S v Shenker and Another

• Jurisdiction: South Africa
• Judge: Holmes JA, Galgut JA and Kotzé AJA
• Judgment Date: 26 March 1976
• Hearing Date: 11 March 1976
• Court: Appellate Division

Galgut, J.A.:

The first appellant, Morris Shenker, was accused No. 1 in the Court a quo. I will refer to him as accused No. 1. C He was found guilty in the Witwatersrand Local Division, of receiving stolen property, viz., 240 rings, knowing them to be stolen. He was sentenced to three years' imprisonment of which 18 months were suspended on condition that he reimbursed the complainant, one Oosthuizen, in an amount of R2 500 before 31 May 1975. The second appellant, David Ismail, was accused No. 2 D in the trial. I will refer to him as accused No. 2. He was found guilty of contravening sec. 36 of Act 62 of 1955 in that he was unlawfully in possession of 11 wrist watches in regard to which there was a reasonable suspicion that they had been stolen and he was unable to give a satisfactory account of such possession. He was sentenced to 12 months' imprisonment. The learned Judge a quo, acting in terms of sec. 363 (1) of Act 56 E of 1955, granted each accused leave to appeal against his conviction.

The applications for leave to appeal were made verbally after the passing of sentence. In terms of sec. 363 (2) of Act 56 of 1955 the grounds of appeal should have been taken down in writing and should have formed part of the record. This was not F done. Written grounds of appeal were, however, filed on behalf of each accused. These deal only with the convictions. No grounds of appeal were filed in respect of the sentences imposed. It appeared from the heads of argument filed on behalf of each accused, that they were appealing also against the sentences. Counsel for the State, acting on instructions from the Deputy Attorney-General in Johannesburg, took up the attitude that the two accused were precluded from raising the G question of sentence because leave to appeal was granted only in respect of the convictions and, furthermore, the grounds of appeal filed made no mention of an appeal against the sentences. This issue will be discussed later in this judgment.

[The learned Judge then analysed the evidence and dealt with H the submissions made by counsel, dismissed the appeals and proceeded].

I turn now to deal with the appeals against the sentences. As stated earlier, leave to appeal was granted in terms of sec. 363 (1) of Act 56 of 1955 but only in respect of the convictions. It appears that accused No. 2 did apply for leave to appeal against his sentence. This was not dealt with by the learned Judge. Grounds of appeal were filed on behalf of each accused. These refer only to the appeal against the conviction. No mention is made of an appeal against the sentence. Counsel for the State, acting on instructions, took up the attitude that it was not open to the two accused to argue the

Galgut JA

question of sentence and submitted that this Court could not entertain the appeals against the respective sentences. It was submitted on behalf of each accused that, as there had been a general grant of leave to appeal, this included an appeal against sentence. Both counsel stated that this Court had, in other cases, permitted an appellant to appeal against his A sentence even though leave to appeal had been granted only in respect of the conviction. They were unable to refer this Court to any case in which this had been done. In the alternative they asked for condonation of the failure to obtain leave to appeal against the sentence. This Court heard argument on sentence and intimated that it would give its decision later as to whether the two accused would be allowed to appeal against B their sentences.

The Criminal Procedure Act, 56 of 1955, sets out the procedure to be followed and the powers of this Court in criminal appeals emanating from the Court of a Provincial or Local Division. The relevant sections for the purposes of this judgment are 363 C (1), 363 (2), 363 (6), 367, 369 (1) and 369 (2).

I deem it desirable to discuss the provisions of sec. 369 first. Sub-sec. (1) reads:

'(1) In case of any appeal against a conviction or any question being reserved as aforesaid, the court of appeal may -

(a)

allow the appeal if it thinks that the judgment of the trial court should be set aside on the ground of a wrong decision of any question of law or that on any D ground there was a failure of justice; or

(b)

give such judgment as ought to...