Kriel v The State

On 11 December 2004 a collision occurred on a public road between Vryheid and Dundee, KwaZulu-Natal between a Toyota Landcruiser driven by the appellant and a Nissan double cab travelling in the opposite direction. The collision caused the death of two occupants of the Nissan and injured other passengers, including a six-year-old child who sustained serious brain injuries. On 18 January 2008 the appellant was convicted in the Vryheid Regional Court following a plea of guilty to driving under the influence of liquor and two charges of culpable homicide. In his plea, the appellant admitted consuming several beers until 01h00 the night before the collision and approximately two brandies at 10h00 the next morning. He felt fatigued, briefly fell asleep while driving, lost control of his vehicle, crossed the double barrier line and collided with the oncoming vehicle. The appellant was a 46-year-old first offender who had been a wealthy farmer but lost everything in 2000, leading to alcoholism. He was sentenced to six years' imprisonment on the drunk driving charge and eight years (two suspended) on the culpable homicide charges, to run concurrently, resulting in an effective six years' imprisonment. His driver's licence was suspended for two years. The regional magistrate refused leave to appeal, and a petition to the KwaZulu-Natal High Court for leave to appeal against sentence was refused. The high court then granted leave to appeal directly to the Supreme Court of Appeal against the sentence.

• Whether the Supreme Court of Appeal has jurisdiction to hear an appeal directly from a regional court sentence without the appeal first being heard by the high court
• Whether leave to appeal against sentence to the high court should have been granted
• Whether the test for granting leave to appeal is whether there is a reasonable prospect of success rather than whether the appeal ought to succeed
• Whether the sentence of six years' imprisonment was disproportionately harsh in the circumstances

1. The appeal succeeds. 2. The order refusing the appellant leave to appeal is set aside and is replaced with an order granting the appellant leave to appeal to the KwaZulu-Natal High Court against the sentence imposed on him in the regional court.

Where an accused obtains leave to appeal to the Supreme Court of Appeal against the refusal in a high court of a petition seeking leave to appeal against a conviction or sentence in the regional court, the issue before the SCA is whether leave to appeal should have been granted by the high court and not the merits of the appeal itself. A sentence imposed in the regional court can only be appealed to the SCA after an appeal against such sentence has first been heard and failed in the high court. The SCA lacks jurisdiction to hear appeals directly from magistrates' courts without the appeal first being adjudicated in the high court. The test for determining whether leave to appeal should have been granted is whether there is a reasonable prospect of success in the envisaged appeal, rather than whether the appeal ought to succeed or not.

The court made several observations regarding the sentence imposed that suggested there was a reasonable prospect of success on appeal. It noted that first offenders convicted of driving under the influence of liquor are generally not sentenced to direct imprisonment but to fines or partially suspended sentences. The court observed that no evidence was presented about the appellant's blood alcohol level or state of intoxication, yet the magistrate found he was 'heavily under the influence of liquor', which the State had accepted he had sobered up before drinking the brandies. The court compared the sentence to that in S v Nyathi, noting that the appellant's effective imprisonment was double that imposed in Nyathi despite less serious consequences (two deaths versus six) and lesser culpability (no conscious assumption of risk). The court also noted sound policy reasons why the SCA should not hear appeals directly from magistrates' courts even if it could: it would be anomalous for the SCA to serve as both first and last court of appeal; all persons are equal under the law and deserve equal treatment; and the SCA should be reserved for complex matters truly deserving its attention and its rolls should not be clogged with cases that could be easily finalized in the high court.

This case is significant in South African criminal procedure law as it clarifies the proper route of appeals from regional courts to higher courts and the limited role of the Supreme Court of Appeal in such matters. It reinforces the hierarchical structure of appeals, confirming that appeals from regional court sentences must first be heard by the high court before they can be appealed to the SCA. The judgment establishes that when the SCA hears an appeal against the refusal of leave to appeal, it cannot determine the merits of the underlying appeal but must confine itself to whether leave should have been granted. The case also provides important guidance on the test for granting leave to appeal (reasonable prospect of success) and illustrates how this test should be applied in sentencing matters, particularly in cases involving driving under the influence and culpable homicide arising from motor vehicle collisions. It serves as a reminder that courts should afford parties procedural fairness before imposing certain penalties such as licence suspensions.