THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 959/2015

In the matter between:

THE DIRECTOR OF PUBLIC PROSECUTIONS:
GAUTENG DIVISION, PRETORIA
APPLICANT

and

DANIEL CHAKA MOABI
RESPONDENT

Neutral Citation:  The Director of Public Prosecutions: Gauteng Division, Pretoria v
Moabi (959/15) [2017] ZASCA 85 (2 June 2017)

Coram:
Maya AP, Theron, Dambuza JJA and Molemela and Gorven AJJA
Heard:
15 February 2017
Delivered:
2 June 2017
Summary: Appeal in terms of s 311 of the Criminal Procedure Act 51 of 1977: s 311
provides for an appeal as of right, without leave: question of law upheld: ‗intent to do
grievous bodily harm‘ not an element in a rape contemplated in Part I(c) of the Criminal
Law Amendment Act 105 of 1997: conviction and sentence imposed by the regional
court reinstated and matter remitted to the high court for appeal to proceed on
sentence.

______________________________________________________________________

ORDER
_____________________________________________________________________

On appeal from Gauteng Division of the High Court, Pretoria (Louw J and Kooverjie AJ
sitting as court of appeal):

The appeal is upheld in respect of the question of law.
The order of the high court on sentence is set aside.
The sentence imposed by the regional court is reinstated.
The matter is remitted to the high court for the appeal to proceed on sentence.

___________________________________________________________

JUDGMENT
___________________________________________________________

Molemela AJA (Dambuza JA concurring):

[1] This is an application by the Director of Public Prosecutions, Gauteng Division,
Pretoria (DPP) for special leave to appeal to this court on a question of law in terms of
s 311(1) of the Criminal Procedure Act 51 of 1977 (CPA).

[2] The respondent was arraigned in the Regional Division of North West held at
Klerksdorp (Magistrate Nzimande) (the regional court) on a charge of housebreaking
with intent to rape and rape, read with the provisions of s 51(1) of the Criminal Law
Amendment Act 105 of 1997 (CLAA). On 16 May 2014 the regional court convicted the

respondent and sentenced him to life imprisonment as contemplated in s 51(1), read
with Part I(c)1 of the CLAA on the basis that the complainant had suffered grievous
bodily harm during the course of the rape.

[3] The facts leading to the respondent‘s conviction and sentence are the following.
On the night of 3 April 2012, the heavily pregnant complainant was asleep on her sofa
in the dining room of her house in Jouberton, Klerksdorp, when she felt something
touching her. She opened her eyes only to find an intruder standing near her feet. The
intruder closed her mouth with his hand and pressed a sharp object against the side of
her mouth. The complainant wrestled with her assailant and broke a window pane so as
to alert her neighbour to her plight. At some point during the scuffle she switched on the
light and recognized her assailant as the respondent – a man who had accompanied
her boyfriend to her house earlier that day.

[4] During the scuffle that ensued, the respondent managed to overpower the
complainant. He strangled her until she lost consciousness. When she regained
consciousness, the respondent dragged her to her bedroom and ordered her to
undress. She refused. He then pushed her onto the bed, undressed her, undressed
himself and raped her. She pleaded with him to stop, impressing upon him that he was
hurting her unborn twins. He ignored her pleas and hit her with fists on the buttocks.
After the respondent‘s departure the complainant went to her neighbour‘s house and
reported the rape to her. The neighbour arranged for a car to take her to the police
station, after which the complainant was transported to the hospital, where she received
medical attention for the injuries she had sustained.

1 Part I provides
‗Rape as contemplated in section 3 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007─
(a) . . . .
(b) . . . .
(c) involving the infliction of grievous bodily harm.‘
‗Section 51 provides Discretionary minimum sentences for certain serious offences
(1) Notwithstanding any other law, but subject to subsections (3) and (6), a regional court or a High Court
shall sentence a person it has convicted of an offence referred to in Part I of Schedule 2 to imprisonment
for life.‘

[5] Pursuant to the sentence of life imprisonment being imposed by the regional
court, the respondent lodged an appeal against his conviction and sentence by virtue of
the automatic right of appeal granted in terms of s 309(1)(a) of the CPA. The appeal
was heard by two Judges of the Gauteng Division of the high court, Pretoria (Louw, J
and Kooverjie, AJ (high court). The high court confirmed the conviction but set aside the
sentence on the basis that life imprisonment was not the applicable minimum sentence
because the State had failed to prove that the respondent had the intent to inflict
grievous bodily harm on the complainant. In making that conclusion, the high court
reasoned as follows: ‗. . . . We are not satisfied that the element of ―intent‖ exists. Hence there was
assault but not intention to do grievous bodily harm.‘

[6] The high court concluded that the failure of the State to prove the element of
intent resulted in the rape not falling within the purview of s 51(1) read with Part I(c) of
Schedule 2 of the CLAA, which attracted a minimum sentence of life imprisonment. It
regarded the rape as falling within the purview of s 51(2) read with Part III of Schedule 2
of the CLAA,2  which attracts a minimum sentence of 10 years‘ imprisonment. The high
Court then found that, having regard to all the appropriate factors, the aggravating
factors far outweighed the mitigating factors. It considered the appropriate sentence for
the respondent to be 14 years‘ imprisonment.

