Pretorius v The State

On 13 September 2012, the appellant, Mr Andre Pretorius, was convicted by the Regional Court, Pretoria of three counts of rape of his then stepdaughter. On 17 January 2013, he was sentenced to an effective term of 18 years' imprisonment. On 13 October 2013, the appellant sought leave from the regional magistrate to appeal to the High Court against his conviction, which was refused. He then petitioned the Judge President of the Gauteng Division of the High Court, Pretoria in terms of s 309C of the Criminal Procedure Act 51 of 1977 for leave to appeal. On 2 February 2016, the application was dismissed by Louw and Baqwa JJ. The appellant thereafter petitioned the Supreme Court of Appeal for special leave to appeal in terms of s 16(1)(b) of the Superior Courts Act 10 of 2013, which succeeded on 10 June 2019.

• Whether the high court should have granted leave to appeal against the conviction by the regional court
• Whether there was a reasonable prospect of success in the envisaged appeal
• Whether two key prosecution witnesses (both minors) had been properly placed under oath or admonished to speak the truth in terms of ss 162, 163 and 164 of the CPA
• Whether the testimony of the witnesses lacked the status and character of evidence and was thus inadmissible
• Whether the regional magistrate committed various misdirections
• Whether on the evidence the state had proven its case beyond a reasonable doubt
• The scope of the Supreme Court of Appeal's jurisdiction when special leave is granted following refusal of leave to appeal by the high court

The appeal succeeded. The order refusing the appellant leave to appeal was set aside and replaced with an order granting the appellant leave to appeal to the High Court (Pretoria) against his conviction on three counts of rape by the regional court.

Where leave to appeal has been refused by the high court in circumstances such as these, the only order appealed against to the Supreme Court of Appeal is the refusal of leave and not the appeal on the merits. Consequently, the Supreme Court of Appeal cannot, upon the granting of special leave, decide the merits of an appeal that has not yet been considered by the High Court. The test for whether leave to appeal should be granted is whether there is a reasonable prospect of success in the envisaged appeal. Where there are arguable grounds of appeal, including fundamental procedural irregularities such as the alleged failure to properly place minor witnesses under oath or admonish them in terms of sections 162, 163 and 164 of the CPA, and where the State concedes there is a reasonable prospect of success, leave to appeal should be granted to allow the high court to consider the merits.

The court noted that both counsel agreed that the appeal could be disposed of without the hearing of oral argument in terms of s 19(a) of the Superior Courts Act, demonstrating the court's discretion to determine procedural matters on the papers where appropriate. The court also implicitly endorsed the State's concessions as having been 'fairly and properly made', which serves as guidance to legal practitioners regarding their duty to make appropriate concessions where the interests of justice require it, even when appearing for the prosecution in serious criminal matters.

This case clarifies the scope of the Supreme Court of Appeal's jurisdiction when dealing with special leave applications following a high court's refusal to grant leave to appeal. It confirms that where the high court has refused leave to appeal, the Supreme Court of Appeal can only determine whether leave should have been granted (applying the reasonable prospect of success test), but cannot itself determine the merits of the appeal. The actual appeal must first be heard by the high court. The case also demonstrates the importance of procedural compliance with sections 162, 163 and 164 of the CPA regarding the proper administration of oaths or admonitions to child witnesses, and the serious consequences (inadmissibility of evidence) that may flow from non-compliance. It highlights that where such fundamental procedural irregularities are alleged, leave to appeal should be granted to allow the high court to properly consider the issues.