THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 891/15

In the matter between:

MUZI GONYA

APPELLANT

and

THE STATE

RESPONDENT

Neutral Citation: Gonya v S (891/15) [2016] ZASCA 34 (24 March 2016)

Coram:
Lewis, Leach, Pillay, Willis JJA and Victor AJA

Heard:
9 March 2016

Delivered: 24 March 2016

Summary: Criminal law and procedure – appeal for leave to appeal against
refusal by high court to grant leave to appeal brought by way of petition from
the regional court -  Supreme Court of Appeal does not have jurisdiction to hear
the appeal directly from the regional court – trial commenced prior to
promulgation of the Superior Courts Act 10 of 2013 – appeal must be
determined in terms of the Supreme Court Act 59 of 1959 – appellant granted
leave to appeal against the non-parole period of the sentence – s 276B of the
Criminal Procedure Act 51 of 1977.

ORDER
________________________________________________________________

On appeal from:  Gauteng Division of the High Court, Pretoria (Mothle and
Kubishi JJ sitting as court hearing application for leave to appeal).

1 The appeal succeeds to the limited extent set out below.
2 Leave to appeal is granted to the Gauteng Division of the High Court,
Pretoria, but is limited to determining only whether a non-parole period of
imprisonment should have been imposed in terms of s 276B of the Criminal
Procedure Act.

JUDGMENT

Victor AJA (Lewis, Leach, Pillay and Willis JJA concurring)
[1] On 23 August 2008 the appellant was convicted of rape in the Regional
Court, Gauteng. He had raped a 15 year old girl more than once and was
sentenced to 20 years’ imprisonment. The regional court magistrate imposed a
sentence that carried a non-parole period in terms of s 276B of the Criminal
Procedure Act 51 of 1977. He was required to serve a minimum of two thirds of
the sentence amounting to 13 years and four months before he would be eligible
for parole. The appellant sought leave to appeal against the conviction and
sentence of 20 years. The regional court refused leave to appeal.

[2] On 1 March 2013 the appellant’s petition on conviction and sentence by
the regional court magistrate to the Judge President of the North Gauteng High

Court, Pretoria was refused by Mothle and Margardie JJ. At the time of his
conviction and sentence the Superior Courts Act 10 of 2013 had not been
promulgated. That Act was promulgated on 23 August 2013 during the course
of the petition process. The appellant applied for leave to appeal against the
refusal of the petition from the high court. That application failed and a petition
to this court followed.

[3] The order granted by Mothle and Kubushi JJ on 3 December 2013 was
worded as follows: ‘That the application for leave to petition to the Supreme
Court of Appeal on both conviction and sentence are granted.’ This wording has
led to some confusion as to whether the order was to be interpreted to mean that
this court is to hear the actual appeal or whether it is an appeal against the
refusal of the petition for leave to appeal.

[4] It is probable that certain errors crept into the order when it was typed as
it is clear that the judges intended to grant leave to appeal against their refusal
of the petition to this court. The order should have read as follows: ‘That the
application for leave to appeal against the refusal of the petition is granted to the
Supreme Court of Appeal on both conviction and sentence. Counsel for the
State agreed with this interpretation of the order.

[5] The Act provides for pending proceedings at the time of its promulgation:
Section 52 of the Superior Courts Act provides:
‘(1) Subject to section 27, proceedings pending in any court at the commencement of this
Act, must be continued and concluded as if this Act had not been passed.
(2) Proceedings must, for the purposes of this section, be deemed to be pending if, at the
commencement of this Act, a summons had been issued but judgment had not been passed.

[6] The trial in this matter commenced on 21 November 2011. The Supreme
Court Act was promulgated on 23 August 2013. On 1 March 2013 the petition
was dismissed by the high court. The appellant thereafter sought leave to appeal
against the refusal of the petition to this court. Leave was granted on 3
December 2013.

Plain meaning of s 52 of the Superior Courts Act
[7] The plain meaning of the words ‘proceedings pending in any court’ as
referred to in s 52 of the Act must include criminal proceedings. The question
raised was whether the date of the petition proceedings post promulgation, had
to be dealt with in terms of the Superior Courts Act or the Supreme Court Act
59 of 1959. This determination also affected the higher threshold required in
terms of the Superior Courts Act which requires that special leave be granted
when an application for leave to appeal is against a judgment of more than one
judge. The pure meaning of the words pending proceedings must be interpreted
to mean the date on which the appellant’s proceedings commenced on 21
November 2011. The proceedings were still pending as at date of promulgation
of the Superior Courts Act. It follows that the matter must be dealt with in terms
of the Supreme Court Act.

