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[2016] ZASCA 7
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Mndebele v S (173/2015) [2016] ZASCA 7 (3 March 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case No: 173/2015
In
the matter between:
ZENZELE
CLERENCE
MNDEBELE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Mndebele v S
(173/2015)
[2016] ZASCA 7
(3 March 2016).
Coram:
Majiedt and Willis JJA and Baartman AJA
Heard:
24 February 2016
Delivered:
3 March 2016
Summary:
Criminal Procedure; appeal against refusal of a petition by High
Court -common cause that sentence of 8 years imprisonment unduly
harsh - reasonable prospects of success - appeal uph
eld
- leave to appeal to High Court against sentence granted.
ORDER
On
appeal from:
Gauteng Division of the High Court Pretoria,
(Fabricius, Potterill JJ and Jansen AJ as court of appeal).
1 The
appeal is upheld.
2 The
order of the court below refusing the appellant leave to appeal is
set aside and replaced with the following:
‘
The
applicant is granted leave to appeal against the sentence of 8 years’
imprisonment imposed by the regional court at Piet
Retief to the full
bench of the Gauteng Division of the High Court, Pretoria.’
JUDGMENT
Baartman
AJA (Majiedt and Willis JJA concurring)
[1]
This is an appeal against the refusal of
leave to appeal against sentence by the Gauteng Division of the High
Court with special
leave of this court in terms of s 16(1)(
b
)
of the Superior Courts Act 10 of 2013 (the Act).
[2]
On 13 June 2013, the regional magistrate at
Piet Retief convicted the appellant on one count of stock theft and
sentenced him to
8 years’ imprisonment. The trial court refused
an application for leave to appeal. The appellant unsuccessfully
petitioned
the Gauteng Division of the High Court, Pretoria. On 16
February 2015, this court granted the appellant special leave to
appeal
against sentence only. The parties then filed heads of
argument dealing with the merits of the appeal and at the direction
of this
court the parties filed supplementary heads in which they
conceded that the only issue on appeal before this court was whether
the court below was correct in refusing leave to appeal against
sentence. Conversely stated, what is before this court is the
question
whether there are reasonable prospects of success in an
appeal against sentence or some other compelling reason why the
appeal
should be heard (s 17 (1)(
a
)
of the Act).
[3]
In
Van
Wyk v S, Galela v S,
[1]
this court dealt with an unsuccessful petition to the high court as
follows:
‘
A
“decision” of the high court in refusing a petition, in
terms of s 309C of the CPA for leave to appeal, is one
taken on
appeal to it and is governed by s 16(1)(
b
)
of the Act.
Accordingly,
the refusal of leave to appeal by the high court is appealable with
the special leave of this court.
Although s 16(1)(
b
)
of the Act has ameliorated the “cumbersome procedure” to
the extent that an unsuccessful petitioner in the high court
no
longer has to obtain the leave of the high court to appeal to this
court, it has replaced it with the more stringent requirement
that
“special leave” be obtained from this court.’ (My
emphasis.)
[4]
Ponnan JA, in a concurring judgment, said
the following about the procedure following an unsuccessful petition
to the high court:
‘
[39]
In
Tonkin
(para 4) Brand JA lamented that cumbersome and wasteful procedure. In
answer perhaps, s 16(1)(
b
)
has done away with an application for leave to appeal to the high
court against that court’s refusal of a petition. The
result is
that once a petition is refused by the high court it is to this court
that an accused must turn . . . if this court
takes the view
that the higher threshold has been met then leave to appeal will be
granted to the high court for it to enter into
the merits of the
appeal. The high court will then, no doubt, enter into the merits of
the appeal in the full knowledge that this
court has already taken
the view that “special circumstances” subsist. If the
appeal were to fail on the merits in
the high court then, as in the
past, a further appeal would lie to this court.’
[5]
In
Dipholo
v The State,
[2]
this court lamented the confusion about the procedure with reference
to
S v Tonkin,
[3]
S v Khoasasa
[4]
and
Van
Wyk v S
[5]
at paragraphs 5
–
6:
‘
[5]
It is correct that in terms of our current law appeals from the
magistrates’ court must be heard by the high court. Section
309(1)(
a
)
of the Criminal Procedure Act 51 of 1977 (CPA). There is no provision
in the law for this court to hear appeals on the merits
directly from
the magistrates’ courts. However, confusion has reigned in the
various divisions of the high court in recent
times regarding the
proper procedure to be followed by an accused in instances where a
high court has refused leave to appeal a
judgment from the
magistrates’ court . . . .
[6]
It follows therefore that what is before us is not an appeal on the
merits, as the high court has not heard the appeal on the
merits, but
an appeal against the refusal of leave to appeal by the high court .
. . .’
[6]
As
correctly conceded by the parties, we have before us an appeal
against the refusal of the court below of leave to appeal against
sentence. I turn to that enquiry. It is settled law that leave to
appeal is only granted where there are reasonable prospects of
success.
[6]
The appellant’s counsel submitted that, in the circumstances of
this matter, the sentence was unduly harsh in that the trial
court
overemphasised the seriousness of the offence ‘whilst the
personal circumstances of the appellant (especially the role
he
played in the commission of the offence and the benefit which he
received) were under emphasised’. Counsel for the State
submitted although direct imprisonment was appropriate; the sentence
of 8 years’ imprisonment was ‘inappropriately
harsh’.
This concession was properly made and indicates that there are indeed
reasonable prospects of success in the prospective
appeal against
sentence. In the circumstances, leave to appeal against sentence
should be granted to the full bench of the Gauteng
Division,
Pretoria.
[7]
In the result, the following order is made:
1
The appeal is upheld.
2
The order of the court below refusing the
appellant leave to appeal is set aside and replaced with the
following:
‘
The
applicant is granted leave to appeal against the sentence of 8 years’
imprisonment imposed by the regional court at Piet
Retief to the full
bench of the Gauteng Division of the High Court, Pretoria.’
_____________________________
E D BAARTMAN
ACTING JUDGE OF
APPEAL
Appearances
For
Appellant:
M van Wyngaard
Instructed by:
Saayman Attorneys, Benoni
Phatsoane Henney Attorneys,
Bloemfontein
For
Respondent:
F W van der Merwe
Instructed by:
Director of Public
Prosecutions, Johannesburg
Director of Public
Prosecutions, Bloemfontein
[1]
Van Wyk
v S, Galela v S
(20273/2014, 20448/2014) [2014] ZASCA152 (29 September
2014); 2015
(1) SACR 584
(SCA);
[2014] 4 All SA 708
(SCA) para 20.
[2]
Dipholo
v The State
(094/2015)
[2015] ZASCA 120
(16 September 2015).
[3]
S v
Tonkin
(938/12)
[2013] ZASCA 179
;
2014 (1) SACR 583
(SCA)
.
[4]
S v
Khoasasa
(515/2001)
[2002] ZASCA 113
(20 September
2002); 2003 (1) SACR 123
(SCA).
[5]
Van Wyk
v S, Galela v S
(20273/2014, 20448/2014)
[2014] ZASCA 152
;
[2014] 4 All SA 708
(SCA); 2015(1) SACR 584 (SCA).
[6]
Mdluli v
S
(20513/2014)
[2015] ZASCA 178
(27 November 2015) para 3 ‘ . .
. A mere possibility of success or that the case is arguable or
cannot be described as
hopeless, does not constitute reasonable
prospects of success. The appellant must convince this court on a
sound basis that there
is a realistic chance that his appeal might
succeed….’