THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
Case no:  186/2002

In the matter between:

MBONENI ZULU

APPELLANT

and

THE STATE

RESPONDENT

________________________________________________________________

CORAM:
MARAIS, NAVSA and CLOETE JJA

HEARD:

17 MARCH 2003

DELIVERED:
26 MARCH 2003

Summary:
A provincial or local division cannot hear an appeal from the
magistrate's court in a criminal matter in the absence of compliance with ss 309B and
309C of the Criminal Procedure Act, 51 of 1977, where those sections were applicable.

________________________________________________________________

JUDGMENT

_________________________________________________________________________

CLOETE JA/

CLOETE JA:
[1] On 7 November 1999 the appellant was convicted of attempted
murder by a regional magistrate and sentenced to seven years'
imprisonment. The Witwatersrand Local Division dismissed an appeal
against the conviction and sentence but granted the appellant leave to
appeal to this Court.
[2] The appellant was obliged to seek leave to appeal to the Court a
quo from the magistrate in terms of s 309B of the Criminal Procedure
Act, 51 of 1977 ('the Act'), and, if leave was refused, to petition the Judge
President in terms of s 309C of the Act. Both sections were inserted into
the Act by s 3 of Act 76 of 1997 with effect from 28 May 1999. Both were
declared unconstitutional by the Constitutional Court in S v Steyn 2001
(1) SA 1146 (CC), but the declaration of invalidity was suspended for six
months 'from the date of the order'.1  The order was made on 29
November 2000. The period of suspension accordingly operated up to
and including 28 May 2001. Within that period the appellant did apply for
leave to appeal. It is not entirely clear whether the application related to
his conviction as well as to his sentence, but what is clear is that the
magistrate on 25 August 2000 granted leave to appeal against sentence
only and no petition was subsequently addressed to the Judge President

1 Para 3 of the order in para [53] of the judgment at 1170E. The date of publication of the
Constitutional Court's order under Government Notice R1328 in Government Gazette 21830 of 8
December 2000, recorded in an editorial note in the Butterworth Statutes after the text of s 309B in the
volume which contains the Criminal Procedure Act, is therefore irrelevant.

for leave to appeal against conviction. The Witwatersrand Local Division
nevertheless entertained an appeal on both aspects.
[3] In entertaining the appeal against the conviction and in granting
leave to appeal to this Court, the Witwatersrand Local Division acted per
incuriam. The Constitutional Court's suspension of the declaration of
invalidity of ss 309B and 309C meant that those sections were operative
and that the procedure which they prescribed had to be followed by the
appellant.2 As leave to appeal against conviction was not granted by the
magistrate in terms of s 309B (or on petition, as contemplated in s
309C), there was no appeal before that Court on this aspect:  S v Langa
en Andere 1981 (3) SA 186 (A) at 189F.
[4] The appellant's counsel submitted that the failure of the
respondent's counsel to object to the hearing of the appeal against
conviction in the Court below conferred jurisdiction on that Court to hear
the appeal, and relied in that regard on S v Zachariah 1956 (1) SA 220
(SR). In that matter, the appellant had given notice of appeal only against
the severity of the sentence but some six days before the hearing of the
appeal, he filed a notice to the effect that at the hearing, application
would be made to amend the notice of appeal so as to appeal against
the conviction as well. The Attorney-General did not oppose the

2 It is unnecessary to deal with the question whether ss 309B and 309C applied to all appeals noted
after 28 May 1999 irrespective of when the conviction or sentencing took place   S v Ramakgopola
and Others 2000 (2) SACR 213 (T); or whether, Parliament not having remedied the defect in s 309B
within the period of suspension, appeals where the application and petition procedure had not been
completed by the time that such period lapsed, fall to be dealt with as if the sections had not been
enacted   S v Danster;  S v Nqido 2002 (2) SACR 178 (C).

