About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2016
>>
[2016] ZAGPJHC 124
|
|
Carneiro v S (A125/2010, A389/2015) [2016] ZAGPJHC 124 (29 April 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A125/2010 & A389/2015
DPP
REF NO: JAP 2010/0132
DATE:
29 APRIL 2016
In the
matter between:
CARNEIRO,
JOSE PEDRO
MORAIS
.................................................................
Appellant/Applicant
And
THE
STATE
............................................................................................................................
Respondent
SUMMARY
Criminal
procedure – appeals – dismissal of appeal by high court
comprising of two judges against conviction imposed
by regional court
– whether high court, sitting as court of appeal, consisting of
two judges, has requisite jurisdiction
to consider subsequent
application for leave to appeal to the Supreme Court of Appeal –
sec 16(1)(b)
of the
Superior Courts Act 10 of 2013
provides for
refusal of leave to appeal by high court appeable with the special
leave of Supreme Court of Appeal – court
of appeal entitled to
raise question of jurisdiction
mero motu
– bail pending appeal dependent on whether high court enjoined
to consider merits of application for leave to appeal, i.e.
whether
reasonable prospects of success on appeal present – if high
court consisting of more than one judge, appeal lies
directly to the
Supreme Court of Appeal – retroactivity of provisions of
sec 16
of the
Superior Courts Act 10 of 2013
matter struck off the roll.
JUDGMENT ON LEAVE TO APPEAL
MOSHIDI, J
:
INTRODUCTION
[1]
The appellant applies for leave to appeal against the judgment of
this court in dismissing his appeal against conviction on
1 December
2010. This, pursuant to the appellant having been convicted on a
charge of murder by the regional court.
THE
NOTICE OF APPLICATION FOR LEAVE TO APPEAL
[2]
In the notice of application for leave to appeal, dated 7 December
2010, the appellant also seeks an order that his bail be
extended
pending the outcome of the application. In essence, the
appellant prays that in the event of the application for
leave to
appeal being successful, his bail ought to be extended pending the
outcome of his appeal.
JURISDICTION
OF THIS COURT
[3]
It is plain to me that it is neither necessary nor permissible to
consider the merits, i.e. whether or not there are present
reasonable
prospects of success on appeal, of the application before us.
So too, is the issue of condonation. The reason
is conspicuous,
as mentioned immediately below.
THE
LEGAL PRINCIPLES APPLICABLE
[4]
This court, sitting as a court of appeal, and consisting of two
judges, in dismissing the appellant’s appeal on 1 December
2010, has no jurisdiction to entertain the present application for
leave to appeal to the Supreme Court of Appeal. The appellant
requires special leave to appeal to be considered by the Supreme
Court of Appeal as stipulated in sec 16(1) of the Superior Courts
Act
10 of 2003 (“
the Superior Courts
Act
”). Sections 16(1)(a)
and (b) of the Superior Courts Act provide as follows:
“
(1)
Subject to s 15(1), the Constitution and any other law –
(a)
an
appeal against any decision of a Division as a court of first
instance lies, upon leave having been granted –
(i)
if
the court consisted of a single judge, either to the Supreme Court of
Appeal or to the full court of that Division, depending
on the
direction it should in terms of s 17(6); or
(ii)
if
the court consisted of more than one judge, to the Supreme Court of
Appeal;
(b)
an appeal against any decision of a Division on appeal to it, lies to
the Supreme Court of Appeal upon special leave having
been granted by
the Supreme Court of Appeal …
”
[5]
In
Johannes
Windvogel v The State,
[1]
the
appellant was convicted by the Johannesburg Regional Court of certain
counts of dealing in prohibited substances in contravention
of
sec
5(b)
of the
Drugs and Drug Trafficking Act 140 of 1992
. On 31
January 2003 the Regional Court imposed a sentence of eight years’
imprisonment on each count. The Regional
Court later granted
the appellant leave to appeal against sentence. On 6 July 2005
the appellant was released on bail pending
appeal. On 7 November
2013, the appeal came before two judges of this Division. The
appeal court judges dismissed the appeal
against conviction and