[7] Aggrieved by the high court‘s finding, the DPP lodged an application for special
leave to appeal to this court on a question of law  in terms of s 311(1) of the CPA, read

2 Part III provides
‗Rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007, respectively in circumstances other than those referred to in Part
I.
Section 51 (2)(b) provides: ‗(2) Notwithstanding any other law but subject to subsection (3) and (6), a
regional court or a High Court shall sentence a person who has been convicted of an offence referred to
in –
(a ) . . . .
(b) Part III of Schedule 2, in the case of─
(i) a first offender, to imprisonment for a period not less than 10 years;
(ii) a second offender of any such offence, to imprisonment for a period not less than 15 years; and
(iii) a third or subsequent offender of any such offence, to imprisonment for a period not less than 20
years.
(c) …‘

with the provisions of s 16(1)(b)3 and s 17(3)4 of the Superior Courts Act 10 of 2013
(Superior Courts Act). The applicant formulated the question of law as follows:
‗That the Honourable Court a quo erred in law by holding that s 51(1) and Schedule 2 Part I of the
Criminal Law Amendment Act 105 of 1997, providing for a minimum sentence of life imprisonment to be
imposed in circumstances where an accused is convicted of rape involving the infliction of grievous bodily
harm, requires also an intent on the part of the convicted person to cause such harm.‘

[8] This court then referred the application for special leave to appeal for oral
argument in terms of s 17(2)(d) of the Superior Courts Act and issued a directive
requiring the appellant to clarify on what basis it considered this court to have
jurisdiction to hear the intended appeal.

[9] In argument before us it was contended on behalf of the DPP that this court‘s
jurisdiction to hear the matter is derived from the provisions of s 311 of the CPA. The
respondent disputed that the question raised on appeal was one of law within the
meaning of s 311(1) of the CPA. He averred that there are no provisions in the CPA and
the Superior Courts Act providing for the reservation of a question of law from appeal
proceedings in relation to sentence. He argued that this appeal is misguided and is an
impermissible appeal against sentence. The respondent further contended that
s 16(1)(b) of the Superior Courts Act is not applicable to s 311 appeals because s 1 of

3 Section 16 of the Superior Courts Act states:
‗(1) Subject to section 15(1), the Constitution and any other law-
(a) an appeal against any decision of a Division as a court of first instance lies, upon leave having been
granted-
(i) if the court consisted of a single judge, either to the Supreme Court of Appeal or to a full court of that
Division, depending on the direction issued in terms of section 17(6); or
(ii) if the court consisted of more than one judge, to the Supreme Court of Appeal.
(b) an appeal against any decision of a Division on appeal to it, lies to the Supreme Court of Appeal upon
special leave having been granted by the Supreme Court of Appeal; and
(c) an appeal against any decision of a court of a status similar to the High Court, lies to the Supreme
Court of Appeal upon leave having been granted by that court or the Supreme Court of Appeal, and the
provisions of section 17 apply with the changes required by the context.‘
4 Section 17(3) states:
‗(3) An application for special leave to appeal under section 16(1)(b) may be granted by the Supreme
Court of Appeal on application filed with the registrar of that court within one month after the decision
sought to be appealed against, or such longer period as may on good cause be allowed, and the
provisions of subsection (2)(c) to (f) shall apply with the changes required by the context.‘

the Superior Court Acts5  provides that an appeal envisaged in Chapter 5 of that Act
does not include an appeal in a matter regulated by the CPA, or in terms of any criminal
procedural law.

[10] The issues for our determination were therefore whether: (a) this court has
jurisdiction to hear an appeal brought by the State on a question of law against the
decision made by the high court, on appeal, in favour of a convicted person as
contemplated in s 311 of the CPA; and (b) the high court was correct in finding that the
intention to do grievous bodily harm is one of the elements that the State must prove in
a rape contemplated in the provisions of Part I(c) of Schedule 2 to the CLAA.

[11] Section 311 of the CPA reads:
‗311 Appeal to Appellate Division
(1) Where the provincial or local division on appeal, whether brought by the attorney-general or other
prosecutor or the person convicted, gives a decision in favour of the person convicted on a question of
law, the attorney-general or other prosecutor against whom the decision is given may appeal to the
Appellate Division of the Supreme Court, which shall, if it decides the matter in issue in favour of the
appellant, set aside or vary the decision appealed from and, if the matter was brought before the
provincial or local division in terms of-
(a)   section 309 (1), re-instate the conviction, sentence or order of the lower court appealed from, either
in its original form or in such a modified form as the said Appellate Division may consider desirable; or
(b)   section 310 (2), give such decision or take such action as the provincial or local division ought, in the
opinion of the said Appellate Division, to have given or taken (including any action under section 310 (5)),
and thereupon the provisions of section 310 (4) shall mutatis mutandis apply.
(2) If an appeal brought by the attorney-general or other prosecutor under this section or section 310 is
dismissed, the court dismissing the appeal may order that the appellant pay the respondent the costs to
which the respondent may have been put in opposing the appeal, taxed according to the scale in civil
cases of that court: Provided that where the attorney-general is the appellant, the costs which he is so
ordered to pay shall be paid by the State.‘

5 In terms of s 1 of the CPA ‗appeal‘ in Chapter 5 does not include an appeal in a matter regulated in
terms of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), or in terms of any other criminal
procedural law.

