REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA 
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

CASE NO: A449/07
In the appeal of:

and

JUDGMENT DELIVERED ON 30 MAY 2008

E JSSTEYN AJ:

[2] The relevant facts that gave rise to such appeal were that the appellant was convicted in the Regional Court Parow on 4 counts of indecent assault and was sentenced to effectively 12 years imprisonment; leave to appeal however was granted only on sentence but not conviction by this division in terms of s 309C(7)(a) of the Criminal Procedure Act 51 of 1977 ("the Act").
The appellant sought leave to appeal against the conviction and sentence when he petitioned this division.

[5] Applications for leave to appeal from the lower court to the High court are governed by s 309 of the Act which provides that an accused may, subject to leave to appeal being granted in terms of s 309B or s 309C of the Act, appeal against conviction and sentence. The right to appeal in a criminal matter is therefore not unlimited except where the convicted person was at the time of the commission of the offence:

"(i)     below the age of 14 years;
(ii) at least 14 but below the age of 16 years and was not assisted by a legal representative at the time of conviction in a regional court; and

[6] Where an application in terms of s 309B is refused by a lower court, the accused may by way of the petition apply to a Judge President of a High Court having jurisdiction to grant the application in terms of s 309C(7)(a).

[7]    Section 309C(5)(a) of the Act provides:

"... that a petition contemplated in this section must be considered in chambers by a judge designated by the Judge President; Provided that the Judge President may, in exceptional circumstances, at any stage designate two judges to consider such petition".

[19] Die aansoek om verlof om te appelleer teen 'n skuldigbevinding of vonnis in 'n laer hof gerig aan die Regter-president van 'n Provinsiale Afdeling nadat verlof deur die laer hof geweier is, word nie in art 309C beskryf as 'n appel nie maar is nogtans daarop gerig om 'n regstelling te verkry van wat die aansoeker beskou as 'n verkeerde beslissing in die laer hof. In effek is dit niks anders as 'n appel teen die landdros se weiering van verlof om te appelleer nie. Ek is gevolglik van mening dat die bevel van die hof benede ingevolge waarvan verlof om te appelleer aan die appellant geweier is, 'n bevel van daardie Hof is wat op appel na horn gegee is, soos bepaal in art 20(4)."

Inherent Jurisdiction

For a discussion of the constitutional provisions applicable to reviews and appeals, see N Steytler 'Constitutional Criminal Procedure - A commentary on the Constitution of the Republic of South Africa, 1996' (Butterworths) 1998 at 391 et seq.

2002 (1) SACR 507 (T).

Review jurisdiction

s 302 of the Act provides for an automatic review process and will not be discussed since it is not applicable to the present case.

Section 304(4) of the Act is generally referred to as the extraordinary review procedure.

At para 8.

1991 (2) SACR 149 (Nm).

[20] In the arguments addressed to us much reliance was placed on the court's review jurisdiction and more specifically the powers in terms of s 304(4) of the Act which provides as follows:

"If in any criminal case in which a magistrate's court has imposed a sentence which is not subject to review in the ordinary course in terms of section 302 or in which a regional court has imposed any sentence, it is brought to the notice of the provincial or local division having jurisdiction or any judge thereof that the proceedings in which the sentence was imposed were not in accordance with justice, such court or judge shall have the same powers in respect of such proceedings as if the record thereof had been laid before such court or judge in terms of section 303 or this section."

Division as intended in ss 20(1) or 21(1) of the Supreme Court Act 59 of 1959 meaning that the decision is judicial in nature.

'Expanded' jurisdiction

[25] What then of the appellant's fair trial rights in terms of the Constitution and in particular Section 35(3)(o) which provides as follows:

"Every accused person has a right to a fair trial, which includes the right-
(o) of appeal to, or review by, a higher court."

In my view the rationale for a provision like s 35(3)(o) of our Constitution is of vital importance in ensuring that a reasonable procedure exists to correct errors that occur at the trial. There clearly rests a constitutional duty on High Courts to protect each and every appellant's fundamental rights and that includes the right to a fair trial as provided for by s 35(3) of the Constitution.
[26] Given the circumstances of this case, I am not convinced that no reasonable procedure exists, to address any error made by the regional magistrate at the trial, and henceforth that there is a need for this court to look at s 173 of the Constitution to find expanded jurisdiction to correct any trial error.

[27] To my mind the provisions of the Constitution should be resorted to by an appellant in instances where the absence of an appeal would result in a failure of justice and no remedy exists to protect the infringed right of the appellant. The appellant like any appellant who considers that their rights have been violated is entitled to seek a remedy to address such infringement but such remedy should be sought in the appropriate forum.

[29] A review of all the statutory provisions dealing with appeals from the lower courts to the High Courts shows that there are sufficient procedural checks in place to deal with wrong convictions and inappropriate sentences. In my view it is not a matter of legislative shortcomings that has resulted in the appellant's present dilemma but rather his failure to appeal against the 'ruling' of the two judges who considered the petition.

[30] After careful consideration of all the relevant issues it is my view that there is no power conferred upon us, either by statute or inherently, to deal with the question of conviction where leave to appeal was granted to deal only with sentence by this division. If the legislature had intended for this Court to have such special jurisdiction in terms of s 309C, it would have accordingly and expressly provided for such jurisdiction.

shall be submitted by petition addressed to the Chief Justice,
 (b)      The petition shall be considered by two judges of the appellate division designated by the Chief Justice, and in the case of a difference of opinion, also by the Chief Justice or any other such judge so designated.

In the result, the following order is made:
1.	The appeal of the appellant is postponed sine die.
2.	The petition by the appellant, Christiaan van der Merwe, for leave to appeal against his conviction, is to be addressed to the President of the Supreme Court of Appeal within 21 days from date hereof or within such further period as the President of the Supreme Court of Appeal may allow.
3.	The application for leave to appeal should be proceeded with in accordance with the Rules of the Court.
4.	The appellant's bail is extended on the same conditions as ordered on 18 April 2008.

Moosa J: I agree, it is so ordered.
E. MOOSA