Steven Ofentse Dipholo v The State

The appellant was convicted in the regional court, Lichtenburg on 17 March 2009 of rape (read with provisions of s 51(2) and Part II Schedule 2 of the Criminal Law Amendment Act 105 of 1997), robbery with aggravating circumstances, and sexual assault. He was sentenced to 15 years' imprisonment for rape, 15 years for robbery with aggravating circumstances, and 10 years for sexual assault. The regional magistrate did not order the sentences to run concurrently, resulting in a cumulative sentence of 40 years' direct imprisonment. The regional magistrate dismissed his application for leave to appeal on 1 May 2009. On 10 August 2012, his petition for leave to appeal to the North West Division, Mahikeng (Landman and Gura JJ) was also dismissed. The appellant then filed an application for special leave to appeal to the Supreme Court of Appeal, which was granted on 16 January 2015.

• Whether the Supreme Court of Appeal has jurisdiction to hear appeals on the merits directly from the magistrates' court
• Whether the refusal by the high court to grant leave to appeal against a magistrate's sentence was correct
• Whether there were reasonable prospects of success for the appellant's appeal against sentence
• Whether the cumulative sentence of 40 years' imprisonment was disturbingly disproportionate or shocking

The appeal was upheld. The order of the court below refusing the appellant leave to appeal was set aside and replaced with the following: 'The applicant is granted leave to appeal against the sentence imposed on him by the regional magistrate to the North West Division of the High Court, Mahikeng.'

The Supreme Court of Appeal does not have inherent or original jurisdiction to hear appeals from other courts, and its jurisdiction is confined to appeals against decisions of the high court in terms of sections 20 and 21 of the Supreme Court Act (now Superior Courts Act). When leave to appeal has been refused by the high court, that court has not decided the merits of the appeal. If the SCA were to entertain an appeal on the merits in those circumstances, it would in effect be hearing an appeal directly from the magistrates' court, which would be in direct conflict with s 309 of the Criminal Procedure Act. Therefore, when the high court refuses a petition for leave to appeal from a magistrate's court decision, what is before the SCA is an appeal against the refusal of leave to appeal, not an appeal on the merits. Leave to appeal should be granted where there are reasonable prospects of success, including where a cumulative sentence imposed without consideration of its overall effect induces a sense of shock and is disturbingly disproportionate.

The Court noted that confusion has reigned in various divisions of the high court regarding the proper procedure to be followed by an accused in instances where a high court has refused leave to appeal a judgment from the magistrates' court. The Court expressed that one would have hoped that the position was settled in S v Khoasasa, but acknowledged that confusion persisted, necessitating a restatement of the correct approach. The Court also observed that it was "unfortunate" that it had no authority to hear the merits of the appeal directly, but confirmed that on reflection, the reasons for this limitation in jurisdiction cannot be faulted. The respondent's concession that the regional magistrate erred in failing to consider the cumulative effect of the sentences and that the cumulative sentence induces a sense of shock was described as made "correctly and fairly".

This case is significant in South African jurisprudence because it clarifies and reaffirms the proper appellate procedure when a high court refuses leave to appeal from a magistrate's court decision. It confirms that the Supreme Court of Appeal does not have jurisdiction to hear appeals on the merits directly from magistrates' courts, and that appeals must first be heard by the high court in terms of s 309 of the Criminal Procedure Act 51 of 1977. The judgment reinforces the principles established in S v Khoasasa and S v Tonkin regarding appellate jurisdiction and procedure. It also demonstrates the importance of considering the cumulative effect of consecutive sentences and the principle that leave to appeal should be granted where there are reasonable prospects of success, particularly where a sentence induces a sense of shock.