THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 807/2019
In the matter between:

VINCENT CHAUKE

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Chauke v The State (Case no 807/2019) [2020] ZASCA 68 (18
June 2020)
Coram:
SALDULKER, MBHA, VAN DER MERWE AND SCHIPPERS JJA
and MABINDLA-BOQWANA AJA

Heard:

Disposed of without the hearing of oral argument in terms of
s 19(a) of the Superior Courts Act 10 of 2013

Delivered:
This judgment was handed down electronically by circulation to
the parties’ legal representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date for hand down is deemed to be 18 June 2020.

Summary: Criminal law and procedure – application for leave to appeal against the
refusal of a petition by a high court against the sentence imposed by a regional court

– test – whether there are reasonable prospects of success – leave granted to the high
court.

___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from: Gauteng Division of the High Court, Johannesburg (Nicholls J and
Manyathi AJ sitting as court of first instance):
1 The appeal succeeds.
2 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 Gauteng Division of the High Court,
Johannesburg, against the sentence imposed on him in the regional court.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Saldulker JA (Mbha, Van der Merwe and Schippers JJA and Mabindla-Boqwana
AJA concurring):

[1] The appellant was charged in the regional court, Johannesburg (regional court)
with robbery with aggravating circumstances, read with the provisions of s 51 of the
Criminal Law Amendment Act 105 of 1997. He was convicted as charged, and after
the court had found that there were no substantial and compelling circumstances in his
case, he was sentenced to 15 years’ imprisonment. An application for leave to appeal
to the high court against the sentence was refused. The appellant then petitioned the
Judge President of the Gauteng Division, Johannesburg (high court) in terms of s 309C
of the Criminal Procedure Act 51 of 1977 for leave to appeal. On 5 May 2016, Nicholls
J and Manyathi AJ dismissed the petition.  With the necessary leave of this Court, the
appellant now appeals against the refusal of his petition in the high court.

[2] The issue to be decided is whether leave to appeal to the high court against the
sentence imposed by the regional court should have been granted. In S v Matshona1
Leach JA summarised the position as follows:
‘It is clear. . . that. . . where …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. . . .’
The test is simply whether there is a reasonable prospect of success in the envisaged
appeal against sentence.2

[3] It is not necessary to deal with the facts in any great detail, in the light of the
outcome of the appeal. Suffice it to state that the appellant together with three others
accosted a domestic helper in Mulbarton, Johannesburg, and ransacked the house
where she was employed and stole goods valued at approximately R50 000. During
the appellant’s arrest, goods belonging to the robbed home were found in his car.

[4] At the time of sentencing, the regional magistrate was informed by the
appellant’s legal representative that the appellant was serving a sentence of 15 years’
imprisonment, imposed in the previous year, for a conviction of armed robbery. This
was apart from what was reflected on the SAP 69, that he had a previous conviction
for robbery committed in 2006, and for which he had been sentenced to seven years’
imprisonment.  Despite this, the regional magistrate did not request or obtain
confirmation of the existence of the appellant’s previous conviction and sentence (other
than what was reflected on the SAP 69). The record before us confirmed this previous
conviction and sentence.

[5] In passing sentence, the regional magistrate stated that as he had no
documentation referring to the alleged sentence that the appellant was currently
serving, he was not in a position to make an order regarding the concurrency of the
sentence. In the result, the regional court did not consider the cumulative effect of the
two sentences of 15 years’ imprisonment each.

1 [2008] ZASCA 58; 2013 (2) SACR 126 (SCA) para 5. See also S v Khoasasa 2003(1) SACR  123
(SCA);  [2002] 4 All SA 635 (SCA).
2 S v Kriel; 2012 (1) SACR 1 (SCA) para 12.

[6] The same applies to the decision of the high court. In dismissing the petition for
leave to appeal, it stated: ‘There is no evidence before court of the Accused serving
the sentence with which he seeks this current sentence to run concurrently’.
Accordingly, bearing the factors mentioned herein in mind, there exists a reasonable
prospect that a court of appeal might consider that the regional magistrate ought to
have obtained the requisite proof of the sentence that the appellant was serving and
ought to have considered the cumulative effect of both sentences when imposing the
sentence in the current matter. This appeal must therefore succeed.

[7] It remains to record that both counsel were agreed that this appeal could be
disposed of without the hearing of oral argument in terms of s 19(a) of the Superior
Courts Act 10 of 2013.3

[8] In the result, the following order is made:

1 The appeal succeeds.
2 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 Gauteng Division of the High Court,
Johannesburg against the sentence imposed on him in the regional court.

______________________
H K SALDULKER
JUDGE OF APPEAL

3 Section 19(a) provides: ‘The Supreme Court of Appeal or Division exercising appeal jurisdiction may,
in addition to any power as may specifically be provided for in any law. . . dispose of an appeal without
the hearing of oral argument’.

APPEARANCES
For appellant:                               W A Karam
Instructed by:                                Legal Aid SA, Johannesburg
Legal Aid SA, Bloemfontein

For respondent:
M Mashego
Instructed by:
Director of Public Prosecutions, Johannesburg

Director of Public Prosecutions, Bloemfontein