S v Matshona

• Jurisdiction: South Africa
• Judge: Navsa JA, Ponnan JA and Leach AJA
• Judgment Date: 28 May 2008
• Citation: 2013 (2) SACR 126 (SCA)
• Docket Number: 509/2007 [2008] ZASCA 58
• Hearing Date: 07 May 2008
• Counsel: Information not supplied
• Court: Supreme Court of Appeal

Leach AJA (Navsa JA and Ponnan JA concurring):

[1] The appellant was arraigned in the regional court in Pretoria on I 45 charges of fraud. Following a plea of guilty to 37 of these charges, which was accepted by the state, the appellant was duly convicted on those counts. They were taken together for the purposes of sentence and the appellant was sentenced to seven years' imprisonment. His application for leave to appeal to the high court against the sentence, brought under s 309B of the Criminal Procedure Act 51 of 1977, was dismissed. J A subsequent petition to the high court under s 309C was similarly

Leach AJA (Navsa JA and Ponnan JA concurring)

unsuccessful, as was a further application for leave to appeal against the A refusal of the petition. With the necessary leave of this court, the appellant now appeals against the refusal of his petition in the high court.

[2] It is necessary at the outset to consider the ambit of this appeal, particularly as counsel on both sides urged us to deal with the merits of B the appeal against the appellant's sentence. Tempting though it might be to do so, as the full record is available, for the reasons set out below the invitation must be declined.

[3] In S v Khoasasa2003 (1) SACR 123 (SCA) ([2002] 4 All SA 635), after a detailed analysis of the relevant provisions relating to appeals, this court concluded that an order of the high court refusing leave to appeal C was an order of a provincial division against which an appellant, either with leave of the high court or with leave of this court, could appeal. It also held [1] that a sentence imposed in the regional court can only be appealed against in this court when an appeal against such sentence has failed in the high court. D

[4] In my view, the reasoning in Khoasasa is unassailable. The appeal of an accused convicted in a regional court lies to the high court under s 309(1)(a), although leave to appeal is required either from the trial court under s 309B or, if such leave is refused, from the high court pursuant to an application made by way of a petition addressed to the E Judge President under s 309C(2) and dealt with in chambers. In the event of this petition succeeding, the accused may prosecute the appeal to the high court. But, if it is refused, the refusal constitutes a 'judgment or order' or a 'ruling' of a high court as envisaged in s 20(1) and s 21(1) of the Supreme Court Act 59 of 1959, [2] against which an...