[8] Owing to the confusion in the wording of the order granted on 3
December 2013 it is necessary to reaffirm the appropriate procedure when a
petition is refused by the high court. Streicher JA in S v Khoasasa [2002]
ZASCA 113; 2003 (1) SACR 123 (SCA) clarified the procedural steps as set
out in the Supreme Court Act. The petition for leave to appeal to a high court is

in terms of s 309C of the Criminal Procedure Act. It was in effect an appeal
against the refusal of leave to appeal by the magistrates' court in terms of s
309B of that Act. Streicher JA concluded that such refusal of leave to appeal by
the high court was a judgment or order of the high court as contemplated in ss
20(1) and 20(4) of the Supreme Court Act, given by the high court on appeal to
it. Accordingly, in terms of s 20(4)(b), the refusal of leave to appeal by the high
court was appealable to the Supreme Court of Appeal with the leave of the high
court (being the court against whose order the appeal was to be made) or, where
leave was refused, with the leave of this court. The order appealed against was
the refusal of leave, with the result that this court could not decide the appeal
itself.

[9] This principle was confirmed in S v Matshona [2008] ZASCA 58; 2013
(2) SACR 126 (SCA) where Leach AJA held (para 6):
‘It would be anomalous and fly in the face of the hierarchy of appeals for this court to hear an
appeal directly from a magistrates' court without that appeal being adjudicated in the high
court, thereby serving, in effect, as the court of both first and last appeal.’

[10] In view of the principles set out in S v Khoasasa and S v Matshona above
this court cannot hear an appeal directly from a lower court and in this case,
directly from the regional court.

The requisite test to be applied when granting leave to appeal in the court a
quo
[11] Since the Supreme Court Act applies in this matter the appellant only has
to show prospects of success and not the higher threshold as required in terms of
the Superior Courts Act. In S v Van Wyk and another [2014] ZASCA 152; 2015

(1) SACR 584 (SCA) the court, dealing with the test in the Superior Courts Act,
stated that an unsuccessful petitioner in a division of the High Court now faces a
more stringent requirement in obtaining special leave from this court. The
appellant must show in addition to the ordinary requirement of reasonable
prospects of success, that there are special circumstances which merit a further
appeal to this court. The appellant’s trial was conducted when the Supreme
Court Act applied. Leave to appeal was sought under the latter Act. This is an
important feature when considering an application for leave to appeal. The
lower threshold of reasonable prospects of success applies.

Prospects of success on appeal
[12] In order to assess the appellant’s prospects of success it is necessary to
examine the facts. On Sunday 24 July 2011 at approximately 6h00 the
complainant aged 15 years, her sister and a friend were walking along a street in
Chris Hani Township when a male person wearing a balaclava and wielding a
knife accosted the complainant’s sister by grabbing her from the back. During
the struggle she managed to run away. He then turned his attention to the
complainant whom he managed to subdue by stabbing her three times in the
back and forcing her to walk to his room blindfolded. There he raped her and
kept her captive from early Sunday morning till 17h00 the same day. The
complainant described how he had raped her twice. Although the appellant’s
sister and his friend came to the room and spoke to him, the complainant did not
seek help from them because she was too scared. During the course of the day
he helped her clean her wounds by bringing her water. In his defence he
claimed to be her lover and indeed after the event did send the complainant
messages asking her to marry him. He claimed that she arrived at his room at
4h30 on the Sunday morning in a terrible state asking to be let in. She

apparently told him that she had been raped and he saw she was bleeding from
her stab wounds.

[13] The appellant’s version was correctly rejected as false by the regional
court. It is inconceivable that, as her lover, he would have seen the condition
she was in and not taken her to the police or doctor or back to her parental
home. Instead he kept her in his room for the entire day and at 17h00 walked
her back home only part of the way.  Upon consideration of all the facts the
appellant has no prospects of success on conviction.

[14] The regional court found that there were substantial and compelling
circumstances entitling it not to impose a life sentence. In addition to the
traditional factors such as the appellant’s personal circumstances, the regional
court also took into account the appellant’s awaiting trial period of one year.  It
was noted that the awaiting trial conditions were far different from those after
sentence.

[15] The appellant was sentenced to 20 years’ imprisonment including a non-
parole period in terms of s 276B of the Criminal Procedure Act. The appellant
has a previous conviction for armed robbery and a 15 year sentence was
imposed. He was still on parole when he committed this crime of rape. It is not
clear quite why the regional magistrate did not impose life imprisonment as a
sentence, but that is not, of course, before us as the State has not sought leave to
appeal against sentence.

[16] The suitability of a non-parole period has been dealt with in several
judgments of this court.  In S v Mhlakaza & Another [1997] ZASCA 7; 1997 (1)
SACR 515 (SCA) at 521 Harms JA dealt with the topic as follows:
'The function of a sentencing court is to determine the maximum term of imprisonment a
convicted person may serve. The court has no control over the minimum or actual period
served or to be served .  .  .  The lack of control of courts over the minimum sentence to be
served can lead to tension between the Judiciary and the Executive because the executive
action may be interpreted as an infringement of the independence of the Judiciary’. In
particular Harms JA emphasised that where a non-parole sentence is imposed then it is the
duty of the judicial officer to set out the reasons explicitly in the judgment.

