THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 20565/2014

In the matter between:

SAMSON GIVEN MASIKE

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Masike v The State (20565/2014) [2015] ZASCA 189

(30 November 2015)

Coram:
Ponnan, Bosielo, Leach, Petse and Zondi JJA

Heard:
11 November 2015

Delivered:
30 November 2015

Summary: Criminal Procedure ─ Appeal against order of the High Court refusing leave
to appeal in terms of s 309(7)(c) of the Criminal Procedure Act 51 of 1977 ─ refusal of
condonation by lower court when there are no reasonable prospects of success of
appeal may be appealed against to the high court if leave to appeal is granted by the
high court. Necessity for judges considering petition to have at their disposal documents
listed in s 309C(4) of the CPA for a proper adjudication of petition explained.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Makgoba and Louw
JJ sitting as court of appeal):
The matter is struck from the roll.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Petse JA (Ponnan, Bosielo, Leach and Zondi JJA concurring):
Introduction
[1] On 20 June 2008 an armed robbery took place at the Blue Ribbon Bakery in
Vereeniging. In a bid to evade arrest, the robbers’ getaway motor vehicle drove
against a red traffic-signal into an intersection and collided with another motor
vehicle and in consequence two passengers travelling in the getaway motor vehicle
were fatally injured.

[2] Subsequently the appellant, who was the owner and driver of the getaway
motor vehicle was charged, together with two other persons who do not feature in
this appeal, in the Vereeniging Regional Court on six charges, to which he pleaded
not guilty namely: (a) robbery with aggravated circumstances ; (b) two counts of
possession of an unlicensed firearm in contravention of s 3 read with ss 1, 103, 117,
120(1)(a) and 121 of the Firearms Control Act 60 of 2000; (c) possession of
unlicensed ammunition in contravention s 3 read with of ss 1, 103, 117, 120(1)(a)
and 121 of the Firearms Control Act; and (d) two counts of culpable homicide.

[3] The appellant was convicted on the robbery and culpable homicide charges
but acquitted on the remaining charges. He was sentenced to 15 years’
imprisonment on the robbery charge ─ this being the prescribed minimum sentence
in terms of s 51(2) read with Part II of Schedule 2 of the Criminal Law Amendment

Act 105 of 1997 (the Act) ─ and five years’ imprisonment on each of the two counts
of culpable homicide. The latter sentences were ordered to run concurrently with the
15 year term of imprisonment.

Delays and consequent applications for condonation
[4] The appellant subsequently applied for leave to appeal against both his
conviction and sentence. As this application was out of time, it was supported by an
application for condonation. Both applications served before the trial court on 17
January 2011. The only reason proffered by the appellant for the delay is contained
in a single sentence being that ‘due to financial difficulties [he] was unable to give
[his] current attorneys proper instructions to file leave to appeal within the 14 days’
period prescribed in terms of s 309B(1)(b)(ii) of the Criminal Procedure Act 51 of
1977 (the CPA).

[5] At the outset the magistrate called into question the truthfulness of this
explanation. It would appear that he held this view because the attorney who
represented the appellant at the trial had previously approached him on 10
December 2010 intimating that he had come to move an application for leave to
appeal. However this application did not proceed as the appellant was not brought to
court from gaol. In the event, the magistrate refused the application for condonation.
He did so without considering the application for leave to appeal on its merits, after
he had remarked that he could not ‘grant leave on a perjurious affidavit’.

[6] Aggrieved at this result the appellant, by way of a petition, applied to the
Judge President of the Gauteng Division of the High Court, Pretoria for leave to
appeal, not against the refusal of his condonation application, but what he chose to
call the dismissal of his application for leave to appeal against his conviction and
sentence. That petition was similarly out of time and consequently the appellant also
applied for condonation for its late filing. The petition served before Makgoba and
Louw JJ who, having found that there were ‘no prospects of success on appeal in

respect of both conviction and sentence’, dismissed the application on 22 September
2011.

[7] The appellant, almost nine months later, applied to the high court in terms of
s 316 of the CPA for leave to appeal against the order refusing him leave to appeal
to this court. This application was similarly accompanied by an application seeking
condonation in respect of its late filing. Again, the reason proffered for the inordinate
delay by the appellant was that he lacked funds to enable him to instruct an attorney
and counsel and was ‘recently being financially supported by [his] family’. In a terse
judgment (per Louw J in which Makgoba J concurred) the court a quo was somehow
persuaded that there was indeed ‘a reasonable possibility that another court could
come to a different conclusion’ in regard to the prospects of success on appeal.
Consequently it granted leave to appeal to this court. What motivated its change of
mind in regard to the reasonable prospects of success was not articulated.

