S v Van Wyk and Another

• Jurisdiction: South Africa
• Judge: Navsa ADP, Brand JA, Ponnan JA, Swain JA and Mathopo AJA
• Judgment Date: 29 September 2014
• Citation: 2015 (1) SACR 584 (SCA)
• Docket Number: 20273/2014, 20448/2014 [2014] ZASCA 152
• Hearing Date: 22 September 2014
• Counsel: L Augustyn (with J Mojuto and F van As) for the appellant, in S v Van Wyk, instructed by the Legal Aid Board. M Jansen van Vuuren for the state, in S v Van Wyk. M Calitz for the appellant, in S v Galela, instructed by the Legal Aid Board. S Raphels for the state, in S v Galela.
• Court: Supreme Court of Appeal

Swain JA (Navsa ADP, Brand JA, Ponnan JA and Mathopo AJA concurring): A

[1] The passing of the Superior Courts Act 10 of 2013 (the Act), which repealed the Supreme Court Act 59 of 1959 (the SC Act) from 23 August 2013, has given rise to uncertainty concerning the rights of accused persons, convicted in the magistrates' court, to appeal, against B the dismissal of their appeals by the high court, to this court.

[2] Uncertainty has also arisen in regard to the right of accused persons, who have unsuccessfully petitioned the high court for leave to appeal to that court against their convictions in the magistrates' court or the sentences imposed pursuant to those convictions, to then seek the leave C of this court to appeal to the high court.

[3] The uncertainty relates to whether the high court, sitting as a court of appeal, has jurisdiction to grant leave to appeal against its own order dismissing an appeal on its merits, or where, in terms of s 309C of the Criminal Procedure Act 51 of 1977 (the CPA), it dismissed a petition D against a magistrate's refusal to grant leave to appeal.

[4] The present appeals are representative of each of these categories. In S v Van Wyk the appellant was convicted by the regional court, Pretoria North, of one count of rape in terms of s 3 of the Sexual Offences and E Related Matters Amendment Act 32 of 2007 (the Sexual Offences Act) and one count of sexual assault in terms of s 5(1) of this Act, and sentenced to an effective term of 15 years' imprisonment. An application by the appellant for leave to appeal against conviction and sentence in terms of s 309B of the CPA was dismissed by the regional court. The F appellant in terms of s 309C(2) of the CPA then petitioned the North Gauteng High Court, Pretoria, against the refusal of leave to appeal. The petition was partially successful in that the appellant was granted leave to appeal against the sentence imposed. This appeal was subsequently dismissed by the high court (Raulinga J and Louw AJ). The appellant then filed an application for special leave to appeal to this court in respect of sentence in terms of s 16(1) of the Act. G

[5] In S v Galela the appellant was convicted by the regional court, Winburg, of one count of rape in terms of s 3 of the Sexual Offences Act and sentenced to a term of 17 years' imprisonment. An application for H leave to appeal in terms of s 309B of the CPA was dismissed by the regional court. The appellant in terms of s 309C(2) then unsuccessfully petitioned the Western Cape High Court (Erasmus J and Rogers J) for leave to appeal. The appellant then applied to this court for leave to appeal in terms of s 16(1) of the Act.

[6] The parties in Van Wyk were directed to present argument on the I following issues:

'(a)

Whether, in view of the definition of appeal in section 1 of the Superior Courts Act 10 of 2013, the provisions of section 16(1)(b) of that Act may be invoked for purposes of applying to the Supreme Court of Appeal for special leave to appeal. J

Swain JA (Navsa ADP, Brand JA, Ponnan JA and Mathopo AJA concurring)

(b)

A If not, whether the North Gauteng High Court, which dismissed the applicant's appeal, has jurisdiction to consider the applicant's application for leave to appeal to this court.

(c)

If not, whether leave to appeal is required from this court for it to consider the appeal? The applicant and respondent are referred to B National Union of Metalworkers of SA v Fry's Metals (Pty) Ltd2005 (5) SA 433 (SCA) and American Natural Soda Ash Corporation and Another v Competition Commission and Others2005 (6) SA 158 (SCA) ([2005] 3 All SA 1).'

[7] To answer the first two questions in relation to criminal appeals it is necessary to briefly set out the law under the SC Act, pertaining to C criminal appeals from the then supreme court (now high court) to this court, as well as petitions to this court for leave to appeal to the high court from the magistrates' court. Whether the Act has changed the existing law can then be considered.

