THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No:   631/2013

In the matter between:

THE STATE                                                                               Appellant

and

MUVHULAWA ERICK MUDAU                              First Respondent
NENGWENANI KHATHUTSHELO NDOU        Second Respondent
TSHITEREKE SHANDUKANI  MAMPHODO     Third Respondent

Neutral citation: The State v Mudau (631/2013) [2014] ZASCA 190
(27 November 2014)

Coram:
MAYA, WALLIS JJA and DAMBUZA AJA

Heard:
27 November 2014
Delivered:
27 November 2014

Summary:
Section 53A of the Criminal Law Amendment Act 105 of 1997
– decision that the regional court had no jurisdiction to impose
sentences of life imprisonment wrong – Supreme Court of
Appeal has no inherent jurisdiction to hear appeals directly
from the Regional Court – appeal referred back to the high
court to deal with the merits of the appeal against convictions
and sentences.

ORDER

On appeal from: Limpopo High Court (Thohoyandou) (Makhafola J
and Ebersohn AJ sitting as court of appeal)

1 The appeal against the order granted by the court below is upheld.
2 The matter is referred back to the court below to consider the appeal
against the convictions and sentences.

JUDGMENT

MAYA JA (WALLIS and DAMBUZA concurring):

[1] The respondents were convicted by the Sibasa Regional Court,
Limpopo (Mr Coetzee) for rape, indecent assault and two counts of
robbery with aggravating circumstances. Pursuant to these convictions,
they were each sentenced respectively to undergo life imprisonment,
twelve months imprisonment, and two terms of 15 years’ imprisonment.
On appeal to the Limpopo High Court, Thohoyandou (Makhafola J and
Booi AJ) against the convictions and sentences, it was held that the
sentences were incompetent. They were accordingly set aside and the
matter was referred back to the regional court to be dealt with in terms of
s 52 of the Criminal Law Amendment Act 105 of 1997 (the Act). The
State challenged this decision and the court below (Makhafola J and
Ebersohn AJ) consequently granted leave to appeal to this court against
both its order and the convictions and sentences imposed by the regional

court.

[2] The order of the court below was based on its finding that when the
regional court sentenced the respondents on 14 January 2009, it had no
jurisdiction to impose life imprisonment and ought to have referred the
matter to the high court for sentencing in terms of s 52 of the Act. The
latter section, which has since been repealed, provided for the committal
of an accused by the high court after a plea of guilty or trial in the
regional court. The relevant part read:
‘52(1)   If a regional court, after it has convicted an accused of an offence referred to
in Schedule 2 following on–
(a) A plea of guilty; or
(b) A plea of not guilty,
but before sentence, is of the opinion that the offence in respect of which the accused
has been convicted merits punishment in excess of the jurisdiction of a regional court
in terms of s 51, the court shall stop the proceedings and commit the accused for
sentence by a High Court having jurisdiction.’

[3] However, on 31 December 2007, the Criminal Law (Sentencing)
Amendment Act 38 of 2007 inserted s 53A into the Act. It reads:
‘If a regional court has, prior to the date of the commencement of [this] Act—
(a) committed an accused for sentence by a High Court under [the Criminal Law
Amendment Act, 32 of 2007], the High Court must dispose of the matter as if [this]
Act had not been passed; or
(b) not committed an accused for sentence by a High Court under this Act, then the
regional court must dispose of the matter in terms of this Act, as amended by the
Criminal Law (Sentencing) Amendment Act, 2007.’

[4] Thus, with effect from the date of commencement (31 December
2007) of these provisions jurisdiction was conferred on a regional court to
impose life imprisonment for offences referred to in Part 1 of Schedule 2
of the Act which include rape of the nature for which the appellants were
convicted. It was therefore within the regional magistrate’s powers to
sentence the respondents as he did as the appellants correctly conceded.
The court below erred in finding that the magistrate’s invocation of s 53A
of the Act was improper and it should not have set the sentences aside. It
was therefore correct to grant leave to appeal in that regard.

