THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No 475/10

In the matter between:

BAREND STEPHANUS SMITH

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Smith v S (475/10) [2011] ZASCA 15 (15 March 2011)

Coram:
CLOETE, MAYA JJA and PLASKET AJA
Heard:
3 March 2011
Delivered:
15 March 2011

Summary:
Criminal Procedure – Appeal against a refusal to grant leave to
appeal on petition – Issue to be decided is whether the appellant has
reasonable prospects of success on appeal, and not the merits of the appeal –
Reasonable prospects of success present if a sound, rational basis exists for
the conclusion that the appellant has prospects of success on appeal.

______________________________________________________________
ORDER
______________________________________________________________
On appeal from: Eastern Cape High Court (Grahamstown) (Jansen and
Pickering JJ) (sitting as a court of appeal).
1. The appeal is upheld and the order of the court below is set aside.
2. The order of the court below is replaced with the following order:
‘The appellant is granted leave to appeal against his convictions to the
Eastern Cape High Court, Grahamstown.’

JUDGMENT

PLASKET AJA (CLOETE and MAYA JJA concurring):
[1] The appellant was convicted, in the Regional Court, East London, of
indecent assault and kidnapping. He was sentenced to seven years’
imprisonment, both counts being taken together for purposes of sentence. He
applied to the trial magistrate for leave to appeal against both conviction and
sentence. He was granted leave to appeal against sentence only. He then
applied, by way of petition to the Judge President of the Eastern Cape High
Court, Grahamstown in terms of s 309 of the Criminal Procedure Act 51 of
1977, for leave to appeal against his conviction. His petition was dismissed.
With the leave of the judges who refused the petition (Jansen and Pickering
JJ) he now appeals to this court against the dismissal of the petition.

[2] This court held in S v Khoasasa1 that a refusal of leave to appeal on
petition to two judges of a  high court is a ‘judgment or order’ or a ‘ruling’ as
contemplated by s 20(1) and s 21(1) of the Supreme Court Act 59 of 1959;
that a petition for leave to appeal to the high court is, in effect, an appeal
against the refusal of leave to appeal by the court of first instance; and that a

1 2003 (1) SACR 123 (SCA) paras 14 and 19-22.

refusal of leave to appeal by the high court is appealable to this court with the
leave of the high court.

[3] In Matshona v S2 this court endorsed the reasoning in Khoasasa,
describing it as ‘unassailable’. The court proceeded to emphasise that the
issue to be determined at this stage is ‘whether leave to appeal should have
been granted by the High Court and not the appeal itself’.3 As a result, the test
to be applied ‘is simply whether there is a reasonable prospect of success in
the envisaged appeal . . . rather than whether the appeal . . . ought to
succeed or not’.4

[4] It was argued by counsel for the appellant that the test of reasonable
prospects of success means – and I quote from his heads of argument – that
leave should only be refused ‘where there is absolutely no chance of success
or where the court is certain beyond reasonable doubt that such an appeal will
fail’. In argument he articulated the test as being that if there was a possibility
of success on appeal, leave must be granted.

[5] Both of these submissions are incorrect and neither is supported by the
cases cited by counsel. The first, R v Ngubane & others,5 is to the opposite
effect. In that case, the court said the following:6
‘It was for the applicants to satisfy the Court that there was a reasonable prospect of success
on appeal if leave were granted. When in Rex v Nxumalo (1939 AD 580 at p588), the present
Chief Justice stated that there was “no probability of the applicant succeeding”, that did not
mean, of course, that he had merely failed to show that there was a balance of probabilities in
his favour. That test would obviously place too heavy a burden upon the applicant. Equally
clearly, when Lord De Villiers CJ, in Rex v Gannon (1911 AD 269 at p270), spoke of the
appeal as “hopeless”, or Innes CJ, in Rex v Mahomed (1924 AD 237 at p238), referred to “the
possibility of success”, they did not mean that leave will only be refused where the appeal is
hopeless or where the Court is certain beyond all reasonable doubt that the appeal would fail.
In all the cases, no matter what form of words was used, the same thing was, in my opinion,

2 [2008] 4 All SA 69 (SCA) para 4.
3 Para 5.
4 Para 8.
5 1945 AD 185.
6 At 186-7.

intended to be conveyed, namely, that it is for the applicant for special leave to satisfy the
Court that, if that leave be granted, he has a reasonable prospect of success on appeal.’

[6] In S v Ackerman & 'n ander,7 cited in support of the second proposition
set out above, the sentence of the English headnote from which counsel
quoted, if taken out of its proper context, does not reflect correctly what was
held in the body of the judgment. The Afrikaans headnote is similarly
misleading. The court quoted with approval8 what had been held in S v
Shabalala9 to be the correct approach to the granting of leave to appeal,
namely:10
‘Omstandigheidsgetuienis kan sterker wees as 'n onbetroubare ooggetuie, en die
“moontlikheid” dat die Hof van Appèl 'n “moontlike” fout in die beredenering sou kon vind en
“miskien” tot die konklusie kon kom dat die verhaal van die beskuldigde waar kan wees, is so
'n anemiese toets dat 'n aansoek vir verlof in enige saak daarop sou kon slaag. Alleen dan
wanneer die Verhoorregter tot 'n weloorwoë konklusie kom dat daar gronde is waarop die Hof
van Appèl tot 'n ander afleiding van die feite kan kom as wat hy gekom het, en daar dus 'n
redelike moontlikheid van sukses vir die applikant bestaan, behoort verlof toegestaan te word.
Bestaan daardie moontlikheid, behoort verlof ook toegestaan te word sonder huiwering of
teësin.’

