THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not reportable

Case no: 148/2017

In the matter between:

FREDERICK UMUDE
FIRST APPELLANT
DOMINIQUE NWAFOR
SECOND APPELLANT
HENRY OHAERI
THIRD APPELLANT

and

THE STATE
RESPONDENT

Neutral citation: Umude & others v The State (148/2017) [2017] ZASCA 150
(21 November 2017)

Coram:
Ponnan, Petse, and Willis JJA and Lamont and
Schippers AJJA

Heard:
1 November 2017

Delivered:
21 November 2017

Summary: Criminal Procedure – appeal against conviction – leave to appeal
refused by magistrate – petition refused by the courts a quo – special leave to
appeal against conviction granted by the Supreme Court of Appeal – Section
309 of the Criminal Procedure Act – whether leave to appeal ought to have
been granted.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Eastern Cape Division of the High Court, Grahamstown
(Lowe J and Mgxaji AJ (14 May 2015 in respect of the second appellant) case
no CA&R 264/2014 and Brooks J and May AJ (08 October 2014 in respect of
the first and third appellants) case no CA&R 264/2014 sitting as court of
appeal):

1 The appeal is upheld.
2 The orders of the Eastern Cape Division of the High Court, Grahamstown
made respectively on 8 October 2014 under case number CA&R264/2014 and
14 May 2015 under case number CA&R264/2014 dismissing each appellant’s
petition against sentence are set aside and replaced with the following:
‘The three applicants are granted leave to appeal to the Eastern Cape Division
of the High Court, Grahamstown against the sentences imposed on them on
2 October 2013 by the Port Elizabeth Regional Court, Eastern Cape.’

______________________________________________________________

JUDGMENT
______________________________________________________________

Lamont AJA (Ponnan, Petse and Willis JJA and Schippers AJA
concurring)

[1] On 1 October 2013 each of the appellants was convicted by the Port
Elizabeth Regional Court, Eastern Cape (Specialised Commercial Crime
Court) of three counts of fraud and sentenced the next day to 15 years'
imprisonment. The appellants’ application to that court in terms of s 309B of
the Criminal Procedure Act 51 of 1977 (the CPA) for leave to appeal against

conviction and sentence was dismissed. In terms of s 309C(2) of the CPA,
each then petitioned to the Eastern Cape Division, Grahamstown. Those
applications likewise failed.

[2] The appellants thereupon petitioned this court in terms of s 16(1)(b) of
the Superior Courts Act 10 of 2013 (the Act)1 for special leave to appeal. This
court issued the following order: ‘Special leave to appeal against sentence is
granted to the Supreme Court of Appeal’. That order conduces to confusion.

[3] The order by the court a quo dismissing the appellants’ petition is an
order of that court (see S v Khoasasa2), which stands until set aside on appeal
by this court. In terms of the Supreme Court Act 9 of 1959, an application for
leave to appeal the order had to be lodged with that court (the high court). If
that court took the view that it was wrong in its earlier decision to dismiss the
petition to it and that on further reflection there were indeed reasonable
prospects of the contemplated appeal succeeding, then it granted leave to
appeal to this court. However, all that served before this court on appeal was
the correctness of the high court’s dismissal of the appellant’s petition to it.
This court therefore did not enter into substantive merits of the envisaged
appeal, save for the limited purposes of considering whether or not it had
reasonable prospects of succeeding.

[4] In terms of the Act, the high court lacks jurisdiction, as it previously did
to consider an application for leave to appeal against its dismissal of a petition
to it. As a dismissal by the high court of a petition in terms of s 309C(2) is a
decision on appeal to it, an application for special leave to appeal against that
decision now lies to this court in terms of s 16(1)(b) of the Act.

[5] Thus what served before the two judges on petition to this court was
whether the court a quo was correct in dismissing the appellants’ petition to it.

1 ‘Section 16 (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….’
2 S v Khoasasa [2002] ZASCA 113; 2003 (1) SACR 123 (SCA).

This court evidently took the view that there were reasonable prospects of
success in the contemplated appeal against sentence. Accordingly, each
appellant was granted leave to appeal against sentence. In truth, leave ought
to have been granted against the order of the court a quo refusing the
appellants leave to appeal against sentence.

[6] Accordingly, what this court has to decide is whether or not the high
court was correct in dismissing the appellants’ petitions to it. If that court erred,
then this court will set aside the order of the high court; grant the appellants’
leave to appeal and refer the matter back to the court a quo to hear the appeal
on its merits.

[7] The appellants were convicted of three counts of fraud involving
R109 649.87. The regional court found that the provisions of s 51(2) of the
Criminal Law Amendment Act 105 of 1997 were applicable. It then held that
there were no substantial and compelling circumstances and took the three
counts together in imposing the prescribed minimum sentence. There is
something to be said for the contention that the regional court should have, but
failed to, adequately consider whether the prescribed sentence was a
reasonable and appropriate punishment for each of the appellants having
regard to the amount involved and their personal circumstances.3 It follows that
there is a reasonable prospect of an appeal against sentence succeeding.
Accordingly, the petitions to the Eastern Cape Division of the High Court,
Grahamstown should have succeeded in respect of sentence.

[8] In the result:
1 The appeal is upheld.
2 The orders of the Eastern Cape Division of the High Court, Grahamstown
made respectively on 8 October 2014 under case number CA&R264/2014 and
14 May 2015 under case number CA&R264/2014 dismissing each appellant’s
petition against sentence are set aside and replaced with the following:

3 S v Vilakazi [2008] ZASCA 87; 2012 (6) SA 353 (SCA) para 15.

‘The three applicants are granted leave to appeal to the Eastern Cape Division
of the High Court, Grahamstown against the sentences imposed on them on
2 October 2013 by the Port Elizabeth Regional Court, Eastern Cape.’

C G LAMONT
ACTING JUDGE OF APPEAL

Appearances:

For the Appellant:

A Williams

Instructed by:

Legal Aid South Africa, Port Elizabeth

Legal Aid South Africa, Bloemfontein

For the Respondent:
U De Klerk

Instructed by:

The Director of Public Prosecutions, Grahamstown

The Director of Public Prosecutions, Bloemfontein