THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Reportable
CASE NO 509/2007
In the matter between
SIPHO SIANETH LAWRENCE MATSHONA

Appellant
and
THE STATE

Respondent

Coram:
Navsa, Ponnan  JJA and Leach AJA
Heard:
07 MAY 2008
Delivered:
28 MAY 2008

Summary:
Appeal to Supreme Court of Appeal against the refusal in a high
court of a petition seeking leave to appeal against a sentence
imposed in a regional court – leave to appeal to the high court
should have been granted – merits of the appeal against
sentence to be determined by the high court.

Neutral citation:
Matshona v The State (509/2007) [2008] ZASCA 58
(28 May 2008)
___________________________________________________________

LEACH AJA

[1] The appellant was arraigned in the regional court in Pretoria on 45
charges of fraud.  Following a plea of guilty to 37 of these charges which was
accepted by the State, the appellant was duly convicted on those counts.
They were taken together for the purposes of sentence and the appellant was
sentenced to seven years imprisonment. His application for leave to appeal to
the high court against the sentence brought under s 309B of the Criminal
Procedure Act 51 of 1977 was dismissed.  A subsequent petition to the high
court under s 309C was similarly unsuccessful, as was a further application
for leave to appeal against the refusal of the petition.  With the necessary
leave of this court, the appellant now appeals against the refusal of his
petition in the high court.

[2] It is necessary at the outset to consider the ambit of this appeal,
particularly as counsel on both sides urged us to deal with the merits of the
appeal against the appellant’s sentence. Tempting though it might be to do so
as the full record is available, for the reasons set out below the invitation must
be declined.

[3] In S v Khoasasa 2003 (1) SACR 123 (SCA) ([2002] 4 All SA 635), after
a detailed analysis of the relevant provisions relating to appeals, this court
concluded that an order of the high court refusing leave to appeal was an
order of a provincial division against which an appellant, either with leave of
the high court or with leave of this court, could appeal. It also held1 that a
sentence imposed in the regional court can only be appealed against in this
court when an appeal against such sentence has failed in the high court.

[4] In my view, the reasoning in Khoasasa is unassailable.  The appeal of
an accused convicted in a regional court lies to the high court under section
309(1)(a), although leave to appeal is required either from the trial court under
s 309B or, if such leave is refused, from the high court pursuant to an
application made by way of a petition addressed to the judge-president under
s 309C(2) and dealt with in chambers.  In the event of this petition

1 At [12].

succeeding, the accused may prosecute the appeal to the high court. But, if it
is refused, the refusal constitutes a " judgment or order " or a “ruling”
of a high court as envisaged in s 20(1) and s 21(1) of the Supreme Court Act
59 of 19592, against which an appeal lies to this court on leave obtained either
from the high court which refused the petition or, should such leave be
refused, from this court3 by way of petition.4

[5] It is clear from this that where, as is here the case, an accused obtains
leave to appeal to this court against the refusal in a high court of a petition
seeking leave to appeal against a conviction or sentence in the regional court,
the issue before this court is whether leave to appeal should have been
granted by the high court and not the appeal itself which has been left in
limbo, so to speak, since the accused first sought leave to appeal to the high
court.  After all, in the present case, the appellant's appeal against his
sentence has never been heard in the high court and, as was held in S v N
1991 (2) SACR 10 (A) at 16, the power of this court to hear appeals of this
nature is limited to its statutory power.5 Section 309(1) prescribes that an
appeal from a magistrates’ court lies to the high court, and an appeal against
the sentence imposed on the appellant in the regional court is clearly not
before this court at this stage. As was observed by Streicher JA in Khoasasa:6

‘Geen jurisdiksie word aan hierdie Hof verleen om ‘n appél aan te hoor teen ‘n
skuldigbevinding en vonnis in ‘n laer hof nie. Dit is eers nadat ‘n appél vanaf ‘n laer hof na ‘n
Provinsiale of ‘n Plaaslike Afdeling misluk het dat ‘n beskuldigde met die nodige verlof na
hierdie Hof appél kan aanteken.’

[6] 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

2 Khoasasa at [14].
3 Section 20 (4)(b) as read with s 21(1) and (2) of the Supreme Court Act.
4 Section 23 of the Supreme Court Act.
5 See s 315(1).
6 At [12].

being adjudicated in the high court, thereby 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 finalised in the high court.

[7] Consequently this court cannot determine the merits of the appeal but
must confine itself to the issue before it, namely whether leave to appeal to
the high court should have been granted. It follows that in S v Nel 2007 (2)
SACR 481 (SCA) the court erred in assuming that it had jurisdiction to
entertain an appeal against sentence at this stage. While the judgment in that
case referred to Khoasasa, the ratio set out therein was not applied.

[8] I turn now to consider whether leave to appeal to the high court against
the sentence imposed by the regional court should have been granted.  The
test in that regard is simply whether there is a reasonable prospect of success
in the envisaged appeal against sentence, rather than whether the appeal
against the sentence ought to succeed or not.

[9] The appellant was a first offender who, at the time of his trial, was 37
years of age.  He was employed as the manager of a branch of a country
wide-chain store and abused the position of trust in which he had been placed
by making fraudulent credit refunds which led to substantial sums of money
being paid from his employer's bank account into the accounts of himself,
members of his family and friends.  The charges to which he pleaded guilty
had resulted in a loss of more than R300 000 to his employer, and were
committed over a period of some eight months during which he had more than
adequate time to reflect on his actions and to decide to desist.  He did not.

[10] On the other hand, the appellant has been left in no doubt that crime
does not pay.  Not surprisingly, he was discharged by his employer and,
although he was fortunate enough to obtain other employment, it was at a
lesser rate of remuneration.  His wife's reaction to learning of his criminal
conduct led to the failure of their marriage and, in addition, a confiscation
order in an amount of R309,000.00 was made against him under s 18 of the
Prevention of Organised Crime Act 121 of 1998.

[11] In the light of the outcome of this appeal, it is neither necessary nor
desirable to deal further with the facts.  Suffice it to say that, bearing the
factors mentioned above in mind, there exists a reasonable prospect that a
court of appeal might consider the sentence imposed to be too severe, even
should it take the view that direct imprisonment is warranted.  That much was
conceded by counsel for the state, and this appeal must therefore succeed.

[12] In the result:

(a)   The appeal succeeds.

(b)   The order refusing the appellant leave to appeal is set aside and is
replaced with an order granting the appellant leave to appeal to the High
Court (Pretoria) against the sentence imposed on him in the regional court.

____________________
L E LEACH
ACTING JUDGE OF APPEAL

CONCUR:

)
NAVSA JA

)
PONNAN JA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:

28 May 2008

Status: Immediate

S S L MATSHONA v THE STATE

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

The appellant, who was at the time a branch manager of a country-wide retail chain of stores,
was tried in a regional court on numerous counts of fraud arising from false credits passed
for goods returned. Pursuant to a plea of guilty, he was convicted and sentenced to 7 years’
imprisonment.

The appellant applied unsuccessfully for leave to appeal against his sentence, and a petition
to a high court for leave to appeal was similarly dismissed as was an application for leave to
appeal against that dismissal. With leave of this court, he appealed against the dismissal of
his petition in the high court.

The court held that the appellant ought to have been granted leave to appeal to the high
court. However, despite the decision in S v Nel 2007(2) SACR A81 (SCA)  the court
concluded that it could not hear the appeal against the sentence which had first to be dealt
with in the high court.

The appeal succeeded with the appellant being granted leave to appeal to the high court
against his sentence.