Daniël da Silva Marques de Almeida v The State

The appellant was convicted in the Johannesburg Regional Court of attempted murder, despite pleading not guilty, and sentenced to eight years’ imprisonment. He was 55 years old, employed, a partner in a business employing several people, and the primary caregiver of his six-year-old child. He had no prior convictions for violent offences. The offence arose from an incident in a pub where, after being assaulted, the appellant shot at the complainant instead of walking away or laying a charge. The regional court refused leave to appeal against sentence, and a subsequent petition for leave to appeal under s 309C of the Criminal Procedure Act 51 of 1977 was refused by the Gauteng Local Division. The Supreme Court of Appeal granted special leave to consider whether the high court was correct in refusing leave to appeal.

The appeal was upheld. The order of the high court refusing leave to appeal against sentence was set aside and replaced with an order granting the appellant leave to appeal against his sentence to the Gauteng Local Division, Johannesburg.

The case reaffirms and clarifies the appellate hierarchy in South African criminal procedure, emphasising that the Supreme Court of Appeal cannot hear appeals on the merits directly from magistrates’ courts. It also confirms the correct test for granting leave to appeal under s 309C of the Criminal Procedure Act and underscores the importance of properly considering pre-sentence reports in sentencing decisions.