[12] It is evident from the wording of s 311 of the CPA that an appeal lies to this court
under this section only if the basis for the appeal is a question of law decided by a high
court, sitting as a court of appeal, in favour of the convicted person. I turn now to
consider whether this appeal is indeed based on a question of law. It was held in
Magmoed v Van Rensburg6 that the question whether the proven facts bring the
conduct of an accused person within the ambit of the crime charged, is one of law.7 The
provisions of Part I and III of Schedule 2 of the CLAA do not create separate offences of
rape.8 They do, however, prescribe different penalties depending on the circumstances
which warrant the categorisation of the rape as falling within the purview of either Part I
or Part III of Schedule 2 of the CLAA. If the proven facts establish that the convicted
person inflicted grievous bodily harm in the course of the rape, then that would bring the
rape within the ambit of Part I of the CLAA, which prescribes a harsher minimum
sentence than the one contemplated in Part III. Clearly, the question raised involves the
interpretation of the CLAA in order to ascertain what must be proved to bring the rape
within the ambit of either Part I or III of Schedule 2 of the CLAA. I am satisfied that the
DPP has indeed raised a question of law.

[13] I now turn to determine whether the high court was correct in finding that the
intention  to do grievous bodily harm must be proven in a rape involving contemplated in
Part I(c) of Schedule 2, read with s 51(1) of the CLAA. I deem it instructive to pay regard
to the following remarks made by Hoexter JA in a concurring judgment in R v Jacobs9
pertaining to the infliction of grievous bodily harm, albeit in the context of the offence of
robbery with aggravating circumstances:
‗The question whether grievous bodily harm has been inflicted depends entirely upon the nature, position
and extent of the actual wounds or injuries, and the intention of the accused is irrelevant in answering
that question.‘ (My emphasis.)

6 Magmoed v Van Rensburg [1992] ZASCA 208; 1993 (1) SA 777 (A) at 807 i-j.
7 See also Director of Public Prosecutions Gauteng v Pistorius [2015] ZASCA 204; [2016] 1 All SA 346
(SCA); 2016 (1) SACR 431 (SCA).
8 S v Kolea [2012] ZASCA 199; 2013 (1) SACR 409 para 16.
9 R v Jacobs 1961 (1) SA 475 (A) at 478A.

In the majority judgment Van Winsen AJA, in deciding whether or not grievous bodily
harm was inflicted, said:
‗In deciding whether the Crown has proved the infliction of grievous bodily harm by the accused, the jury
would, in my opinion, be entitled to have regard to the whole complex of objective factors involved in the
accused's assault upon the deceased. It could take into consideration the shock which would inevitably
result to the deceased by reason of the fact that the accused directed two blows at his face with a knife. It
could have regard to the wounds resulting from the stabs in the face, their number, nature and
seriousness, as well as to the two blows directed to the accused's stomach, their severity and the results
which flowed from their infliction.‘10
I respectfully echo these sentiments.

[14] In the absence of any interpretative factors which would warrant a different
approach in this matter, I am inclined to adopt the same reasoning in the interpretation
of the same phrase in relation to the rape contemplated in Part I(c) of the CLAA. It is
clear from this case that the test for ascertaining whether grievous bodily harm has
been inflicted is factual and objective. The correct approach to that enquiry necessitates
a holistic consideration of all objective factors pertaining to the incident, with a view to
ascertaining whether bodily injuries were inflicted and whether they are of a serious
nature.

[15] In my view, the high court‘s reliance on cases where the accused was charged
with the offence of assault with intent to do grievous bodily harm was clearly wrong. By
importing the intention of the respondent into the enquiry, the high court disregarded the
principles laid down in Jacobs. It committed an error of law as ‗intent‘ is irrelevant in the
determination of whether grievous bodily harm was inflicted on a complainant in the
rape envisaged in Part I(c) of the CLAA. Rather, the question to be answered is
whether, as a matter of fact, the victim of such a rape sustained grievous bodily harm.  It
is evident from the high court‘s judgment that its erroneous conclusion that the DPP had
failed to prove the element of intent resulted in it concluding that the rape committed by
the respondent did not fall within the purview of s 51(1) read with Part I(c) of Schedule 2
of the CLAA and instead considered the applicable minimum sentence to be 10 years

10 Ibid, at 485B-D. See also S v Maselani 2013 (2) SACR 172 (SCA) at para 12-13.

imprisonment as stipulated in Part III of the CLAA. This erroneous finding pertaining to
the applicable minimum sentence was clearly made in favour of the respondent.11 The
applicant has thus shown a basis for invoking the provisions of s 311(1) of the CPA and
this court has jurisdiction to hear the appeal.

[16] The respondent contended that the definition of appeal in s 1 of the Superior
Courts Act precluded this court from entertaining appeals brought at the instance of the
Director of Public Prosecutions in respect of decisions made by the high court on
appeal.    I disagree with that contention. Section 1 of the Superior Courts Act provides
that ‗appeal‘ in Chapter 5, does not include an appeal in a matter regulated in terms of
the CPA, or in terms of any other criminal procedural law.‘ Section 311 of the CPA
grants the State the right to appeal to this court against the judgment of the high court
given on appeal, on a question of law decided in favour of the convicted person.
However, it does not go as far as laying down a procedure pertaining to how this right
must be exercised. None of the general provisions of the CPA regulating appeals and
applications for leave to appeal specifically deal with how the right of appeal granted in
s 311 must be exercised. Furthermore, no other criminal procedural law makes
provision for this.