[8] Against that backdrop, the registrar of this court was directed to address a
note, at our behest, to counsel for the parties inviting them to file supplementary
heads of argument addressing the following:
(a) what precisely served before the high court when it:
(i) first refused the application for leave to appeal;
(ii) subsequently granted leave to appeal to this court.
(b) precisely what serves before this court on appeal.
(c) on what basis is it contended that:
(i) the high court had jurisdiction to entertain the matter;
(ii) this court has jurisdiction to hear the matter.
(d) in the event of this court having jurisdiction and the appeal succeeding, what
order, is it envisaged, will be sought of this court?

[9] Both counsel filed supplementary heads of argument in response to our
invitation.   The thrust of the submission was that we should determine whether or
not the appellant’s application for leave to appeal against his conviction and
sentence was correctly refused in the high court.
[10] It is convenient at this stage to set out the dates and events relevant to the
determination of this appeal.
1.  On 6 December 2010 the appellant was convicted and sentenced by the regional
court on three charges.
2. On 10 December 2010 an application for leave to appeal against both conviction
and sentence was scheduled to be heard by the regional court but was not dealt with
because the appellant was not in attendance in court.
3. On 17 January 2011 an application for leave to appeal served before the regional
court brought outside the 14 day period prescribed by s 309B(1)(b)(i) of the CPA and
for this reason it was supported by an application for condonation. On the same day
condonation was refused. No order was made on the application for leave to appeal.
4.  On 30 August 2011 the appellant applied for leave to appeal against his
conviction and sentence to the court a quo.
5. On 22 September 2011 the court a quo refused leave to appeal.
6. On 20 June 2012 the appellant brought an application for leave to appeal to this
court against the refusal of his petition in terms of s 316 of the CPA.
7. On 10 August 2012 the court a quo granted leave to appeal to this court.

Legal framework
[11] The key statutory provisions are ss 309B and 309C of the CPA. The material
parts of s 309B read thus:
‘309B Application for leave to appeal

(1)(a) Subject to section 84 of the Child Justice Act [75 of 2008], any accused, other than a
person referred to in the first proviso to section 309(1)(a), 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.
(b) An application referred to in paragraph (a) must be made ─
(i)   within 14 days after the passing of the sentence or order following on the conviction; or
(ii)   within such extended period as the court may on application and for good cause shown,
allow.
(2)(a) Any application in terms of subsection (1) must be heard by the magistrate whose
conviction, sentence or order is the subject of the prospective appeal (hereinafter referred to
as the trial magistrate) . . .
(4)(a) If an application for leave to appeal under subsection (1) is granted, the clerk of the
court must, in accordance with the rules of the court, transmit copies of the record and of all
relevant documents to the registrar of the High Court concerned: Provided that instead of the
whole record, with the consent of the accused and the Director of Public Prosecutions,
copies (one of which must be certified) may be transmitted of such parts of the record as
may be agreed upon by the Director of Public Prosecutions and the accused to be sufficient,
in which event the High Court concerned may nevertheless call for the production of the
whole record.
(b) If any application referred to in this section is refused, the magistrate must immediately
record his or her reasons for such refusal.’

[12] The relevant portions of s 309C provide as follows:
‘309C Petition procedure
(1) In this section─
(a) “application for condonation” means an application referred to in the proviso to
section 309(2), or referred to in section 309B (1)(b)(ii);
(b) “application for leave to appeal” means an application referred to in section
309B(1)(a);
. . .
(d) “petition”, unless the context otherwise indicates, includes an application referred to in
subsection (2)(b)(ii).
(2)(a) If any application─
(i) for condonation;
(ii) . . .
(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.
(b) Any petition referred to in paragraph (a) must be made-
(i)   within 21 days after the application in question was refused; or
(ii)   within such extended period as may on an application accompanying that petition, for
good cause shown, be allowed.
(3)(a) If more than one application referred to in subsection (1) relate to the same matter,
they should, as far as is possible, be dealt with in the same petition.
(b) An accused who submits a petition in terms of subsection (2) must at the same time give
notice thereof to the clerk of the lower court referred to in subsection (2)(a).
(4) When receiving the notice referred to in subsection (3), the clerk of the court must
without delay submit to the registrar of the High Court concerned copies of-
(a)   the application that was refused;
(b)   the magistrate’s reasons for refusal of the application; and
(c)   the record of the proceedings in the magistrate’s court in respect of which the
application was refused. . . .’

