Frederick Umude & Others v The State

On 1 October 2013, the three appellants were convicted by the Port Elizabeth Regional Court (Specialised Commercial Crime Court) of three counts of fraud involving R109 649.87. They were sentenced on 2 October 2013 to 15 years' imprisonment. The regional court found the provisions of section 51(2) of the Criminal Law Amendment Act 105 of 1997 applicable, held there were no substantial and compelling circumstances, and imposed the prescribed minimum sentence. The appellants' application for leave to appeal against conviction and sentence in terms of section 309B of the Criminal Procedure Act 51 of 1977 was dismissed by the trial court. Their petitions to the Eastern Cape Division of the High Court, Grahamstown, in terms of section 309C(2) of the CPA were also dismissed on 8 October 2014 (first and third appellants) and 14 May 2015 (second appellant). The appellants then petitioned 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.

• Whether the High Court erred in dismissing the appellants' petitions for leave to appeal against sentence
• Whether there were reasonable prospects of an appeal against sentence succeeding
• Whether the regional court adequately considered whether the prescribed sentence was reasonable and appropriate having regard to the amounts involved and the appellants' personal circumstances
• The proper procedure and jurisdiction for applications for special leave to appeal under the Superior Courts Act

1. The appeal is upheld. 2. The orders of the Eastern Cape Division of the High Court, Grahamstown made on 8 October 2014 (case no CA&R 264/2014) and 14 May 2015 (case no CA&R 264/2014) dismissing each appellant's petition against sentence are set aside and replaced with: 'The three applicants are granted leave to appeal to the Eastern Cape Division of the High Court, Grahamstown against the sentences imposed on them on 2 October 2013 by the Port Elizabeth Regional Court, Eastern Cape.'

1. Under the Superior Courts Act 10 of 2013, where a High Court dismisses a petition in terms of section 309C(2) of the Criminal Procedure Act, this constitutes a decision on appeal to that court, and an application for special leave to appeal against that decision lies to the Supreme Court of Appeal in terms of section 16(1)(b) of the Superior Courts Act. 2. When the Supreme Court of Appeal considers such an application for special leave, it does not enter into the substantive merits of the envisaged appeal, save for the limited purpose of considering whether or not it has reasonable prospects of succeeding. 3. If the SCA grants special leave, it should grant leave to appeal against the order of the High Court refusing leave to appeal, and if that appeal succeeds, refer the matter back to the High Court to hear the appeal on its merits. 4. There is a reasonable prospect of an appeal against sentence succeeding where the sentencing court failed to adequately consider whether a prescribed minimum sentence was reasonable and appropriate punishment having regard to the amounts involved and the offenders' personal circumstances.

The Court noted that the order initially issued ('Special leave to appeal against sentence is granted to the Supreme Court of Appeal') was confusing and conducted to confusion. The Court also observed that under the previous Supreme Court Act 9 of 1959, an application for leave to appeal the High Court's dismissal of a petition had to be lodged with that court (the High Court), but under the Superior Courts Act 10 of 2013, the High Court lacks jurisdiction to consider an application for leave to appeal against its dismissal of a petition to it, as it previously did.

This case is significant for clarifying the procedural framework for appealing against the dismissal of petitions under the Superior Courts Act 10 of 2013. It establishes that where a High Court dismisses a petition under section 309C(2) of the Criminal Procedure Act, an application for special leave to appeal against that dismissal lies to the Supreme Court of Appeal in terms of section 16(1)(b) of the Superior Courts Act. The judgment also reaffirms the importance of trial courts adequately considering whether prescribed minimum sentences are reasonable and appropriate in the circumstances of each case, particularly having regard to amounts involved and personal circumstances, as required by the test in S v Vilakazi. It demonstrates the SCA's willingness to grant leave to appeal where there is a reasonable prospect that the sentencing court failed to properly apply the law.