IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case no.:  483/10

In the matter between:

PETRUS JACOBUS KRIEL                                                     Appellant

and

THE STATE

Respondent

Neutral citation: Kriel v The State (483/10) [2011] ZASCA 113 (01
June 2011)

Coram:

Cloete, Cachalia JJA and Meer AJA

Heard:

26 May 2011

Delivered:
01 June 2011

Summary:
Criminal Procedure − Leave to appeal − Appeal
against refusal of − Where an accused obtains leave to
appeal 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 is whether
leave to appeal should have been granted by the high
court and not the merits of the appeal itself − The test
is whether there is a reasonable prospect of success in
the envisaged appeal against sentence, rather than
whether the appeal  ought to succeed or not.

ORDER

On appeal from: KwaZulu-Natal High Court (Durban) Nicholson and
Swain JJ sitting as court of first instance:

1 The appeal succeeds.
2 The order refusing appellant leave to appeal is set aside and is replaced
with an order granting the appellant leave to appeal to the KwaZulu-Natal
High Court against the sentence imposed on him in the regional court.

JUDGMENT

MEER AJA (Cloete and Cachalia JJA concurring)
[1]   This matter comes before us on appeal with leave of the KwaZulu-
Natal High Court. It is an appeal against a sentence imposed in a regional
court. For the reasons set out in this judgment the issue before us is not
the appeal itself on the merits, but whether the petition for leave to appeal
to the KwaZulu-Natal High Court against the sentence imposed in the
Vryheid Regional Court, should have been granted by the KwaZulu-Natal
High Court.

[2]   The relevant facts are as follows. On 11 December 2004 a collision
occurred on a public road between Vryheid and Dundee, KwaZulu-Natal
between a Toyota Landcruiser driven by the appellant in the direction of
Dundee and a Nissan double cab driving in the opposite direction towards
Vryheid.  The impact caused the death of two of the occupants of the
Nissan.  Other passengers were injured.

[3] On 18 January 2008 the appellant was convicted in the Vryheid
Regional Court following a plea of guilty on a charge of driving under the
influence of liquor in contravention of s 65 (1) (a) of the National Road
Traffic Act 93 of 1996 (count one), and two charges of culpable homicide
(counts 2 and 3). On the same day he was sentenced on count one to six
years’ imprisonment. On counts two and three, which were taken together
for the purpose of sentence, the appellant was sentenced to eight years’
imprisonment of which two years were suspended for five years on
condition that he was not again convicted of culpable homicide involving
a motor collision. The appellant’s drivers’ license was suspended for a
period of two years and he was declared unfit to possess a firearm licence
in terms of s 103(1) of the Firearms Control Act 60 of 2000. Leave to
appeal against sentence was refused by the regional magistrate.

[4] In his plea of guilty in terms of s 112 of the Criminal Procedure
Act 57 of 1977 and his statement setting out the facts upon which the plea
was based, the correctness of which was accepted by the State, the
appellant admitted that he had caused the collision and the deaths of   two
deceased, women aged 70 and 57. He said he had consumed several beers
until about 01h00 during the night before the collision but said that he
had sobered up. At approximately 10h00 the next morning he had about
two brandies before setting out from Vryheid for Dundee. He felt fatigued
and believed that he could continue driving. But he nodded off to sleep
briefly, lost control of the vehicle, crossed the double barrier line in the
middle of the road and collided with the oncoming vehicle.  He admitted
that alcohol had a part to play in causing the collision. His statement
concluded with his offering his deepest sympathy to the family of the
bereaved and praying that God might grant them patience and willingness
to forgive him. Equally, he expressed his sincere and utter remorse for his
actions.