interfered with the sentence imposed in some limited manner. On
12 November 2013 the appellant, aggrieved
by the outcome, applied for
leave to appeal to the Supreme Court of Appeal. On 29 November 2013
the High Court Appeal Court (the
two judges) granted leave to appeal
to the Supreme Court of Appeal. In the course of the judgment, and in
dealing with the provisions
of sec 16(1)(b) of the Superior Courts
Act, the Court said:
“…
,
it became apparent that the court a quo (two judges) did not have
jurisdiction to hear an application for leave to appeal to this
court
as s 16(1)(b) of the Superior Courts Act 10 of 2013 (the Act), which
came into operation on 23 August 2013, provided that
an appeal
against any decision of a division on appeal to it lies to the
Supreme Court of Appeal upon special leave having been
granted by
this court. Consequently, the jurisdictional basis for an appeal to
this court was absent. In the result, the court
a quo did not have
the power to grant the appellant leave to appeal to this court …
”
[2]
(my insertion)
[6]
In
Van
Wyk v S
;
Galela
v S,
[3]
the
Court, in dealing with two separate appeals in which the appellants’
petitions were unsuccessful, said:
“
The
jurisdiction of this Court to hear appeals from the High Court
whether as a court of first instance, or on appeal is derived
from
this section (section 16(1)(a) and (b) and 19 of the Act.
Whereas under section 20(4) of the SC Act, the special leave
of this
Court was only required in respect of an application from a decision
of the Full Court (three judges) given on appeal to
it, the special
leave of this Court
is now
also required where leave to appeal is sought in respect of a
decision of two judges, given on appeal to it
.”
(my insertion and underlining)
See
also, more recently,
S
v Banger.
[4]
[7]
From the above, it is more than plain that an appeal from a decision
of an appeal court, consisting of two judges, as is the
case here,
must be lodged with the Supreme Court of Appeal. It is equally
clear that such a court comprising of two judges,
has no jurisdiction
to hear an application for leave to appeal following the dismissal of
an appeal to it. In
S v Banger
supra
, at para [12] the Court said:
“
If, as
is the case here, the High Court of first instance consisted of more
than one judge, the appeal lies directly to this court.
”
The same applies to the applicant’s accompanying application
for the extension of his bail pending the outcome of the appeal,
however tempting it may be since bail appeals are inherently urgent
in nature. In any event, the question of bail will depend
entirely on the issue whether there are reasonable prospects of
success on appeal.
[8]
The appellant requires special leave to be considered by the Supreme
Court of Appeal as provided by
sec 16(1)(b)
of the
Superior Courts
Act. The
appellant was informed of this procedure by Matthys AJ
during December 2015 when the learned acting judge was approached to
hear
an application for bail pending applicant’s application
for leave to appeal to the Supreme Court of Appeal. The question of
non-applicability of the provisions of
sec 16
of the
Superior Courts
Act on
the basis that such Act does not operate retrospectively does
not arise. This is so for the reason that
sec 55(2)
of the
Superior
Courts Act provides
that:
“
Anything
done under any provision of a law repealed or amended by subsection
(1), shall, insofar it may be necessary or appropriate,
be deemed to
have been done under the corresponding provision of this Act.
”
It
is common knowledge that the latter Act came into operation on 23
August 2013 (
cf
National Director of Public Prosecutions v Basson
[5]
).
I in any event, deal further with this issue later below.
JURISDICTION
RAISED BY COURT
MERO MOTU
[9]
It is also so that in the context of this matter, the Court is
perfectly obliged to raise the issue of lack of jurisdiction
mero
motu
even on appeal. In
Communication
Workers Union v Telkom SA Ltd,
[6]
the Court said:
“
A court
must have jurisdiction for its judgment and/or order to be valid. If
the court does not have jurisdiction its judgment and/or
order is a
nullity. No pronouncement to that effect is required. It
is simply treated as such …
”
This
Court has no jurisdiction to hear the instant leave to appeal should
put an end to the matter.