[17] In view of the fact that neither the CPA nor any other criminal procedural law
regulates s 311 appeals, there is simply no basis for concluding that s 311 appeals are
excluded from the application of the Superior Courts Act by virtue of s 1 of that Act. It
stands to reason that an appeal envisaged in s 311 of the CPA does not fall within the
category of those excluded from the application of the Superior Courts Act in terms of
s 1 and falls to be regulated by s 16(1)(b) of the Superior Courts Act. This court does
have jurisdiction to consider an appeal against a decision of the high court on appeal to
it on a question of law as contemplated in s 311 of the CPA.

11 In S v Goabab 2012 JD3 1063 (Nm) at para 8, the court found that alternative charges, viewed against
maximum sentences constituted a lesser offence and therefore the decision of the court to acquit the
accused on the main charge constituted a decision in favour of the accused.

[18] I turn now to consider whether the DPP has an automatic right to appeal to this
court or whether leave has to be sought. Sections 20(1), 20(4) and 21(1) of the
Supreme Court Act 59 of 1959, which is the predecessor of the Superior Courts Act,
conferred jurisdiction on this court to hear and determine appeals from any decision of
provincial or local division. The question whether leave to appeal was required for the
State to prosecute appeals on a question of law was considered in Attorney-General,
Transvaal v Nokwe & others.12 Having considered the provisions of s 21(2)(a) of the
Supreme Court Act (in its earlier form, prior to its amendment in 1982), the court
concluded that leave was indeed necessary.13 After the 1982 amendment, s 20(4) of the
Supreme Court Act made the granting of leave a pre-requisite to the hearing of an
appeal by this court in the following terms:
‗(4) 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-
(a)
in the case of a judgment or order given in any civil proceedings by 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.‘ (My emphasis).

[19] I have already concluded that s 1 of the Superior Courts Act does not serve as a
bar to the adjudication of appeals envisaged in s 311 of the CPA. The general
provisions applicable to appeals to this court are set out in s 16 of that Act. The granting
of leave to appeal from the judgment of a high court, or court of similar status, to this
court is a pre-requisite in terms of ss 16(1)(a)(b) and (c)14 of the Superior Courts Act.
This is not surprising, for the indisputable purpose of a party having to apply for leave to
appeal is to limit appeals to those which have reasonable prospects of success.15 In my
view, it would be an anomaly for leave to appeal to this court to be required in respect of

12 Attorney-General, Transvaal v Nokwe & others 1962 (3) 803 at 804.
13 Ibid at 806D.
14 See footnote 3.
15 Cronshaw & another v Coin Security Group (Pty) Ltd [1996] ZASCA 38; 1996 (3) SA 686 (SCA) at
689B; Pharmaceutical Society of SA and Others v Minister of Health & Another; New Clicks SA (Pty) Ltd v
Tshabalala Msimang NO & another [2004] ZASCA 122; [2005] 1 All SA 326 (SCA) at para 20-23.

all appeals except for those that are at the instance of the State on a question of law. I
see no basis for such a distinction.16

[20] If the legislature intended to grant an automatic right of appeal, it would have
done so expressly.17 It is significant that s 16(1)(b) of the Superior Courts Act expressly
states that an appeal against the decision of the high court on appeal to it lies to this
court upon special leave having been granted. It is self-evident that an appeal
envisaged in s 311 of the CPA relates to a decision made by the high court on appeal,
which is the case in the matter at hand. The provisions of s 16(1)(b) have therefore
been triggered. The respondent correctly conceded that ‗apropos the application of
s 311 in general, where an appeal is permissible, the respondent is in agreement with
the appellant‘s submissions that special leave would be required from this honourable
court in terms of s 16(1)(b) of the Superior Courts Act.‘ For all the reasons stated above,
I conclude that the appellant‘s application for special leave to appeal on a question of
law relating to the sentence imposed by the high court on appeal to it is therefore
correctly before us.

[21] I now consider whether special leave ought to be granted in this matter. The
factors relevant to the granting of special leave are well established. The general
principle is that in addition to reasonable prospects of success, an applicant for special
leave to appeal must show that there are special circumstances which merit a further
appeal to this court. This court, in Westinghouse Brake & Equipment (Pty) Ltd v Bilger
Engineering18 held that the word ‗special‘ denotes that some additional factor or criterion
is to play a part in the granting of leave. It considered special circumstances as (i)
where the appeal raises a substantial point of law; (ii) where the matter turns on factual
issues but the prospects of success are so strong that the refusal of leave would result
in a manifest denial of justice; (iii) where the matter is of very great importance to the

16 Attorney-General, Transvaal v Nokwe & others supra, at p805D-806A.
17 Section 309(1)(a) of the CPA grants automatic leave to appeal to a High Court where the regional court
has imposed life imprisonment under s 51(1) of the CLAA.
18 Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering [1986] ZASCA 10; 1986 (2) SA 555
(A).

parties or to the public.19 This list is by no means exhaustive. The existence of the first
two special circumstances is self-evident from the consideration of the facts of this
matter in the preceding paragraphs and need not be repeated here.

[22] Turning now to consider whether this matter is of substantial importance to the
parties or the public,20 I have already found that the high court erred in considering
intent to be a consideration in determining whether there was infliction of grievous bodily
injury on the complainant. If this court does not intervene, the unfortunate result will be
that the high court‘s erroneous decision will, on the basis of the doctrine of stare decisis,
continue to be considered as a precedent, thus perpetuating the error of law it
committed. I therefore conclude that this matter is indeed of substantial importance to
the State and to the public and that there are compelling reasons which justify the
hearing of the appeal. I am satisfied that all the requirements for the granting of special
leave to appeal have been met.

