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[2017] ZASCA 154
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Carneiro v S (1040/2016) [2017] ZASCA 154; 2018 (1) SACR 197 (SCA) (24 November 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1040/2016
In
the matter between:
JOSE
PEDRO MORAIS
CARNEIRO
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Carneiro
v The State
(1040/2016) ZASCA 154 (24
November 2017)
Coram:
Shongwe AP and Tshiqi, Majiedt, Mocumie
JJA and Tsoka AJA
Heard:
1 November 2017
Delivered:
24 November 2017
Summary
:
Criminal law and procedure – application
for leave to appeal
against appeal court striking off application for leave to appeal
against its order in terms of the Superior
Court Act 10 of 2013 –
application for leave to appeal pending at promulgation of Act 10 of
2013 – Act not only regulating
procedural issues but
substantive rights as well – prospective only –
applicable legislation Supreme
Court Act 59 of
1959.
ORDER
On
appeal from:
Gauteng Local Division,
Johannesburg (Moshidi J and Nichols J sitting as court of appeal)
1
The appeal succeeds.
2
The high court’s order striking off the matter from the roll is
set aside,
3
The high court is directed to deal, in terms of the Supreme Court Act
59 of 1959, with the application for leave to appeal against
its
order of 29 April 2016.
JUDGMENT
Tsoka
AJA (Shongwe AP and Tshiqi, Majiedt and Mocumie JJA concurring):
[1]
The issue in this appeal is whether an application for leave to
appeal against an order of two judges sitting as a court of
appeal is
governed by the provisions of the Supreme Court Act 59 of 1959 (the
old Act) or the Superior Courts Act 10 of 2013 (the
new Act),
notwithstanding the fact that the application was launched and still
pending at the promulgation of the new Act. The
court below found
that the application was governed by the new Act and it struck the
application off the roll on the basis that
it lacked jurisdiction.
Special leave to appeal against that order was granted by this court.
[2]
The background facts of this matter, which are common cause, are as
follows. The appellant, Jose Pedro Morais Carneiro, was
charged and
convicted of murder by the Regional Court, Johannesburg on 12
September 2006. On 20 November 2006 he was sentenced
to seven years
imprisonment. Dissatisfied with his conviction, he applied for leave
to appeal his conviction only. He also applied
to be released on bail
pending the outcome of his appeal. The regional court granted both
applications.
[3]
The appeal against his conviction was enrolled at the Gauteng Local
Division, Johannesburg on 14 June 2010 and that court (Moshidi
and
Nichols JJ), on 1 December 2010, dismissed the appeal . On 8 December
2010 the appellant filed an application for leave to
appeal against
the order dismissing the appeal. That application was heard on 29
April 2016, and it is that order of striking it
off the roll that is
the subject of this appeal.
[4]
The main reasoning of the court below for striking the application
off the roll was based on its interpretation of the provisions
of s
16(1)
(a)
and
(b)
of the new Act, which provides :
‘
Subject
to section 15(1), the Constitution and any other law –
(a)
. . .
(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]
According to the court below, the new Act is regulatory in nature
with the result that the appellant’s application for
leave to
appeal is governed by the provisions of s16(1)(
a
)
and (b). It reasoned that the new Act, being regulatory in nature,
was retrospective and that the appellant’s application
for
leave to appeal therefore had to be sought with special leave from
this court. To support its reasoning the court erroneously
relied on
the decision of this court in
Nkabinde
& another v Judicial Service Commission & others.
[1]
The facts in
Nkabinde
are, however, distinguishable from the facts in this matter. In that
matter, this court only dealt with the amendment of procedural
rules
regulating judicial misconduct of judges. Nothing more. No existing
rights were impacted upon or prejudiced. In para 73 of
the judgment,
Navsa ADP observed ‘I have difficulty in appreciating the
appellant’s general objections to the inquiry
being conducted
in terms of the new statutory regime. I can see no existing rights
being affected, nor any material prejudice’.
The court below
therefore erred in placing reliance on that decision in that when the
new Act was promulgated in August 2013, the
appellant’s
application for leave to appeal was still pending as the matter which
had commenced in 2006 had not yet been
finalized. That being the
case, the application was therefore governed by s20 of the old Act.
Although the appellant’s conviction,
sentence and appeal were
finalised prior to August 2013, his legal redress from the court had
not yet been finalized. As at the
promulgation of the new Act, the
application was still pending. The court below therefore ought to
have disposed of the application
in terms of s 20 of the old Act.
[6]
The reliance of the court below on the provisions of s 55(2) of the
new Act was also incorrect. The section provides that anything
done
under any provision of a law repealed or amended by subsection (1)
shall, insofar as it may be necessary or appropriate, be
deemed to
have been done under the corresponding provision of the new Act. The
relevant provision which the court below should
have relied on is s
52 of the new Act, headed ‘Pending proceedings when the Act
commences’. It provides:
‘
Subject
to section 27, proceedings pending in any court at the commencement
of this Act, must be continued and concluded as if this
Act had not
been passed.
