THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 1025/2022

In the matter between:

VUMANI OSCAR NTULI
APPELLANT

and

THE STATE
RESPONDENT

Neutral citation:
Vumani Oscar Ntuli v The State (1025/2022) [2023] ZASCA 150
(10 November 2023)

Coram:
GORVEN, HUGHES AND MATOJANE JJA AND KOEN AND MASIPA
AJJA

Heard:
No oral hearing in terms of s 19(a) of the Superior Courts Act 10 of 2013.

Delivered:  10 November 2023.

Summary: Appeal to the Supreme Court of Appeal against the refusal of the high
court of a petition seeking leave to appeal against conviction and sentence imposed
by a regional court – special leave granted by this court in terms of s 16(1) of the

Superior Courts Act 10 of 2013 in respect of sentence only – conceded misdirection
or misdirections – reasonable prospect of success on appeal against sentence.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Gauteng Division of the High Court, Johannesburg (Mabesele J and
Vorster AJ sitting as court of appeal):
(a) The appeal succeeds.
(b) The order of the court below to the extent that it refused the petition against the
sentences imposed is set aside and replaced with the following:
‘The application for leave to appeal against the sentences imposed on the applicant
succeeds and the applicant is granted leave to appeal against his sentences to the
Gauteng Division of the High Court, Johannesburg.’

___________________________________________________________________

JUDGMENT
___________________________________________________________________
Hughes JA (Gorven, Matojane JJA and Koen and Masipa AJA concurring)

[1] This is an appeal where special leave to appeal was granted by this Court in
respect of sentence only, against the dismissal of a petition. The appellant was one of
three accused. He was charged before the regional court, Lenasia, Gauteng (regional
court) and was convicted on two counts of robbery with aggravating circumstances,
one of unlawful possession of a firearm, and one of attempted murder. He was
acquitted on a further count.

[2] For each of the first three counts he was sentenced to 15 years’ imprisonment
and was sentenced to ten years’ imprisonment for the attempted murder count.  The
sentence in the first count was ordered to run concurrently with that imposed for the
second count. Ten years of the sentence for the third count was ordered to run

concurrently with that imposed for the first. The cumulative effect was thus that the
appellant was sentenced to an effective term of thirty years imprisonment.

[3] In terms of s 309B of the Criminal Procedure Act 51 of 1977 (CPA) the
appellant applied for leave to appeal against conviction and sentence which was
refused by the magistrate in the regional court. He then petitioned the Gauteng
Division of the High Court, Johannesburg in terms of s 309C(2) for leave against his
convictions and sentences. Mabesele J and Vorster AJ dismissed the petition. The
appellant applied for special leave to appeal from this Court in terms of s 16(1)(b) of
the Superior Courts Act 10 of 2013, which leave was duly granted only in respect of
the sentences.

[4] As the appeal does not concern the merits of the matter, I set out very briefly
the background facts that culminated in the charges preferred. The appellant and his
co-accused attacked and robbed the complainant, Ms Regina Siyabela, in
Meadowlands, of about R14 000 at gunpoint. He was identified as the person who was
in possession of the firearm. In addition, they robbed two Makro workers, of their
personal belongings, whilst they were delivering goods at Ms Siyabela’s premises.
The appellant fled the scene with his co-accused in a Toyota Tazz, the police gave
chase and a shootout ensued between the appellant, his co-accused and the police.
Ultimately, the appellant and his co-accused abandoned the vehicle and fled on foot.
They were arrested shortly after the incident.

[5] In sentencing the appellant, the magistrate imposed the minimum sentences
prescribed in terms of the CPA for each count, having found that there were no
substantial and compelling factors to deviate from them. The appellant submitted that
his personal circumstances and, in particular the three and a half years that he was in
custody awaiting trial, were not considered and that the cumulative effect of the
sentences was too harsh.

[6] This Court has held 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’.1

1 Smith v S [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) (Smith) para 2.

This means that, in refusing such a petition, the high court decided a matter on appeal
to it. Section 16(1)(b) of the Superior Courts Act provides that ‘an appeal against any
decision of a Division on appeal to it, lies to the Supreme Court of Appeal upon special
leave having been granted by the Supreme Court of Appeal’. ‘[T]he 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”. 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”.’2

