S v Ceaser

• Jurisdiction: South Africa
• Judge: Wessels JA, Trollip JA and Miller JA
• Judgment Date: 23 November 1976
• Citation: 1977 (2) SA 348 (A)
• Hearing Date: 05 November 1976
• Court: Appellate Division

Miller, J.A.:

The appellant was convicted in the Cape Provincial Division (THERON, J., and assessors) of murder. (He was convicted at the same time of six other offences, to which A further reference will later be made.) No extenuating circumstances having been found, he was sentenced to death. He was born on 5 September 1955 - the crime in respect of which he was sentenced to death was committed on 4 March 1975. He comes on appeal with the leave of the trial Judge. Although it is not very clear from the record whether the leave granted related not only to the sentence but also to the conviction, it B was explained by Mr. Slabbert, who appeared for the State at the trial and on appeal, that what was sought by the appellant's counsel at the conclusion of the trial and granted by the trial Judge was leave to appeal against both, the appeal against the conviction, however, relating only to the question whether the appellant ought to have been convicted of murder or culpable homicide. It was not contended that he ought to have been acquitted on that charge.

C In his heads of argument lodged some time before the hearing of the appeal, Mr. Slabbert contended, in limine, that the appeal ought to be struck off the roll on the ground that the trial Judge, when granting leave to appeal, applied a wrong test. It appears from the record that after appellant's counsel D had moved from the Bar for leave to appeal, the trial Judge said no more than that the application was granted because he considered that another Court could possibly come to a different conclusion. When the appeal was called, however, Mr. Slabbert wisely abandoned the point in limine. The only purpose of here mentioning the point at all is to emphasize that the mere possibility that another E Court might come to a different conclusion is not sufficient to justify the grant of leave to appeal. I do not imply thereby that the trial Judge did not, in fact, apply his mind to the true test, for it is apparent that when making the very brief observation which is recorded, he was not stating his reasons in full.

The proper test has been stated by this Court over and over F again but the matter having been raised in this case (in the somewhat novel form in which Mr. Slabbert chose to do so) it is as well to restate that test. Whatever variants there might sometimes have been in the words chosen to express it, the test is, in substance, whether there is a reasonable prospect of success on appeal. (R. v Ngubane and Others, 1945 AD 185 at pp. 186 - 7; R. v Baloi, 1949 (1) SA 523 (AD) at pp. 524 G - 5.) When the proposed appeal is against sentence or a finding that no extenuating circumstances exist, the prospect of success on appeal will obviously be assessed in the light of the frequently stated principles upon which the Court of appeal will act when deciding whether interference is justified. And even where the crime and the consequences thereof to the H applicant are very grave, although those elements may be taken into account "In borderline cases", the "primary consideration" is whether or not there is a reasonable prospect of success. (See R. v Muller, 1957 (4) SA 642 (AD) at p. 645G; it was also pointedly observed by OGILVIE THOMPSON, A.J.A. (later C.J.), that refusal by the trial Judge of leave to appeal in capital cases does not preclude a convicted person, who has the right to petition the CHIEF JUSTICE for leave to appeal, from further relief. See p. 645H and also, with reference to the Executive's prerogative of mercy and the function of the trial Judge in that regard, p. 546B - C.)

Miller JA

The facts relating to the charge of murder are relatively uncomplicated and are in dispute to a limited extent only.

[The learned Judge then analysed the evidence, dismissed the A appeal against the conviction and continued as follows.]

There is no justification for disturbing the verdict, which must stand.

The appeal against the sentence necessarily depends upon the contention that extenuating circumstances were present...