[5] Anita Groenewald, the daughter of one of the deceased women,
testified for the State on sentence. The two deceased and the child who
was seriously injured were all members of the same family that was
preparing for a wedding to be held that very day. The witness was
summonsed to the scene of the accident where she discovered that the

two elder women were dead. The child, Germaine, who had sustained
brain injuries, had to be taken by helicopter to hospital in
Pietermaritzburg. In all some R200 000 was paid to cover the costs of
medical services. There were also burial costs of R15 000

[6] After the accident Germaine, who was six at the time, could not
maintain proper posture and fell over when trying to sit upright. She
crawled for some time before re-learning to walk, had to be potty trained,
fed and was helpless. Although nearly ten at the time of the trial, she had
a mental age of a six year old and had failed both Grade one and Grade
two. Germaine had lost all the sparkle in her life and showed little
emotion. The two deceased women had been energetic and healthy at the
time of the collision. Mrs Groenewald also described the considerable
trauma occasioned to the rest of the family as a result of the collision. She
was being treated for depression.

[7] The appellant did not testify in mitigation of sentence. His attorney,
addressing the court in mitigation, provided the following information,
which was not put in issue by the State. The appellant was a first
offender. At the time of the trial he was 46 years of age and had three
children aged 21, 19 and 12. His wife was unemployed. The appellant,
who has a diploma in agriculture, had been a wealthy farmer but had lost

everything early in 2000. As a consequence he had sought solace in
alcohol, becoming an alcoholic. Since the collision appellant had been
working with a priest towards his personal rehabilitation. At the time of
his trial he had not stopped drinking but his drinking habits were under
control. His only asset was his farm which was heavily bonded. The
appellant was working as a consultant on contract, teaching fire fighting
skills and earned between R10 000 and R12 000 per month.

[8] Three days after he had been sentenced, on 21 January 2008,
during an application for bail pending a petition for leave to appeal
against his sentence to the KwaZulu-Natal High Court, the magistrate
who had sentenced the appellant stated that due to an oversight he had
neglected to order that the sentences imposed on each count were to run
concurrently. The magistrate thereafter amended the sentence as follows:
‘(1)
It is also directed in terms of section 280 of Act 51 of 1977 THAT   THE
SENTENCES ON COUNTS 1 AND 2 TO RUN CONCURRENTLY. In other
words you will serve an effective six (6) years’ imprisonment and not the
previous incorrect twelve (12) years.
(2)
In terms of section 276 (b) of Act 51 of 1977 it is directed that the accused
serves half of his sentence before he qualifies for parole.
(3)
In terms of section 35 THE DRIVER’S LICENCE IS SUSPENDED FOR
TWO (2) YEARS.

(4)
In terms of section 103 (1) of Act 60 of 2000 YOU ARE EX LEGE
DECLARED UNFIT TO OBTAIN A FIREARM LICENCE.’

[9] The magistrate expressed concern about his competency to rectify
the sentences as it could be argued that he was functus officio at the time
he corrected the sentences. He accordingly directed that the proceedings
be sent on urgent special review to the KwaZulu-Natal High Court. The
appellant was granted bail in the sum of R2 000 pending petition. On 19
February 2008 the conviction and sentences were confirmed on review by
the high court and it was ordered that the sentences should run
concurrently.

[10] A petition to the KwaZulu-Natal High Court, Pietermaritzburg for
leave to appeal against sentence was refused on 14 August 2009. The
appellant then applied to the high court for leave to appeal to this court
against the refusal by the high court of his petition for leave to appeal.
Nicholson and Swain JJ, sitting as a full bench in granting leave to
appeal, cited S v Khoasasa1 and then proceeded to grant leave to appeal
directly to this court against the sentence imposed by the regional court.
They were wrong in so doing, as, in S v Khoasasa2 it was held that a
sentence imposed in the regional court can only be appealed against in

1 S v Khoasasa 2003 (1) SACR 123 SCA
2 S vKhoasasa at para 12

this court when an appeal against such sentence has failed in the high
court.

