THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable
Case No: 117/2019
In the matter between:

JOSEPH BONGANI GWIBA

APPELLANT

and

THE STATE
RESPONDENT

Neutral citation: Gwiba v State (117/2019) [2019] ZASCA 155 (27 November
2019)
Coram:
Petse DP, Mbha and Mocumie JJA, Koen and Gorven AJJA
Heard:

13 November 2019
Delivered:
27 November 2019

Summary: Criminal Procedure – appeal – special leave granted against refusal
of high court to grant leave to appeal from the regional court – appeal relates to
whether the high court should have granted leave to appeal – not the merits of the
appeal – reasonable prospects of success exist – leave to appeal granted to the
high court.

__________________________________________________________________________

ORDER

On appeal from: Free State Division of the High Court (Kruger J and Boonzaaier
AJ on petition to them):
1 The appeal against the refusal of the petition to the High Court is upheld.
2 The order of that court is set aside and substituted with the following order:
‘The applicant is granted leave to appeal to the Free State Division of the High
Court against his convictions and sentence.’

JUDGMENT

Gorven AJA (Petse DP, Mbha and Mocumie JJA and Koen AJA concurring)

[1] The appellant was tried in the Regional Court, Bothaville on three counts
of robbery with aggravating circumstances. Despite pleading not guilty to all
three counts, he was convicted as charged. The counts were taken together for
purposes of sentence. He was sentenced to a period of imprisonment of 15 years.
Two other persons were charged and convicted with him but their fate does not
arise here.

[2] The appellant applied for leave to appeal against his convictions and
sentences in terms of s 309B of the Criminal Procedure Act (the CPA).1 The
regional magistrate refused the application. As a result, the appellant petitioned
the High Court of South Africa, Free State Division for leave to appeal in terms
of s 309C of the CPA. This was likewise refused. He then approached this court

1 Criminal Procedure Act 51 of 1977.

for special leave to appeal. On 13 December 2018 this court granted the following
order:
‘1.
The application for condonation is granted.
2.
Special leave to appeal . . . is granted to the Supreme Court of Appeal.
. . . .’
It is this order which has resulted in the matter being set down before us.

[3] The appeal of an accused convicted in a regional court lies to the high court
under s 309(1)(a) of the CPA.2 There are various procedures when leave to appeal
is desired. The first step is an application to the regional magistrate under
s 309B(1)(a) of the CPA. In its relevant parts, this provides:
‘. . . any accused . . . who wishes to note an appeal against any conviction or against any
resultant sentence or order of a lower court, must apply to that court for leave to appeal against
that conviction, sentence or order.’
The next step is provided by s 309C(2)(a) of the CPA:
‘If any application—
(i) for condonation;
(ii) for further evidence; or
(iii) for leave to appeal,
is refused by a lower court, the accused may by petition apply to the Judge President of the
High Court having jurisdiction to grant any one or more of the applications in question.’

[4] In order to understand the next step to be taken, it is necessary to recognise
that if such a petition is refused, that refusal is an order granted on appeal to it by
a high court.3 Under the Supreme Court Act,4 if the petition was refused, the next
step was to appeal to this court with leave of the High Court.5 This is no longer

2 This provides, in its relevant parts:
‘[A]ny person convicted of any offence by any lower court . . . may, subject to leave to appeal being granted in
terms of section 309B or 309C, appeal against such conviction and against any resultant sentence or order to the
High Court having jurisdiction’.
3 S v Khoasasa 2003 (1) SACR 123 (SCA); [2002] 4 All SA 635 paras 14 & 19-22.
4 Supreme Court Act 59 of 1959.
5 Section 20(4)(b) of the Supreme Court Act.

the case. The Superior Courts Act6 repealed the Supreme Court Act. A high court
no longer has the power to grant leave to appeal to this court against the refusal
of a petition.