[10]
However, during closing argument, the parties, in particular counsel
for the appellant, requested the opportunity to file supplementary
heads of argument on the issue of the retrospectivity of the
provisions of
sec 16(1)
of the
Superior Courts Act. The
request
was granted and the parties have since filed such heads and for which
we are extremely grateful. I have already dealt briefly
with the
issue in para [8] of the judgment.
[11]
In short, and in contending that the
Superior Courts Act does
not
operate retrospectively, the appellant asserts that prior to the
commencement of the latter Act, the appellant had a second
appeal
against his conviction to the Supreme Court of Appeal subject to
leave being granted by the High Court. It is contended
that
since the appellant is now encumbered with a more onerous duty to
persuade the court of appeal to grant leave, the present
application
for leave to appeal must be heard in accordance with the provisions
of the Supreme Court Act 59 of 1959 (“
the
Old Act
”).
In this regard reliance is placed on,
inter
alia
,
S
v Imador
(unreported,
WCC case number A167/2013, reported on 3 April 2014); the
provisions of sec 12 of the Interpretation Act 33 of
1957; as well as
numerous other case law. On the basis of the above, so the
argument proceeded, that the filing of the appellant’s
notice
of application for leave to appeal during December 2010, makes the
current matter pending before this Court. As such, the
argument went
on, sec 12(2)(c) and (d) of the Interpretation Act is applicable.
In this regard, reliance was placed on case
law such as
Bell
v
Voorsitter van die Rasklassifikasieraad
,
[7]
and
S
v Mhlungu and Others
.
[8]
[12]
However, the difficulty I have with the appellant’s submissions
based on the Old Act is this: the submissions plainly
ignore
the fact that, the provisions of
sec 16
of the
Superior Courts Act
are
characterized as regulating poorly procedural matters as opposed
to substantive legal ones. In
Minister
of Public Works v Haffejee NO
,
[9]
the following is stated:
“
Now,
although it has often been said that the presumption against
statutory retrospectivity does not apply to procedural provisions,
the realisation has grown that the distinction between procedural and
substantive provisions cannot always be decisive in the context
of
statutory interpretation. Thus, in New Bon Tew v Kenderaan Bas
Mara
[1982] 3 All ER 833
(PC) at 836b-d Lord Brightman said:
‘
A
statute is retrospective if it takes away or impairs a vested right
acquired on the existing laws, or creates a new obligation,
or
imposes a new duty, or attaches a new disability, in regard to events
already past. There is however said to be an exception
in the
case of a statute which is purely procedural, because no person has a
vested right in any particular course of procedure,
only a right to
prosecute or defend a suit according to the rules for the conduct of
an for the time being prescribed …
’
At
753B-C of the judgment, the Court went on to say that:
“
In
other words, it does not follow that once an amending statute is
characterised as regulating procedure it will always be interpreted
as having retrospective effect. It will depend upon its impact
upon existing substantive rights and obligations. If
those
substantive rights and obligations remain unimpaired and capable of
an enforcement by the invocation of the newly prescribed
procedure,
there is no reason to conclude that the new procedure was not
intended to apply. Aliter if they are not.
”
At
p 755B-E, the Court went on to say that:
“
As we
have already seen, the common law recognises no vested right in
procedure simpliciter …
Where
it otherwise, no procedural amendment would apply to cases or causes
of action arising before their commencement and that
is certainly not
the law. Most procedural provisions regulating the institution
and conduct of litigious proceedings have
a cost implication and many
have a tactical implication. Yet that has never in the past
been regarded as imparting to them
a special character taking them
out of the realm of purely procedural provisions and subjecting them
to the presumption against
legislature interference with vested
rights. I see no good reason to commence doing so now. To label
procedural provisions
instead as conferrers of privileges does
nothing, in my view, to improve their claim to be regarded as
anything more than what
they truly and essentially are, namely purely
procedural provisions designed to regulate the institution and
conduct of litigious
proceedings. So much for the common law.
