S v Van Wyk and Another

• Jurisdiction: South Africa
• Citation: 2015 (1) SACR 584 (SCA)

S v Van Wyk and Another
2015 (1) SACR 584 (SCA)

2015 (1) SACR p584

Citation	2015 (1) SACR 584 (SCA)
Case No	20273/2014, 20448/2014; [2014] ZASCA 152
Court	Supreme Court of Appeal
Judge	Navsa ADP, Brand JA, Ponnan JA, Swain JA and Mathopo AJA
Heard	September 22, 2014
Judgment	September 29, 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.

Flynote : Sleutelwoorde

B Appeal — To Supreme Court of Appeal — Leave to appeal — Effect of s 16(1)(b) of Superior Courts Act 10 of 2013 — Special leave — Rule 6 of Supreme Court of Appeal Rules required to be scrupulously followed — Generalised attack on findings of high court insufficient, as is reliance on notice of appeal, or recitation of grounds of appeal.

C Appeal — To Supreme Court of Appeal — Leave to appeal — Effect of s 16(1)(b) of Superior Courts Act 10 of 2013 — Disquiet expressed at effect of legislation — Real danger that appeals which deserved to be heard would be stifled because bar had been set far too high once petition to high court failed — In failing to properly regulate process, legislature may have opened door to some worthy appeals failing to D make cut.

Headnote : Kopnota

A 'decision' of the high court in refusing a petition in terms of s 309C of the CPA for leave to appeal is one taken on appeal to it and is governed by s 16(1)(b) E of the Superior Courts Act 10 of 2013 (the Act). Accordingly, the refusal of leave to appeal by the high court is appealable with special leave of the Supreme Court of Appeal (SCA). Although s 16(1)(b) of the Act has ameliorated the 'cumbersome procedure' to the extent that an unsuccessful petitioner in the high court no longer has to obtain the leave of the high court to appeal to the SCA, it has replaced it with the more stringent requirement that 'special leave' be obtained from this court. An applicant F for special leave to appeal must show, in addition to the ordinary requirement of reasonable prospects of success, that there are special circumstances which merit a further appeal to the SCA. Rule 6 of the Supreme Court Act Rules, which deals with applications for leave to appeal, must be scrupulously followed. The application must succinctly set out the respects in which it is alleged the high court erred and the judgment must be G subjected to a critical analysis, either as to the findings of fact or as to the exposition and application of the law. A generalised attack on the findings of the high court is insufficient, as is reliance on the notice of appeal, or a recitation of the grounds of appeal. (Paragraphs [20] – [22] at 591c – h.)

In the present case two appeals were heard together, the issue being the same, namely the uncertainty concerning the rights of accused persons, convicted H in the magistrates' court, to appeal, against the dismissal of their appeals by the high court, to the SCA. In the first case the appellant was convicted in a regional court of the rape of a minor girl and sexual assault on her, and sentenced to 15 years' imprisonment on the count of rape and to two years' imprisonment on the count of sexual assault. The sentences were ordered to run concurrently. The trial court found that substantial and compelling I circumstances were present which justified a departure from the minimum sentence of life imprisonment, and sentenced the appellant to an effective 15 years' imprisonment. He applied for leave to appeal against conviction and sentence in terms of s 309B of the CPA, but this was refused by the regional court and he then petitioned the high court in terms of s 309C(2) of the CPA. He was granted leave to appeal, but the high court dismissed the appeal against sentence and found that there was no misdirection which was J improper or unreasonable on the part of the trial court, which would entitle

2015 (1) SACR p585

the court to interfere with the sentence. He then filed an application for A special leave to appeal to the SCA in terms of s 16(1) of the Superior Courts Act 10 of 2013. In the second matter the appellant was convicted in the regional court of the rape of a 9-year-old girl and was sentenced to 17 years' imprisonment. His application for leave to appeal was dismissed by the regional court and he then unsuccessfully petitioned the high court for leave to appeal. He also filed an application for special leave in terms of s 16(1) of the Act. B

Held, in the first matter, that, when regard was had to all the facts of the case, the sentence of 15 years' imprisonment was so disproportionate and shocking that no reasonable court could have imposed it. The trial court had placed undue weight upon the need to deter sexual offenders, without having C proper regard to the particular facts of the case. The court appeared to have adopted the erroneous view that, in the absence of a misdirection by the trial court, it was not entitled to interfere with the sentence. As the appellant had been in prison for a period in excess of three years, the time served in prison constituted a sufficient term of imprisonment. The appellant in this case had to be granted special leave to appeal and the appeal was upheld. (Paragraphs [32] – [33] at 594e – h.) D

Held, in the second matter, that the appellant did not have reasonable prospects of success on appeal and there were no special circumstances present which would justify the grant of special leave to appeal to the high court. The application for special leave was accordingly dismissed. (Paragraph [35] at 595b.)

