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[2010] ZAGPPHC 233
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Khauli and Another v S (A1010/2008) [2010] ZAGPPHC 233 (10 December 2010)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO.: A1010/2008
DATE:
10/12/2010
In
the matter between:
PETER
MAKUNYE
KHAULI
....................................................................
1st
APPELLANT
PHILLIP
MOEKETSI
KHAULI
.................................................................
2nd
APPELLANT
And
THE
STATE
...............................................................................................
RESPONDENT
CORAM:
WEBSTER J, RANCHOD 3 et PAKATI A3
JUDGMENT
PAKATI
AJ
1.
This appeal served before a full bench of this court. The appellant
was represented by Adv Monyakane on the instructions of the
Legal Aid
Board. The appellant and another accused were convicted on 30 August,
2002, of robbery with aggravating circumstances
on count 1 and were
each sentenced to fifteen (15) years' imprisonment. On count 2 they
were convicted of murder and were each
sentenced to life
imprisonment. On count 5 they were convicted of theft and were each
sentenced to six (6) months' imprisonment.
All the sentences were
ordered to run concurrently.
2.
The record shows that immediately after the accused were sentenced on
30 August, 2002, Mr Pienaar, for the appellant, moved an
application
for leave to appeal against both conviction and sentence. The
application was dismissed by Van der Bijl A3, the trial
Judge.
3.
On 5 February, 2007, the appellant brought another application for
leave to appeal before Shongwe DJP (as he then was). Leave
to appeal
was only granted on sentence.
4.
The question is whether Shongwe DJP was competent to entertain the
appellant's second application after leave had been refused
by the
trial court against both conviction and sentence.
5.
Section 316(8)(a)(ii)
of the
Criminal Procedure Act 51 of 1977
,
provides:
“
(8)(a)
If any application-...
(i)
.....
(ii)
referred to in subsection (l)(b)(i) (hereinafter in this section
referred to as an application for leave to appeal)... is
refused by a
High Court, the accused may by petition apply to the President of the
Supreme Court of Appeal to grant any one or
more of the application
in question" The application for leave to appeal entertained by
Shongwe AJA was clearly contrary to
the express provisions of the
section quoted above. It was improperly before him as he had no
power, with respect, to entertain
it. The decision of Van der Bijl AJ
could not serve before a judge of this Court.
6.
It is clear that Shongwe DJP was not made aware that the appellant
had already exhausted his appeal remedies in the High Court.
The
application was not supposed to have been entertained because the
High Court was functus officio. The appellant's remedy was
to seek
leave to appeal from the President of the Supreme Court of Appeal by
way of petition. This Court, sitting as a Court of
appeal, may
therefore not entertain the appeal. In S v Fourie 2001(2) SACR 118
(SCA) at 121 para 13, Mthiyane JA held:
"The
power to regulate its procedure does not include the power to hear a
matter which is not the proper subject of an appeal.
This is simply
because this Courts appellate jurisdiction is not an inherent
jurisdiction (S v Mamkeli 1992(2) SACR 5 (A))".
7.
No application for leave to appeal was brought on behalf of the
second appellant. Leave to appeal against sentence was also extended
to him by Shongwe DJP when his former co-accused was granted leave by
Shongwe DJP. He never, of his own accord, made any attempt
to seek
leave to appeal or to prosecute the leave to appeal he received
gratuitously. No order regarding his right to appeal can
be made.
8.
In my view there is no appeal before us to uphold or dismiss. In my
view the proper order is to strike the matter from the roll.
9.
In the circumstances I make the following order:
The
appeal is struck from the roll.
BM
Pakati
ACTING
JUDGE in THE HIGH COURT
I
agree.
N
RANCHOD
JUDGE
IN THE HIGH COURT
I
agree and it is so ordered.
G
WEBSTER
JUDGE
IN THE HIGH COURT
On
behalf of the Appellant
:
......
Adv
C van Veenendal
Instructed
by
:
...........................
Pretoria
Justice Centre
On
behalf of the Respondent
:
.
Adv
S Scheepers
Instructed
by
:
…......................
Director
of Public Prosecutions