THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 433/2020
In the matter between:

LUNGISA GRIFHS

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Lungisa Grifhs v The State (433/2020) [2021] ZASCA
112 (1 September 2021)

Coram:
VAN DER MERWE, MOLEMELA, MBATHA and
CARELSE JJA and POTTERILL AJA

Heard:
Appeal disposed of without the hearing of oral argument in
terms of s19(a) of the Superior Courts Act 10 of 2013.

Delivered: This judgment was handed down electronically by circulation
to the parties’ representatives by email, publication on the Supreme Court
of Appeal website and release to SAFLII. The date and time for hand-down
of the judgment is deemed to be 10h00 on 1 September 2021.

Summary: Criminal procedure – appeal against refusal of petition by
High Court – reasonable prospects of success on appeal against conviction

and sentence on account of inconsistencies in the written statement and oral
testimony of single witness – leave to appeal to High Court granted.
___________________________________________________________

ORDER
___________________________________________________________

On appeal from: Eastern Cape Division of the High Court, Mthatha
(Beneke AJ and Dawood J concurring, sitting as court of appeal):

The appeal is upheld.
The order of the court a quo is set aside and substituted with the
following:
‘The appellants’ petition for leave to appeal in terms of s 309C of the
Criminal Procedure Act 51 of 1977 against both conviction and sentence
is granted.’

___________________________________________________________

JUDGMENT
___________________________________________________________

Mbatha JA (Van der Merwe, Molemela and Carelse JJA and Potterill
AJA concurring):

[1] On 28 November 2018, the appellant, Mr Lungisa Grifhs, was
convicted together with two of his erstwhile co-accused in the Regional
Court for the Eastern Cape Region, Mthatha, on one count of murder read
with the provisions of s 1(1) of the Criminal Law Amendment Act 105 0f
1997. The Regional Court found substantial and compelling circumstances
that warranted the imposition of a sentence less than the one prescribed in
the Criminal Law Amendment Act. The appellant was accordingly
sentenced to 16 years imprisonment. His application for leave to appeal
against both conviction and sentence was dismissed.

[2] The appellant subsequently petitioned the Judge President of the
Eastern Cape Local Division of the High Court, in terms of s 309 of the
Criminal Procedure Act 51 of 1977, for leave to appeal. The petition met
with the same fate. Consequently, the appellant approached this court for
special leave to appeal in terms of s 16(1)(b) of the Superior Courts Act 10
of 2013, against the dismissal of his petition for leave to appeal. He was
granted special leave to appeal on 15 May 2020.

[3] Pursuant to that order, the parties agreed that this court may dispose
of the appeal without hearing oral argument, in terms of s 19(a) of the
Superior Court’s Act. There are two preliminary applications that must be
disposed of before delving into the appeal. First, the appellant applied in

terms of rule 12 of the Rules of the Supreme Court of Appeal (the rules)
for the condonation of his failure to comply with rule 7(1)(b) of the rules,
by not filing a notice of appeal within the prescribed one-month period
from the date of the granting of leave to appeal. Second, the appellant
applied for condonation for the late filing of the heads of argument within
the prescribed time. The applications were not opposed by the respondent.
Accordingly, the appellant’s non-compliance should be condoned and,
likewise, the appeal be revived and re-instated.

[4] The only issue on this appeal is whether there are reasonable
prospects of success in the appellant’s appeal. (Van Wyk v The State and
Galela v The State [2014] ZASCA 152; [2014] 4 All SA 708 (SCA);
2015(1) SACR 584 (SCA)). The appellant was convicted on the evidence
of a single witness, Mr Bavu. It is trite that the appellant could only have
been properly convicted if the evidence of the single witness was clear and
satisfactory in all material respects. The appellant contended that it was not
reliable, as it was improbable and inconsistent with the admitted statement
that the witness had made to the police. It suffices to say that it appears that
there are substantial unexplained contradictions between Mr Bavu’s oral
testimony and his written statement to the police.

[5] Accordingly, without pre-judging the merits, I find that there are
reasonable prospects of success on the appeal against both conviction and
sentence.

[6] In the circumstances, I make the following order:
The appeal is upheld.
The order of the court a quo is set aside and substituted with the
following:

‘The appellants’ petition for leave to appeal in terms of s 309 C of the
Criminal Procedure Act 51 of 1977 against both conviction and sentence
is granted.’

_____________________________

Y T MBATHA
JUDGE OF APPEAL

Appearances

For appellant:
S C Vutula

S C Vutula & Co., Mthatha

For respondent:
M Ntlakaza

Director of Public Prosecutions, Mthatha
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:
1 September 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
Lungisa Grifhs v The State (433/2020) [2021] ZASCA 112 (1 September 2021)

Today the Supreme Court of Appeal (SCA) handed down judgment upholding the appeal
against the Eatern Cape Division of the High Court, Mthatha (the high court).

The issue before the SCA was whether there were reasonable prospects of success in the
appellants appeal.

On the 28 November 2018, the appellant, Mr Lungisa Grifhs, was convicted together with two
of his erstwhile co-accused in the Regional Court for the Eastern Cape Region, Mthatha, on
one count of murder. The Regional Court found substantial and compelling circumstances that
warranted the imposition of a sentence less than the one prescribed in the Criminal Law
Amendment Act. The appellant was accordingly sentenced to 16 years’ imprisonment. His
application for leave to appeal in the high court, against both conviction and sentence, was
dismissed.

The appellant was convicted on the evidence of a single witness, Mr Bavu. The appellant
contended that the evidence of the single witness was not reliable, as it was improbable and
inconsistent with the admitted statement that the witness had made to the police.

The SCA found that there were substantial unexplained contradictions between Mr Bavu’s oral
testimony and his written statement to the police. As a result, the SCA upheld the appeal on
the basis that there were reasonable prospects of success on the appeal against both conviction
and sentence.

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