The court expressed its disquiet in relation to the application of s 16(1)(b) of the E Act and pointed to the anomalous situation that an accused, having failed to persuade at least two judges in the high court that there were reasonable prospects of the contemplated appeal succeeding, he or she now had to meet the higher 'special circumstances' threshold set by the section. Furthermore, whilst the record of the proceedings in the magistrates' court F would serve before the high court when the petition was considered there, it did not serve before the SCA in terms of SCA Rule 6(5). Thus an accused, who had failed to meet the much lower 'reasonable prospects of success' threshold in the high court whilst armed with the full record of the proceedings, was somehow expected to thereafter persuade the SCA, minus that record, that 'special circumstances' existed. There was a real danger that appeals which deserved to be heard would be stifled because the bar G had been set far too high once the petition to the high court failed. Thus, in failing to properly regulate the process, the legislature may have opened the door to some worthy appeals failing to make the cut. (Paragraphs [39] – [41] at 596b – j.)

Cases cited

American Natural Soda Ash Corporation and Another v Competition Commission and Others 2005 (6) SA 158 (SCA) ([2005] 3 All SA 1): referred to I H

H Merks & Co (Pty) Ltd v The B-M Group (Pty) Ltd and Another 1996 (2) SA 225 (A): referred to

Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) ([1996] ZASCA 2): referred to

National Union of Metalworkers of South Africa v Jumbo Products CC 1996 (4) SA 735 (A) ([1996] 4 All SA 177): referred to

S v AD [2011] ZASCA 215: dicta in para [13] applied J

2015 (1) SACR p586

S v Bogaards 2013 (1) SACR 1 (CC) (2012 (12) BCLR 1261; [2012] ZACC 23): applied A

S v Botha en 'n Ander 2002 (1) SACR 222 (SCA) (2002 (2) SA 680; [2002] 2 All SA 577): referred to

S v Hagin and Another (Gauteng Local Division, case No A 113/2013): referred to

S v Imador 2014 (2) SACR 411 (WCC) ([2014] ZAWCHC 66): not approved B

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

S v Kriel 2012 (1) SACR 1 (SCA): applied

S v Matshona 2013 (2) SACR 126 (SCA) ([2008] 4 All SA 68; [2008] ZASCA 58): applied

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

S v Mthethandaba 2014 (2) SACR 154 (KZP): approved

S v Ntuli 1996 (1) SACR 94 (CC) (1996 (1) SA 1207; 1996 (1) BCLR 141; [1995] ZACC 14): referred to

S v Rens 1996 (1) SACR 105 (CC) (1996 (1) SA 1218; 1996 (2) BCLR 155): referred to D

S v Smith 2012 (1) SACR 567 (SCA): applied

S v Steyn 2001 (1) SACR 25 (CC) (2001 (1) SA 1146; 2001 (1) BCLR 52; [2000] ZACC 24): referred to

S v Tonkin 2014 (1) SACR 583 (SCA): dicta in para [6] applied

S v Tuntubele [2014] ZAWCHC 91: approved

Shinga v The State and Another (Society of Advocates (Pietermaritzburg Bar) Intervening as Amicus Curiae); S v O'Connell and Others 2007 (2) SACR 28 (CC) (2007 (4) SA 611; 2007 (5) BCLR 474): referred to E

Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A): referred to.

Legislation cited

Statutes F

The Criminal Procedure Act 51 of 1977, ss 309B, 309C and 309C(2): see Juta's Statutes of South Africa 2013/14 vol 1 at 2-407 and 2-408

The Superior Courts Act 10 of 2013, s 16(1)(b): see Juta's Statutes of South Africa 2013/14 vol 1 at 2-281.

Rules of court cited

Rules of court G

Rule 6(5) of the Supreme Court of Appeal Rules: see The Superior Courts Act 10 of 2013 and the Magistrates' Courts Act 32 of 1944 and Rules (2014) at 129.

Case Information

L Augustyn (with J Mojuto and F van As) for the appellant, in S v Van Wyk, instructed by the Legal Aid Board. H

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. I

Two applications for special leave to appeal: from the dismissal of an appeal by the North Gauteng High Court, Pretoria...