a preliminary
point as to our jurisdiction
to deal with the application, or as to
the appellant’s right to make it. She submitted that this
court had no authority
to grant leave to appeal against its judgment.
Ms Berry informed us that the appellant’s legal
representative, Mr Booth,
had been forewarned of the point. She
submitted that were this court nevertheless to entertain the
application for leave to appeal,
it should be dismissed. The
application to extend the appellant’s bail was not moved;
obviously so, in the context of the
failure of his legal
representative to appear. In terms of the order granting him bail,
his bail has lapsed.
[4] We shall address
the preliminary point presently. Before doing so, it is convenient
to record at this stage that after the
court had adjourned, having
reserved judgment, the presiding judge’s registrar received an
email purporting to emanate from
the appellant’s legal
representative. It read ‘Dear Elizabeth Kindly note that we
are putting our Application for
Leave to Appeal on hold. Kindly
acknowledge receipt of this correspondence.’ Ex facie the
email, it was sent by the appellant’s
legal representative at
10:13. That was a most irregular manner in which to deal with the
matter. When an application has been
set down, it may not summarily
and unilaterally be ‘put on hold’ by one of the parties.
If a postponement is sought,
application for the postponement must be
made in the proper form. A postponement is an indulgence, not a
right.
[5] Later during the
day, a further email was received from the appellant’s legal
representative. It appears to have been
sent at 11:11. It read
‘Dear Elizabeth, Please note that Mr Booth was in the High
Court doing Jason Elias trial (sic) this
morning. I failed to bring
to Mr Booth’s attention the fact that this matter was on the
court roll this morning. I humbly
apologise for inconvenience
caused’. The content of the second email would suggest that
the appellant’s attorney’s
assistant had omitted to
record the set down of the applications in the attorney’s
diary. If that was intended to explain
the non-appearance of the
appellant’s legal representative at court, it was a completely
unacceptable way of doing so. It
also begs the question on whose
instruction the first email had been sent, and when that instruction
was given, and to whom.
[6] One assumes that
the diary omission must have been drawn to the attorney’s
attention before or shortly after the second
email was sent. He
would have been duty-bound in the circumstances to urgently arrange
to meet the presiding judge in chambers
to tender the explanation for
his absence in person. These matters are not dealt with by way of
laconic emails from the attorney’s
secretarial staff. It is
unlikely that the appellant’s legal representative, who is a
senior attorney, could not have appreciated
as much. No approach has
been made by the attorney to explain his non-appearance in the manner
that would be expected. The discourtesy,
which is inconsistent with
professional conduct, is to be deprecated. In the circumstances we
shall direct that a copy of this
judgment is to be forwarded to the
Cape Law Society for investigation.
[7] Turning now to
the preliminary point. Ms Berry directed our attention to the
judgment of Blignault J (Nyman AJ concurring)
in S v Imador
[2014]
ZAWCHC 66
, in which it was observed that there were critical
differences between the position currently obtaining under the
Superior Courts Act 10 of 2013
and that which had obtained previously
under its statutory predecessor, the Supreme Court Act 59 of 1959, in
respect of the provision
of a right of appeal in a criminal matter
from a decision of the High Court determining an appeal from a lower
court. Under the
Supreme Court Act, an appellant to the High Court
could, subject to leave being granted by this court, or, if this
Court refused
such leave, the Appellate Division, appeal further to
the Appellate Division, or, latterly, its successor the Supreme Court
of
Appeal. This was by virtue of the provisions of s 21(1) and (4)
of the Supreme Court Act.
[8] Section 21 of
the Supreme Court Act provided:
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.
Section 21(4)
provided:
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.
[9] The
Superior
Courts Act repealed
and replaced the Supreme Court Act. It provides
for a distinctly different regime. In terms of
s 16(1)(b)
of the
Superior Courts Act, ‘an
appeal against any decision of a
Division [of the High Court] on appeal to it, lies to the Supreme
Court of Appeal upon special
leave having been granted by the Supreme
Court of Appeal’. The definition of ‘appeal’ in
terms of s 1 of the
Act 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’. Section 16
resorts in
chapter 5 of the Act.
[10] In Imador, it
was held that an appeal from a judgment of the High Court given on
appeal from a lower court in a criminal matter
did not qualify as an
appeal in terms of chapter 5 of the
Superior Courts Act by
virtue of
the aforementioned statutory definition of ‘appeal’, and
that in the absence in the
Superior Courts Act of provisions
equivalent to those in
s 21(1)
and
21
(4)(b), a further right of
appeal to the Supreme Court of Appeal no longer exists. For the
reasons that follow, we find ourselves
in respectful disagreement
with the first of those conclusions, and are in some doubt as to the
correctness of the second.
[11] The provisions
of the
Criminal Procedure Act that
regulate appeals are contained in
chapters 30 and 31. Those provisions respectively regulate appeals
from the lower courts to
the High Court and from judgments of the
High Court sitting as a court of first instance. Nothing in the
Criminal Procedure Act thus
regulates or provides for an appeal in a
criminal matter from the decision of the High Court constituted as a
court of appeal.
