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[2014] ZAWCHC 198
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Mshudulu v S (A137/2014) [2014] ZAWCHC 198 (3 December 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(
WESTERN
CAPE DIVISION, CAPE TOWN
)
CASE
NUMBER
: A137/2013
DATE
:
3 DECEMBER 2014
In
the matter between:
NANDIPHA
MSHUDULU
…...................................................................................................
Appellant
and
THE
STATE
…........................................................................................................................
Respondent
EX
TEMPORE JUDGMENT
ROGERS
J
:
[1]
This is an application for leave to appeal against the judgment we
delivered on 4 November 2014. Our judgment was in turn given
on
appeal to us from the regional court against the appellant’s
conviction and sentence on two counts. Mr van der Berg now
appears
for the appellant. Ms Mcani continues to represent the State.
[2]
The initial question we required counsel to address us on is the
question whether we have the jurisdiction to entertain the
application for leave to appeal or whether, in terms of the Superior
Courts Act, a further appeal can only be pursued on special
leave
granted by the Supreme Court of Appeal. On the face of it the
judgment of the Supreme Court of Appeal in
Van
Wyk v The State
2014 ZASCA 152
appears
to be dispositive against the appellant in the present case. In that
case, where judgment was delivered on 29 September
2014, the Supreme
Court of Appeal held that where a High Court has, in a criminal
matter, dismissed an appeal on appeal to it from
a lower court,
s 16(1)(b) of the Superior Courts Act has the effect that only
the Supreme Court of Appeal can grant leave
for a further appeal to
be pursued and that the test is the usual one of special leave
requiring some special circumstances over
and above a reasonable
prospect of success.
[3]
Mr van der Berg argued, however, that the
Van
Wyk
judgment does not address the
question as to which cases, if any, fall to be determined with
reference to the repealed Supreme
Court Act on the basis that the
appellant has a vested right to the now repealed appeal procedure. In
that regard we were referred
to two conflicting judgments in this
division, the first being
Imador v The
State
2014 ZAWCHC 66
and the second
Tuntubele v The State
2014 ZAWCHC 91.
Both of these are judgments of two judges of this
division.
[4]
In the
Imador
case Blignault J with whom Nyman AJ concurred, found, firstly, that
on a proper interpretation of the new Superior Courts Act,
read with
the Criminal Procedure Act, the right of a further appeal from the
High Court to the Supreme Court of Appeal had been
abolished all
together. In the second instance, he found that this abolition of a
further appeal did not affect the appellant’s
right in
Imador
to pursue a second appeal under the repealed legislation because, so
it was held, he had a vested right to that further appeal
in
accordance with the old procedure.
[5]
In
Tuntubele
Binns-Ward and Schippers JJ disagreed with this view, holding that
the earliest time at which there could be a vested right to
pursue a
particular statutory appeal procedure was at the time of delivery of
the adverse judgment against which leave to appeal
was sought. That
contrasts with the finding in
Imador
where it was said that, once an accused person has been convicted and
sentenced in the court of first instance, he has a vested
right in
terms of the then prevailing legislation to pursue all appeal avenues
for which the law then allows.
[6]
As applied to the facts of the present case, we have the situation
that the appellant was convicted in the trial court on 22
February
2013 and sentenced on 9 April 2013. The Superior Courts Act came into
force on 23 August 2013. The appeal before us was
only heard and
decided upon in November 2014. In accordance with the
Imador
judgment, the right to the old appeal
procedures would have vested in the appellant prior to the coming
into force of the new legislation.
In accordance with
Tuntubele
,
the right to pursue a further appeal would only have vested when we
delivered judgment in November 2014, which was after the new
Act came
into force and as a result of which the new procedure rather than the
old would apply.
[7]
The question of vested rights and the entitlement to rely on the
repealed legislation was not specifically addressed in
Van
Wyk’s
case. What was
specifically held was that
Imador
was incorrect in finding that the right to a further appeal had been
abolished all together. Now it is clear from the judgment
in
Van
Wyk
that the Supreme Court of Appeal
considered the conflicting decisions which had been given in the
provincial divisions, as both
Imador
and
Tuntubele
were cited in a footnote to the judgment.
[8]
I think we may accept that if the Supreme Court of Appeal had been
persuaded by
Imador’s
finding regarding vested rights, the court would have dealt with it,
because it is clear that it would have been directly applicable
to
the disposition of the
Van Wyk
appeal. I say that because in paragraph 33 of the
Van
Wyk
judgment it is recorded that the
appellant had been in prison since being sentenced on 25 March 2011.
It was thus clear to the
Supreme Court of Appeal in
Van
Wyk
that
the conviction and sentence had occurred well before the coming into
force of the Superior Courts Act. That did not prevent
the court from
finding that, with the coming into force of the Superior Courts Act,
the North Gauteng High Court, which had heard
the appeal in
Van
Wyk
, did not have jurisdiction to
consider an application for leave to appeal and that there needed to
be a case for special leave
under the provisions of s 16(1)(b)
of the new Act.