[11] In Matshona v S3, a case similar to the present, this court was asked
to consider an appeal against a sentence imposed in the Pretoria Regional
Court. A petition for leave to appeal had been refused in the high court
and leave to appeal was granted to this court. Leach AJA at paragraphs 4
to 6 set out why the appeal on its merits could not be entertained. These
paragraphs are repeated:
‘4   In my view, the reasoning in Khoasasa is unassailable. The appeal of an accused
convicted in a regional court lies to the High Court under section 309(1)(a), although
leave to appeal is required either from the trial court under section 309B or, if such
leave is refused, from the High Court pursuant to an application made by way of a
petition addressed to the Judge-President under Section 309C(2) and dealt with in
chambers. In the event of this petition succeeding, the accused may prosecute the
appeal to the High Court. But, if it is refused, the refusal constitutes a " judgment or
order " or a “ruling” of a High Court as envisaged in section 20(1) and section 21(1)
of the Supreme Court Act 59 of 1959, against which an appeal lies to this court on
leave obtained either from the High Court which refused the petition or, should such
leave be refused, from this court by way of petition.
5 It is clear from this that where, as is here the case, an 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 appellant's
appeal against his sentence has never been heard in the high court and, as was held in

3 S vMatshona [2008] 4 All SA 68 ( SCA) paras 4 - 6

S v N 1991 (2) SACR 10 (A) at 16, 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 a
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. As
was observed by Streicher JA in Khoasasa:
“Geen jurisdiksie word aan hierdie Hof verleen om ‘n appél aan te hoor teen ‘n
skuldigbevinding en vonnis in ‘n laer hof nie. Dit is eers nadat ‘n appél vanaf ‘n laer
hof na ‘n Provinsiale of ‘n Plaaslike Afdeling misluk het dat ‘n beskuldigde met die
nodige verlof na hierdie Hof appél kan aanteken”….
[6] Not only does this Court lack the authority to determine the merits of the
appellant's appeal against his sentence at this stage, but there are sound reasons of
policy why this Court should refuse to do so even if it could. 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. In addition, all
persons are equal under the law and deserve to be treated the same way. This would
not be the case if some offenders first had to have their appeals determined in the
High Court before they could seek leave to approach this Court if still dissatisfied
while others enjoyed the benefit of their appeals being determined firstly in this Court.
And most importantly, this Court should be reserved for complex matters truly
deserving its attention, and its rolls should not be clogged with cases which could and
should be easily finalised in the High Court.
Consequently this Court cannot determine the merits of the appeal but must confine
itself to the issue before it, namely whether leave to appeal to the high court should
have been granted….’

[12] Like the Court in Matshoma we, too, cannot determine the merits
of the appeal. The issue before us is whether leave to appeal to the high
court should have been granted and not the appeal itself. The test in that
regard is simply whether there is a reasonable prospect of success on
appeal against sentence.

[13] The following factors have a bearing on the reasonable prospects of
success against the sentence of six years’ direct imprisonment imposed on
appellant for driving under the influence of liquor. The fact that two
people died must be ignored in considering the appropriate sentence for
this offence, to avoid duplication of punishment. First offenders who are
convicted for driving under the influence of liquor are generally not
sentenced to direct imprisonment but to a fine, alternatively imprisonment
of which a portion is suspended. This is apparent from a review of
sentences imposed for the offence in S v Mtshobane.4 The appellant’s
sentence of six years is the maximum period of imprisonment for reckless
and negligent driving under the Road Traffic Act 93 of 1996. Evidence
was not presented about appellant’s blood alcohol level or state of
intoxication. The State accepted that he had sobered up before drinking
the brandies. Yet the magistrate found that appellant was ‘heavily under
the influence of liquor’. Bearing these factors in mind, there exists a
reasonable prospect that a court of appeal might consider the sentence
imposed to be disproportionately harsh.

[14] In comparing the sentence of six years’ imprisonment on the counts
of culpable homicide with the lesser sentences generally imposed for

4S v Mtshobane1999 (1) SACR 25

culpable homicide involving motor vehicles, as appears from the
comparison done in S v Nyathi,5 a court of appeal might similarly
consider the sentence to be too severe, even should it take the view that
direct imprisonment (whether or not in terms of s 276 (1)(i) of the
Criminal Procedure Act) is warranted. In Nyathi a sentence of five years’
imprisonment of which two were suspended, was confirmed on appeal.
The appellant in Nyathi took a conscious decision to overtake on a double
barrier line and a blind rise, causing the death of six people. It was found
that the appellant’s culpability was seriously aggravated by his conscious
assumption of risk. The appellant before us assumed no such conscious
risk, (and for that reason does not fall into the most extreme category
mentioned in paragraph 12 of Nyathi), nor were the consequences as
serious as those in Nyathi as less people were killed, yet his period of
effective imprisonment is double that imposed in Nyathi.