We are not aware of the existence of ‘any
other criminal procedural law’ that might apply, apart from the
rules of
court. Rules 49A, 51 and 52 of the Uniform Rules are
directed at regulating procedures contemplated in terms of chapters
30 and
31 of the
Criminal Procedure Act. Thu
s, assuming that there
is a right of further appeal in the current matter, it follows that
it would indeed be an appeal within the
meaning of chapter 5 of the
Superior Courts Act because
it would not fall within the category of
appeals excluded therefrom by the definition of ‘appeal’
in
s 1.
Any such appeal would thus fall to be regulated in terms of
s 16(1)(b)
of the
Superior Courts Act. The
contemplated appeal would
therefore lie only upon special leave having been granted by the
Supreme Court of Appeal.
[12]
Section 2(2)
of
the
Superior Courts Act provides
‘This Act must be read in
conjunction with Chapter 8 of the Constitution, which contains the
founding provisions for the
structure and jurisdiction of the
Superior Courts, the appointment of judges of the Superior Courts and
matters related to the
Superior Courts.’ Chapter 8 of the
Constitution includes s 168(3)(a), which provides ‘The Supreme
Court of Appeal
may decide appeals in any matter arising from the
High Court of South Africa or a court of a status similar to the High
Court of
South Africa, except in respect of labour or competition
matters to such extent as may be determined by an Act of Parliament’
Whether s 168(3) of the Constitution creates a right of further
appeal in case like the current matter is debatable. As pointed
out
in National Union of Metalworkers of South Africa and Others v Fry's
Metals
2005 (5) SA 433
(SCA),
[2005] 3 All SA 318
, at para 29,
concerning the earlier iteration of s 168(3), before its substitution
by s 4 of the Constitution Seventeenth Amendment
Act of 2012, one
should not ‘confuse the existence of appellate jurisdiction
with the question whether a right of appeal
exists at all. The scope
of institutional authority is one thing; the question whether and
under what conditions it can be invoked
is quite another.
Differently stated, a general right of appeal from all other
appellate bodies to [the SCA] does not entail that
every
determination of a justiciable right must be appealable’. The
appellant’s basic right to an appeal in terms
of s 35(3)(o) of
the Constitution has been vouchsafed in his appeal to this court. So
if there were no right of further appeal,
the resulting position
would not be unconstitutional. But if subsections 21(1) and (4)(b)
of the Supreme Court Act were considered
sufficient to afford a right
of appeal in a case like this, it is difficult to see why s 168(3)(a)
read with the provisions of
the
Superior Courts Act should
not be
given an equivalent effect. However, it is not necessary for us to
determine that question.
[13] In Imador, the
court held that it was able to entertain the application for leave to
appeal because the appellant’s conditional
right to a further
appeal in terms of the Supreme Court Act had accrued before the
Superior Courts Act came
into operation. The court reasoned its
approach on the principle that, in the absence of express provision
to the contrary, new
legislation is presumed not to derogate from
accrued rights. Assuming the correctness in principle of that
approach, it begs the
question of whether the appellant had an
accrued right of appeal from a judgment on appeal by the High Court
when the
Superior Courts Act came
into operation in August 2013. In
our view he did not. No right of appeal can vest before there is an
adverse judgment to appeal
against.
[14] We have thus
concluded that the preliminary point taken by the state is
well-taken. On any approach, we have no jurisdiction
to entertain an
application for leave to appeal against our judgment. The proper
course would therefore be to strike the application
from the roll.
[15] The matter has
a long history, characterised by repeated and lengthy delays. We
thus consider it appropriate, lest we be wrong
in our finding that we
could not entertain the application, to record how we would have
determined it if we did have the jurisdiction
to do so. We do this
so that it would be unnecessary, if a higher court should find that
we should have decided the application,
for further delay to be
occasioned by the remittal of the matter for our decision.
[16] If we had the
authority to determine it, the application could succeed only if we
were of the opinion that the proposed appeal
would have a reasonable
prospect of success.
[17] The appellant
set out 13 grounds in support of the application for leave to appeal.
They were essentially a restatement of
the bases on which the appeal
from the judgment of the trial court was argued before us. Save for
one point, which we shall address
presently, these aspects were
sufficiently canvassed in our judgment handed down last week and it
is thus unnecessary to rehearse
them.
[18] The aspect that
might perhaps usefully be addressed is the appellant’s special
invocation in his grounds for leave to
appeal of the judgment in S v
Charzan and Another
2006 (2) SA 143
(SCA). The appellant’s
legal representative had referred to this judgment, amongst others,
in his heads of argument and
in his oral argument in the appeal
before us. The fact that we made no reference to the case in our
judgment should not imply
that we did not have regard to it; on the
contrary. The appellant’s special reliance on the judgment at
this stage makes
it appropriate for us to explain briefly why we do
not consider that it affords the appellant the support he seeks to
find in it.
