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[2016] ZASCA 3
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Ntlanyeni v S (015/2012) [2016] ZASCA 3; 2016 (1) SACR 581 (SCA) (25 February 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No
:
015/2012
In
the matter between:
SINETHEMBA
NTLANYENI
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Ntlanyeni
v The State
(015/2016)
[2016] ZASCA 3
(25 February 2016)
Coram:
Tshiqi, Wallis, Dambuza JJA and Plasket and Tsoka AJJA
Heard:
15
February 2016
Delivered:
25 February 2016
Summary:
Reconsideration
of an application for leave of appeal under
s 17(2)
(f)
of
the
Superior Courts Act 10 of 2013
– lodging an application for
reconsideration outside stipulated one month period – there is
no time limit where the
President of the Supreme Court of Appeal
refers an order for reconsideration
mero
motu
.
ORDER
On
appeal from:
Eastern
Cape High Court,
Port
Elizabeth
(Bloem
AJ sitting as a court of first instance).
Leave
is granted to the applicant to appeal to the full bench of the
Eastern Cape High Court, Grahamstown against his conviction.
JUDGMENT
Dambuza
JA (Tshiqi, Wallis JJA and Plasket and Tsoka AJJA concurring):
[1]
This is an application for reconsideration of an application for
leave to appeal brought in terms of
s 17(2)(
f)
of
the Superior Courts Act 10 of 2013 (the Act).
[2]
The applicant and his two co-accused were charged before the Eastern
Cape High Court, Port Elizabeth (Bloem AJ), with assault
with intent
to do grievous bodily harm, kidnapping and two counts of rape. He was
the third accused in the trial court and was
convicted together with
the second accused (Mr Nkompo), only on the charges of kidnapping and
the two counts of rape. They were
both sentenced to an effective term
of 22 years’ imprisonment. The first accused (Mr Poni) was
convicted on all the charges.
Leave to appeal against the convictions
and sentences was refused by the trial court to all three accused.
Thereafter each accused
brought a separate application before this
court for leave to appeal. The first accused’s application was
considered by Cachalia
and Leach JJA. On 7 June 2012 the learned
judges granted that accused leave to appeal against the convictions.
On 22 November 2012
Lewis JA and Southwood AJA, granted the second
accused leave to appeal against his convictions.
[3]
Earlier, on 11 January 2012 the applicant, Mr Sinethemba Ntlanyeni,
had brought an application for leave to appeal. That application
was
dismissed by this court (Ponnan
et
Saldulker JJA) on 1 September 2014. However, during 2012, the
applicant had been advised that leave to appeal had been granted
to
the full bench of the Eastern Cape High Court, Grahamstown. It was
only when his ‘appeal’ was pending in that court
that he
learned that the earlier advice given to him during 2012 had been
erroneous. On 15 July 2015, within seven days of being
advised of the
misfortune relating to his application for leave to appeal, h
e
brought an application in terms of s 17(2)
(f)
of
the Act for the President of this court to refer the decision of 1
September 2014 to this court for reconsideration.
By
the time the applicant launched the application for reconsideration
it was almost ten months after dismissal of his application
for leave
to appeal.
[4]
The reason for the delay in considering the applicant’s
original application for leave to appeal was that the order by
Cachalia and Leach JJA in respect of the first accused’s leave
to appeal had erroneously been understood, presumably by the
Registrar, to be applicable to the applicant as well. Hence the
applicant was advised that his appeal would be heard by the full
bench of the Eastern Cape High Court, Grahamstown on 28 January 2014.
[5]
Whilst Mpati P was of the firm view that the application merits
reconsideration he expressed a concern about the fact that
it
was filed outside the period stipulated in s 17(2)
(f)
.
However, the concern need not detain us. Section 17(2)
(f)
of the Act provides that:
‘
The
decision by the majority of the judges considering leave to appeal in
terms of s 17(2)
(b)
or the decision to grant or refuse an application for leave shall be
final: Provided that the President of the Supreme Court of
Appeal
shall, in
exceptional
circumstances, whether of his or her own accord or on application
filed within one month of the decision
,
refer the decision to the court for reconsideration or, if necessary,
variation.’ (My emphasis.)
[6]
This provision empowers the President of this court, ‘of his or
her own accord,’ to refer a decision for reconsideration.
The
President’s
mero
motu
authority
under s 17(2)
(f)
is not time-bound. This much the respondent correctly conceded. What
is paramount is that the circumstances leading to the application
must be
exceptional
.
[1]
In the ordinary course of events the President will only become aware
of the circumstances in an application for leave to appeal
when his
or her attention is drawn thereto. In this case the unfortunate
circumstances in the applicant’s application did
not come to
the attention of the President so that he could determine whether he
should exercise his powers under s 17(2)
(f)
of the Act
mero
motu,
until
he received the applicant’s application
.
But
I am satisfied that had his attention been drawn thereto, other than
through this application, he would have done so. It is
apparent from
the reasons given by the President of this court that he was
satisfied that the refusal of leave to appeal to the
applicant alone
within the context of the merits of this case and the mishandling of
the applicant’s application for leave
to appeal constituted
exceptional circumstances. The fact that the applicant brought his
application ten months after refusal of
leave seems to me, in the
circumstances of this case, irrelevant.
[7]
As to the merits of the application, I am of the view that there is a
good case for a finding that another court might come
to a different
conclusion than that of the trial court. Although the evidence
supports the complainant’s allegations that
she was attacked on
the night in question, her evidence that she was raped and her
identification of the applicant as one of the
culprits, merits
reconsideration. The fact that the applicant’s co-accused were
granted leave to appeal strengthens this
view.
[8]
Consequently, leave is granted to the applicant to appeal to the full
bench of the Eastern Cape High Court, Grahamstown against
his
conviction.
_____________________
N
DAMBUZA
JUDGE
OF APPEAL
APPEARANCES:
For
the Appellant:
J Van der Spuy
Instructed
by:
Port Elizabeth Justice Centre, Port Elizabeth
Bloemfontein
Justice Centre, Bloemfontein
For
the Respondent:
M M Sandan
Instructed
by:
Director of Public Prosecutions, Grahamstown
Director of Public
Prosecutions, Bloemfontein
[1]
What is
exceptional will be determined on the merits of each case. See, for
example
R
v Maihlome
1913 AD 133
;
R
v Kgolane & others
1959 (4) SA 483
(A).