(2)
Proceedings must, for the purpose of this section, be deemed to be
pending if, at the commencement of this Act, a summons had
been
issued but judgment had not been passed.
(3)
. . .’
Although
the provisions of s 52 quoted above appear to be referring to civil
proceedings as it alludes to “summons”,
in
Gonya
v S
,
[2]
this court
at para 7 reasoned that:
‘
The
plain meaning of the words “proceedings pending in any court”
as referred to in s 52 of the Act must include criminal
proceedings .
. .’
[7]
In addition, the new Act not only governs procedure, but it affects
existing rights as well. In terms of the old Act, the appellant
had
to establish reasonable prospects of success that another court may
come to a different finding to the one reached by the court
below.
The provisions of the new Act however, carry a higher threshold for
applications for leave to appeal. In terms of
s17(1) of the New
Act, not only must an appellant establish reasonable prospect
of success of the appeal, but he or she must
also establish some
other compelling reason why his or her appeal should be heard,
including conflicting judgments on the matter
under consideration.
The new Act, therefore does not only regulate procedural issues but
existing rights as well. That being the
case, its operation cannot be
retrospective but prospective only. In addition, the provisions of s
12(2) of the Interpretation
Act 33 of 1957 support this conclusion.
The relevant portion of s 12(2) headed ‘Effect of repeal of a
law’ provides:
‘
(1)
. . .
(2)
Where a law repeals any other law, then unless the contrary intention
appears, the repeal shall not –
(a)
. . .
(b)
. . .
(c)
affect any right, privilege, obligation or liability acquired,
accrued or incurred under any law so repealed . . .’
[8]
In the instant matter, the appellant therefore needed to meet a lower
threshold in his application for leave to appeal than
what is
required in terms of the new Act. I conclude therefore that the
appellant’s existing right cannot be prejudiced by
the
provisions of the new Act which requires ‘a higher threshold’.
That being the case, the appellant’s application
should have
been dealt with in terms of the old Act and not the new Act. In
Gonya
at para 8, this court reaffirmed the appropriate procedure to be
followed when an application for leave to appeal or petition is
refused by the high court. It is apt to reiterate what this court
said:
‘
Owing
to the confusion in the wording of the order granted on 3 December
2013 it is necessary to reaffirm the appropriate procedure
when a
petition [
application
for leave to appeal
]
is refused by the high court. Streicher JA in
S
v Koasasa
[2002] ZASCA 113
,
2003 (1) SACR 123
(SCA) clarified the procedural
steps as set out in the Supreme Court Act. The petition [
application
for leave to appeal
]
to a high court is in terms of s 309C of the Criminal Procedure Act.
It was in effect an appeal against the refusal of leave to
appeal by
the magistrate’s court in terms of s 309B of that Act.
Streicher JA concluded that such refusal of leave to appeal
[
striking
off]
by the high court was a judgment or order of the high court as
contemplated is ss 20(1) and 20(4) of the Supreme Court Act, given
by
the high court on appeal to it. Accordingly, in terms of s 20(4)(b),
the refusal of leave to appeal by the high court [
striking
off
]
was appealable to the Supreme Court of Appeal with leave of the high
court (being the court against whose order the appeal was
to be made)
or, where leave was refused, with leave of this court. The order
appealed against was the refusal of leave [
striking
off
],
with the result that this court could not decide the appeal’.
(My emphasis)
[9]
As pointed out above, in the instant matter, the application of the
new Act by the court below had the effect of burdening the
appellant with a stringent requirement of not only establishing that
there are reasonable prospects of success but also that there
are
compelling reasons why the appeal should be heard.
[3]
The error
should therefore be corrected.
[10]
In the result, the appeal must succeed. The matter should be referred
back to the high court to dispose of the appellant’s
application for leave to appeal in terms of the old Act. The delay in
finalising this matter is regrettable but unavoidable. Justice
must
not only be done but must be seen to be done. It is hoped that the
matter will be dealt with expeditiously from now on.
[11]
The following order is granted:
1
The appeal succeeds.
2
The high court’s order striking off the matter from the roll is
set aside.
3
The high court is directed to deal, in terms of the Superior Court
Act 59 of 1959, with the application for leave to appeal against
its
order of 29 April 2016.
________________
M
Tsoka
Acting
Judge of Appeal
APPEARANCES:
For
Appellant:
E
Kilian SC
Instructed
by:
Gascoigne Randon & Attorneys, Edenvale
Honey
Attorneys Inc, Bloemfontein
For
Respondents:
RN Mogagabe
Instructed
by:
Director of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
Nkabinde
& another v Judicial Service Commission & others
[2016] ZASCA 12
;
2016 (4) SA 1
SCA para 73.
[2]
Gonya v S
[2016] ZASCA 34
[3]
Van Wyk
v S
,
Galela
v S
[2014] ZASCA 152
;
2015 (1) SACR 584
(SCA) para13.