LEAVE TO APPEAL – TEST

Masinga and others v S [2016] 4 All SA 564 (KZP)

Criminal law – Appeal – Leave to appeal – Test – A trial court, dealing with an application for leave to appeal, must carefully analyse the relevant facts and the law, and must decide whether there are reasonable prospects of success and not a mere possibility.

Criminal procedure – Record on appeal – Rules of the High Court – Rule 51 – Duty of the appellant to ensure that all copies of the record on appeal are properly before the court – Before transmitting the record of proceedings to the Registrar, the clerk of the court must ensure that the record and all copies prepared are in order and contain the same documents.

Criminal procedure – Trial – Fairness – Inadequate legal representation of one of three accused – Whether entire trial vitiated thereby – If an irregularity amounts to a gross miscarriage of justice, it vitiates the entire trial.

All three appellants in this matter were convicted of rape and sentenced to life imprisonment on that count. The first and second appellants were also convicted on two counts of robbery with aggravating circumstances in respect of which they were sentenced to 15 years’ imprisonment.

The offences attracted the prescribed minimum sentence provisions set out in the Criminal Law Amendment Act 105 of 1997. The trial court found no substantial and compelling circumstances to depart from the prescribed minimum. The present appeal was against the convictions and sentence.

Held – Before dealing with the merits of the appeal, the Court was compelled to highlight certain procedural problems with the appeal. It emphasised that rule 51 of the Rules of the High Court makes it ultimately the duty of the appellant to ensure that all copies of the record on appeal are properly before the court. However, the Court stated that such obligation is shared by the presiding magistrate, clerks of the court and transcribers. Before transmitting the record of proceedings to the Registrar, the clerk of the court must ensure that the record and all copies prepared are in order and contain the same documents.

Another problem evident in this case was that the trial court, faced with the application for leave to appeal, applied no test at all to the matter. A trial court, dealing with an application for leave to appeal, must carefully analyse the relevant facts and the law. It must decide whether there are reasonable prospects of success and not a mere possibility.

The appellants were also found not to have complied with section 309(1)(a) of the Criminal Procedure Act 51 of 1977 read with rule 67 of the Magistrate’s Court Rules. According to the Court, section 309(1)(a) provides for a right to note an appeal without having to apply for leave to appeal. It does not imply that the matter automatically goes on appeal without proper notice. It also does not allow an appellant to have his appeal heard without complying with rule 67 of the Magistrate’s Court Rules.

It is only when there are proper grounds of appeal that the trial court can decide on matters such as the adequacy of the record to be forwarded. Emphasising the importance of grounds of appeal, the Court pointed out that grounds of appeal bind an appellant.

The Court set out the steps which need to be taken to ensure compliance with the Criminal Procedure Act and the Magistrate’s Court Rules in noting an appeal.

The correct approach on appeal is that in the absence of any misdirection, the trial court’s conclusion is accepted as correct. To succeed on appeal, the appellant must convince the appeal court on adequate grounds that the trial court was wrong in accepting a witness’ evidence. An appeal court’s power to interfere is limited. Nevertheless, the appeal court must still weigh the evidence and come to an independent conclusion on the matter. Most importantly, the Court had to decide whether the appellant had a fair trial.

The third appellant alleged that he had only a very brief consultation with his legal representative and that most of the representative’s time was taken up by the first and second appellants. The Court agreed that the representation of the third appellant was inadequate for reasons set out in the judgment, and held that his trial was therefore unfair. The unfairness of the third appellant’s hearing could not be separated from the rest of the trial. If an irregularity amounts to a gross miscarriage of justice, it vitiates the entire trial. As a result, the convictions and sentences were all set aside, and the matter was remitted to the regional court for trial de novo before another magistrate.

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