[15] The Magistrate took the decision to suspend the appellant’s
driver’s licence for two years in terms of s 35 of the National Road
Traffic Act 93 of 1996 without affording the appellant an opportunity of
addressing him in this regard. A court of appeal might also decide that he
misdirected himself in doing so.

5 S v Nyathi 2005 (2) SACR 273 (SCA) paras 16 to 21

[16] In the result I am satisfied that leave to appeal should be granted
and the following order is made:
1 The appeal succeeds.
2 The order refusing the appellant leave to appeal is set aside and is
replaced with an order granting the appellant leave to appeal to the
KwaZulu-Natal High Court against the sentence imposed on him in the
regional court.

_____________

Y S Meer

Acting Judge of Appeal

APPEARANCES:

For Appellant:
Adv P C Bezuidenhout SC (with him L Barnard)

Instructed by

Shaheed Abdulla & Co, Vryheid

Honey Attorneys, Bloemfontein;

For Respondent:
A A Watt

Instructed by

Director Public Prosecutions, Pietermaritzburg

Director Public Prosecutions, Bloemfontein

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
xx May 2011

STATUS: Immediate

KRIEL V THE STATE (483/10)

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 the appeal and set aside the
order of the KwaZulu-Natal High Court refusing the appellant leave to appeal, to the
KwaZulu-Natal High Court against the sentence imposed on him by the Vryheid
Regional court. The latter order was replaced with an order granting the appellant
leave to appeal.

The appellant was convicted in the Vryheid Regional Court on a charge of driving
under the influence of liquor in contravention of s 65(1)(a) of the National Road
Traffic Act 93 of 1996 (the Act) (count one) and two charges of culpable homicide
(counts two and three). He was sentenced on count one to six years’ imprisonment.
On counts two and three he was sentenced to eight years’ imprisonment of which
two years were suspended for five years on condition that he was not convicted
thereafter of culpable homicide involving a motor collision. His driver’s licence was
suspended for a period of two years. Leave to appeal against sentence was refused
by the regional magistrate.

A petition to the KwaZulu-Natal High Court (Pietermaritzburg) for leave to appeal
against sentence was refused. The appellant then applied to the high court for leave
to appeal to the SCA against the refusal by the high court of his petition for leave to
appeal. The high court, per Nicholson J, granted him leave to appeal to the SCA
against the sentence imposed by the regional court.

The SCA held that the court a quo was wrong in doing so as an appeal from a
decision of a regional court lies to the high court. The SCA held that, on the authority
of Matshona v S [2008] 4 All SA 68 (SCA), it could not determine the merits of the

appeal. The SCA stated that the issue before it was whether leave to appeal to the
high court should have been granted. The test in that regard, it stated, was simply
whether there was a reasonable prospect of success on appeal against sentence.
The SCA stated that, if the culpable homicide is ignored, first offenders who are
convicted for driving under the influence of liquor are generally not sentenced to
direct imprisonment but to a fine, alternatively to imprisonment of which a portion is
suspended. The sentence of six years is the maximum period of imprisonment for
reckless and negligent driving under the Act. There was additionally no finding by
the magistrate that the appellant was heavily under the influence of liquor. The SCA
held that bearing these factors in mind there exists a reasonable prospect that a
court of appeal may consider the sentence imposed to be too severe. The SCA
stated that the appellant assumed no conscious risk, yet his period of direct
imprisonment is double that imposed in S v Nyathi 2005 (2) SACR 273 (SCA). The
SCA stated that the magistrate took the decision to cancel the appellant’s driver’s
licence for two years, without holding an enquiry, and a court of appeal might well
find this was a misdirection.

-- ends --