REPORTABLE

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 306/13

In the matter between:

WASHMAN SENGAMA

Applicant
and
The State

Respondent

Neutral citation: Sengama v State [2013] ZASCA  96 (23 August 2013)
Coram:
BRAND, LEACH et WALLIS JJA.
Delivered: 23 August 2013
Summary: Criminal Procedure Amendment Act 8 of 2013 – amendment
of s 316(10)(c) of the Criminal Procedure Act 51 of 1977 – effect.

ORDER

On petition: The application for leave to appeal is dismissed.

JUDGMENT

WALLIS JA (BRAND et LEACH JJA concurring)
[1] The Applicant was convicted of murder and various other offences
by Willis J in the South Gauteng High Court. He was sentenced on the
charge of murder to life imprisonment and on the other counts to varying
periods of imprisonment that would run concurrently with the sentence of
life imprisonment. An application for leave to appeal against conviction
and sentence was dismissed and he now petitions this court for such
leave. He was legally represented at the trial and is legally represented in
pursuing this petition.

[2] The only issue at the trial was whether the applicant and his co-
accused were two of three men who abducted a young woman, Posiswa
Pungani, from the room in which she was sleeping with her boyfriend at
the Sitoka Hostel, Tembisa, and then took her to a place near the hostel

and murdered her. The applicant’s co-accused admitted that he was one
of the perpetrators of this crime but denied that the applicant had
participated or was present. This is the strongest point in favour of the
petition but it is outweighed by the evidence of identification of the
applicant by the deceased’s boyfriend and another witness and the fact
that the gun used to kill the deceased was found in the applicant’s
possession. The applicant’s defence was an alibi in that he claimed at the
time to have been in bed with his girlfriend. That young lady was not
however called as a witness and no explanation was proffered for this
failure. In addition the applicant was a poor witness whose evidence was
rejected by the trial judge.

[3] In those circumstances we are satisfied that there is no merit in the
petition. However, until the recent amendment of s 316(10) of the
Criminal Procedure Act 51 of 1977 (the CPA) we could not have
disposed of the petition until we had received the full record of the trial.
This provision (introduced by way of an amendment in 2008) has resulted
in considerable delays in this court dealing with petitions and the
incurring of substantial costs in preparing and lodging records with this
court. A substantial backlog of petitions has built up as members of this
court awaited the provision of records. That did not delay the disposition

of meritorious petitions as these were granted on the basis of the material
in the petition.

[4] There was and is no practical need for records to be lodged before
disposing of petitions as applicants are obliged in terms of s 316(4)(a) of
the CPA to set out clearly and specifically the grounds upon which leave
to appeal is sought. That requirement is reinforced by the rules of this
court, which require petitioners to set out the grounds upon which they
submit that leave to appeal should be granted and to identify any relevant
passages in the records that need consideration in the determination of the
petition. In addition the judges are empowered if necessary to call for the
whole or any part of the record to enable there to be a just determination
of the petition. The requirement that records be filed with this court under
s 316(10)(c) was also anomalous in that records were not always required
in disposing of petitions in criminal cases even though the cases were
similar. Thus, when a petition for leave to appeal against the dismissal of
an appeal against a conviction in the magistrates’ court is lodged in terms
of s 20(4)(b) of the Supreme Court Act 59 of 1959, there is no
requirement for the record of the trial to be lodged with this court and this
court’s rules frown upon it. Similarly an application for leave to appeal
against the refusal of leave to appeal by two judges in the high court, in
terms of the petition procedure under s 309C of the CPA, is dealt with

under ss 20 and 21 of the Supreme Court Act and there is no requirement
that the record be filed with this court. However, where special leave is
sought to appeal from a decision of a full court, given on appeal to it from
a single judge sitting in the high court, s 316(3)(c) and (d), read with
s 316(10) of the CPA requires the record to accompany the petition.

[5] This situation was largely remedied by the passage of the Criminal
Procedure Amendment Act 8 of 2013. It amends s 316(10)(c) of the CPA
so that the registrar of a high court who receives notice of a petition is no
longer automatically obliged to forward the record of the trial to this
court. Registrars are now only obliged to do so if:
‘(i)
the accused was not legally represented at the trial; or
(ii)
the accused is not legally represented for the purposes of the petition; or
(iii)
the prospective appeal is not against sentence only; or
(iv)
the judges considering the petition, in the interest of justice, request the record
or only a portion of the record.’
There is a corresponding amendment to s 316(12) authorising the judges
considering an appeal to call for a copy of all or a portion of the record of
the proceedings if it was not submitted in terms of s 316(10)(c).

[6] The use of the word ‘or’ to separate each of these sub-sections
may cause some confusion to arise in relation to the obligations of

registrars of the high court to furnish records to this court when they
receive notice of a petition. If they are taken as reflecting four separate
alternatives, that is, they are all read disjunctively, then the amendment
would be self-defeating, because registrars will be obliged to furnish the
record to this court in almost every case. The only exception will be
where the applicant seeks to appeal against sentence alone and was
legally represented at the trial and is similarly represented in lodging the
petition. If that were indeed the effect of the amendment there would
have been little or no purpose in inserting, in both s 316(10)(c) and
s 310(12), a provision authorising the judges to call for all or part of the
record. In an appeal against sentence alone the court must consider the
appropriateness of the sentence in the light of the findings of fact made
by the court when convicting the applicant. It will only be in rare cases
that it is necessary or permissible to have regard to the record of the trial
for the purposes of considering a petition seeking leave to appeal against
sentence.

[7] Clearly the word ‘or’ is not intended to be read disjunctively in
every case where it has been used in the amended s 316(10)(c). It is
accordingly permissible to read it conjunctively where that is necessary to
give effect to the manifest purpose of the legislation, which was to

dispense with the need to file the record of proceedings in most cases.1
As Innes CJ pointed out in Barlin v Licencing Court for the Cape:2
‘Now the words "and" and "or" are sometimes inaccurately used; and there are many
cases in which one of them has been held to be the equivalent of the other.’
This is such a case. Accordingly where ‘or’ is used at the end of the new
sub-section (ii) it is to be read conjunctively as if the word ‘and’ had
appeared at that point. There will then be two circumstances in which the
registrar of a high court will furnish the record of the proceedings to this
court immediately on receiving notice of a petition. They will be in cases
where leave is being sought to appeal against conviction, whether or not
in conjunction with leave to appeal against sentence, and the applicant for
leave was either not legally represented at the trial or is not legally
represented for the purposes of the petition. Registrars will also be
obliged to furnish all or portion of the record if the judges dealing with
the petition call for it under s 316(1)(c)(iv).

[8] To summarise, a registrar must furnish the record of proceedings to
this court on receiving notice of a petition in cases where:
(a)
leave is being sought to appeal against conviction and the applicant
was not legally represented at the trial;

1 Ngcobo and Others v Salimba CC; Ngcobo v Van Rensburg 1999 (2) SA 1057 (SCA) para 11.
2 1924 AD 472 at 478.

(b)
leave is being sought to appeal against conviction and the applicant
is not legally represented for the purposes of the petition.
Where the judges dealing with the petition after it has been filed, in
circumstances where it was not necessary for the registrar to prepare and
file the record of proceedings, request that all or a portion of the record be
furnished the registrar shall comply with that request forthwith.

[9] It was accordingly not necessary for us to await the furnishing of
the record of proceedings in the high court before disposing of this
petition. The application for leave to appeal is accordingly dismissed.

M J D WALLIS
JUDGE OF APPEAL