[23] Having found that the decision made by the high court in favour of the
respondent was based on an error of law and that  the  DPP has met the threshold for
the granting of special leave to appeal, it stands to reason that the appeal is to be
upheld. Section 311(1) of the CPA sets out the powers which an appeal court has after
a successful appeal. These depend on whether it was the DPP or the accused person
who originally appealed against the decision of the lower court. In terms of s 311(1)(b)
of the CPA, if, pursuant to s 309(1), the accused had successfully appealed against the
decision of a lower court, and the Director of Public Prosecutions in turn had succeeded
with an appeal to the Supreme Court of Appeal in terms of s 311, the latter court may
restore, in its original or amended form, the sentence or order of the lower court which
the accused had originally appealed.

[24] Notably, there is no provision in s 311 of the CPA for remittal of the matter to the
high court whose decision is the subject of this appeal. In Attorney-General v

19 At p 564 – 565.
20 Director of Public Prosecutions v Nokwe (supra).

Steenkamp,21 Van den Heever JA held that it could hardly have been the intention of
the legislature that where the order of this court does not finally dispose of the issues
raised in the first court of appeal, those issues must arbitrarily be deemed to have been
decided or be left hanging in the air. In The Director of Public Prosecutions KwaZulu-
Natal v Mekka22 this court upheld the appeal on the question of law. Having found that
the regional court had correctly convicted and sentenced the respondent, it set aside
the order of the high court and re-instated the conviction and sentence imposed by the
regional court. I am of the view that the circumstances of this matter warrant the remittal
of the matter back to the high court for a de novo hearing on the respondent‘s appeal on
sentence.

[25] In the result, I would grant special leave to appeal; uphold the appeal in respect
of the question of law; set aside the order of the high court on sentence and remit the
matter to the high court, Gauteng Division, for a de novo hearing on the respondent‘s
appeal on sentence.

________________
M B Molemela
Acting Judge of Appeal

Gorven, AJA (Maya AP and Theron JA concurring)
[26] I have read the judgment of my colleague Molemela AJA. The high court held
that intent must be proved when establishing whether grievous bodily harm was
inflicted. This was clearly wrong as is pointed out in paragraph 15 of the minority
judgment. This conclusion was accordingly a question of law wrongly decided in favour
of the respondent. The provisions of s 311 of the CPA23 are therefore triggered. This is

211954 (1) SA 351 (A) at 357F-G; Also see S v Meje (248/11); 2011 ZASCA 127 (13 September 2011).
22 The Director of Public Prosecutions KwaZulu-Natal v Mekka 57/2002; [2003] ZASCA 17 (26 March
2003).
23 Criminal Procedure Act 51 of 1977.

so whether the question of law relates to conviction or sentence. The appeal must be
allowed on the question of law. I agree, also, that, as a result of the error of law, the
appeal court did not properly consider whether the offence fell within the ambit of Part I
or Part III of Schedule 2 to the CLAA. This means that the merits of the appeal on
sentence were not dealt with by the appeal court. The matter should therefore be
remitted for this to take place.

[27] I write because it is my view that special leave to appeal is not required in a
matter arising from s 311 of the CPA.  This section provides for an appeal as of right,
without leave. An appeal under s 311 of the CPA is also an appeal ‗regulated in terms of
the Criminal Procedure Act‘.24 It is therefore one to which the provisions of Chapter 5 of
the Superior Courts Act,25 and in particular s 16(1)(b) thereof, do not apply.

[28] The minority judgment finds that, ‗[i]f the legislature intended to grant an
automatic right of appeal, it would have done so expressly.‘ In para 17 of the judgment it
is stated:
‗In view of the fact that neither the CPA nor any other criminal procedural law regulates s 311
appeals, there is simply no basis for concluding that s 311 appeals are excluded from the
application of the Superior Courts Act by virtue of s 1 of that Act. It stands to reason that an
appeal envisaged in s 311 of the CPA does not fall within the category of those excluded from
the application of the Superior Courts Act in terms of s 1 and falls to be regulated by s 16(1)(b)
of the Superior Courts Act.‘
The minority judgment goes on, in para 19, to say:
‗The granting of leave to appeal from the judgment of a high court, or court of similar status, to
this court is a pre-requisite in terms of ss 16(1)(a)(b) and (c) of the Superior Courts Act. This is
not surprising, for the indisputable purpose of a party having to apply for leave to appeal is to
limit appeals to those which have reasonable prospects of success. In my view, it would be an
anomaly for leave to appeal to this court to be required in respect of all appeals except for those
that are at the instance of the State on a question of law. I see no basis for such a distinction.‘26
I respectfully differ from this approach.

24 From s 1 of the Superior Courts Act 10 of 2013 – this section will be dealt with more fully below.
25 Superior Courts Act 10 of 2013.
26 References omitted.

[29] The introduction of the definition of an appeal in s 1 of the Superior Courts Act
has given rise to a new situation. This must prompt fresh enquiries on matters settled
under the previous legislation. Certain appeals are now excluded from the operation of
Chapter 5 of the Superior Courts Act. This was not the position under the Supreme
Court Act.27 The enquiry which must be made prior to concluding that s 16(1)(b), which
requires special leave to appeal, applies, is whether the appeal in question is subject to
the provisions of Chapter 5. I now turn to that enquiry.

