Michael Raju Padayachee v The State

The appellant was convicted in the Regional Court, Verulam, on several charges: rape (count 2); two counts of assault with intent to do grievous bodily harm (counts 3 and 6); and attempted murder (count 7). He was sentenced to a cumulative term of 24 years' imprisonment (8 years for rape, 3 years for the first assault count, 12 months for the second assault count, and 15 years for attempted murder with 3 years suspended). None of these sentences ran concurrently. The appellant sought leave to appeal against his convictions and sentence, as well as condonation for late filing. On 9 February 2018, the regional court refused both applications. On 25 June 2019, the Full Court of the KwaZulu-Natal Division of the High Court, Pietermaritzburg (Vahed J and Bedderson AJ) also refused leave to appeal in terms of section 309C(2)(a) of the Criminal Procedure Act 51 of 1977. On 31 July 2020, the appellant applied to the Supreme Court of Appeal for special leave to appeal against the Full Court's refusal.

• Whether the Full Court ought to have granted leave to appeal against the convictions and resultant sentences
• Whether there are reasonable prospects of success on appeal against the convictions
• Whether there are reasonable prospects of success on appeal against the sentence, particularly the cumulative nature of the sentence
• Whether the refusal by two judges of a Division of the High Court of leave to appeal constitutes a 'judgment or order' appealable to the Supreme Court of Appeal
• The proper test to be applied when considering whether leave to appeal should be granted

The appeal was upheld. The order of the Full Court refusing leave to appeal against the convictions and resultant sentences was set aside and substituted with an order granting the applicant leave to appeal against his convictions and resultant sentences to the KwaZulu-Natal Division of the High Court.

The binding legal principles established are: (1) The refusal by two judges of a Division of the High Court of leave to appeal constitutes a 'judgment or order' appealable to the Supreme Court of Appeal under sections 20(1) and 21(1) of the Superior Courts Act (reaffirming S v Khoasasa). (2) The test for determining whether leave to appeal should be granted is whether there is a reasonable prospect of success in the envisaged appeal, not whether the appeal itself ought to succeed. (3) Where the Supreme Court of Appeal finds that leave to appeal should have been granted in a criminal matter, the proper remedy is to grant leave to appeal to the appropriate Division of the High Court, which must hear the substantive appeal in terms of section 309(1)(a) of the Criminal Procedure Act, rather than the SCA deciding the merits itself. (4) The imposition of cumulative sentences without any periods running concurrently may constitute a misdirection justifying a reasonable prospect of success on appeal.

The Court made observations regarding the evaluation of evidence in the trial court, noting concerns about: inconsistencies and contradictions in State witnesses' evidence; the failure to call relevant witnesses who could clarify crucial aspects of the State's case; and the trial court's evaluation of single witness evidence in relation to rape and assault charges. While these observations were not necessary for the decision (which turned on whether there were reasonable prospects of success), they provide guidance on the types of issues that might constitute appealable points. The Court also observed that the State's concession that there were reasonable prospects of success was appropriately made, suggesting that prosecutorial candour in such matters is commendable.

This case reinforces important principles regarding appeals in criminal matters in South Africa. It confirms the proper application of the test for granting leave to appeal – whether there is a reasonable prospect of success rather than whether the appeal must succeed. The case also clarifies the role of the Supreme Court of Appeal when dealing with refusals of leave to appeal by the High Court, particularly in criminal matters. Following S v Khoasasa, the SCA confirmed that where it finds leave to appeal should have been granted, the matter is remitted to the appropriate Division of the High Court to hear the substantive appeal in terms of section 309(1)(a) of the Criminal Procedure Act. The judgment also highlights that cumulative sentences, where no periods run concurrently, may constitute a misdirection warranting appellate intervention. The case demonstrates the importance of proper evaluation of evidence, particularly concerning single witness testimony in sexual offence cases, and the State's duty to call relevant witnesses.