”
Interestingly,
the Court also discounted contentions based on the provisions of sec
12(2) of the Interpretation Act 33 of 1957 which
provisions are also
relied upon by the appellant in the present matter.
[13]
More recently, and in
Nkabinde
and Another v Judicial Service Commission and Others
,
[10]
the Supreme Court of Appeal referred with approval and reaffirming
the principles enunciated in
Minister
of Public Works v Havenga NO
(
supra).
In
that appeal, the Supreme Court of Appeal was called upon to determine
whether a complaint instituted by the Judicial Service
Commission
(JSC) against a Judge, which had commenced previously, could be
proceeded with in terms of a new procedure under the
amendments to
the Judicial Service Commission Act 9 of 1994 (JSCA). In essence, the
appellants argued that it is a fundamental
principle that statutes
generally apply prospectively unless a retrospective application is
contemplated by the statute itself.
The appellants further contended
that the JSC incorrectly applied the subsequent amendments
retrospectively. In the course of the
judgment, and prior to
dismissing the appeal, Navsa JA at para [73] said:
“
I have
difficulty in appreciating the appellants’ general objections
to the enquiry being conducted in terms of the new statutory
regime.
I can see no existing rights being affected, nor any material
prejudice. That conclusion is buttressed by a
comparison of the
procedures under the old Rules with the processes established in
terms of the amendments to the JSCA …
”
[14]
From the above, it is more than plain that, in the context of the
present application for leave to appeal: the challenge of
the
applicability of the provisions of
sec 16
of the
Superior Courts Act,
read
with the provisions of
sec 55(2)
thereof, quoted above, cannot
be interpreted as applying prospectively only. The provisions in
their nature, do not deprive the
appellant of any vested rights under
the Old Act. This is so since the provisions are purely procedural in
nature and in direct
contrast to what is contended in the appellant’s
heads of argument. I conclude therefore that, for this reason too,
coupled
with the obvious reason that this Court has no jurisdiction,
as discussed above, the application for leave to appeal must fail,
and be correctly struck off the roll.
CONCLUSION
[15]
For all the aforegoing, the conclusion that the present application
for leave to appeal is not properly before us, since we
lack the
requisite jurisdiction, became irresistible. The matter must be
struck off the roll.
ORDER
[16] In the result the following order is made:
16.1 The matter is struck off the roll.
D
S S MOSHIDI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
concur:
C
E HILTON-NICHOLS
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE APPELLANT ESTELLE KILIAN SC
INSTRUCTED
BY ETTA SZYNDRALE-WICZ INC
COUNSEL
FOR THE RESPONDENT R N MOGAGABE
INSTRUCTED
BY DIRECTOR OF PUBLIC PROSECUTIONS
JOHANNESBURG
DATE
OF HEARING 3 MARCH 2016
DATE
OF JUDGMENT 29 APRIL 2016
[1]
(2009)
1 /2014
[2015] ZASCA 63
(8 May 2015).
[2]
At
para [8]. (My insertion.)
[3]
[2014]
4 All SA 708
(SCA) para [19].
[4]
2016
(1) SACR 115
(SCA).
[5]
[2002]
2 All SA 255
(A), also at
2002 (1) SA 419
(SCA).
[6]
1999
(2) SA 586
(T), also at
[1999] 2 All SA 113
(T).
[7]
1968
(2) SA 678
(A).
[8]
[1995] ZACC 4
;
1995
(3) SA 867
(CC) at para
[67]
.
[9]
[1996] ZASCA 17
;
1996
(3) SA 745
(A) at 752A-F.
[10]
(20857/2014)
[2016] ZASCA 12
(10 March 2016).