Washman Sengama v State

The applicant was convicted of murder and various other offences by Willis J in the South Gauteng High Court. He was sentenced to life imprisonment on the murder charge and concurrent sentences on other counts. The case involved the abduction of a young woman, Posiswa Pungani, from Sitoka Hostel in Tembisa, and her subsequent murder. The only issue at trial was whether the applicant and his co-accused were two of the three men who committed these crimes. The co-accused admitted participation but denied the applicant's involvement. However, the deceased's boyfriend and another witness identified the applicant, and the gun used to kill the deceased was found in the applicant's possession. The applicant raised an alibi defense, claiming he was in bed with his girlfriend at the time, but did not call her as a witness. The trial judge rejected his evidence. The high court dismissed his application for leave to appeal against conviction and sentence, and he petitioned the Supreme Court of Appeal.

• Whether there were grounds for granting leave to appeal against conviction and sentence
• The interpretation and effect of the amendment to section 316(10)(c) of the Criminal Procedure Act 51 of 1977 as introduced by the Criminal Procedure Amendment Act 8 of 2013
• Whether the word 'or' in the amended section 316(10)(c) should be read disjunctively or conjunctively
• The circumstances in which the registrar of a high court must furnish the record of proceedings to the Supreme Court of Appeal when a petition is lodged

The application for leave to appeal was dismissed. The Court clarified that it was not necessary to await the furnishing of the record of proceedings before disposing of the petition.

The binding legal principle established is that in interpreting section 316(10)(c) of the Criminal Procedure Act as amended by the Criminal Procedure Amendment Act 8 of 2013, the word 'or' at the end of subsection (ii) must be read conjunctively as 'and' to give effect to the manifest legislative purpose of dispensing with the automatic filing of trial records in most petition cases. Consequently, a registrar must furnish the record of proceedings to the Supreme Court of Appeal only in the following circumstances: (a) where leave is being sought to appeal against conviction and the applicant was not legally represented at the trial; or (b) where leave is being sought to appeal against conviction and the applicant is not legally represented for the purposes of the petition; or (c) where the judges dealing with the petition request all or a portion of the record under section 316(10)(c)(iv). The words 'and' and 'or' may be read as equivalents where necessary to give effect to the purpose of legislation.

The Court observed that the requirement under the 2008 amendment for records to be filed with the Supreme Court of Appeal before disposing of petitions had resulted in considerable delays, substantial costs in preparing and lodging records, and a substantial backlog of petitions building up. The Court noted that there was and is no practical need for records to be lodged before disposing of petitions, as applicants are obliged to set out their grounds clearly and specifically, and the rules require petitioners to identify relevant passages in the record. The Court also commented on the anomalous situation that existed where records were not always required in disposing of petitions in criminal cases even though the cases were similar, contrasting the different requirements under section 20(4)(b) of the Supreme Court Act, section 309C of the CPA, and section 316(3)(c) and (d) of the CPA. The Court observed that in appeals against sentence alone, it will only be in rare cases that it is necessary or permissible to have regard to the record of the trial when considering a petition.

This case is significant for establishing the correct interpretation of the amended section 316(10)(c) of the Criminal Procedure Act following the 2013 amendments. It resolves potential confusion about when registrars must furnish trial records to the Supreme Court of Appeal in petition proceedings. The judgment addresses the practical issues of delays and costs that had built up under the previous system and provides clarity on the legislative intent to streamline the petition process. The case also demonstrates the court's willingness to read statutory provisions purposively and to interpret 'or' conjunctively where necessary to give effect to the manifest purpose of legislation. This has important implications for the administration of criminal appeals in South Africa.