[7] What the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a court of appeal
could reasonably arrive at a conclusion different to that of the trial court.11 In
order to succeed, therefore, the appellant must convince this court on proper
grounds that he has prospects of success on appeal and that those prospects
are not remote but have a realistic chance of succeeding. More is required to
be established than that there is a mere possibility of success, that the case is
arguable on appeal or that the case cannot be categorised as hopeless.
There must, in other words, be a sound, rational basis for the conclusion that
there are prospects of success on appeal.

7 1973 (1) SA 765 (A).
8 At 768D-E.
9 1966 (2) SA 297 (A).
10 At 299C-D.
11 S v Mabena & another 2007 (1) SACR 482 (SCA) para 22.

[8] The appellant’s argument is that there are indeed reasonable
prospects of success on appeal because the magistrate misdirected himself in
various ways. In broad terms, the following are the major misdirections
alleged to have been committed by the magistrate: first, even though the
magistrate stated that the complainant’s evidence had to be approached with
caution, his evaluation of the evidence showed that he did not do so because
the corroboration that he relied on was insufficient and the complainant could
not be said to have been a satisfactory witness; secondly, he failed to take
into account, when evaluating the evidence of the complainant, that during the
events giving rise to the charge against the appellant, she had lied on a
number of occasions, and that her explanations for doing so, with one
possible exception, had not been considered; thirdly, a number of
contradictory answers given by the complainant on various issues were not
taken into account and properly evaluated by the magistrate; and fourthly, the
magistrate had convicted the appellant purely on the probabilities and had
made no credibility findings of any sort against him that could have justified a
conclusion that his evidence was not reasonably possibly true. In addition, the
magistrate’s finding that the report made by the complainant to her boyfriend
and his father, on her arrival at their house, ‘is strong confirmation of her
version that she had been indecently assaulted’ is a misdirection, although the
magistrate’s reliance on her distressed state is not.12 On the other hand,
however, there are without question facts and probabilities that point to the
appellant’s guilt.

[9] In my view, and without wishing to comment on the merits in any detail,
the alleged misdirections that have been listed above can be said to be
sufficiently weighty to justify a conclusion that, if leave to appeal is granted,
the appellant’s prospects of success are reasonable. In the result, the appeal
must succeed.

12 See S v Hammond 2004 (2) SACR 303 (SCA).

[10] The following order is issued:
1. The appeal is upheld and the order of the court below is set aside.
2. The order of the court below is replaced with the following order:
‘The appellant is granted leave to appeal against his convictions to the
Eastern Cape High Court, Grahamstown.’

_____________________
C. PLASKET
ACTING JUDGE OF APPEAL

APPEARANCES
APPELLANT:
T N Price instructed by Changfoot and Van Breda, East
London and Symington De Kock, Bloemfontein

RESPONDENT
Z Mdolomba of the office of the Director of Public
Prosecutions, Grahamstown

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT
OF APPEAL
MEDIA SUMMARY – JUDGMENT DELIVERED IN COURT OF
APPEAL
15 March 2011

STATUS: Immediate

BAREND STEPHANUS SMITH V THE STATE (475/10)

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

The Supreme Court of Appeal (the SCA) today upheld an appeal against a refusal to
grant leave to appeal on petition.

The appellant was convicted in the Regional Court, East London, of indecent assault
and kidnapping. He was sentenced to seven years’ imprisonment. He applied to the
trial magistrate for leave to appeal against both conviction and sentence. He was
granted leave to appeal against sentence only. He then applied, by way of petition to
the Judge President of the Eastern Cape High Court, Grahamstown, in terms of s
309 of the Criminal Procedure Act 51 of 1977, for leave to appeal against conviction.
His petition was dismissed. With the leave of the judges who refused the petition, he
appealed to the SCA against the dismissal of the petition.

The issue before the SCA was whether the appellant has reasonable prospects of
success on appeal, and not the merits of the appeal. The court held that what the
test of reasonable prospects of success postulates is a dispassionate decision,
based on the facts and the law, that the court hearing the appeal could reasonably
arrive at a conclusion different to that of the trial court. The court held that that there
must be a sound, rational basis for the conclusion that there are prospects of
success on appeal. The appellant’s argument was that there were reasonable
prospects of success on appeal because the magistrate had misdirected himself in
various ways.

The SCA held, without commenting on the merits in any detail, that the alleged
misdirections could be said to be sufficiently weighty to justify a conclusion that if
leave to appeal was granted the appellant’s prospects of success were reasonable.