Gwiba v State

The appellant was convicted in the Regional Court, Bothaville on three counts of robbery with aggravating circumstances and sentenced to 15 years’ imprisonment. His application for leave to appeal to the High Court was refused by the regional magistrate under s 309B of the Criminal Procedure Act 51 of 1977. A subsequent petition for leave to appeal to the Free State Division of the High Court under s 309C was also refused. The appellant then sought and obtained special leave from the Supreme Court of Appeal to appeal against the High Court’s refusal of leave. The matter before the SCA concerned only whether the High Court ought to have granted leave to appeal, not the merits of the convictions or sentence.

The appeal was upheld. The order of the High Court refusing leave to appeal was set aside and substituted with an order granting the appellant leave to appeal to the Free State Division of the High Court against his convictions and sentence.

The case clarifies the appeal procedure following the refusal of a petition for leave to appeal under the Criminal Procedure Act in light of the Superior Courts Act. It confirms that the refusal of such a petition by a High Court is appealable to the Supreme Court of Appeal only with special leave, and reiterates the limited role of the SCA in such matters, namely to assess reasonable prospects of success rather than the merits of the criminal case.