[30] Section 1 of the Superior Courts Act provides that an appeal in Chapter 5 ‗does
not include an appeal in a matter regulated in terms of the Criminal Procedure Act . . . or
in terms of any other criminal procedural law‘. Chapter 5 of the Superior Courts Act
comprises ss 15-20. This means that, if an appeal is ‗regulated in terms of‘ the CPA, the
provisions of s 16(1)(b) requiring special leave to appeal do not apply. The crisp issue in
this regard is whether an appeal under s 311 is one ‗regulated in terms of‘ the CPA.28

[31] Section 311 of the CPA reads:
‗(1) Where the provincial or local division on appeal, whether brought by the attorney-general or
other prosecutor or the person convicted, gives a decision in favour of the person convicted on
a question of law, the attorney-general or other prosecutor against whom the decision is given
may appeal to the Appellate Division of the Supreme Court, which shall, if it decides the matter
in issue in favour of the appellant, set aside or vary the decision appealed from and, if the
matter was brought before the provincial or local division in terms of–
(a)   section 309(1), re-instate the conviction, sentence or order of the lower court appealed
from, either in its original form or in such a modified form as the said Appellate Division may
consider desirable; or
(b)   section 310(2), give such decision or take such action as the provincial or local division
ought, in the opinion of the said Appellate Division, to have given or taken (including any action
under section 310(5)), and thereupon the provisions of section 310(4) shall mutatis
mutandis apply.
(2) If an appeal brought by the attorney-general or other prosecutor under this section or
section 310 is dismissed, the court dismissing the appeal may order that the appellant pay the

27 The Supreme Court Act 59 of 1959 was repealed by the Superior Courts Act.
28 It has not been contended that such an appeal is regulated by any other criminal procedural law.

respondent the costs to which the respondent may have been put in opposing the appeal, taxed
according to the scale in civil cases of that court: Provided that where the attorney-general is the
appellant, the costs which he is so ordered to pay shall be paid by the State.‘

[32] It can be seen that s 311 gives jurisdiction to this court when a high court ‗on
appeal . . . gives a decision in favour of the person convicted on a question of law‘.
Jurisdiction is founded on s 311 itself and is clear and express. The present matter was
brought before the high court by way of an appeal in terms of s 309(1) of the CPA. We
have found that, in that appeal, the high court decided a question of law in favour of the
respondent. Accordingly, the provisions of s 311(1)(a) find application. In those
circumstances, this court‘s jurisdiction is established under s 311.

[33] As mentioned, the introduction of the definition of appeal in s 1 of the Superior
Courts Act has brought about a new situation requiring the consideration of whether an
appeal is regulated by the CPA. In S v Van Wyk & another,29 in the context of an appeal
by an accused person, this court held that ‗[t]he CPA does not contain any provision
dealing with a right of appeal to this court from a decision of the high court taken on
appeal to it from a magistrates‘ court.‘ Accordingly, it was held, such an appeal is not
regulated by the CPA and is not excluded from the operation of Chapter 5 of the
Superior Courts Act. As a result, the provisions of s 16(1)(b) govern such an appeal.30
This requires the grant of special leave to appeal by this court. In contrast to the position
dealt with in Van Wyk, s 311 of the CPA clearly does ‗contain [a] provision dealing with
a right of appeal to this court from a decision of the high court taken on appeal to it from
a magistrates‘ court‘.31 This distinguishes the position under s 311 from that dealt with in
Van Wyk. Applying the dictum in Van Wyk, because s 311 of the CPA gives a right of
appeal, such an appeal is excluded from the operation of Chapter 5 of the Superior
Courts Act.

29 S v Van Wyk & another [2014] ZASCA 152; 2015 (1) SACR 584 (SCA) para 18.
30 Van Wyk para 20.
31 Van Wyk para 18.

[34] In DPP Western Cape v Kock,32 this court held that, where the state seeks to
appeal against sentence under the provisions of s 316B(1) of the CPA, that right of
appeal ‗is specifically regulated by the CPA, therefore the provisions of s 16(1)(b) do not
find application.‘33 And in Director of Prosecutions v Olivier,34 this court held that it only
has jurisdiction to deal with an appeal against sentence brought by the state under
s 316B of the CPA where the high court acted as a court of first instance and not as an
appeal court.35 These both dealt with attempts to appeal against sentence in this court
where that sentence had been imposed by the high court sitting as a court of appeal. In
both of those matters this court held that it had no jurisdiction to entertain such an
appeal. In each of those cases the appeal was struck from the roll, which is the
appropriate order when there is a lack of jurisdiction to adjudicate an appeal. Neither of
those matters dealt with an appeal brought under s 311 of the CPA.

[35] The context of s 311 of the CPA must be considered. Most other sections of the
CPA which allow for an appeal require applications for leave to appeal. These include
s 309(1)(a), s 309B(1)(a), s 310A(1), s 316(1)(a) and s 316B(1) of the CPA. It is clear
that these are appeals ‗regulated in terms of‘ the CPA. They give the right of appeal and
deal with the procedure for the exercise of that right. In all cases, the procedure requires
an application for leave to appeal.