[5] Section 1 of the Superior Courts Act excludes from the definition of
‘appeal’ one which is regulated by the CPA. The CPA does not provide for a right
of appeal to this court from a decision of the high court taken on appeal to it from
a magistrates’ court.7 Because the appeal in question is not regulated by the CPA,
such an appeal falls within the definition of ‘appeal’ in the Superior Courts Act.
It is accordingly governed by the provisions of Chapter 5 of the Superior Courts
Act.

[6] Because the refusal of the petition is a ‘decision of a Division on appeal to
it’, special leave must be sought from this court as provided for by s 16(1)(b) of
the Superior Courts Act:8
‘(1) Subject to section 15(1), the Constitution and any other law —
. . .
(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’.
This is then the next step to take. The procedure to obtain special leave is set out
in s 17(3) of the Superior Courts Act:
‘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 . . .’.
The special leave granted is to appeal to this court ‘against any decision of a
Division on appeal to it’. The special leave granted is thus to appeal the decision
of the high court. The next step is to prosecute that appeal in this court.

6 Superior Courts Act 10 of 2013.
7 S v Van Wyk & another [2014] ZASCA 152; 2015 (1) SACR 584 (SCA) para 18.
8 Van Wyk para 20.

[7] The high court refused to grant leave to appeal. So the appeal to be
considered by this court is an appeal against the refusal of the high court to grant
leave to appeal. The issue for consideration is whether the high court correctly
refused leave to appeal.9 If the appeal succeeds, the appropriate order is that
which the high court ought to have granted on petition, viz. to grant leave to
appeal to the high court. The resultant appeal in the high court deals with the
merits of the appeal. This court does not deal with the merits of the appeal.10

[8] This court has granted special leave to appeal. It must have held that special
circumstances exist which satisfy the higher threshold for special leave to appeal
against the refusal of the petition by the high court.11 We are thus to decide an
appeal against the refusal of the high court to grant leave to appeal.12 It is clear
that this court cannot decide the merits of the appeal, which must, if leave is given,
be decided by the high court.13

[9] The matter must accordingly be dealt with on the basis of whether the
magistrate, and subsequently the high court, should have found that there are
grounds for leave to appeal. The test for this is whether the appellant has
reasonable prospects of success on appeal.14

[10] It is clear from both sets of heads of argument that a pointing out was held.
This pointing out may have amounted to a confession but no finding to that effect
is appropriate at this point. This was contested evidence. No trial within a trial
was held. For the rest, eyewitnesses did not testify that the appellant was at the
scene of the crime. He was not identified at an identification parade. One witness

9 S v Matshona [2008] ZASCA 58; 2013 (2) SACR 126 (SCA) para 4.
10 Section 309(1)(a) of the CPA. See also S v Tonkin 2014 (1) SACR 583 (SCA) para 4.
11 Van Wyk para 21.
12 Matshona para 7.
13 Ibid.
14 Matshona para 8.

testified that items were found in the boot of the vehicle of the appellant. Two
other witnesses testified that they searched the vehicle and did not find any such
items.

[11] From this, it is clear that the learned magistrate, and later the high court on
petition, should have come to the conclusion that the appellant has reasonable
prospects of success on appeal. It must be made clear that the factors set out above
are not definitive findings which in any way affect the findings to be made by the
court hearing the appeal. They are simply weighed in the mix in considering the
issue before us.

[12] Counsel for the respondent identified correctly the manner in which the
appeal should be dealt with. He also, with respect, correctly conceded that there
are reasonable prospects of success on appeal. After the appeal was heard, an
order was made and it was indicated that reasons would follow. These are those
reasons.

[13] The following order was made:
1 The appeal against the refusal of the petition to the High Court is upheld.
2 The order of that court is set aside and substituted with the following order:
‘The applicant is granted leave to appeal to the Free State Division of the High
Court against his convictions and sentence.’

__________________
T R Gorven
Acting Judge of Appeal

Appearances
For the Appellant:
DC Hattingh
Instructed by: Julian Knight & Associates Inc,
Brooklyn
Rossouws Attorneys, Bloemfontein

For the Respondent
S Chalale
Instructed by:
The Director of Public Prosecutions, Bloemfontein