About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2016
>>
[2016] ZASCA 76
|
|
Nontshinga and Others v S (770/2015) [2016] ZASCA 76 (27 May 2016)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 770/2015
In
the matter between:
MFUNDO
NONTSHINGA
APPELLANT
MZWEKHAYA
ZAGANA
MANDLA
MAZWI
DUMISANI
SIKAKANA
and
THE
STATE
RESPONDENT
Neutral
citation:
Mfundo
Nontshinga v S (
770/2015)
[2016] ZASCA
76
(27May 2016)
Bench:
Leach, Saldulker and Dambuza JJA
Heard:
04
May 2016
Delivered:
27
May 2016
Summary:
Criminal Procedure: Appeal against the
refusal of a petition for leave to appeal by High Court before the
commencement of the
Superior Courts Act 10 of 2013
– No leave
sought from the court refusing the petition – special leave to
appeal granted against conviction by the
Supreme Court of Appeal –
order a nullity – Supreme Court of Appeal having no
jurisdiction.
ORDER
On
appeal from
:
Eastern Cape Division of the High Court (Somyalo
J.P sitting as court of appeal).
The
following order was made on 4 May 2016:
The
matter is struck from the roll.
JUDGMENT
Saldulker
JA (Leach and Dambuza JJA concurring):
[1]
On 4 May 2016, this court struck this matter off the roll, with
reasons to follow. These are the reasons. The appellants together
with a co-accused, Mr Vusumzi Bolo, were each charged with nine
counts, namely: one count of housebreaking with the intention to
rob
and robbery, six counts of kidnapping, one count of unlawful
possession of a fire arm and one count of unlawful possession
of
ammunition. At the end of the trial, on 6 August 2010 the Regional
Court in Port Elizabeth (the trial court) convicted them
on all nine
counts and sentenced them to an effective 17 years’
imprisonment. Their application for leave to appeal against
their
convictions and sentences was dismissed by the regional magistrate on
9 August 2010.
[2]
Aggrieved, the appellants lodged a petition for leave to appeal to
the Eastern Cape Division, Grahamstown (the high court),
against
their convictions and sentences. Their petitions were refused on 12
March 2011. Subsequently, their co - accused, Mr Bolo,
relying on
s 309C
of the
Criminal Procedure Act 51 of 1977
, also petitioned
the high court, for leave to appeal against his convictions. His
petition was granted, but only in respect of
the convictions for
unlawful possession of the firearm and ammunition, that is counts
eight and nine. In the event, his appeal
on these counts was upheld
by Plasket J with Brooks J concurring (
Bolo
v S
[2014] ZAECGHC 99), and his
convictions on counts eight and nine were set aside. Plasket J
directed that the appellants be
informed of this judgment.
[3]
Following from that the appellants lodged an application to this
court for special leave to appeal against their convictions
on counts
eight and nine being the unlawful possession of a firearm and
ammunition, and resulting sentences. This court granted
the
appellants special leave. In this way the appellants came before us
purportedly on an appeal against the refusal of a petition
by the
high court.
[4]
Before us, the parties were agreed that the appellants’ trial,
their convictions and sentences, and the subsequent refusal
of their
petitions by the high court on 12 March 2013 took place prior to the
promulgation of the
Superior Courts Act 10 of 2013
. As a result, this
matter must be determined in terms of the Supreme Court Act 59 of
1959. In
S v Khoasasa
[2002] ZASCA 113
;
2003
(1) SACR 123
(SCA) it was held that
a
refusal of leave to appeal by the high court, is an order as
contemplated in ss 20(1) and 20(4) of the Supreme Court Act, and
was
appealable to the Supreme Court of Appeal only with the leave of the
high court, (being the court against whose order the appeal
was to be
made) or, where leave was refused, with the leave of this court. This
judgment has consistently been followed in this
court: See
S
v Matshona
[2008] ZASCA 58
;
2013 (2)
SACR 126
(SCA),
S v Tonkin
[2013] ZASCA 179
;
2014 (1) SACR 583
(SCA);
S
v Robert Brown
(SCA) unreported case
no: 988/2013 (17 March 2015);
Johannes
Windvogel v S
[2015] ZASCA 63
(SCA). In
the matter before us, no such leave was sought from the high court
against the refusal of their petitions before the
appellants
proceeded to this court for special leave. That being the case, the
order of this court granting special leave to the
appellants is a
nullity as this court had no jurisdiction to hear the application.
Accordingly leave had not validly been granted
to appeal to this
court. When this was pointed out to the parties, both sides
acknowledged that the appeal was not properly before
us and cannot
now be heard.
[5]
In the light of the outcome in
Bolo
, there should be little
difficulty in the appellants obtaining the necessary leave to appeal
from the high court. But without that
step having yet being taken,
this court lacks jurisdiction to hear the matter. For these reasons
the matter was struck from the
roll.
________________
HK
Saldulker
Judge
of Appeal
APPEARANCES:
For
Appellant:
L Crouse (and H Charles)
Instructed
by:
Port Elizabeth
Justice Centre, Port Elizabeth
Bloemfontein
Justice Centre. Bloemfontein
For
Respondent:
M Stander
Instructed by:
Director of Public
Prosecutions, Grahamstown
Director of Public
Prosecutions, Bloemfontein