Smith v S

The appellant was convicted in the Regional Court, East London, of indecent assault and kidnapping, and sentenced to seven years' imprisonment (both counts taken together for sentencing purposes). He was granted leave to appeal against sentence only by the trial magistrate. He then petitioned the Judge President of the Eastern Cape High Court, Grahamstown in terms of s 309 of the Criminal Procedure Act 51 of 1977 for leave to appeal against his conviction. His petition was dismissed by two judges (Jansen and Pickering JJ). With leave of those judges, he appealed to the Supreme Court of Appeal against the dismissal of the petition.

• Whether the High Court correctly refused leave to appeal against conviction
• The correct test for determining whether an applicant has reasonable prospects of success on appeal sufficient to warrant granting leave to appeal
• Whether the trial magistrate misdirected himself in evaluating the complainant's evidence and the appellant's evidence

The appeal was upheld and the order of the court below was set aside. The order was replaced with: 'The appellant is granted leave to appeal against his convictions to the Eastern Cape High Court, Grahamstown.'

The binding legal principle is that for leave to appeal to be granted on the basis of reasonable prospects of success, there must be a sound, rational basis for the conclusion that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. The applicant must convince the court on proper grounds that he has prospects of success that are not remote but have a realistic chance of succeeding. More is required than a mere possibility of success, that the case is arguable, or that it cannot be categorized as hopeless. The test is whether the appellant has reasonable prospects of success, not whether the appeal itself ought to succeed.

The court commented, without wishing to comment on the merits in detail, that there were without question facts and probabilities that point to the appellant's guilt. The court also noted that a finding that a report by a complainant is 'strong confirmation' of her version may constitute a misdirection (citing S v Hammond 2004 (2) SACR 303 (SCA)), although reliance on distressed state is not necessarily a misdirection. The court referenced the historical development of the test through cases such as R v Ngubane & others (1945 AD 185), S v Shabalala (1966 (2) SA 297 (A)), and S v Ackerman (1973 (1) SA 765 (A)).

This case is important in South African criminal procedure for clarifying and reaffirming the test for reasonable prospects of success in applications for leave to appeal. It confirms that a refusal of leave to appeal on petition to two judges of a high court is appealable to the Supreme Court of Appeal. The case provides clear guidance on the proper standard to be applied, rejecting both overly permissive and overly restrictive formulations, and establishes a middle ground requiring a sound, rational basis for prospects of success. The judgment clarifies that more is required than mere possibility or arguability, but certainty of failure is not necessary for refusal.