[9]
Mr van der Berg raised an alternative argument which was to the
effect that the vested right, if it did not vest when the accused
person was convicted and sentenced in the trial court, at least
vested once the appeal to the High Court became pending in this
court. There is some difficulty in knowing at precisely what point in
the appellate procedure an appeal in this court can be said
to become
pending and whether that event occurred before or after 23 August
2013. However, I do not think it is necessary to resolve
that
question. I say so because I am in respectful concurrence with the
view that was reached in
Tuntubele
that the right to pursue a particular appeal procedure cannot vest
until the adverse judgment against which one wishes to appeal
has
been handed down. That, as we know in this case, occurred well
after the Superior Courts Act came into force.
[10]
Reference was made in passing to the provisions of s 52(1) of
the Superior Courts Act where it is provided that, subject
to section
27, proceedings pending in any court at the commencement of the Act
must be continued and concluded as if the Act had
not been passed.
Subsection 2 says that proceedings must, for purposes of s 52,
be deemed to be pending if, at the commencement
of the Act, a summons
has been issued but judgment has not been passed.
[11]
In my view ‘proceedings’ as contemplated in section 52
are proceedings which terminate in a judgment. From that
it seems to
me to be clear that, in the course of the criminal justice process in
relation to a particular person, there may be
a sequence of
‘proceedings’. The first proceedings start in the trial
court and are concluded upon sentence and conviction.
If the accused
person wishes to appeal, he commences further proceedings by
delivering an application for leave to appeal and those
proceedings
are terminated upon the giving of a decision thereon by the trial
court. There then starts appeal proceedings in the
High Court which
are terminated with a judgment of this court. If this Court has
jurisdiction, further proceedings may then be
commenced by way of an
application for leave to further appeal to the Supreme Court of
Appeal, and such proceedings would be terminated
by the judgment of
this court giving or refusing leave. Appeal proceedings might
then commence in the Supreme Court of Appeal,
again terminated by
that court’s judgment on further appeal.
[12]
On the assumption that the appellant’s appeal in this court
became pending in this court before 23 August 2013, the appellant
had
a right to have her appeal in this court determined in accordance
with the law as it stood prior to the coming into force of
the
Superior Courts Act (assuming that the Superior Courts Act otherwise
has any bearing on the determination of the appeal). Her
application
to us for leave to appeal against our judgment is a new proceeding
which has been instituted after the coming into
force of the Superior
Courts Act.
[13]
The question of the effect of procedural amendments on pending
proceedings has been the subject of many decisions, one of the
more
recent being
Unitrans Passenger (Pty)
Limited t/a Greyhound Coach Lines v Chairman National Transport
Commission and Others
1999 (4) SA 1
(SCA). That case refers to the trend in case law towards the view
that statutory amendments of a procedural nature tend to operate
prospectively in regard to matters already before the courts, whereas
statutory amendments affecting the substantive rights of
parties
generally do not affect pending proceedings. Olivier JA pointed
out that the distinction was not all together satisfactory
because
amendments which may appear to be of a procedural nature may be found
on analysis to have substantive effects. He said
that ultimately it
was a matter of the proper interpretation of the relevant
legislation, a process in which questions of fairness
and equity
should be considered.
[14]
In that case and in the earlier leading case of
Bell
v Voorsitter van die Rasklassifikasie Raad en Andere
1968
(2) SA 678
(A) the courts were concerned with proceedings of
quasi-judicial nature before administrative bodies, where a person
had initiated
proceedings before the administrative body only to find
that, midway through those proceedings, some change in procedure was
effected
by statute which effectively took away their right to take
the proceedings to completion. It was in those circumstances that one
would more readily find that the amendment does not affect pending
proceedings. That was the situation in the
Unitrans
case where Olivier JA said the following in para 23:
‘
Of
course there may be cases where an amending statute introduces new
procedural provisions which may, on a proper interpretation,
leave
intact the steps that have already been taken and operate
prospectively only. But that will not be the position where a
prospective operation would render abortive the steps taken in the
past – unless such was the clear intention of the legislator.
To apply the statute to the pending application in the present case
would extinguish there and then the ability to proceed with
the
application. It would nullify the steps already taken by Interkaap.’
[15]
I have already indicated how I would interpret the notion of pending
proceedings in s 52. Such an interpretation would
avoid the
situation contemplated in para 23 of
Unitrans
where steps taken in certain proceeding
might be rendered abortive because of a change of procedure
midstream. It is clear that
in the present case no steps which the
appellant has taken up to now will have been rendered abortive. She
pursued her appeal in
this court to its conclusion in accordance with
the law as it prevailed at all material times. No application for
leave to pursue
a further appeal has been rendered abortive, after it
was instituted, by virtue of the statutory amendment. The application
for
further leave to appeal was only instituted very recently and
well after the Superior Courts Act came into force.
[16]
Apart from those considerations of fairness and equity, I do not
think that fairness and equity requires that accused persons
should
have a right to pursue an appeal by using an old procedure merely
because that was the procedure which applied either when
they were
convicted or when the appeal became pending in the intermediate
court. The lawmaker has evidently thought it fair and
right that to
pursue a second appeal certain particular requirements should be met
and there is no unfairness in saying that the
appellant, like a great
many other accused persons, will need to satisfy that test if she is
to pursue a further appeal.
