Senkhane v The State

The appellant, Valentine Senkhane, was a manager of corporate services for the Moqhaka Municipality. He was convicted in the Regional Court, Kroonstad, on one count of contravening section 1(1)(b)(i) of the Corruption Act 94 of 1992 and two counts of fraud. The corruption charge related to receiving R2,000 (deposited into his mother's account) and R2,000 in cash from a person who had tendered for municipal work, with the intention that he would assist in securing the tender. The first fraud count involved arranging for a security company to install palisade fencing, automatic garage doors, gates and an alarm system at his residence (worth R39,612.33), then fraudulently arranging for the company to amend its invoice to reflect services rendered to the Municipality, which then paid this amount. The second fraud count involved arranging for one of five air conditioners (worth R5,800) authorized for municipal premises to be installed at his residence instead, while the Municipality paid for all five units (R25,980). He was sentenced to an effective six years' imprisonment. His appeal to the Free State High Court was struck off the roll for late prosecution of the appeal. He applied for condonation, which was refused on the basis that there were no prospects of success on the merits. He then sought leave to appeal from the High Court and subsequently from the Supreme Court of Appeal, both of which were refused. He then prosecuted an appeal to the SCA relying on the established practice that an appellant has an automatic right of appeal against the refusal of an application for condonation by a high court sitting as a court of appeal.

• Whether the automatic right of appeal to the Supreme Court of Appeal against a refusal of condonation by a high court sitting as a court of appeal should be continued
• Whether the Supreme Court of Appeal has inherent jurisdiction under section 173 of the Constitution to require that leave to appeal must first be sought from the high court against its refusal of a condonation application
• Whether there were prospects of success on the merits of the intended appeal against conviction and sentence

The appeal was struck from the roll with the effect that the sentence of six years' imprisonment imposed by the regional magistrate remains effective. The court abolished the automatic right of appeal against refusal of condonation by a high court sitting as a court of appeal and laid down a new requirement that leave to appeal must first be sought from that court, and if refused, may then be sought from the Supreme Court of Appeal by way of petition.

The Supreme Court of Appeal has inherent jurisdiction under section 173 of the Constitution to regulate its own processes and may lay down a requirement that leave to appeal must first be sought from a high court against its refusal of a condonation application when sitting as a court of appeal. If that application for leave is refused, the applicant may then petition the Supreme Court of Appeal for leave to appeal. There is no longer an automatic right of appeal to the Supreme Court of Appeal against a high court's refusal of condonation when it sits as a court of appeal. This procedural requirement does not offend against constitutional values, including the right to appeal under section 35(3)(o) of the Constitution, as it provides adequate safeguards through a two-stage process (application to the high court, then petition to the SCA if refused) similar to other appeals from convictions in superior courts.

The court made several important observations: (1) The previous automatic right of appeal against refusal of condonation led to undesirable consequences, including the anomaly that a person whose appeal on the merits fails requires leave to appeal further, but a person who fails to comply with time limits has an automatic right of appeal against refusal of condonation. (2) When a high court sitting as a court of appeal considers a condonation application related to an appeal before it, it must necessarily consider the merits and prospects of success, particularly when it has the full record before it; it is therefore specious to conclude that the merits have not been seriously considered. (3) The better practice, as suggested in S v Farmer, is that where the only dispute in a condonation application concerns the merits of the intended appeal, the court should deal with the appeal on its merits rather than simply refusing condonation. (4) The court expressed concern that if the former practice continued, it could lead to the SCA expressing views on the merits when determining a condonation appeal, followed by the high court hearing the appeal proper with knowledge of those non-binding views, potentially followed by another appeal to the SCA on the merits—an undesirable multiplicity of proceedings. (5) Access-regulating measures such as requirements for leave to appeal are constitutionally justifiable and serve to prevent court rolls being clogged by wholly unmeritorious cases, while procedures should minimize the risk of wrongful convictions and inappropriate sentences.

This case is highly significant in South African criminal procedure law as it fundamentally changed the appeal process. It abolished the long-established automatic right of appeal to the SCA against a high court's refusal of condonation when sitting as a court of appeal, which had existed since at least 1969. The decision exercised the SCA's inherent jurisdiction under section 173 of the Constitution to regulate its own processes, requiring that leave to appeal must now first be sought from the high court, with recourse to the SCA only by petition if refused. This brings the procedure in line with the general requirement for leave to appeal and addresses the anomalies identified in earlier cases (particularly S v Gopal and S v Farmer) where unmeritorious cases could reach the SCA automatically while meritorious appeals on conviction required leave. The decision promotes efficiency in the administration of justice, reduces the risk of multiple courts expressing preliminary views on the merits, and ensures consistency in access-regulating measures for appeals. It also demonstrates the broad scope of the inherent powers of superior courts under section 173 of the Constitution to develop procedural rules in the interests of justice.