[5] But the order of the court below went too far. It should not have
granted the appellants leave to appeal to this court in respect of the
convictions and sentences. This court’s appellate jurisdiction to hear
criminal appeals is not an inherent jurisdiction1. It has no jurisdiction to
hear appeals against convictions and sentences of lower courts.2 And the
high court is not authorised to grant leave to appeal directly to this court
against convictions and sentences imposed by the regional court. Such
convictions and sentences can only be appealed against in this court when
an appeal against them has failed in the high court.3 As Leach AJA
pointed out in S v Matshona:4
‘Not only does this court lack the authority to determine the merits of the appellant’s
appeal against his sentence at this stage, but there are sound reasons of policy why
this court should refuse to do so even if it could. It would be anomalous and fly in the
face of the hierarchy of appeals for this Court to hear an appeal directly from a
Magistrates’ Court without that appeal being adjudicated in the High Court, thereby

1 Sefatsa & others v Attorney-General, Transvaal & another 1989 (1) SA 821 (A) at 833E-G;
S v Mamkeli 1992 (2) SACR 5 (A); S v Fourie 2001 (2) SACR 118 (SCA) para 13.
2 S v Khoasasa 2003 (1) SACR 123 (SCA) at 133d-g.
3 S v Kriel 2012 (1) SACR 1 (SCA) para 10;
4 Matshona v S [2008] 4 All SA 68 (SCA) para 6.

serving, in effect, as the court of both first and last appeal. In addition, all persons are
equal under the law and deserve to be treated the same way. This would not be the
case if some offenders first had to have their appeals determined in the High Court
before they could seek leave to approach this Court if still dissatisfied while others
enjoyed the benefit of their appeals being determined firstly in this Court. And most
importantly, this court should be reserved for complex matters truly deserving its
attention, and its rolls should not be clogged with cases which could and should be
easily be finalised in the High Court.’
The court below must therefore deal with the appeal originally placed
before it by the respondents.

[6] Accordingly, the following order is made:
1 The appeal against the order granted by the court below is upheld.
2 The matter is referred back to the court below to consider the appeal
against the convictions and sentences.’

_______________________

MML Maya

Judge of Appeal

APPEARANCES

For Appellant:

A Madzutha

Instructed by: Office of the DPP,
Thohoyandou
Office of the DPP, Bloemfontein

For Respondent:

AL Thomu

Instructed
by:
Thohoyandou
Justice
Centre
Bloemfontein Justice Centre
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

27  November 2014

STATUS

Immediate

South African Sports Confederation and Olympic Committee v Laraine Lane
(1016/2013) [2014] ZASCA (05 November 2014)

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

Today the Supreme Court of Appeal (SCA) upheld an appeal brought by the South African Sports
Confederation and Olympic Committee (SASCOC) and overturned a judgment of the South Gauteng
High Court which set aside a decision by SASCOC) to suspend the respondent, Ms Lane as a board
member of Athletics South Africa (ASA) and granted her ancillary declaratory relief.

The central issue before the SCA was whether Ms Lane’s resignation as a board member of ASA
which followed her suspension was valid.
On 5 November 2009, SASCOC suspended her and the entire board of ASA as a result of the
manner in which the board handled Ms Caster Semenya’s gender testing which caused her
humiliation. SASCOC acted on the recommendation of the Collins Legal and Arbitration Commission
which it had commissioned to investigate the incident. The commission had found contradictions in
the evidence of Ms Lane who participated in its investigation and concluded that the board had been
aware that improper procedures were followed. The high court found that her resignation was in vain
and that SASCOC had unlawfully failed to give her a fair hearing before suspending her.

On appeal Ms Lane disputed that her resignation letter which she had sent to ASSA’s General
Manager had come to SASCOC’s attention and contended that because SASCOC had not

acknowledged it her resignation was invalid. The SCA reiterated that a resignation is a unilateral, final
and binding act which may be express or tacit and an express resignation such as the one of Ms
Lane must merely be communicated and need not be accepted by ASA and SASCOC.  The SCA
held therefore that Ms Lane needed no consent from these bodies for the resignation to come into
effect and that as there was no dispute in the affidavits that her resignation letter reached the
intended recipient, she had resigned. This in the SCA’s view, rendered the suspension moot and she
was therefore not entitled to the relief granted by the court below.
--- ends ---