[17]
Mr van der Berg referred us to s 35(1)(o) of the Constitution
which says that a right of appeal is one of the fundamental
fair
trial rights of an accused person. However, that section does not
give an unqualified right of appeal because, as we know,
requirements
for leave to appeal have been found to be constitutionally valid.
Moreover, the right to appeal, which is guaranteed,
is not the right
to use a procedure which happens to be in place at a particular point
in time or when the Constitution was enacted
but merely a right to
pursue an appeal in accordance with the law that prevails at the
relevant time. The new appeal procedures
under the Superior Courts
Act are not challenged for constitutional invalidity. I therefore do
not think that s 35(1)(o) of
the Constitution affects the
question of the interpretation of s 52 of the Superior Courts
Act or the question as to when
a vested right to pursue an appeal
accrues.
[18]
It seems that, if Mr van der Berg’s argument were correct, it
would effectively mean that s 16(1)(b) of the Superior
Courts
Act would not find actual operation in any cases for a number of
months, even several years. All pending cases would have
to be
concluded to finality, including appeals to the Supreme Court of
Appeal, under old legislation. I do not think that could
have been
the intention of the lawmaker.
[19]
For these reasons I conclude that we do not have jurisdiction to
entertain the present application and that it should be struck
from
the roll. We raised with counsel whether, in the event that we should
be wrong in this conclusion, it would be desirable for
us to express
any view on the prospects of success with a view perhaps to
short-circuiting a referral back to us. However, counsel
on both
sides took the view that if we do not have jurisdiction we should
leave it at that and express no views on prospects of
success.
[20] The
other matter which is before us is an application by the appellant
for the extension of bail, to cover the eventuality
that we might
find we do not have jurisdiction or the eventuality that we might
refuse leave to appeal (in which case the extended
bail would operate
either until a petition to the Supreme Court of Appeal has been
rejected or until any appeal which is permitted
to that court has
been finalised). The appellant has been on bail since some time in
2009. After she was convicted and sentenced
in the lower court,
her bail was extended. Bail pending the appeal to this court was set
at R10 000. The conditions included
that she should not reside
in the Province of the Western Cape pending the determination of her
appeal, that she should report
to a police station once a week, being
the CR Swart police station in Durban, and that although she would be
permitted to travel
within the borders of South Africa she would not
be allowed to go on any international flights or leave the country
for any reason,
work or leisure. I also understand that her
passport has been surrendered to enforce the bail conditions.
[21]
Mr van der Berg referred us to various authorities which deal with
the test to be applied in extending bail pending an appeal
or a
possible appeal. The trend of the later cases is that, even if a
court considers that there are no reasonable prospects of
success,
bail may be granted if the appellant does not pose a flight risk and
if the appeal cannot be said to be completely hopeless
or, putting it
differently, except in those cases which are completely cut and dried
against the appellant a court will lean towards
extending bail if
there is no flight risk.
[22]
It seems to me that, subject to a modest increase in the amount of
bail, it would be just to extend it. If the Supreme Court
of Appeal
grants leave, that will indicate that there are some prospects of
success. If the Supreme Court of Appeal refuses leave
to appeal, that
will happen in the relatively near future. The injustice for the
appellant, if she were required now to be incarcerated
but were then
after a month or two released again pending an appeal, would be
greater than is posed by the risk of flight.
[23]
For all these reasons the following order is made:
[1]
[1]
In regard to the application for leave to
appeal, the application is struck from the roll on the grounds that
in terms of
s 16(1)(b)
of the
Superior Courts Act 10 of 2013
this court does not have jurisdiction to entertain the application.
[2]
In regards to the bail application, the
appellant’s bail is extended subject to an additional amount of
R5 000 being
lodged as bail (bringing the total amount of bail
to R15 000) and subject to the conditions set out in 3 and 4
below.
[3]
The appellant’s bail shall
automatically lapse on the earlier of the following events:
(a) if
she has not, by Friday 16 January 2015, delivered an application for
special leave to appeal to the Supreme Court of
Appeal in terms of
s 16(1)(b)
of the
Superior Courts Act together
with any
application for condonation which she may require;
(b) if
the Supreme Court of Appeal refuses the application for special leave
to appeal or refuses any related condonation application
for the late
filing of the application for special leave;
(c) if
the Supreme Court of Appeal, having granted special leave to appeal,
dismisses the resultant appeal.
[4]
The existing bail conditions continue to
apply, namely:
(a)The
appellant is not, pending the determination of her application for
special leave or any ensuing appeal, to reside in the
Western Cape
Province.
(b) The
appellant must report once a week to the CR Swart Police Station in
Durban between the hours of 18h00 and 20h00.
(c) The
appellant may travel within the borders of the Republic but may not
leave the Republic or board any international flight,
whether for
work or leisure.
(d) The
appellant’s passport shall remain surrendered in the custody of
the South African Police.
__________________
ROGERS,
J
I
agree.
______________________
VAN
STADEN, AJ
[1]
The
order which follows substitutes the one give orally and is in a form
to which both counsel agreed after the hearing.