Lungisa Grifhs v The State

The appellant, Mr Lungisa Grifhs, was convicted together with two co-accused in the Regional Court for the Eastern Cape Region, Mthatha, on 28 November 2018 on one count of murder read with the provisions of section 1(1) of the Criminal Law Amendment Act 105 of 1997. The Regional Court found substantial and compelling circumstances warranting a sentence less than the prescribed sentence. The appellant was sentenced to 16 years imprisonment. His application for leave to appeal against both conviction and sentence was dismissed by the trial court. He subsequently petitioned the Judge President of the Eastern Cape Local Division of the High Court in terms of section 309 of the Criminal Procedure Act 51 of 1977 for leave to appeal, which was also dismissed. The appellant then approached the Supreme Court of Appeal for special leave to appeal in terms of section 16(1)(b) of the Superior Courts Act 10 of 2013, which was granted on 15 May 2020. The conviction was based on the evidence of a single witness, Mr Bavu, whose oral testimony contained substantial unexplained contradictions with his written statement to the police.

• Whether the High Court was correct to refuse the petition for leave to appeal
• Whether there were reasonable prospects of success in an appeal against conviction and sentence
• Whether the evidence of a single witness (Mr Bavu) was clear and satisfactory in all material respects to sustain a conviction
• Whether substantial unexplained contradictions between the witness's oral testimony and written statement rendered the evidence unreliable

The appeal was upheld. The order of the High Court (court a quo) was set aside and substituted with an order granting the appellant's petition for leave to appeal in terms of section 309C of the Criminal Procedure Act 51 of 1977 against both conviction and sentence.

Where an appellant seeks special leave to appeal against the dismissal of a petition for leave to appeal, the test is whether there are reasonable prospects of success on appeal. Where a conviction is based on the evidence of a single witness, that evidence must be clear and satisfactory in all material respects. Where there are substantial unexplained contradictions between a single witness's oral testimony and their written statement to the police, there are reasonable prospects of success on appeal against conviction (and consequently sentence), and leave to appeal should be granted.

The court expressly noted that in finding reasonable prospects of success and granting leave to appeal, it was not pre-judging the merits of the appeal itself. This indicates that the actual appeal against conviction and sentence would still need to be heard and determined on its merits by the appropriate court. The court's willingness to dispose of the appeal without hearing oral argument pursuant to section 19(a) of the Superior Courts Act demonstrates the court's procedural flexibility in appropriate cases where the parties consent to such a procedure.

This case demonstrates the application of the test for reasonable prospects of success when an appellant seeks special leave to appeal against the refusal of a petition. It reaffirms the principle established in Van Wyk v The State and Galela v The State that leave to appeal should be granted where there are reasonable prospects of success. The judgment emphasizes the heightened scrutiny required when a conviction is based solely on single witness testimony, particularly where there are substantial unexplained contradictions between the witness's oral evidence and prior written statement. The case illustrates the Supreme Court of Appeal's willingness to intervene where lower courts have refused leave to appeal in circumstances where material contradictions in the evidence suggest reasonable prospects of success on appeal. It serves as a reminder that the courts must carefully evaluate the reliability and consistency of single witness evidence, as required by established South African jurisprudence on the cautionary rule applicable to single witness testimony.