[17] In S v Stander 2012 (1) SACR 537 (SCA) (paras 12 and 16) Snyders JA
stated as follows:
‘Despite the fact that s 276B grants courts the power to venture onto the terrain traditionally
reserved for the executive, it remains generally desirable for a court not to exercise that
power.
. . . An order in terms of s 276B should therefore only be made in exceptional circumstances,
when there are facts before the sentencing court that would continue, after sentence, to result
in a negative outcome for any future decision about parole.’

[18] In this matter the regional court referred to the effect of the crime on the
complainant, the repugnance of society to this type of crime and the personal
circumstances of the appellant, but did not mention why the serving of his
sentence could not be left to the Department of Correctional Services.  The
exceptional circumstances as referred to in S v Stander above justifying a non-
parole period were not referred to or dealt with by the regional court. In addition
this aspect should have been raised prior to the judgment on sentence so as to
afford the appellant and the State an opportunity to deal with it.

[19] In the result the regional court and the high court erred in this regard. The
appellant should be granted leave to appeal against his sentence, but only in so
far as the imposition of the non-parole period of his sentence is concerned.

[20] Accordingly,
1 The appeal succeeds to the limited extent set out below.
2 Leave to appeal is granted to the Gauteng Division of the High Court,
Pretoria, but is limited to determining only whether a non-parole period of
imprisonment should have been imposed in terms of s 276B of the Criminal
Procedure Act.

_______________________

M Victor

Acting Judge of Appeal

Appearances:

For the Appellant:
N L Skibi

Instructed by:

Justice Centre, Pretoria

Justice Centre, Bloemfontein

For the Respondent:
E Leonard SC

Instructed by:

Director of Public Prosecutions, Pretoria

Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
24 March 2015
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not form part
of the judgment of the Supreme Court of Appeal.
* * *

MUZI GONYA  V THE STATE

The SCA today granted an appeal to the appellant to appeal against his sentence to the Gauteng
Division of the High Court. The appeal originated from the regional magistrates court, Benoni,
Gauteng where the appellant was convicted of raping a minor twice and sentenced to 20 years
imprisonment. The sentence carried a non-parole period in terms of s 276B of the Criminal Procedure
Act 51 of 1977. He was required to serve a minimum of two thirds of the sentence amounting to 13
years and four months before he would be eligible for parole

On 1 March 2013 the applicant’s petition on conviction and sentence to the Judge President of the
North Gauteng High Court, Pretoria was refused. At the time of the appellant’s conviction and
sentence the Superior Courts Act 10 of 2013 had not been promulgated. The Superior Courts Act was
promulgated on 23 August 2013 during the course of the petition process. In terms of s 52 of the
Superior Courts Act the relevant date is determined when the proceedings commenced. Consequently
the appeal provisions of the Supreme Court Act No 59 of 1959 apply.

The appropriate appeal procedure, when a petition is refused by the high court, in terms of s 20(4)(b)
of the Supreme Court Act is that leave must be given by the SCA.  The order appealed against is the
refusal of leave. In the result this court cannot decide the appeal itself. It would fly in the face of the
hierarchy of appeals for this court to hear an appeal directly from magistrates' court without that
appeal being adjudicated in the high court and thereby serving in effect as the court of both first and
last appeal.

The complainant, aged 15 years, was walking along a street in Chris Hani Township when a male
person wearing a balaclava and wielding a knife came up from behind, grabbed her and then subdued
by stabbing her three times in the back and forced her to walk to his room blindfolded. There he raped
her and kept her captive from early Sunday morning till 17h00 the same day. The appellant’s version
that the complainant had been his lover and knocked on his bedroom door in the early hours of the
morning claiming she had been raped and stabbed was correctly rejected as false. If the appellant was
her lover he would have taken her to a doctor or police station: he failed to do so. This court has
refused leave to appeal against the conviction.

As regards the appeal on sentence, the principle in S v Stander 2012 (1) SACR 537 (SCA) by Snyders
JA confirmed that although s 276B of the Criminal Procedure Act grants courts the power to venture
onto the terrain traditionally reserved for the executive, it remains generally undesirable for a court to
exercise that power save in exceptional circumstances as it may affect any future decision about
parole. An accused person and the State must be given an opportunity to place facts before the court
in respect of a non-parole sentence. The regional court magistrate failed to do so.

Accordingly, this court upheld the appeal against the refusal of leave, and granted leave to appeal to
the Gauteng Division against sentence.