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[2013] ZASCA 32
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Nkosi v S (470/2012) [2013] ZASCA 32 (27 March 2013)
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
:
470/2012
Not Reportable
In the matter
between:
THEMBA AARON
NKOSI
....................................................................
Appellant
and
THE STATE
..........................................................................................
Respondent
Neutral citation:
Nkosi v The State
(470/2012)
[2013] ZASCA 32
(27 March 2013)
Coram:
CACHALIA, MALAN and THERON JJA and SCHOEMAN and PLASKET AJJA
Heard:
15
March 2013
Delivered
27
March 2013
Summary: Criminal
procedure – appeal – appellant dying before appeal heard
– appeal struck off the roll.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
North Gauteng High Court, Pretoria (Mynhardt, Basson and Mavundla
JJ sitting as a court of appeal):
(a) The order
granted by this court on 15 March 2013 is recalled.
(b) The matter is
struck off the roll.
________________________________________________________________
JUDGMENT
________________________________________________________________
THERON
JA (CACHALIA and
MALAN JJA and SCHOEMAN and PLASKET
A
JJA concurring):
[1] The appellant
stood trial in the North Gauteng High Court sitting at Ermelo on two
counts of murder and one count of housebreaking
with intent to commit
robbery with aggravating circumstances. The appellant pleaded not
guilty but was convicted on all three counts
on 30 January 1998 and
sentenced to an effective term of imprisonment of sixty years. The
appellant’s appeal to the high
court was dismissed. The
appellant appealed to this court against his convictions and
sentences with the appropriate leave.
[2] At the hearing
of the appeal and after having heard counsel representing both
parties, the court was of the view that it ought
to interfere with
the convictions and sentences imposed and that it was in the
interests of justice that it direct that the appellant
be released
from prison immediately. In the circumstances, the following order
was granted:
‘
The appeal
against the convictions and sentences is upheld. The order of the
court below is set aside and the following order substituted:
“
1. The appeal
against the convictions on two counts of murder and one of
housebreaking with intent to commit robbery and robbery
with
aggravating circumstances is upheld. The convictions and sentences on
these counts in the high court are set aside.
2. The appellant is
found guilty as an accessory after the fact to the murders of Herman
Segemendes Mosenthal Schultz and his wife,
Susara Maria Schultz.
3. The appellant is
found guilty on the competent verdict of theft for count 3.
4. The appellant is
sentenced to five years’ imprisonment as an accessory after the
fact to murder, and to two years’
imprisonment for theft. It is
ordered that the sentence on the theft count is to run concurrently
with the sentence for the conviction
as an accessory after the fact
to murder. The sentences are ante-dated to 30 January 1998.
5. It is ordered
that the appellant, who commenced serving his sentence on 30 January
1998, be released forthwith.”’
[3]
It was subsequently brought to our attention that the appellant had
passed away during November 2012. This court thus had no
jurisdiction
to deal with the appeal.
1
[4] The following
order is made:
(a) The order
granted by this court on 15 March 2013 is recalled.
(b) The matter is
struck off the roll.
__________________
L V THERON
JUDGE OF APPEAL
APPEARANCES
For Appellant: MK
Steenekamp
Instructed by:
Legal Aid SA,
Pretoria
Legal Aid SA,
Bloemfontein
For Respondent: GD
Baloyi
Instructed by:
Director of Public
Prosecutions, Pretoria
Director of Public
Prosecutions, Bloemfontein
1
S
v January; Prokureur-Generaal, Natal v Khumalo
1994
(2) SACR 801
(A) at 809
g
-
h
.