THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable
Case No: 380/2018

In the matter between:

JEFFREY BOB NARE
APPELLANT

and

THE STATE
RESPONDENT

Neutral citation:
Nare v The State (380/2018) [2019] ZASCA 72 (30 May 2019)

Coram:

Navsa ADP and Saldulker JA and Eksteen AJA

Heard:

16 May 2019

Delivered:

30 May 2019

Summary:
Application for leave to appeal  against the refusal by the High Court to
grant leave to appeal against conviction –– Interpretation of the order of this court
granting leave to appeal  – Whether reasonable prospects of success established.

______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Raulinga and Molefe
JJ):

1         The appeal in respect of count 12 is dismissed.
The appeal in respect of counts 2 and 13 is upheld.
The order of the Gauteng Division of the High Court, Pretoria refusing leave to
appeal is set aside and replaced with the following:
‘The appellant is granted leave to appeal to the full bench of the Gauteng Division of the
High Court, Pretoria, against his conviction of attempted murder (count 2) and
possession of ammunition without holding a licence, permit or authorisation  (count 13).’

______________________________________________________________________

JUDGMENT
______________________________________________________________________

Eksteen AJA (Navsa ADP and Saldulker JA concurring):
[1] The appellant was convicted in the Regional Court Gauteng, Pretoria, of
attempted robbery with aggravating circumstances (count 1), attempted murder (count
2), unlawful possession of a firearm (count 12) and unlawful possession of ammunition
(count 13) and sentenced to various terms of imprisonment. An application for leave to
appeal against his convictions and sentences was refused. On petition to the Judge
President, Gauteng, in terms of s 309C of the Criminal Procedure Act 51 of 1977 (the
CPA) he obtained leave to appeal against his sentences, but not against his
convictions. The appeal against the sentences is currently pending in the high court.

The present appeal is against the decision of the high court to refuse him leave to
appeal against his convictions.

[2] Before us there was some debate in relation to the extent of the issues before us.
It has its origin in the history of the rulings made in this court. An application in terms of
s 17  (2) (b) of the Superior Courts Act 10 of 2013 (the Act) was made for leave to
appeal against the decision of the high court not to grant leave to appeal against his
convictions. This application was considered by two judges of this court (the panel
judges) in accordance with s 17(2)(c) of the Act. On 20 October 2017 they granted the
appellant leave to appeal in respect of counts 2, 12 and 13 (the first order) in the
following terms:
‘1. The application for condonation is granted.
2. Special leave to appeal against conviction is granted to the Supreme Court of Appeal.
3. The leave to appeal is limited to the following:
Counts 2, 12 and 13.’
The application in respect of count 1 was accordingly refused. Dissatisfied with the
refusal of the application in respect of count 1 the appellant  applied to the President of
this court to reconsider or vary the first order as envisaged in s 17 (2)(f) of the Act. On
27 March 2018 she refused the application (the second order).

[3] On 12 July 2018, however, a further ‘order’ emanated from this court in the name
of the panel judges (the third order) in the following terms:
‘1 The application for condonation is granted.
2 Special leave to appeal is granted to the Supreme Court of Appeal against the dismissal of a
petition in terms of s 309 C of the Criminal Procedure Act 51 of 1977.’
This appears to have been the result of the belated realisation that the first order ought
to have expressed more clearly that the application for leave to appeal was granted only
in relation to the refusal in the high court of the application for leave to appeal. Simply
put, that means that it ought to have been in the terms of paragraph 2 of the third order.

[4] Counsel on behalf of the appellant submitted that the third order constituted an
‘amended order’ granting him leave to appeal against the dismissal of the petition in

respect of all four counts of which he had been convicted. The argument is misplaced.
Section 17(2)(f) of the act provides that the decision of the panel judges ‘to grant or
refuse the application shall be final: Provided that the President of the Supreme Court of
Appeal may in exceptional circumstances, whether of his or her own accord or on
application, filed within one month of the decision, refer the decision to the court for
reconsideration and, if necessary, variation’. Self-evidently, once a decision has been
taken by the panel judges it is final. The panel judges are functus officio thereafter. The
only remaining remedy available to an appellant is to apply to the President of this court
to refer the matter to the court for reconsideration or variation of the first order. This the
appellant did, without success. The application for leave to appeal against the ruling of
the high court in respect of count 1 was therefore finally dismissed when the second
order was issued.

[5] In relation to a refusal by the high court of a petition against conviction and
sentence by a magistrates’ court, the appeal lies to this court. This court would then
decide on whether the petition ought to have been granted and if the answer is in the
affirmative it would make an order to that effect and remit the matter to the high court for
consideration of the merits. This was clearly stated in S v Matshona 2013(2) SACR 126
where Leach AJA summarised the possession as follows:
‘It is clear . . . that where . . . and accused obtains leave to appeal to this court against the
refusal in a high court of a petition seeking leave to appeal against a conviction or sentence in
the regional court, the issue before this court is whether leave to appeal should have been
granted by the high court, and not the appeal itself which has been left in limbo, so to speak,
since the accused first sought leave to appeal to the high court. After all, in the present case,
the appellants’ appeal against his sentence has never been heard in the high court and, . . . the
power of this court to hear appeals of this nature is limited to its statutory power. Section 309(1)
prescribes that an appeal from the magistrates’ court  lies to the high court, and an appeal
against the sentence imposed on the appellant in the regional court is clearly not before this
court at this stage’.1 Clearly, what the panel judges intended with the first order was to
grant leave to appeal against the decision of the high court refusing leave to appeal on

1 At para [5] page 127.

counts 2, 12 and 13. This is how their order must be construed. They could not do
otherwise. There is therefore no appeal before us in respect of count 1.