D [8] Section 309 of the CPA provides that, subject to leave to appeal being granted in terms of s 309B or 309C, any person convicted of any offence by any lower court may appeal against such conviction and sentence to the high court having jurisdiction. In terms of s 309B, any accused who wishes to note an appeal against any conviction or sentence of a lower court must apply to that court for leave to appeal against the conviction E or sentence. If leave to appeal is refused by the lower court, the accused may in terms of s 309C petition the Judge President of the high court having jurisdiction to grant leave to appeal. In terms of s 309C(5) the petition is considered by two judges in chambers. Section 309 was amended to ensure its constitutional validity after a series of cases F revealed its constitutional shortcomings. [1]

[9] These provisions of the CPA have to be considered alongside the applicable sections of the SC Act which regulated appeals from the high court to this court. These were ss 20(1), 20(4) and 21(1). Section 20(1) provided that:

G 'An appeal from a judgment or order of the court of a provincial or local division in any civil proceedings or against any judgment or order of such a court given on appeal shall be heard by the appellate division or a full court as the case may be.'

[10] Section 20(4) provided that:

H 'No appeal shall lie against a judgment or order of the court of a provincial or local division in any civil proceedings or against any judgment or order of that court given on appeal to it except —

Swain JA (Navsa ADP, Brand JA, Ponnan JA and Mathopo AJA concurring)

(a)

in the case of a judgment or order given in any civil proceedings by A the full court of such a division on appeal to it in terms of subsection (3), with the special leave of the appellate division;

(b)

in any other case, with the leave of the court against whose judgment or order the appeal is to be made or, where such leave has been refused, with the leave of the appellate division.'

[11] Section 21(1) provided that: B

'In addition to any jurisdiction conferred upon it by this Act or any other law, the appellate division shall, subject to the provisions of this section and other law, have jurisdiction to hear and determine an appeal from any decision of the court of a provincial or local division.'

Sections 21(2) and (3) of the SC Act made provision for application to C be made to this court by way of petition for leave to appeal as referred to in s 20(4).

[12] Section 21(1) of the SC Act was applicable to both civil and criminal cases [2] and conferred a jurisdiction upon this court that it did not possess in terms of s 20 of the SC Act. [3] D

[13] This court held in S v Khoasasa2003 (1) SACR 123 (SCA) ([2002] 4 All SA 635) paras 14 and 19 – 22, that a petition for leave to appeal to a high court in terms of s 309C of the CPA, was in effect an appeal against the refusal of leave to appeal by the magistrates' court in terms of s 309B E of the CPA. It concluded that such refusal of leave to appeal by the high court was a 'judgment or order' of the high court as contemplated in ss 20(1) and 20(4) of the SC Act, given by the high court on appeal to it. Accordingly, in terms of s 20(4)(b), the refusal of leave to appeal by the high court was appealable to this court with the leave of the high court (being the court against whose order the appeal was to be made) F or, where leave was refused, with the leave of this court. The order appealed against was the refusal of leave, with the result that this court could not decide the appeal itself.

[14] As pointed out by this court in S v Matshona2013 (2) SACR 126 (SCA) G ([2008] 4 All SA 68; [2008] ZASCA 58) para 4, the issue to be determined is not whether the appeal against conviction and sentence should succeed, but whether the high court should have granted leave, which in turn depends upon whether the appellant could be said to have reasonable prospects of success on appeal. [4]

[15] In S v Tonkin2014 (1) SACR 583 (SCA) para 4 Brand JA pointed H out that, if an appeal of this nature should succeed —

'the result is cumbersome and wasteful of both time and money. After two rounds before the high court and one round before this court, the

Swain JA (Navsa ADP, Brand JA, Ponnan JA and Mathopo AJA concurring)

A appeal process will remain uncompleted. Two judges of the high court will still have to hear the appeal on its merits with the possibility of a further appeal to this court.'

[16] Brand JA in Tonkin (para 6) set out the reasons why this court could not 'short-circuit the cumbersome process by entertaining the appeal B against conviction directly' in the exercise of its inherent jurisdiction:

'(a)

Although this court has inherent jurisdiction to regulate its own procedure, it has no inherent or original...