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[2015] ZASCA 15
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Potgieter v S (20109/2014) [2015] ZASCA 15 (17 March 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 20109/2014
In
the matter between:
Gerhardus
Ignatius
Potgieter
................................................................................................
Appellant
and
The
State
...............................................................................................................................
Respondent
Neutral
Citation:
Potgieter
v S
(20109/2014)
[2015] ZASCA 15
(17 March 2015)
Coram:
Lewis, Ponnan,
Bosielo and Willis JJA and Van der Merwe AJA
Heard:
17 March 2015
Delivered:
17 March 2015
Summary:
In terms of
s
16(1)
(b)
of
the
Superior Courts Act 10 of 2013
, an appeal to this court against a
decision of a court on appeal to it lies only with the special leave
of the Supreme Court of
Appeal. An order granting leave to appeal to
this court by the provincial division is a nullity and this court has
no jurisdiction
to hear the appeal.
ORDER
On
appeal from:
Free State High
Court, Bloemfontein (Rampai and Moloi JJ and Phalatsi AJ
sitting as court of appeal)
The appeal is struck
from the roll.
JUDGMENT
Lewis
JA (Ponnan, Bosielo and Willis JJA and Van der Merwe AJA concurring)
[1]
The appellant in this matter was convicted of rape by the regional
court, Bloemfontein and sentenced to eight years’ imprisonment.
The act of rape was the penetration by him of the complainant’s
vagina with his fingers: section 3 of the Sexual Offences
Act 32 of
2007 defines such penetration without the consent of the victim as
rape. The regional magistrate accepted the complainant’s
version of events and rejected the appellant’s as not
reasonably possibly true.
[2]
A full court of the Free State Division of the High Court (Ramphai
and Moloi JJ and Phalatsi AJ) dismissed the appeal
to it by the
appellant, finding that the trial court’s findings as to the
credibility of the complainant, and that the appellant’s
version was not reasonably possibly true, were correct. It
nonetheless gave leave to the appellant to appeal to this court
against
its decision.
[3]
That it was not able to do. Section 16(1)(
b
)
of the
Superior Courts Act 10 of 2013
, in operation at the time when
the full court heard the appeal and handed down judgment (August and
October 2013), provides that
an appeal against the decision of an
appeal court lies to this court only with special leave granted to it
by this court. The full
court did not have the power to grant leave
to this court. Its order is thus a nullity and this court has no
jurisdiction.
[4]
And although the appellant was advised of this prior to the hearing,
he failed to make any application to this court for special
leave.
The appellant and the State have filed supplementary heads of
argument at the request of the registrar of this court as
to this
court’s jurisdiction to hear the matter. And in her
supplementary heads of argument counsel for the appellant requests
that we grant special leave. But that is not sufficient. One cannot
ask for special leave in heads of argument. A substantive petition,
supported by an affidavit, ought to have been filed. And the argument
that this court has inherent jurisdiction to regulate its
own
processes must fail because we have inherent power only where we have
jurisdiction in the first place.
[5]
A postponement to give the appellant the opportunity to make such
application is not, in my view, warranted. No case has been
made out
for special leave, the requirements for which have been repeatedly
set out by this court. Most recently, in
Van
Wyk v S
and
Galela
v S
[2014] ZASCA
152
(22 September 2014) this court reaffirmed the principles set out
by Corbett JA in
Westinghouse
Brake and Equipment v Bilger Engineering
1986 (2) SA 555
(A) at 564H-565E. In addition to showing that there
is a reasonable prospect of success on appeal, an applicant must show
special
circumstances which merit a further appeal to this court.
These might be a substantial point of law, a matter of great
importance
to the public or to the parties, or where the prospects of
success on appeal are so strong that refusal of the application would
result in a manifest injustice.
[6]
In this matter the findings of the full court turn purely on the
credibility of the complainant and the appellant. There is
no special
circumstance and none has been contended for. In my view, there
appears to be little prospect of success on appeal,
and certainly
there are no special circumstances warranting special leave to
appeal.
[7]
As leave to appeal was granted to this court in error we have no
jurisdiction and the appeal must accordingly be struck from
the roll.
[8]
The appeal is struck from the roll.
_____________________
CH
Lewis
Judge
of Appeal
APPEARANCES
For
Appellant: I J Bezuidenhout
Instructed
by: UFS Law Clinic, Bloemfontein
For
Respondent: M A Mohlala
Instructed
by: Director of Public Prosecutions,
Bloemfontein