[6] I turn to consider whether the application for leave to appeal in respect of counts
2, 12 and 13 ought to have been granted by the high court. The complainant, one
Rossouw, together with members of his family and friends had gathered socially in a
lapa at his homestead on a small holding in Kameeldrift East, Tshwane. A vehicle
arrived at his home with seven men who pretended that they wanted to buy sheep. At
first, Rossouw was reluctant to sell any sheep, but they persisted and he ultimately
agreed. He, together with three or four of the men, proceeded away from the
homestead to the sheep kraal. After some conversation an agreement in respect of the
purchase of sheep was arrived at. At that stage the men suddenly produced firearms
and demanded money and ‘plasmas’. Rossouw noticed a scuffle occurring at the lapa
where the remaining intruders attacked his family and guests. He resisted and grabbed
one of his assailants around the neck in order to use him as shield while gun shots were
fired around them.  One of the robbers, armed with a firearm, began to retreat while
pointing his firearm at Rossouw. Then, suddenly, he lowered his weapon and shot
Rossouw in the leg. As Rossouw fell to the ground the men ran to their vehicle and fled.

[7] The appellant denied any participation in the events. Although an identification
parade was subsequently held, the record of the parade was mislaid and no evidence
was tendered at the trial in respect of the identification parade. In court, by way of a
dock identification, Rossouw identified the appellant as one of the men who had
accompanied him to the kraal. The appellant, he says, was the person who did most of
the talking and was one of the men armed with a firearm. He was, however, not the
person who fired the shot. Rossouw’s identification was corroborated by the fact that the
appellant’s finger print was lifted from the vehicle in which the men arrived and fled. The
appellant’s endeavours  to explain the time at and manner in which the fingerprint came
to be on the vehicle was rightly rejected by the magistrate. In the circumstances the
application for leave to appeal in respect of count 1 was correctly dismissed.

[8] In respect of count 2, there is little doubt that the assailants acted with a common
purpose to rob Rossouw. It is argued, however, that the appellant should only have
been convicted of assault with intent to do grievous bodily harm. The evidence, it is
argued, shows that the assailant had pointed his firearm at Rossouw for some time, but
then intentionally lowered the firearm before shooting. It was further argued,
accordingly, that there is a reasonable prospect that a court of appeal may find that the
facts, properly construed, do not establish either dolus directus to kill or dolus evantualis
on the part of the assailant. This question is a matter for argument before the court of
appeal.  Suffice it to say that there is, in my view, a reasonable prospect that a court of
appeal would come to a different conclusion to that arrived at by the magistrate.

[9] In respect of count 12 Rossouw testified that he had formerly been in the defence
force, he was a reservist and a member of the ‘commandos’ and was trained in this
regard. He accordingly had a sound knowledge of firearms. During cross-examination
on behalf of the appellant he testified that the appellant was the first person who had put
a firearm in his face and instructed him to return to the homestead. There is accordingly
direct evidence that the appellant was in possession of a firearm.

[10] It is argued on behalf of the appellant that there is a reasonable prospect that a
court of appeal would find that it has not been proved that it was not in fact an imitation
firearm or, if it was indeed a firearm, that it was not licenced. In view of Rossouw’s
training and experience of firearms and their proximity to one another during the
incident which occurred during broad daylight, I do not think that there is a reasonable
prospect that another court would hold that the object might have been an imitation
firearm.

[11] This bring me to the question of the licence. The material portion of s 250(1) of
the CPA, that the state relied on in the indictment, provides:
‘If a person would commit an offence if he . . .  had in his possession . . . or used any article . . .
without being a holder of a licence, permit,  . . . or other authority . . ., an accused shall, at

criminal proceedings upon a charge that he committed such an offence, be deemed not to have
been the holder of the necessary authority, unless the contrary is proved’’.
The effect of this section is that a presumption is created in favour of the prosecution. It
was therefore incumbent upon the appellant to establish that he did have a licence to
possess the firearm. He testified at the trial that he was not present on the scene. He
did not suggest that he was licenced to possess a firearm. In the circumstances there
are no reasonable prospects of success and the appeal in respect of count 12 must fail.

[12] Count 13 relates to the unlawful possession of ammunition. I recorded earlier that
the evidence does not establish that the appellant discharged his firearm at any stage.
In these circumstances it is argued that, even if he did have a firearm, it has not been
proved that there was any ammunition in the firearm. The state sought to counter this
argument with reference to the probabilities arising from the circumstances which
prevailed. This is a matter for argument, but I consider that there is a reasonable
prospect that another court would find that the state has failed to discharge the onus of
establishing that the appellant was in unlawful possession of ammunition.

[13] In the result I find that the high court erred in refusing the appellant leave to
appeal in respect of counts 2 and 13. It correctly dismissed the petition for leave to
appeal in respect of count 12. There is no appeal before us in respect of count 1 and
the petition in respect of this count was correctly dismissed by the high court and the
panel judges.

[14] Accordingly the following order is made:
The appeal in respect of count 12 is dismissed.
The appeal in respect of counts 2 and 13 is upheld.
The order of the Gauteng Division of the High Court, Pretoria, refusing leave to
appeal is set aside and replaced with the following:
‘The appellant is granted leave to appeal to the full bench of the Gauteng Division of the
High Court, Pretoria, against his conviction of attempted murder (count 2) and
possession of ammunition without holding a licence, permit or authorisation (count 13).’

________________
J Eksteen
Acting Judge of Appeal

APPEARANCES:

For the Appellant:

A B Booysen
Instructed by:

SMO Seobe Inc, Bloemfontein

For the Respondent:

E Leonard SC
Instructed by:

Director of Public Prosecutions, Pretoria

Director of Public Prosecutions, Bloemfontein