[7] The appellant contends, that indeed, reasonable prospects of success exist for
this court to grant leave to appeal. He submitted that the three and a half years spent
awaiting trial ought to have been taken into account when he was being sentenced,
as this would have reduced his cumulative sentence. The respondent conceded that
the magistrate should have considered the time spent by the appellant in custody while
awaiting trial. In Radebe and Another v S,3 Lewis JA held:
‘A better approach, in my view, is that the period in detention pre-sentencing is but one of the
factors that should be taken into account in determining whether the effective period of
imprisonment to be imposed is justified: whether it is proportionate to the crime committed.
Such an approach would take into account the conditions affecting the accused in detention
and the reason for a prolonged period of detention. And accordingly, in determining, in respect
of the charge of robbery with aggravating circumstances, whether substantial and compelling
circumstances warrant a lesser sentence than that prescribed by the Criminal Law
Amendment Act 105 of 1997 (15 years’ imprisonment for robbery), the test is not whether on
its own that period of detention constitutes a substantial and compelling circumstance, but
whether the effective sentence proposed is proportionate to the crime or crimes committed:
whether the sentence in all the circumstances, including the period spent in detention prior to
conviction and sentencing, is a just one.’4

[8] The failure of the magistrate to take into account the time spent by the appellant
in custody while awaiting trial thus amounted to a misdirection on the part of the
learned magistrate. In my view, had the magistrate engaged in that exercise, this could

2 Ibid para 3, citing S v Matshona [2008] ZASCA 58; [2008] 4 All SA 68 (SCA); 2013 (2) SACR 126
(SCA) (Matshona) para 8.
3 Radebe and Another v S [2013] ZASCA 31; 2013 (2) SACR 165 (SCA).
4 Ibid para 14.

have had a bearing on the sentences imposed. This omission is apparent from the
record and conceded by the respondent. As such there are reasonable prospects that
the appellant could be successful on appeal against sentence.5 The high court erred
in failing to grant the appellant that leave.

[9] I accordingly make the order set out below.
(a)
The appeal succeeds.
(b)
The order of the court below to the extent that it refused the petition against the
sentences imposed is set aside and replaced with the following:
‘The application for leave to appeal against the sentences imposed on the applicant
succeeds and the applicant is granted leave to appeal against his sentences to the
Gauteng Division of the High Court, Johannesburg.’

___________________
W HUGHES
JUDGE OF APPEAL

5 Smith paras 2-3; Matshona para 8.

Appearances

For the Appellant:
Heads of argument prepared by EA Guarneri
Instructed by:
Johannesburg Justice Centre, Johannesburg

Bloemfontein Justice Centre, Bloemfontein

For the Respondent:
Heads of argument prepared by EHF Le Roux
Instructed by:
The Director of Public Prosecutions, Johannesburg
The Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:

10 November 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Vumani Oscar Ntuli v The State (1025/2022) [2023] ZASCA 150 (10 November 2023)
Today, the Supreme Court of Appeal (SCA) upheld an appeal from the Gauteng Division of the High
Court, Johannesburg (high court). The order of the high court was set aside and replaced with one
granting leave to appeal against sentence to the high court.

The appeal revolved around an application for leave to appeal in respect of sentence only. The accused
was convicted on two counts of robbery with aggravating circumstances, one of unlawful possession of
a firearm and one of attempted murder, and was sentenced to an effective term of thirty years’
imprisonment. In terms of s 309B of the Criminal Procedure Act 51 of 1977 (CPA) the appellant applied
for leave to appeal against conviction and sentence which was refused by the magistrate in the regional
court. He then petitioned the high court in terms of s 309C(2) for leave to appeal, but the petition was
dismissed. The appellant applied for special leave to appeal from this Court in terms of s 16(1)(b) of the
Superior Courts Act 10 of 2013, which leave was duly granted in respect of the sentence only.

This Court held that a petition for leave to appeal to the high court amounted to an appeal against
refusal of leave to appeal by a court of first instance, which meant that the high court decided a matter
on appeal to it. Section 16 of the Superior Courts Act provided that a decision of a Division on appeal
to it, lies to this Court once special leave to appeal had been granted by this Court. The issue that had
to be determined was, therefore, whether leave to appeal should have been granted by the high court
and not the appeal itself. Prior to sentencing, the appellant was in custody for a period of three and a
half years awaiting trial and this Court found that the magistrate committed a misdirection when she
failed to take into account the time spent in custody awaiting trial during sentencing. This could have
had a bearing on whether the appellant would have had reasonable prospects of succeeding upon
appeal. The high court erred when it failed to grant the appellant the necessary leave to appeal.

In the result, the SCA upheld the appeal. The order of the high court was set aside and replaced with
one granting leave to appeal against sentence to the high court.

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