Umude & others v The State

The three appellants were convicted on 1 October 2013 by the Port Elizabeth Regional Court (Specialised Commercial Crime Court) on three counts of fraud involving an amount of R109 649.87. On 2 October 2013 they were sentenced to an effective term of 15 years’ imprisonment, the regional court applying the prescribed minimum sentence regime under s 51(2) of the Criminal Law Amendment Act 105 of 1997 and finding no substantial and compelling circumstances. Their applications for leave to appeal against conviction and sentence were refused by the regional court in terms of s 309B of the Criminal Procedure Act 51 of 1977. Subsequent petitions to the Eastern Cape Division of the High Court in terms of s 309C(2) were also dismissed. The appellants then sought special leave to appeal to the Supreme Court of Appeal.

The appeal was upheld. The orders of the Eastern Cape Division of the High Court dismissing the appellants’ petitions were set aside and replaced with an order granting all three appellants leave to appeal to the Eastern Cape Division of the High Court, Grahamstown, against the sentences imposed on 2 October 2013.

The case clarifies the procedural position regarding petitions and special leave to appeal under s 309C of the Criminal Procedure Act and s 16(1)(b) of the Superior Courts Act. It confirms that the Supreme Court of Appeal’s role in such matters is to determine whether the High Court correctly refused leave to appeal, not to decide the merits of the sentence itself. Substantively, it reinforces the principle that even under the minimum sentence regime, courts must properly assess whether the prescribed sentence is proportionate, having regard to the offence, the amount involved, and the offender’s personal circumstances.