Smith v The State

The appellant was convicted in the Regional Court, East London, of indecent assault and kidnapping and sentenced to seven years’ imprisonment. He applied for leave to appeal against both conviction and sentence. The trial magistrate granted leave to appeal against sentence only. The appellant then petitioned the Eastern Cape High Court in terms of section 309 of the Criminal Procedure Act 51 of 1977 for leave to appeal against his convictions. That petition was dismissed by two judges of the High Court. With their leave, the appellant appealed to the Supreme Court of Appeal against the refusal of leave to appeal.

The appeal was upheld. The order of the Eastern Cape High Court dismissing the petition was set aside and replaced with an order granting the appellant leave to appeal against his convictions to the Eastern Cape High Court, Grahamstown.

The case authoritatively clarifies and restates the test for granting leave to appeal in South African criminal procedure, particularly in the context of petitions. It confirms that reasonable prospects of success require more than a mere possibility, and provides guidance on the proper, dispassionate approach courts must take when considering applications for leave to appeal.