S v Smith

• Jurisdiction: South Africa
• Court: Supreme Court of Appeal
• Judge: Cloete JA, Maya JA and Plasket AJA
• Judgment Date: 15 March 2011
• Citation: 2012 (1) SACR 567 (SCA)
• Hearing Date: 03 March 2011
• Docket Number: 475/10 [2011] ZASCA 15
• Counsel: TN Price for the appellant. Z Mdolomba for the state.

Plasket AJA (Cloete JA and Maya JA concurring):

[1] The appellant was convicted, in the regional court, East London, of E indecent assault and kidnapping. He was sentenced to seven years' imprisonment, both counts being taken together for purposes of sentence. He applied to the trial magistrate for leave to appeal against both conviction and sentence. He was granted leave to appeal against sentence only. He then applied, by way of petition to the Judge President F of the Eastern Cape High Court, Grahamstown, in terms of s 309 of the Criminal Procedure Act 51 of 1977, for leave to appeal against his conviction. His petition was dismissed. With the leave of the judges who refused the petition (Jansen J and Pickering J) he now appeals to this court against the dismissal of the petition.

G [2] This court held in S v Khoasasa [1] that a refusal of leave to appeal on petition to two judges of a high court is a 'judgment or order' or a 'ruling' as contemplated by s 20(1) and s 21(1) of the Supreme Court Act 59 of 1959; that a petition for leave to appeal to the high court is, in effect, an appeal against the refusal of leave to appeal by the court of first instance; and that a refusal of leave to appeal by the high court is appealable to this H court with the leave of the high court.

[3] In S v Matshona [2] this court endorsed the reasoning in Khoasasa, describing it as 'unassailable'. The court proceeded to emphasise that the issue to be determined at this stage is 'whether leave to appeal should I have been granted by the High Court and not the appeal itself'. [3] As a result, the test to be applied 'is simply whether there is a reasonable

Plasket AJA (Cloete JA and Maya JA concurring)

prospect of success in the envisaged appeal . . . rather than whether the A appeal . . . ought to succeed or not'. [4]

[4] It was argued by counsel for the appellant that the test of reasonable prospects of success means — and I quote from his heads of argument — that leave should only be refused 'where there is absolutely no chance of success or where the court is certain beyond reasonable doubt that such B an appeal will fail'. In argument he articulated the test as being that, if there were a possibility of success on appeal, leave must be granted.

[5] Both of these submissions are incorrect, and neither is supported by the cases cited by counsel. The first, R v Ngubane and Others, [5] is to the opposite effect. In that case, the court said the...