Nature of the application by court a quo
[13] As I have already stated, the trial court did not deal with the application for
leave to appeal against conviction and sentence. It focussed its attention on the
application for condonation, which it refused. But the appellant misconceived the
nature of his remedy following the dismissal of the condonation application. Instead,
he petitioned the court a quo for leave to appeal against his conviction and sentence.
This course would have been competent only if the trial court had considered and
determined his application for leave to appeal against his conviction and sentence
which it clearly did not. The appellant ought to have petitioned the high court under
s 309C(2)(a)(i) which he did not do. The court a quo similarly misconstrued the
nature of the remedy available to the appellant. It seemed to believe that it was
considering an application properly before it under s 309C(2)(a)(iii). Consequently it
determined the application for leave to appeal against conviction and sentence,
which it subsequently dismissed, but which had never been properly before it. In
reaching this conclusion it, in essence, held that the envisaged appeal was bereft of
any reasonable prospect of success, although, subsequently it changed its view in
granting leave to appeal to this court against its earlier refusal of leave.

Discussion
[14] Counsel for the State submitted that the interests of justice dictated that we
consider the question whether the court a quo had erred in refusing the appellant
leave to appeal. And if so, that we grant leave to the appellant to appeal to the
Gauteng Division of the High Court.

[15] In S v Khoasasa 2003 (1) SACR 123 (SCA) para 12, this court held that a
refusal by a high court of a petition for leave to appeal against the refusal of leave to
appeal by a magistrate’s court does not vest this court with power to decide the
envisaged appeal itself. If it finds that the petition should have succeeded it must
grant leave to appeal to the relevant Division of the High Court. Khoasasa has since
been followed in subsequent decisions of this court.1

[16] But different considerations apply in this case. There was no substantive
order refusing leave to appeal against conviction or sentence that could have been
the subject of a petition for leave to appeal to the court a quo under s 309C(2)(a)(iii)
of the CPA. The judges in the court below considered the application as if
condonation had been granted and the application for leave to appeal had been
refused on its merits, when it had not.

[17] But what seems clear from the provisions of s 309C(2)(a)(i) of the CPA is that
when a lower court refuses an application for condonation, as it happened in this
case, it is open to an accused to apply, by way of a petition, to the Judge President
of the Division of the High Court having jurisdiction, for leave to appeal against such
refusal. This, the appellant did not do.

[18] In the light of what has been said above, it is plain that the court a quo
misconceived the position. It lost sight of the fact that all that the trial had done was
to refuse condonation. An appeal against the refusal of condonation is to be dealt
with in terms of s 309C(2)(a)(i) of the CPA. It follows that the order of the court a quo
granting leave to appeal to this court amounts to a nullity2 and that in consequence

1 See for example, S v Smith 2012 (1) SACR 567 (SCA) paras 2-3.
2 See for example Sefatsa & others v Attorney-General, Transvaal, & another 1989 (1) SA 821 (A) at 834E; S v
Absalom 1989 (3) SA 154 (A) at 163C-164E-G; Todt v Ipser 1993 (3) SA 577 (A) at 589C-D.

this court suffers a want of jurisdiction. It was submitted that in the interests of justice
we should nonetheless exercise our discretion in favour of the appellant by entering
into the merits of the matter. In a situation such as this, where we lack jurisdiction,
we are not possessed of any discretion that can be exercised in the appellant’s
favour. But even were we to have a discretion, a careful perusal of the record leaves
me in doubt that such discretion ought, in the circumstances of this case, to be
exercised in favour of the appellant.

Order
[19] The matter is struck from the roll.

__________________
X M PETSE
JUDGE OF APPEAL

APPEARANCES:

For Appellant:

AB Burger

Instructed by:

David Mey & Partners, Vereeniging

Van Pletzen Lambrechts Attorneys, Bloemfontein

For Respondent:

P Vorster

Instructed by:

The Director of Public Prosecutions, Pretoria

The Director of Public Prosecutions, Bloemfontein