[19] The outcome of
the appeal in Charzan turned on the evidence in the case. The
complainant’s identification of the accused
in that case was
found to have been unreliable. This was because soon after the
incident concerned he had described to the police
that one of his
attackers had worn dreadlocks. The dreadlocks were mentioned twice
in the written statement he had made to the
police. Neither of the
persons he pointed out at an identity parade 16 days later had been
wearing dreadlocks. When he was challenged
about this in his
evidence, he stated that ‘there may have been no dreadlocks at
all’. The witness sought to deal
with the difficulty by
stating ‘Well, to me what he was wearing is not very important.
To me the face mattered most, because
I knew that I cannot go for
identity parade to identify somebody who has got dreadlocks, or who
has got a hat. To me, what matters
most is the face. You cannot
identify someone by a hat or dreadlocks. The face matters most.’
[20] Cameron JA
treated of the issue as follows at para 14-15 of the judgment in
Charzan:
[14] The
complainant's observation is correct: facial characteristics are a
more reliable and enduring source of identification
than variable
features such as hairstyle or clothing. But that assertion -
propounded repeatedly during his cross-examination -
underscores the
significance of his mention of the dreadlocks. If they were
immaterial to his recollection, why did he mention
them at all? On
the other hand, if they were material, but there were no dreadlocks,
his error is unignorable.
[15] The mystery was
not cleared up during the complainant's evidence, for he neither
insisted that there were dreadlocks during
the robbery (which must
have been shaved off later), nor conceded that he had made an error:
instead, he attempted to minimise
the importance of what was in his
statement by insisting on the irrelevance of non-facial features. In
keeping with this approach,
counsel for the State urged us on appeal
to find that the complainant was an impressive witness overall, and
that the dreadlocks
were immaterial. But they cannot be dismissed,
for the complainant's statement mentions them twice; and his very
articulacy as
a witness, and the precision of his recall in other
respects, make the unaccounted-for error the more obtrusive. It
unavoidably
raises the question of how reliable his recall was in
other respects. And it makes it the more regrettable that the police
officers
who arrested the accused were not called to testify, since
they would have been able to relate whether accused 1 had dreadlocks
two days after the robbery. We shall never know.
[21] An additional
factor that weighed against the reliability of the complainant’s
identification in Charzan was his insistence
that the incident had
happened at about 19:15 and that the sun had been shining. The
appeal court took judicial notice that at
the time given by the
complainant the sun would have set and dusk would have set in. Not
only did this call into question the
reliability of the complainant’s
observations, but it also highlighted that, were he correct as to the
time of the occurrence,
the lighting conditions inside the garage in
which he was confronted by his assailants would have been distinctly
gloomy. In the
result, observed Cameron JA (at para 17), ‘…the
unsettling uncertainty must obtrude that he may have mistaken the
nature and appearance of his first attacker’s headgear because
the light was bad. And if that is so, then there must be a
measure of
perceptible doubt also about his identification of his attackers’
faces’. In the context of the absence
of any objective
corroboration of the complainant’s identification of the
accused in Charzan, they were entitled to the benefit
of the doubt
because of the demonstrated problems with the reliability of the
complainant’s identification of them.
[22] In the current
matter, by contrast, the complainant’s identification of the
appellant was not susceptible to the criticism
that was brought
against that of the complainant in Charzan, and, moreover, objective
corroboration of the reliability of the identification
was provided
by the evidence that the cell phone number used by the appellant and
given by him to an investigating officer in an
unrelated matter as
his contact details, had been used in the vicinity of the robbery
within a short time of its commission. (The
suggestion in the
grounds of appeal that the cell phone-related evidence ‘did no
more than place the person using the relevant
cell phone number
within five to ten kilometres of the said incident’ is
misconceived. As recorded in the principal judgment,
the evidence
was that the cell phone had been within 500m of the Groote Schuur
Hospital relay tower. This court can take judicial
notice of the
fact that Groote Schuur Hospital is between two and three kilometres
from Woodstock, where the robbery occurred.)
[23] We are of the
opinion that the proposed appeal against conviction would not enjoy a
reasonable prospect of success. Likewise,
we are of the opinion that
any further appeal against sentence would be most unlikely to
succeed. In the result, were we able
to entertain it, the
application for leave to appeal would have been dismissed. If,
contrary to our finding, we do in fact have
jurisdiction to determine
the application for leave to appeal, it should be deemed to have been
dismissed.
[24] The application
for an extension of the appellant’s bail will be struck from
the roll for want of prosecution.
[25] In the
circumstances the following orders are made:
1. The application
for leave to appeal against the judgment of this court of 26 May 2014
is struck from the roll by virtue of an
absence of jurisdiction in
this court to entertain it.
2. The application
for the extension of the appellant’s bail is struck from the
roll for want of prosecution.
3. The Registrar is
directed to forward a copy of this judgment to the Director of the
Cape Law Society, with reference to paragraphs
2-6, above.
A.G. BINNS-WARD
Judge of the High
Court
A. SCHIPPERS
Judge of the High
Court