application for amendment and for this reason, the application was
granted and the appeal was entertained on the merits of the conviction
although the Attorney-General was criticised by the Court because there
was no application for condonation and no opportunity for the magistrate
to comment on the ground of appeal which the application raised.
[5] However, the South African practice has for many years been to
insist upon the magistrate being afforded an opportunity to comment on
a new ground of appeal which raises a question of fact3 and which is
added by amendment to the notice of appeal, for the very reasons that
the magistrate is entitled to an opportunity to comment on the amended
ground and the appeal court is entitled to the benefit of such comment:4
S v Horne 1971 (1) SA 630 (C) at 631G-632C and cases there cited; S v
Khoza 1979 (4) SA 757 (N) at 758B-E. That apart, the provisions of a
statute prescribing a particular procedure which is to be followed, cannot
be ignored and if they are, even at the request of an accused, the
proceedings may be set aside: S v Lapping 1998 (1) SACR 409 (W) at
411f-412h and cases there quoted. In the present matter, the failure of
the respondent's representative to take the point that leave to appeal had
not been granted as required by s 309B could not confer jurisdiction on
the Witwatersrand Local Division when there was none.

3 Questions of law can be dealt with differently:  see eg S v Nel 1987 (4) SA 276 (O) at 279F-I.
4 Although it is the salutary practice in the Witwatersrand Local Division, at least, in the interests of
expedition, to hear an appeal in the absence of such comment, if the magistrate has been given an
adequate opportunity to comment but has not done so   in such cases, it is assumed that the
magistrate has nothing to add.

[6] The appellant's counsel further submitted that the Witwatersrand
Local Division must be taken to have exercised its inherent jurisdiction to
entertain the appeal against conviction and to grant leave to appeal to
this Court. There is no merit in this argument either. Firstly, the learned
Judges in the Court below obviously did not apply their minds to the
question; and secondly, even if they had, they did not have the power to
override the express provisions of the statute. Their jurisdiction to hear
the appeal depended upon leave having been granted. As Hefer JA said
in respect of this Court in Moch v Nedtravel (Pty) Ltd t/a American
Express Travel Service 1996 (3) SA 1 (A) at 7E-I:
'I will first dispose of an alternative submission made on the petitioner's behalf. It is to
the effect that an appeal against an order which is not otherwise appealable may be
heard in the exercise of this Court's so-called inherent jurisdiction. The short answer
is that the Court's 'inherent reservoir of power to regulate its procedures in the
interests of the proper administration of justice' (per Corbett JA in Universal City
Studios Inc and Others v Network Video (Pty) Ltd 1986 (2) SA 734 (A)  at 754G),
does not extend to the assumption of jurisdiction not conferred upon it by statute. As
explained in R v  Milne and Erleigh (6) 1951 (1) SA 1 (A)  at 5 in fin,
"(this) Court was created by the South Africa Act and its jurisdiction is to be
ascertained from the provisions of that Act as amended from time to time and
from any other relevant statutory enactment".
Nowadays its jurisdiction derives from the Supreme Court Act and other statutes but
the position remains basically the same. (Sefatsa and Others v Attorney-General,
Transvaal, and Another 1989 (1) SA 821 (A)  at 833E-834F; S v Malinde and Others

1990 (1) SA 57 (A)  at 67A-B.) The Court's inherent power is in any event reserved
for extraordinary cases where grave injustice cannot otherwise be prevented (Enyati
Colliery Ltd and Another v Alleson 1922 AD 24 at 32; Krygkor   Pensioenfonds v
Smith 1993 (3) SA 459 (A)  at 469G-I). This is not such a case because the petitioner
elected not to seek the Court a quo's leave to appeal against the final sequestration
order which is appealable (with leave) in terms of s 150(1) of the Insolvency Act. '
[7] The remarks of the learned Judge of Appeal quoted in the previous
paragraph of this judgment were made in a civil context, but are equally
applicable in the matter before us; in S v Abrahams 1990 (2) SACR 420
(A), Friedman AJA said at 425g:
'[T]his Court's jurisdiction in criminal matters is determined by statute. It has no
inherent jurisdiction to go beyond the terms of the relevant Acts (cf Sefatsa and
Others v Attorney-General, Transvaal, and Another 1989 (1) SA 821 (A) at 831I-
834E and 839C-H)',
and the same applies to a Provincial Division and the Witwatersrand
Local Division.
[8] This Court cannot, as is frequently done in Provincial Divisions in
cases which have merit but are not properly before the Court on appeal,
deal with the matter on review in terms of s 304(4) of the Act: those
powers are limited to Provincial and Local Divisions.
[9] To sum up: the Witwatersrand Local Division should not have dealt
with the merits of the conviction; that Court was not entitled to grant
leave to appeal to this Court on the conviction; and leave to appeal

