S v Khoza

• Jurisdiction: South Africa
• Judgment Date: 11 February 2014
• Citation: 2014 (2) SACR 236 (GJ)

S v Khoza
2014 (2) SACR 236 (GJ)

2014 (2) SACR p236

Citation	2014 (2) SACR 236 (GJ)
Case No	P 143/09
Court	Gauteng Local Division, Johannesburg
Judge	Moshidi J and Meyer J
Heard	February 7, 2014
Judgment	February 11, 2014
Counsel	P Shapiro for the appellant.; D van Wyk for the state.

Flynote : Sleutelwoorde

Appeal — Leave to appeal — From dismissal of petition to high court — Condonation for late filing of appeal — When granted — Incomplete and unsatisfactory explanation of reasons for delay — Application for condonation F refused.

Appeal — Special entry in terms of s 317 of Criminal Procedure Act 51 of 1977 — Procedure restricted to trials in high court and not applicable in lower courts.

Headnote : Kopnota

G The appellant was convicted in 2007 of two counts of robbery with aggravating circumstances and escaping from custody and was sentenced in the same year to an effective 25 years' imprisonment. The regional magistrate who tried the appellant refused leave to appeal against the conviction and sentence. He then petitioned the Judge President of the then Transvaal H Provincial Division for leave to appeal but this was refused by the present court in June 2009. In 2013 he launched the present proceedings in which he now sought leave to appeal to the Supreme Court of Appeal against the dismissal of the petition for leave to appeal. He also applied for condonation for the late filing of the application and contended, in support of his application for condonation and by way of an explanation for the delay, that I he had lost confidence in the legal representative who had assisted him during the trial and in the petition proceedings in the high court and that he lacked the funds to appoint a new representative. His friends and relatives had eventually managed to raise the necessary funds during December 2012 that had enabled him to instruct the attorneys of record. In addition the appellant applied for a special entry and for leave to appeal based on the special entry in terms of the provisions of s 317 of the Criminal Procedure J Act 51 of 1977 in respect of alleged irregularities during the trial.

2014 (2) SACR p237

Held, that the appellant had omitted to explain fully and satisfactorily what steps A he had taken to prosecute the present application since the petition for leave to appeal had been dismissed by the court in June 2009. In addition there was a further unexplained delay from the time that the necessary funds were allegedly accumulated, to the time of the filing of the present application, namely on 18 September 2013. There was also no intimation regarding any B steps he had taken to seek legal representation from institutions such as Legal Aid South Africa which did not charge fees. For these reasons the appellant had not made out a case for condonation to be granted. (Paragraph [22] at 243d – e.)

Held, further, as regards the special entry, that the clear and unambiguous wording of s 317 of the CPA made it plain that a special entry was only C applied in criminal trials before a high court. The mere allegation of an irregularity in the regional court clearly did not present the appellant with any automatic entitlement to an appeal (without leave thereto from the lower court or by way of petition), or a review. No failure of justice had resulted from what he contended to be the irregularities. The application was accordingly dismissed. (Paragraph [24] at 244b – g.) D

Annotations:

Cases cited

Case law

Immelman v Loubser en 'n Ander 1974 (3) SA 816 (A): referred to E

R v Kuzwayo 1949 (3) SA 761 (A): referred to

S v Brick 1973 (2) SA 571 (A): referred to

S v Felthun 1999 (1) SACR 481 (SCA) ([1999] 2 All SA 182): applied

S v Khoasasa 2003 (1) SACR 123 (SCA) ([2002] 4 All SA 635): referred to

S v Khoza and Others 2010 (2) SACR 207 (SCA): referred to F

S v Mabasa and Others 2005 (2) SACR 250 (NC): dictum at 253 applied

S v Mantsha 2006 (2) SACR 4 (C): referred to

S v Mantsha 2009 (1) SACR 414 (SCA): referred to

S v Monyane and Others 2008 (1) SACR 543 (SCA): referred to

S v Mthethwa 1972 (3) SA 766 (A): referred to

S v Nomandela and Others [2007] 1 All SA 506 (E): referred to G

S v Tsedi 1984 (1) SA 565 (A): referred to

S v Van der Meyden 1999 (1) SACR 447 (W) (1999 (2) SA 79): referred to.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 317(1): see Juta's Statutes of South Africa 2012/13 vol 1 at 2-422. H

Case Information

P Shapiro for the appellant.

D van Wyk for the state.

An application for the condonation for the late filing of an application for an appeal against the refusal of a petition for leave to appeal in the I Transvaal Provincial Division (Moshidi J and Meyer J).

Order

The application for leave to appeal as set out in the notice of motion dated 17 September 2013 is refused. J

2014 (2) SACR p238

Judgment

Moshidi J (Meyer J concurring):

Introduction

[1] This is essentially an application for leave to appeal against the conviction and sentence imposed by the regional court. In more specific B terms, the appellant seeks to appeal to the Supreme Court of Appeal against the dismissal of his subsequent petition for leave to appeal against the aforesaid convictions in circumstances described below.

[2] The present application is also accompanied by an application for condonation for the late filing thereof. There is also a condonation C application for the late making of a special entry in terms of the provisions of s 317 of the Criminal Procedure Act 51 of 1977 (the Criminal Code).

Some factual background

D [3] The factual background is indispensable. The appellant was originally charged in the Germiston Regional Court with five counts as follows:

Count 1: Robbery with aggravating circumstances.

Count 2: Unlawful possession of firearms.

E Count 3: Escaping from lawful custody.

Count 4: Robbery.

Count 5: Robbery with aggravating circumstances.

The state alleged that counts 1 – 5 were committed by the appellant in the F Boksburg area on 18 July 2005, 17 August 2006, 18 August 2006, 18 August 2006 and 27 July 2006, respectively. The trial commenced on 16 February 2007. The appellant pleaded guilty to count 3, but not guilty to the other charges.

[4] During March 2007 the appellant was convicted in respect of counts 1, 3 and 5. He was acquitted on counts 2 and 4. On 19 March 2007 G the following sentences were imposed:

Count 1: 15 years' imprisonment.

Count 3: Five years' imprisonment.

H Count 5: 20 years' imprisonment.

However, the regional magistrate ordered that the sentence imposed in respect of count 1 be served concurrently with the sentence imposed in respect of count 5. The effective term of imprisonment was therefore 25 years. The regional magistrate later refused an application for leave to I appeal against the convictions and sentences imposed.

Appellant's petition, proceedings and the reasons for its refusal

[5] The appellant, feeling aggrieved by the decision of the trial court, petitioned the Judge President of the then Transvaal Provincial Division in terms of the provisions of s 309C of the Criminal Code for leave to appeal J against both convictions and sentences. In due course, and on

2014 (2) SACR p239

Moshidi J (Meyer J concurring)

11 June 2009, the petition was considered by my brother Meyer J and A me. The petition was refused. However, when the instant application was initially launched, Meyer J was not available as he was an acting judge at the Supreme Court of Appeal. In his place my brother Mabesele J was assigned to...