[36] Leaving aside s 311 for the moment, the exceptions to the requirement of leave
to appeal in the CPA are twofold. The first is the proviso to s 309(1)(a):
‗Provided that if that person was sentenced to imprisonment for life by a regional court
under section 51(1) of the Criminal Law Amendment Act, 1997 (Act 105 of 1997), he or she may
note such an appeal without having to apply for leave in terms of section 309B‘.
There is therefore an explicit provision that an accused person in the circumstances set
out in the proviso to s 309(1)(a) ‗may note such an appeal without having to apply for
leave‘. The reason for specifying this is clear. It is stated as an exception to the general

32 DPP Western Cape v Kock [2015] ZASCA 197; 2016 (1) SACR 539 (SCA).
33 Para 18.
34 Director of Public Prosecutions v Olivier 2006 (1) SACR 380 (SCA) approved in S v Nabolisa [2013]
ZACC 17; 2013 (2) SACR 221 (CC).
35 Olivier para 81.

provision in that section requiring leave to appeal. In this section, the right to appeal is
given, it is expressly stated that no leave to appeal is required and the person is
directed to exercise that right by simply noting an appeal.

[37] The second is s 310, the relevant parts of which provide:
‗(1) When a lower court has in criminal proceedings given a decision in favour of the accused on
any question of law . . . the attorney-general . . . may require the judicial officer concerned to
state a case for the consideration of the provincial or local division having jurisdiction, setting
forth the question of law and his decision thereon and, if evidence has been heard, his findings
of fact, in so far as they are material to the question of law.
(2) When such case has been stated, the attorney-general or other prosecutor, as the case may
be, may appeal from the decision to the provincial or local division having jurisdiction.
(3) The provisions of section 309(2) shall apply with reference to an appeal under this section.‘
Section 309(2) provides that such an appeal must be noted and prosecuted according
to the rules of court. Section 310 thus gives a right of appeal. Unlike s 309(1)(a), it does
not provide in terms that no leave to appeal is required. It does specify that the right to
appeal must be exercised by noting and prosecuting the appeal according to the rules
of court. It is clear that leave to appeal is not first required and that it is also an appeal
as of right.

[38] The wording of s 311 is similar to that of s 310(2). Section 311 says that ‗the
attorney-general or other prosecutor against whom the decision is given may appeal‘.
Both sections allow this when a decision in favour of the accused on any question of law
has been made. The right to appeal is given. As is the case with s 310(2), the section
does not state in terms that no leave to appeal is required. Sections 310 and 311 differ
in two respects. First, s 310(3) imports the provisions of s 309(2), which specifies that
the noting and prosecution of the appeal must take place as ‗prescribed by the rules of
court‘. There is no equivalent provision in the CPA concerning an appeal under s 311.
Secondly, an appeal under s 310(2) does not lie to this court.

[39] Dealing with the second of these first, an objection has been raised that appeals
without leave do not lie to this court. This is not so. In the context of an appeal by an

accused against a refusal by the high court of condonation for the late noting of an
appeal, this court has consistently recognised appeals as of right without leave in
certain circumstances.36 Until the coming into effect of the Superior Courts Act, this was
also the case for appeals against the refusal of bail or the imposition of a condition of
bail by a high court sitting as a court of first instance.37 The Superior Courts Act also
brought about a change of approach in this regard.38

[40] Section 315(4) of the CPA is of some significance:
‗An appeal in terms of this Chapter shall lie only as provided in sections 316 to 319 inclusive,
and not as of right.‘
This section is part of Chapter 31 of the CPA, comprising ss 315 to 324, and deals with
appeals in cases of criminal proceedings in superior courts. Chapter 30, comprising
ss 302 to 314, must thus be taken to allow for appeals as of right. This chapter deals
with reviews and appeals in cases of criminal proceedings in lower courts. We have
seen that the proviso to s 309(1)(a) and s 310(2) fall into the category of appeals as of
right. Section 311 is part of this chapter.

[41] Section 311(2) ties ss 310 and 311 together. It provides that, if an appeal arising
from these two sections is dismissed, ‗the court dismissing the appeal may order that
the appellant pay the respondent the costs to which the respondent may have been put
in opposing the appeal‘. This provides a check against abusive appeals which might
otherwise arise from such a provision.

[42] Similar provisions are found in ss 310A(6) and 316B(3). These allow the State to
apply for leave to appeal against a sentence and, if given leave, to appeal against
sentence. What is significant is that, in addition to providing for an ‗order that the State
pay the accused concerned the whole or any part of the costs to which the accused
may have been put in opposing‘ the appeal, they also provide for an ‗order that the

36 S v Swiegers 1969 (1) PH H110 (A); S v Tsedi 1984 (1) SA 565 (A) at 570A-C; S v Absalom 1989 (3)
SA 154 (A) at 162D-E; S v Botha en ’n ander 2002 (1) SACR 222 (SCA) para 13.
37 S v Botha en ’n ander [2001] ZASCA 146; 2002 (2) SA 680 (SCA); 2002 (1) SACR 222; [2002] All SA
577.
38 S v Banger 2016 (1) SACR 115 (SCA).

State pay the accused concerned the whole or any part of the costs to which the
accused may have been put in opposing‘ the application for leave to appeal. The
absence of a similar provision in s 311(2) for costs of an application for leave to appeal
fortifies an interpretation that no such application is necessary.

[43] As mentioned, s 310(3) specifies that the appeal must be noted and prosecuted
in terms of the rules of court. This provision does not find echo in s 311. As such, no
procedure for the prosecution of the appeal is set out in the CPA. The question is
whether the absence of a provision setting out the procedure to exercise the right of
appeal means that it is not one ‗regulated in terms of‘ the CPA. If so, it is not excluded
from Chapter 5 of the Superior Courts Act and the provisions of s 16(1)(b) requiring
special leave to appeal would apply.