further was in any event not warranted on the facts   the present case is
typically one which should have been dealt with finally in the Court
below, if the necessary leave was obtained.  The appeal against the
conviction is therefore not properly before this Court and cannot be
entertained.
[10] There is no merit in the appeal against sentence. No misdirection
was relied upon. The submission on appeal was that 'the sentence
imposed on the appellant is shockingly inappropriate in that it does not
accord with sentences for first offenders in attempted murder cases' and
the appellant's counsel relied on S v Naidoo 2000 (1) SACR 361 (SCA);
S v Khambule 2001 (1) SACR 501 (SCA); and S v Kok 2001 (2) SACR
106 (SCA).
[11] It is trite that the judicial officer who imposes sentence has a
discretion with the exercise of which an appeal court will be slow to
interfere, and that each case depends on its own facts.
[12] Unfortunately, the appellant's personal circumstances did not
appear adequately from the record. The magistrate's judgment on
sentence begins:
'Ms Mogashwa has outlined your personal circumstances; the court takes them into
account, especially the fact that you should be treated as a first offender . . .'
What Ms Mogashwa said on the appellant's behalf was not transcribed.
We accordingly caused the tape recording of the proceedings in the

magistrate's court to be made available to counsel for both sides, and
counsel agreed that the personal circumstances placed on record by the
appellant's legal representative were the following: the appellant was 40
years old; he lived with the mother of his children who were aged 3, 5
and 7 years; he was the sole breadwinner, employed by the City Deep
Market earning R1 100 per month; and he had never been to school. The
record did not reflect the appellant's three previous convictions, but he
was treated as a first offender by the magistrate.
[13] The facts in the present matter as they appear from the record can
be stated briefly. The appellant had an argument with the complainant in
a shack in a squatter camp after which he lay in wait for the complainant
outside the shack. When the complainant emerged, the appellant shot
him under the left armpit from a distance of about fifteen paces. The
appellant's version, rejected by the magistrate, was that he had acted in
self-defence. In consequence of the injury the complainant sustained, he
was admitted to hospital initially for 30 days and thereafter for two
weeks. A sentence of seven years' imprisonment in these circumstances
is severe but does not justify interference on appeal: cf the sentence
substituted by this Court in S v Makondo [2002] 1 All SA 431 (A).
[14] On the question of sentence as well, the Witwatersrand Local
Division should not have granted leave to appeal to this Court. The
purpose of the requirement for leave to appeal is to protect an appeal

court against the burden of having to deal with appeals in which there
are no prospects of success, and further to ensure that the roll of this
Court is not clogged with hopeless cases: S v Rens 1996 (1) SA 1218
(CC) at 1221A-B (par [7]) and 1225E-F (par [25]); S v Twala (South
African Human Rights Commission intervening) 2000 (1) SA 879 (CC) at
888F (par [20]). The procedure applicable at the time did not entitle an
accused as of right to have the sentence imposed reconsidered by one,
much less two, appeal courts.
[15] The appeal against the conviction is struck off the roll. The appeal
against sentence is dismissed.

…..………….
T D CLOETE
JUDGE OF APPEAL
Concur:

Marais JA
Navsa JA