S v Gentle

• Jurisdiction: South Africa
• Judge: Farlam JA, Cloete JA and Ponnan JA
• Judgment Date: 29 March 2005
• Citation: 2005 (1) SACR 420 (SCA)
• Docket Number: 317/03
• Hearing Date: 14 March 2005
• Counsel: M Calitz for the appellant. G Wolmarans for the State.
• Court: Supreme Court of Appeal

Cloete JA:

[1] At the outset of this appeal the Court granted the B appellant's application for condonation of the late delivery of his application for leave to appeal to this Court. The application was, correctly, not opposed by the representative of the State. At the conclusion of the hearing, and after a short adjournment, the Court granted the appellant's application for leave to appeal, upheld the appeal against conviction and set the appellant's conviction and C sentence aside. The appellant was released from custody later the same afternoon. It was indicated that reasons for the Court's order would be furnished in due course. These are the reasons.

[2] On 26 July 2000 the appellant and his co-accused were D charged in the regional court, Oudtshoorn, with having raped the complainant on 31 January 1999 at Matjiesrivier. Both pleaded not guilty but both were convicted. The magistrate found that each had raped the complainant twice. This finding meant that the offence was one specified in Part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of 1979 (the Act). The regional magistrate was accordingly obliged E in terms of s 52(1) of the Act to stop the proceedings and commit the appellant and his co-accused for sentence by a High Court as contemplated in s 51(1) of the Act.

[3] The procedure which the High Court was obliged to follow is F set out in s 52(3), which provides inter alia:

'(a)

Where an accused is committed under ss (1)(b) for sentence by a High Court, the record of the proceedings in the regional court shall upon proof thereof in the High Court be received by the High Court and form part of the record of that Court.

(b)

The High Court shall, after considering the record G of the proceedings in the regional court, sentence the accused as contemplated in s 51(1) or (2), as the case may be, and the judgment of the regional court shall stand for this purpose and be sufficient for the High Court to pass such sentence: Provided that if the Judge is of the opinion that the proceedings are not in accordance with justice or that doubt exists whether the proceedings are in accordance with justice, he or she shall, without sentencing the H accused, obtain from the regional magistrate who presided at the trial a statement setting forth his or her reasons for convicting the accused.'

The sentence prescribed in s 51(1) is imprisonment for life; but s 51(3)(a) provides that if the Court is satisfied that substantial and compelling circumstances exist which I justify the imposition of a lesser sentence, it may impose a lesser sentence.

[4] The matter came before Griesel J on 12 November 2001 in the Circuit Court at Oudsthoorn. The learned Judge recorded that he was satisfied that the proceedings were in accordance with justice; found that substantial and compelling circumstances were present; and sentenced J

Cloete JA

the appellant to 15 years' imprisonment and his co-accused A to ten years' imprisonment. Both applied to the learned Judge for leave to appeal against the convictions and sentences imposed. Their application was heard together with four other applications in similar matters. On 19 April 2002 the learned Judge handed down a joint judgment in which he concluded that each of the applicants had an automatic right of appeal against conviction, but that leave to appeal B against sentence was required. The learned Judge continued:

'Sou die Volbank van my bogemelde benadering verskil, óf wat die feite óf wat die reg aanbetref, word geboekstaaf dat ek in elk van die vyf aansoeke wat die onderwerp van die huidige uitspraak vorm sodanige verlof sou geweier het. In daardie geval kan die gebrek aan verlof ondervang word deur die uitoefening deur die Hof van Appèl van C sy wye hersieningsbevoegdhede voortspruitend uit die bepalings van art 309(3), gelees met art 304(2) van die Strafproseswet.'

In the case of the appellant and his co-accused, leave to appeal against sentence was refused.

[5] In coming to the conclusion that the appellant and the other D applicants for leave to appeal had an automatic right to appeal against conviction, the learned Judge reasoned as follows:

'Hierdie Hof het geen onafhanklike skuldigbevinding ten opsigte van enigeen van hulle uitgebring nie en het selfs nie eens nodig gehad om hul skuldigbevindings te bekragtig nie. Wat wel gebeur het, is E dat hierdie hof die verrigtinge in die laer hof onder hersiening geneem het en tot die gevolgtrekking gekom het dat reg tydens sodanige verrigtinge behoorlik geskied het.'

That reasoning is inconsistent with the later decision of this court in S v B 2003 (1) SACR 52 (SCA)(2003 (1) SA 552). In para [9] of the judgment Streicher JA concluded, with reference to s 52(3) of the Act, that: F

'Die skuldigbevinding in die streekhof is dus, in effek, 'n voorlopige skuldigbevinding wat finaal word indien dit aanvaar word of bekragtig word deur die Hoë Hof. Met ander woorde die Strafwysigingswet het 'n spesiale prosedure geskep ingevolge waarvan die verhoor van 'n beskuldigde in die streekhof begin en in die Hoë Hof afgehandel kan word.' G

[6] The appellant and his co-accused appealed to the Cape High Court. The decision of this court in S v B was available to that Court. In a judgment delivered on 20 February 2003 Knoll J (Selikowitz J and Blignaut J concurring) [*] found that although the Act had been amended with effect from 23 March 2001 by the Judicial Matters Amendment Act 62 of 2000, the H conclusion reached in S v B was unaffected; and accordingly correctly held that the appellant required leave to appeal against his conviction in terms of s 316 of the Criminal Procedure Act 51 of 1977. Because such leave had not been granted by Griesel J, and because leave to appeal against sentence had been refused by him, the I Full Court struck the appeal off the roll. The Full Court was unable to exercise its review jurisdiction inasmuch as the decision of a Superior Court is not reviewable.

Cloete JA

[7] The obviously bewildered appellant then applied for A condonation and for leave to appeal to this Court. The applications were dated 29 April 2003 and were received by the Registrar on 17 July 2003. On 22 August 2003 this Court made the following order:

'1.

The application for condonation and leave to appeal is referred to this Court for oral argument. B

2.

The parties must be prepared, if called upon to do so, to address the Court at the hearing on the merits of the conviction and sentence.

3.

The applicant is to file five additional copies of the application for condonation and leave to appeal and to file with the Registrar of this Court the record of the proceedings and to comply with all the rules relating to the prosecution of an appeal. C

4

The applicant should arrange to be legally represented, if necessary, by applying to the Legal Aid Board for assistance.'

[8] As I have said, the application for condonation was granted at the outset of the hearing. The question which then arose for decision was whether this Court could hear the appeal. The answer to that question depended upon whether it could be found that Griesel J refused D to grant leave to appeal - in which case this Court could grant the application for leave. Griesel J refused leave in regard to the sentence he imposed. In the passage I have quoted in para [4] above, Griesel J said expressly that he would have refused leave to appeal against conviction; and that is no doubt what he would have done, had the matter been sent back for his consideration by this Court. If the matter were to have been sent back, this Court could E nevertheless have heard the appeal pending the decision of Griesel J for the reasons given in paras [18] - [28] of the judgment of this Court handed down on 20 December 2004 in Pharmaceutical Society of South Africa v Minister of Health; New Clicks South Africa (Pty) Ltd v Dr Manto Tshabalala-Msimang NO, SCA cases 542/04 and 543/04; [*1] and this Court could itself have F granted the necessary leave were it to have been refused. But to follow this approach would have been pointless, would have caused further unnecessary delay and would have resulted in form triumphing over substance - all for the purpose of obtaining an entirely predictable result. In the circumstances this Court was of the view, and the representative of the State on appeal conceded, that Griesel G J's approach should be interpreted as a refusal of leave to appeal on conviction. This Court therefore considered that it was...