[44] Section 16(1)(b) of the Superior Courts Act provides that:
‗an appeal against any decision of a Division on appeal to it, lies to the Supreme Court of
Appeal upon special leave having been granted by the Supreme Court of Appeal . . . .‘
What this means is that, until given by this court, there is no right to appeal. The right to
appeal can be withheld or given by this court. But s 311 of the CPA already gives that
right if the circumstances specified in it are met. In addition, it also specifies that such
an appeal lies to this court. What the minority judgment does not explain is why, if a
right of appeal is given by s 311, leave is required in order to obtain that right.

[45] It is, of course, instructive that, unlike other sections in the CPA, s 311 does not
in terms specify that any form of leave to appeal must be obtained. All of the sections
requiring leave specify this requirement. There is also no need to specify the procedure
to exercise the right because rule 7(1)(a) of the rules of this court does so:39
‗(1) An appellant shall lodge a notice of appeal with the registrar and the registrar of the court a
quo within one month after the date of—
(a)   the granting of the judgment or order appealed against where leave to appeal is not
required‘.

39 Rules Regulating the Conduct of the Proceedings of the Supreme Court of Appeal of South Africa.

Rule 7(1)(a) thus deals in terms with a situation where leave to appeal is not required.
Holding that s 311 deals with an appeal as of right accordingly does not give rise to a
procedural lacuna.

[46] It is my view that, because a right to appeal is given in s 311 of the CPA, such an
appeal is one ‗regulated‘ by the CPA. It is not necessary, in addition, for the CPA to
specify the procedure by which to exercise that right. The Director of Public
Prosecutions, or other prosecutor, has an appeal as of right. That being the case, an
appeal under s 311 is excluded from the operation of Chapter 5 of the Superior Courts
Act. As such, the provisions of s 16(1)(b) of the Superior Courts Act do not apply. An
appeal under s 311 accordingly does not require special leave to appeal.

[47] Arising from this conclusion, accordingly, no application for special leave to
appeal was necessary in this matter. It follows that an order granting special leave to
appeal is neither necessary nor competent.

[48] In the result the following order is made:
The appeal is upheld in respect of the question of law.
The order of the high court on sentence is set aside.
The sentence imposed by the regional court is reinstated.
The matter is remitted to the high court for the appeal to proceed on sentence.

_______________________
T R Gorven
Acting Judge of Appeal

APPEARANCES:

For the Appellant:

S Mahomed SC (with C P Harmzen )
Instructed by:
Office Director of Public Prosecutions, Pretoria
c/o Director of Public Prosecutions, Bloemfontein

For the Respondent:

H L Alberts (with S Moeng)
Instructed by:
Legal Aid South Africa, Pretoria
c/o Bloemfontein Justice Centre, Bloemfontein
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:
2 June 2017
Status:
Immediate

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.

DIRECTOR OF PUBLIC PROSECUTIONS
v
MOABI

Today the Supreme Court of Appeal handed down judgment dealing with an appeal
under s 311 of the Criminal Procedure Act. This allows for an appeal to this court
from a high court sitting as a court of appeal where that court decided a point of law
in favour of the convicted person.

In the present matter, Mr Moabi was convicted of one count of rape in the Klerksdorp
regional court and sentenced to life imprisonment. The regional court applied the
provisions of s 51(1) read with Part I of Schedule 2 to the Criminal Law Amendment
Act. This requires a minimum sentence of life imprisonment if the rape involved the
infliction of grievous bodily harm. If no grievous bodily harm was inflicted, s 51(2)
read with Part III of Schedule 2 to the Criminal Law Amendment Act prescribes a
minimum sentence of 10 years’ imprisonment.

He exercised his right of appeal, which came before the Gauteng Division of the
High Court, Pretoria. The high court dismissed his appeal against conviction. It held

that the regional magistrate has incorrectly found that the sentence fell under Part I.
It said that, for this to be the case, it must be proved that the accused person had the
intention to inflict grievous bodily harm. Since it found that no such intention had
been proved, it held that the sentence fell under Part III. It then upheld the appeal
against sentence and substituted a sentence of 14 years’ imprisonment.

The Director of Public Prosecutions invoked the provisions of s 311 of the Criminal
Procedure Act. It contended that the conclusion of the high court that intention to
inflict grievous bodily harm was necessary amounted to a question of law which the
high court found in favour of the respondent. The DPP applied for leave to appeal
and the Supreme Court of Appeal required argument on the application and required
the parties to be prepared to also argue the merits of the appeal.

The Supreme Court of Appeal found that the high court erred in law in requiring that
an intention to inflict grievous bodily harm was required. The requirement was only
that, as a matter of fact, grievous bodily harm was inflicted. The provisions of s 311
of the Criminal Procedure Act were therefore triggered. The error of law committed
by the high court meant that the respondent’s appeal on sentence had not been
considered on the merits. The sentence of the respondent was re-instated as
imposed by the regional court. The matter was remitted to the high court for it to
properly exercise its appeal jurisdiction on sentence.

The majority judgment held, in addition, that an appeal under s 311 was one
regulated in terms of the Criminal Procedure Act. The definition of ‘appeal’ in s 1 of
the Superior Courts Act excluded an appeal regulated in terms of the Criminal
Procedure Act from the appeal provisions of the Superior Courts Act. It was thus
unnecessary to obtain special leave to appeal. The appeal was one of right, without
leave.

The minority judgment concluded that special leave to appeal was necessary. It
would have granted special leave and would have upheld the appeal under s 311 on
the same basis.